The Voice of a child in Private Law

Contents

The Voice of the Child in Private Law

Monday 17th June 2024

No5 Barristers’ Chambers, London

Section 1

Members List – Page 1

Programme – Page 3

Section 2 – Page 5

Stefano Nuvoloni KC, No5 Barristers’ Chambers

Section 3 – Page 8

Reflections on the Current Approach in s.8 Private Law Applications: Are Children Being Heard and is the Family Court Listening

Presented by Ami Bartholomew, No5 Barristers’ Chambers

Section 4 – Page 20

Path Finder Model, An Investigative and Problem-Solving Approach: Enhancing the Voice of the Child

Presented by Wendy Frempong, No5 Barristers’ Chambers

MembersList FamilyGroup

ToviewordownloadmembersCVspleasevisitNo5.com

LornaMeyerKC (Silk:2006 Call:1986)

StefanoNuvoloniKC (Silk:2017Call:1994)

RichardHadleyKC (Silk:2024Call:1997)

AnneSmallwood (1977)

StephanieBrown (1982)

JoannaChadwick (1988)

RichardAlomo (1990)

AshleyWynne (1990)

MicheleFriel (1991)

AbidMahmood (1992)

NandiniDutta (1993)

GeraldineMoreO’Ferrall (1993)

KristinaBrown (1998)

RebekahWilson (1998)

JamesSnelus (1999)

FemiOgunlende (2000)

ParamBains (2001)

SimonWorlock (2001)

WendyFrempong (2001)

VictoriaClifford (2002)

HeatherPopley (2003)

LouiseHiggins (2003)

AmiBartholomew (2003)

DavinaKrishnan (2004)

ChristopherMcWatters (2004)

JamesLeslie (2004)

ChristopherMcWatters (2004)

KathrynTaylor (2005)

KirstyGallacher (2006) OrlaGrant (2005)

ArtisKakonge (2006)

KatieLangdon (2007)

LauraO’Malley (2007)

LauraVickers (2007)

NicolaMclntosh (2007)

KatieMiller (2010)

NishaBambhra (2011)

RichardMcLoughlin (2012)

RickySeal (2012)

BaldipSinghAulak (2013)

ArrinNouri (2014)

LucyCash (2015)

HannahCourt (2015)

JenniferMoles (2015)

AnnaRohan (2015)

GraceWright (2016)

NaomiDean (2016)

FayeEdwards (2017)

EleanorBerney-Dale (2018) GraceGwynne (2017)

OliviaWhitworth (2018)

RhiannaManani (2018)

MarkJones (2019)

TimHanson * (1989)

EdwardGrant * (1991)

NazmunIsmail * (1992)

RachaelPrice * (1994)

AssociateTenant*

GugandeepKooner

Email:familyclerks@no5.com

The Voice of the Child in Private Law

Monday 17th June 2024

No5 Barristers’ Chambers, London

Programme

1 CPD

17:30– 18:00 Registration

18:00 – 18:30 Reflections on the Current Approach in S.8 Private Law Applications: Are Children Being Heard and is the Family Court Listening?

Ami Bartholomew, No5 Barristers’ Chambers

18:30 – 19:00 Path Finder Model, An Investigative and Problem-Solving Approach: Enhancing the Voice of the Child

Wendy Frempong, No5 Barristers’ Chambers

19:00 Onwards Networking with Drinks and Nibbles

Stefano Nuvoloni KC

Call: 1994 | Silk: 2017

"Stefano is confident, approachable, hugely intelligent. He is the consummate all-round advocate."

Chambers UK 2023

Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.

His work with local authorities also encompasses the broad spectrum of policy review, Human Rights Act claims and Court of Protection work.

Stefano regularly acts in protracted and complicated private law proceedings covering the full range of disputes; residence and contact, relocation and child abduction. In cases of parental alienation Stefano has conducted numerous findings of fact hearings, successfully reinstating Child Arrangement Orders and re-establishing disrupted relationships.

Stefano is often instructed to advise clients in pre-proceedings, the emphasis being on how to create frameworks for agreement and avoid litigation.

Expertise

Family

His public law child care work covers the most serious of physical and fatal injuries, parental murder, exploitation, ritualised and organised

abuse and intricate medical evidence, including fabricated and induced illness.

Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.

Stefano recently secured the innovative use of s28 of Youth Justice and Criminal Evidence Act 1999 hearings within the course of public law children act proceedings.

His most recent appellate work includes the case of Y and E (1996 HAGUE CONVENTION: ARTICLE 11) [2023] EWCA Civ 817.

Child Sexual Exploitation

Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.

Private Law Children

Stefano acts in highly charged private law proceedings covering the full range of disputes; residence and contact, relocation and child abduction. He is regularly instructed to act for clients in a pre-proceedings advisory role.

In cases of parental alienation Stefano has conducted numerous findings of fact hearings, successfully reinstating Child Arrangement Orders and re-establishing disrupted relationships.

Qualifications

LLB (Hons) Queen Mary College University of London MA (Medical Law and Ethics) Kings College University of London

Ami Bartholomew

Call: 2003

"Ami is a fierce advocate and commands the courtroom. She is very thorough with her preparation and grasps concepts well within a case. She is very strong in putting a client s case forward and is very well-liked by clients for her direct and honest approach" Legal 500 2024

Expertise

Family

Ami is a children s law specialist who is instructed in both private and public law cases, she is recognised and praised by clients and colleagues for her judgment, meticulous preparation, skilled advocacy and dedicated client care.

Ami is highly experienced in challenging cases involving: serious allegations, including of physical, sexual and emotional abuse, domestic abuse and coercive control and implacable hostility; complex medical evidence and serious injuries to young children; forced marriage.

She specialises in cases with a forensic fact-finding element, particularly concerning very significant harm to adults and children. She is highly experienced in supporting vulnerable clients.

Ami receives instructions in the most complex of children cases, she is often instructed as lead junior in addition to being led by Kings Counsel.

Memberships

Association of Lawyers for Children

Qualifications

LLB(Hons) 2:1 from King s College London 1999-2002

Inns of Court School of Law 2002-2003 Very Competent

ReflectionsontheCurrentApproachins.8Private LawApplications:AreChildrenBeingHeardandis theFamilyCourtlistening?

Presentedby–AmiBartholomew Monday17thJune2024,No5Barristers’Chambers,London

Achild’srighttoparticipateindecisionmakingaboutthemandthe importanceofconsideringtheirwishesandfeelingswhenmakingdecisions areenshrinedininternationalanddomesticlaw”

Uncoveringprivatefamilylaw:Howoftendowehearthevoiceofthechild?–Reportofthe NuffieldFamilyJusticeObservatory,February2024(“TheNFJOReport”)

International

Article12oftheUnitedNationsConventionontheRightsoftheChild

1.StatesPartiesshallassuretothechildwhoiscapableofforminghisorherown viewstherighttoexpressthoseviewsfreelyinallmattersaffectingthechild,the viewsofthechildbeinggivendueweightinaccordancewiththeageandmaturity ofthechild.

2.Forthispurpose,thechildshallinparticularbeprovidedtheopportunitytobe heardinanyjudicialandadministrativeproceedingsaffectingthechild,either directly,orthrougharepresentativeoranappropriatebody,inamannerconsistent withtheproceduralrulesofnationallaw

Article8oftheECHR

Domestic:TheChildrenAct1989

Section1(1)–TheParamountcyPrinciple

Section1(3)-Thecourtshallhaveregardinparticularto—

-(a)theascertainablewishesandfeelingsofthechildconcerned(consideredinthe lightofhisageandunderstanding)

Thetensionbetweens.(1)(3)ands.1(2A)

s.1(2a)presumptionthatunlessthecontraryisshowntheinvolvementofthat parentinthelifeofthechildconcernedwillfurtherthechild'swelfare

AssessingRiskofHarmtoChildrenandParentsinPrivateLawChildren Case–MinistryofJusticeJune2020

-Themostcommonlycitedreasonforwhychildren’svoicesgounheardindomestic abusecaseisthepro-contactculture

-Awiderangeofprofessionalgroupsaswellasmothers,childrenandsomefathersnoted thatthestrengthofthepro-contactculturemeantthattheviewsoftheindividualchildren weregivenlimited,ifanyweight

-Recommendationthatthepresumptionins.1(2A)bereviewedurgently

KeyReports

AssessingRiskofHarmtoChildrenandParentsinPrivateLawChildren Case–MinistryofJustice,June2020.Oftenreferredtoassimply“The HarmReport”.

-https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessi ng-risk-harm-children-parents-pl-childrens-cases-report_.pdf

Uncoveringprivatefamilylaw:Howoftendowehearthevoiceofthechild? –ReportoftheNuffieldFamilyJusticeObservatory,February2024

-https://www.nuffieldfjo.org.uk/resource/uncovering-private-family-law-how-often-dowe-hear-the-voice-of-the-child

HowdoesachildparticipateinPrivateLawProceedings?

s.7reportundertakenbyaCafcassFamilyCourtAdvisor

s.7reportundertakenbyaLocalAuthoritySocialWorker

s.37report

FPR2010r.16.4Guardian

Thesearethe4mostcommonmethodsofachild’sparticipationandare usedasthe4markersofparticipationfortheNFJOReport.

Additionalmethodsofparticipationincludewritinglettersand/ormeeting withaJudge,engagementwithexpertssuchasapsychologist,anda childgivingevidence.Howeverthesearenotmethodsforgatheringa child’swishesandfeelings.

The4mostcommentmethodsforachildtoparticipate*

England

-Cafcasss.7report-37.6%

-LocalAuthoritys.7report-11.2%

-LocalAuthoritys.37report-3.7%

-7%ofchildrenweremadepartieswiththecourtappointingar.16.4Guardian

*StatisticsfromtheFJOBReport-Cohortofallchildrensubjecttos.8private lawproceedingswhosecasesstartedbetween1Januaryand31December 2019andthereafterfollowedfor36months.

WhyorderaSection7report?

Thecourtmaydirectareportthecourtonsuchmattersrelatingtothe welfareofthatchildasarerequiredtobedealtwithinthereport(s.7)

Whethertoorderas.7reportisanissuetobeconsideredinallcases,not justthosecasesthatengagePD12J

SubmissionsfromtheMagistratesAssociationandALCsuggestedthata Section7reportismorelikelytobeorderedinadomesticabusecase (TheHarmReport)

TheNFJOreportfoundthatSection7reportsareusuallyonlyordered whenthereisentrenchedparentalconflictorwelfareconcerns

HowoftenareSection7reportsbeingordered?

2018-2019:65,378childrensubjecttoprivatelawapplications–Cafcass Section7reportsorderedfor35%.(TheHarmReportwithreferencesto theCafcassAnnualReport2018-2019)

2022-2023:61,404childrensubjecttonewprivatelawapplications–CafcassSection7reportsorderedforonly33%.(CafcassAnnualReport 2022-2023)

TimingofSection7reports

UndertheChildArrangementsProgramme(CAP)theearliestas.7report canbeorderedisattheFHDRA

PD12BPara13.6-TheCafcassOfficer,orWFPO,willnotinitiatecontact withthechildpriortotheFHDRA

PD12BPara14.1-FHDRAtobelistedatthelatestinweek6following issuebut,inreality,partiesarewaitingmonthsforaFHDRAlisting

TimingofSection7reportscontinued

NeitherSafeguardingChecksnorSection16(A)riskassessmentsmake provisionforthevoiceofthechildtobeheardatthecrucialinitialstagesof theapplication

IfproceedingssettleatFHDRA,thereisnomechanismforthechildto havetheirvoicedirectlyheard

LongdelaysinpreparationandcompletionofSection7reports

FPR2010Rule16.4

Unlikeinpubliclawchildrencases,thechildisnotautomaticallymadea partyandallocatedaGuardian

PD16APart4Section1:Criteriatobeappliedbythecourtwhen consideringwhethertomakeachildapartytotheproceedings

PD16APara7.1:Makingachildapartytotheproceedingsisastepthat willbetakenonlyincaseswhichinvolveanissueofsignificantdifficulty andconsequentlywilloccurinonlyaminorityofcases

Inreality,thismethodofachild’sparticipationisrareandusedasalast resort

Doesthecurrentapproach/CAPenableachildtoexpress theirvoice?

NFJOReportidentifiedfromitsstudythatinEngland46.1%,andinWales 52.5%,ofchildrenhadnomarkersofparticipation

ThestudyalsoidentifiedthatinEnglandparticipationdoesvarybyage butthevariationissurprisinglysmall

Alsosurprisingly,theoldestteenagers,aged15-17years,hadthelowest levelsofparticipationinEngland

Limitedreviewandfollow-up

Doesthecurrentapproach/CAPenableachildtoexpress theirvoice?continued

ConclusionoftheNFJOReport:

Achild’srighttoparticipateinprivatelawproceedings,wherehugelyimportantand potentiallylifechangingdecisionsaremadeaboutthem,isenshrinedinlaw.Andyet,this studyfoundthataroundhalfofchildren,includingolderchildrenandteenagersdidnot haveanyindicatorsthattheyhadbeconsulteddirectlybysomeoneindependentofthe family.

Ifthechildisabletoexpresstheirvoice,doesthecourt listen?

Theissuethatattractedthemostcommentandcriticisminsubmissionswas theweightgiventochildren’sviews.Astrongthemefrommultiple submissionswasthatchildren’sviewsarefrequentlydisregarded,primarily incaseswherechildrenarestatingthattheydonotwanttospendtimewith anabusiveparent.Previousresearchstudieshavefoundapatternof “selectivelistening’whereCafcassandthecourtsreactpositivelywhen childrenexpressawishtospendtimewithaparent,buttreatthosewhodo notasproblematicandobstructive,evenwhentheyexpressedfearoftheir parentduetoexperiencesofviolenceofabuse.(TheHarmReport)

Ifthechildisabletoexpresstheirvoice,doesthecourt listen?Continued

SomefurtherobservationsfromtheHarmReport:

-Youngerchildrenwereparticularlylikelytohavetheirwishesandfeelingsoverridden

-Forveryyoungchildren,thechild’svoicemayonlybeheardthroughtheirprimary carerbutthatparent’sknowledgeofthechildtendstobedisregardedor automaticallydismissedasself-serving

-Needtobeawareofadditionalconsiderationforchildrenwithlearningdifficulties havingtheirvoicesheard

AllegationsofParentalAlienatingBehaviours:Anoteof Caution

Multiplesubmissionsarguedthattheincreasinguseoftheterm‘parental alienation’*couldsilencechildren.Ifchildrenhavebeenalienated,thentheir wishesandfeelingsareseenascontaminated.(TheHarmReport)

*ParentalAlienationisnotrecognisedasdiagnosis/disorderetc.Identificationof ‘alienatingbehaviour’isaquestionoffact.TheFamilyCourtlooksatthebehaviour andtheimpactthatbehaviourmayhavehadontherelationsthechildhaswitha parent/s–ReC(‘ParentalAlienation’:InstructionofExpert)[2023]EWHC345

AllegationsofParentalAlienatingBehaviours:Anoteof Cautioncontinued

DARVO–Deny,Attack,andReverseVictimandOffender

Theimpactonchildren

CAPPD12B:Focusontheparents,thecurrentapproachextollsthevirtues ofnegotiatedagreementsbetweenadults

Traditionalviewhasbeenthatachild’sparticipationmaycausethemharm

However,extensiveanduptodateresearchdemonstratestheimportanceto childrenofbeinginvolved/havingtheirvoicesheardintheprocessofmaking decisionsabouttheirarrangementsandthepositiveimpactthismayhave ontheirwelfare(HelpfulsummariesoftheresearcharesetoutinbothThe HarmReport&TheNFJOReport)

Theimpactonchildrencontinued

Anumberofconsequencesoffailingtoheartheviewsofthechildrenand youngpeoplewereflagged.Theseincludedchildrenfeelingletdownand, perhaps,ofgreatestconcern,aperceptionthatbynotlisteningtothe children’saccountsoffearandharmfromabusiveparentsthecourtwas failingtoprotectchildrenfromfutureharm(TheHarmReport)

AdvisingclientsinCAPproceedings

ResidentParents

NonResidentParents

Wheredowegofromhere?

…OvertoWendy!

ReflectionsontheCurrentApproachin s.8PrivateLawApplications:Are childrenbeingheardandistheFamily Courtlistening?

Presentedby–AmiBartholomew acb@no5.com

Wendy Frempong

Dual Qualified: UK (Family) and Ghana (Commercial)

Wendy acts for respondents and other interested parties in care proceedings in all courts. She therefore appears before all levels of the judiciary.

Wendy also represent Applicants and Respondents in Child Abductions cases (Cases under the Hague Convention and Non Convention cases).

Wendy deals with a full spectrum of allegations: non accidental injury, sexual abuse, Fabricated induced Illness, general neglect physical and emotional abuse.

International

Wendy represents Applicants and Respondents in Child Abduction Cases (Case under the Hague Convention and Non Hague Convention Cases) and Warship Proceedings.

She also provides advise on enforcement and registration of family law orders made in the UK in Ghana because I am dual qualified.

Public Children

Wendy represent respondents and other interested parties, (including through the official solicitor) in care proceedings.

Allegations / Issues in cases include non accidental injury, sexual abuse, physical, emotional abuse, neglect as a result of substance misuse, and or mental health difficulties and Fabricated Induced illness.

Wendy also represents clients in proceedings for recovery orders, Secure Orders, Discharge of care and placement orders, and applications for contact with a child in the care of the Local Authority.

She represents Applicants and Respondent in applications Under the Inherent Jurisdiction of the Senior Courts:

Wendy represents Respondents Deprivation of Liberty Order Applications for children with complex needs and in cases where there is a dispute between parents and Local Authority about immunisation and a child being medicated.

Private Children

Wendy represents Applicants and Respondents in applications under Section 8 of the Children Act 1989, e.g. Child Arrangement Orders, Specific Issues and Prohibited Steps Order Applications and Removal of children from the Jurisdiction.

She also represents Applicants and Respondents in Special Guardianship Order and Adoption proceedings.

Memberships

Middle Temple Resolution

Qualifications

Post Call- Ghana Law School

Post Graduate Diploma -City University

Bar Vocational Course-Inns of Court school of law

Private Child Law PathfinderModel, An Investigative and Problem-Solving Approach

Enhancing the Voice of the Child

Presented by –Wendy Frempong Monday 17th June 2024, No5 Barristers’ Chambers, London

Brief background to the Private Child Law Pathfinder Model

May 2019- Ministry of Justice commissioned an expert panel to look at risk of harm to children and parents in private law proceedings.

June 2020- The Expert panels Report- Assessing Risk of Harm to Children and Parents in Private Law Children Cases -usually referred to as “The Harm Panel Report “

Issues identified by the panel included the fact that:

- the child/ren’s voice was often not heard or was muted within private child law proceedings-especially in caseswhere there were allegationsofdomesticabuse- a large proportion of children have no direct involvement in the family court process, - parents or carers being relied upon to represent the child/rens’ views.

Brief background continued

- child/ren feeling unheard or muted had a significant and negative impact on them. - They felt let down or suspicious of authorities, and their trust in the court system was eroded due the negative experiences

Recommendations

The panel made a number of recommendations-which included for our purposes;

The need to create a reformed children arrangement program that is ;- safety focused and trauma aware - takes an investigative/ problem solving approach and - enhances the voice of the child.

The recommendations of the panel and others informed Private Child law Pathfinder model

Legal Framework

Pilot Scheme: Private Law Reform; Investigative Approach

- Practice Direction 36(z)

- Annex: Practice Direction 12(b)

PD 36(Z) 2.1

The purpose of the Pilot Scheme ….

The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings.

The court will also seek to hear the voice of the child more clearly through each case in thispilot,with the aim that appropriate engagement and communication are considered throughout proceedings.

A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities.

A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

Pilot Areas

 First Phase 2022

- North Wales

- Dorset

Impact of resources –to ensure that this model can work effectively for families.

 Second Phase 2024

- Birmingham-(It will be interesting to see the impact of more diverse population on the pathfinder model and timescales)

- South-East Wales

Lessons being learnt through the pilot –ensure that a lot of the vulnerabilities identified can be addressed before the scheme isimplemented nationwide.

Stages of the Private Child law Pathfinder Model

Relevant applications (Section 8 and enforcement applications)

 On receipt the application it is passed on to case progression officer within 24hrs

Initial Gatekeeping (Legal advisor/Judge)

Stage 1 -Information Gathering and Assessment

 2nd Gate Keeping (Legal advisor /Judge)

 Consideration of CIR and recommendations/options for the family

Stage 2-Intervention and or Decision Hearing/Directions Hearing for fact-finding hearing

–Part 2 of CIR after fact finding hearing or recommended intervention work

 Stage 3 –Review

Role of the case progression officer

 Check the application on receipt for the relevant details-to assist the triage and investigation progress that follows.

 Contact the parties to acknowledge receipt of the application and inform the respondent about the application.

 Explain the process and what to expect to the parties before the investigative process starts

Within 24hours the case progression officer is expected to send the application for Initial Gate Keeping

Initial Gatekeeping (Initial triage)

PD 36(Z)12(B).1 The purpose of this Stage is to take a proportionate, child welfare focussed approach to actively investigate the impact of issues presented in the application (and any additional information requested as part of this Stage) on the child –through engagement and assessment.

 The Gatekeeper (Judge or Legal Adviser) will within a day consider the issues and determine the next stage of the process –-

(2)If it’s urgent- the matter is sent back to the case progression officer for directions and listing for an urgent hearing

(3)If it’s a returned case -it is sent to the case progression officer with directions and a listing before the Judge who dealt with the previous proceedings

(4)If it is a case that ought to be stayed for mediation- it is sent back to the case progression officer with the relevant directions –for mediation.

Initial Gatekeeping continued

 If the case is one that requires direction for a Child Impact report –the matter is sent back to the case progression officer with the relevant directions for CAFCASS or local authority to undertake the 1st Part of the Child Impact Report.

 Any relevant evidence that will assist the court in making informed decision will also be addressed at this stage

The Child Impact Report( CIR ) (within 6-8 weeks of the application) Welfare and Risk Assessment

Welfare Assessment :

 Information about the family,

 A photograph of child/children included in the report

Engagement with the parents –to better understand what their circumstances are and get their perspectives on what they consider to be in the best interests of the child

 Safeguarding checks (police and social services, schools, nursery, GP, domestic violence agenciesand anyother relevantagencies working with the family(Independent information –Front loading)

The Child Impact Report Welfare Assessment continued

Direct or indirect (for example, via digital means or through a third party) engagement with the child (in a means consistent with their welfare needs and determined as appropriate in accordance with their age and understanding), to determine their circumstances, preferences for engagement and initial wishes and feelings;

Significant Change

- Presumption that the child/rens’ wishes and feelings will be ascertained directly or indirectly–at the outset and throughout the process -The report will address how the child participates in the proceedings-How they will be kept informed -how they will the child will be updated about the recommendations and given reasons for sameand how final decision and reasonsshould be communicated to the child-

- Provision for Review-to ascertain if the order made is meeting the child/ren welfare needs

One Family Court advisor/social worker works with the family throughout the process

Risk Assessment -CIR

Where there are allegations of domestic abuse a referral is made by CAFCASS or the Local Authority within 15days of receipt of the applicationto a local domestic violence agency for DASH Risk Assessment –

- To inform safety planning for relevant individuals

- Assess risks-if there are immediate safety concerns -CAFCASS or the Local Authority will be notified. They will in turn notify the court-

- Where relevant, specialist support will be offered post assessment –referral for such services will be made only if the parent in question consents to this.

- If they do not consent -the reasons will be recorded in the CIR-

- If the family is already being supported by a domestic violence agency-CAFCASS or the Local Authority will liaise with the agency to obtain more information about the family

A summary of the DASH risk assessment will be included in the Child Impact Report

2nd Gate Keeping (7-8 weeks after application)

Legal adviser or Judge )will consider the recommendations of Child Impact report and the evidence before the court.

- Allocation-the Gatekeepers must decide to which level of judge the application is to be allocated

- Further steps: necessary to enable the application to proceed to Stage 2. This may involve consideration of any or all of the following:

-(a) what, if any, issues are agreed and what are the key issues to be determined?

-(b) Is there a need for findings of fact to be made? What are the specific issues where finding of fact is required? If fact-finding is determined to be required, a decision should be made on-

 (i) whether a preliminary hearing is essential

2nd Gate keeping/Case Management

 the timing and nature of the fact-finding hearing, for example whether there should be a standalone fact-finding hearing or whether fact finding should this take place at the same time as the Decision Hearing.

 Parties, and any other relevant professionals or agencies, should be engaged to gather the necessary evidence and information for the factfinding hearing.

 following the fact-finding hearing, whether further information for an updated CIR

 Has an application been made for an order under section 91(14) of the Children Act 1989, or might such an order be appropriate? Are any specific findings of fact necessary? (See paragraph 24A and Practice Direction 12Q.)

 (c) Is further engagement with external agencies, such as schools, nurseries, the local authority and GPs, required to determine matters relating to the child?

Continued

 Are there any interim orders which can usefully be made (e.g. indirect, supported or supervised contact) pending any Decision Hearing?

 What, if any, directions are required to ensure the application is ready for any Decision Hearing –any further statements, disclosure from bodies such as Local Authorities or the police, reports etc (see paragraph 14.2)?

 Should the application be listed straight away for a Decision Hearing?

 The case should be managed by the allocated judge unless there is good reason for it to be re-allocated (especially if there has been or is to be a fact finding hearing or a contested interim hearing). This is also important for returning cases.

 Should the child be engaged further to ensure the court remains aware of their preferences and wishes and feelings?

 Is input, or further input, required from an IDVA or Domestic Abuse Support Worker?

 If an updated Child Impact Report is prepared as a result of any directions of the court as outlined above, this must be filed with the court. In any event, at the end of Stage 1 the Child Impact Report must be updated and filed with the court.

Intervention/Stage 2

The courtcan make ;-

 an activity direction (11A of the Children Act 1989 ) for a party to take part in an activity that would, in the court’s opinion, help to establish, maintain or improve the involvement in the life ofthe child concerned of

 recommend to the parties that they pursue suitable and appropriate alternative means of non-court resolution, such as mediation or arbitration or

 interventions such as counselling or parenting programmes,to arrive at an agreement or narrow the issuesbetween the parties ahead ofanyfuture

Decision Hearing/Stage 2

At the decision hearing-the Judge will;-

 consider appropriate means of monitoring and reviewing any agreement that is made between the parties;

 consider whether it would be appropriate to make a Consent Order where an agreement is made between the parties

investigate the issues and make decisions on those issues which are not agreed and do so byencouraging the parties tofocuson the best interestsofthe child or

exercise its discretion as to what order (if any) to make on the application including a section 91(14) order if appropriate or

 give directions about the Review stage

 consider how the decision of the court should be communicated to the child-Options include -Judge writing letter to the child, Family Court Advisor informing, parents with the guidance of professionalstelling the child about the outcomeand reasons.

 hold a Decision Hearing where the court will-

Stage 3 Review

The review normally takes place 3 to 12 months after final order have been made or agreed.

The aim of the review is;-

 To better understand any safeguarding risks resulting from the order made and to ascertain if the order is meeting the child/ren’s welfare needs

 To reduce returning cases through creating sustainable orders.

How the Private Child Law Pathfinder model is making the voice of the child central

 The presumption that the child/ren’s wishes and feelings will be ascertained at the outset of the proceedings. Directly or indirectly

 The picture of the child/children in the CIR -ensures that the professionals and parents are focused on the child/ren

 More options for participation-speaking to the Judge-Writing to the Judgedirect work with the child-option to participate or not

 They are informed about recommendations, final decisions and the reasons for same.

 The final orders makes provision for how the child is to be told about the outcome of the proceedings-This could be by Parents(with guidance), letter from the Judge or the Family court advisor who prepares the child impact report.

 The review process provides an opportunity to find out if the order is meeting the child/rens’ welfare needs

Feedback from families/children(early days)

 Judges-they are able to make informed decisions at hearing due to the front loading –More effective hearings-Fewer fact -finding hearings-These are usually the complex cases which are identified earlier on in the process.

 Children are generally pleased to have been asked about their views and described it as an overall positive experience-they feel listened to-

 Feeding back the children’s wishes and feeling focused the minds of the parents on the child’s needs

 Families-the process less brutal and unkind-Process is much quicker –

 More cases settling without the need for a court hearing

 Practitioners are finding that they are better able to manage parents’ expectations

 Feeding back the child’s view to the parents at the outset is helping parents focus on the child/children as opposed to focusing on gathering information to use against each other-a move away from war fare

Continued

 FCA’s observation is that the process reduces stress for children and parents by allowing them to intervene before further hostility had the opportunity to build up.

 The children have reported that they felt calmer and relieved after speaking to a FCA

 FCAs felt working with more children from an earlier stage was resulting in increased time and effort spent resolving issues between parents and advocating for children

 FCAs were positive about the opportunities Pathfinder provided for children’s perspectives to be integrated into decision making early on in the proceedings

Some vulnerabilities

 Rigid time scales-problem with the one size fits all approach –need for a degree of flexibility with time scales-6 weeks is sometimes not enough for some families-others could be resolved within 3 weeks

 More triaging –need to happen based on their complexity, with different types of case assigned different timeframes and, by extension, different levels of involvement of children-triaging would mean that certain cases were deemed unsuitable to speak to children about-

 Knock-on effect of having to wait for agency checks to come back before substantive work could begin on cases. Although some preliminary work can be undertaken early on, it is often not appropriate to engage with children without first having triangulated and assessed safeguarding information from different sources. This meant that despite the six-week time frame “you often don’t have six weeks”

 Find different ways to engage the children-FCA wanted more time with the children –to ascertain their wishes and feelings

Questions

Private Child Law PathfinderModel, An Investigative and Problem-Solving Approach

Enhancing the Voice of the Child

Presented by –Wendy Frempong wf@no5.com