Written by Hannah Newberry, Solicitor in our Family law department
Private Family practitioners will be aware of how topical the new ‘Pathfinder’ Court is as an alternative process to the existing Children Act proceedings timetable. This is following successful pilots in North Wales and Dorset.
Pathfinder consolidates the existing structure and aims to deal with cases in under six months. Concerns raised include the delay in Court listings and lack of early intervention with children at risk. There is a new sense of urgency where children’s input is concerned, but it remains to be seen if this exists at the expense of structural integrity.
Timing
Pathfinder intends to provide an expedited process; however this does not impact the pre-application procedure. Parties continue to be encouraged to enter into ADR (Alternative Dispute Resolution), utilising Court as a last resort. There is a concern that practitioners have found parties more incentivised with ADR when they are looking at a ballpark duration of 10+ months in the Courts. Will clients with funds, but not patience, view the Court as a ‘quick fix’ approach if Pathfinder does combat ‘delay’?
In terms of process, Pathfinder assures practitioners that they will gradually begin to see a turnaround from the Court of 24 hours as opposed to six weeks. This would ensure that cases can be prioritised better. At this stage, the Court will consider whether an urgent Hearing is necessary, whether an ex-parte Hearing is likely to benefit the children or how/where this case is going to be allocated. It is hoped that such early intervention will better enable the Court to list matters and to provide a better overview as to long-term timescales and availability.
The difficulty may arise when the diary is manageable at day 1 but towards the middle of cases, you find a streamlined backlog of children matters that were sent to Magistrates but require reallocation to a Judge upon further review. There is concern as to how the Court would form an accurate assessment immediately with only the applicant’s position before it. Would applications become bolstered beyond necessity to secure a greater chance at judicial creativity? Would cross-applications enter into the same process, with a ’24 hour allocation’, or would they automatically fall to the same timetable with a review to be conducted at the next Hearing?
Given the above timescale, it is unclear how the respondent would be able to respond, or even to instruct solicitors, prior to decisions being made. Of course, it is open to the Court to reallocate but there is no ‘taking stock’ at a stage where both parties are clear of the dispute. For example, a respondent could file a C1A or allegations that materially impact the trajectory of proceedings on day 2, but the matter has already been dealt with.
The end of mediation?
Mediation, if the aspect of ‘delay’ is eliminated in the Court sphere, risks the same duration as Pathfinder if not more. However, mediation has no guaranteed epilogue and may become a less viable form of arbitration. Parents should not be criticised for opting for security over ADR, especially in cases where there is no amicability. Save for cost curtailing, what would be the client’s provocation for mediating? Practitioners will have to manage this, but it is difficult when reminding yourself of a client’s best interests. This could potentially lead to practitioners being criticised for filing applications where their client is resolute about the Court remit. A third party enforcing a unilateral decision can eliminate the ‘blame game’.
Process
Within six weeks, there is an optimistic proposition that the Court will then receive a Child Impact report. There will need to be a determination as to whether CAFCASS (Children and Family Court Advisory and Support Service) or the local authority conduct this. It is hoped that the quality of the conversations with parents and children will remain and will not be nullified by the increasing pressure of timescales. The Court has emphasised its desire to continue the use of proper Court forms and applications. The difficulty is where this would fit – Form C7 becomes redundant if the respondent seeks legal advice and hopes to complete this within 2-3 weeks. By this stage, a professional may have already been in touch with a view to finalising a report.
The more adapted focus to these reports is going to be the voice of the child. There is an aim to consolidate recommendations by 1) outlining any safeguarding factors, 2) the input from the child who will be subject to an Order, 3) what is likely to be in dispute following the report, and most importantly 4) thought as to the workability of future arrangements. This is a welcome reform when often a recommendation can rely too much on parties being able to ‘just agree’ handovers/timings/holidays after Court.
The Court does however, still consider the voice of the child not always being determinative – any report would need to critically assess wishes/feelings to avoid reopening concerns of alienating behaviours.
Does Pathfinder enable the professionals enough time to assess the child’s wishes and to judge the validity or age-appropriateness of what they seek? There is certainly a concern that parents alleging alienation may face further difficulties in a process that does not enable enough time for intrinsic examination. The report would need to ‘hold fire’ on recommendations and await a guardian or further expert. This potentially dissuades professionals from filing open-ended report after open-ended report, as otherwise impact reports are not going to appear workable, but more of a stopgap measure where professionals are asked to do more in the same timeframe with no tangible benefit.
It is hoped that the Court can continue with the progress of listing ‘DRA/Early Final Hearings’ or ‘composite Final Hearings’ if a small amount of allegations need dealing with. However, the Court should be mindful that cases capable of resolution would still require a Child Impact report being produced even if unnecessary, just to get to this stage. The Court should be careful of involving professionals too soon for longer assessments.
However, Litigants in Person (LIP), who can often instigate proceedings with little to no idea of the process, will be better appraised of the Court’s intentions. It is more difficult to argue against a welfare assessment than to argue against your opposition who is also somebody you feel aggrieved with. Furthermore, this could also assist represented parties (or other LIPs) with spurious allegations or satellite issues being raised. Although, Respondents panicking in the absence of legal advice could exacerbate issues.
Is there a potential for more Respondents than usual digressing after a report is prepared, once they have been able to seek advice?
The local authority or CAFCASS will need to be prepared, particularly in cases without solicitor assistance ongoing, that reports will be commissioned with one side of the application likely being a complete blank slate until the professional attends at the door and/or with the children. What will be the impact on cases that require specific care and attention, will they suffer as a result of a persistent turnover of basic impact reports?
It is hoped that the Court would be mindful of the time taken to file and prepare Scott Schedules and witness statements, and this should not be subject to a two to three week turnaround, especially in cases where recordings, evidence or police disclosure should be obtained. Ultimately, in some cases it is best to face an unfortunate delay than to expedite a case at the expense of quality.
It remains unclear whether the Child Impact report always being prepared prior to the Hearing would unnecessarily involve professionals in allegations as to what the child has seen/heard etc. If the only source who is able to confirm conversations with a child is CAFCASS themselves, where do practitioners stand? The Court may need to reckon with more difficult discussions about CAFCASS as witness to hearsay reports.
Pathfinder also expands into the possibility of enforcement applications, which is always useful to consider. There is a new objective to attend to these applications within 20 working days and to ensure that the original Judge is able to sit again. It is hoped that such prompt action being available would deter a parent in breach, given that the benefit to them may be inflated contact for under a month prior to facing penalties.
Conclusion
In summary, Pathfinder is a buoyant and hopeful reform, with excellent intentions for re-focusing parents as to the welfare of their children. However, it remains to be seen how the Court will reckon with the above issues, and whether there will simply be a sizeable influx of C2 applications seeking further time or permission to adjourn. C100s may also appear as the ‘norm’ subject to basic ADR requirements. What are practitioners meant to do when being mindful of Court as a last resort, but also the quickest remedy for our clients? The Court will need to be certain that flexibility can be offered to ensure that parties to proceedings, whilst not the ultimate focus, have a rightful opportunity to engage and seek advice.
