WHAT'S NEXT — New Approaches to Contact

What’s next: Family Law Reform

balance of power: Summer 2023

In the spring of 2023, the Boulder of Reform reached the top of the Whitehall Mountain.

The central point that has impeded progress since 1989 is now finessed.

It will be hard for officials to squidge the toothpaste of self-evident and useful sense back into the tube of nonsense.

The Longstanding Problem

The presiding difficulty since the passage of the 1989 Act has been that in these cases - about maintaining a worthwhile child-parent bond - there was never any general guidance either for parents or professional advisors to suggest that a worthwhile child-parent bond was worth maintaining.

For Cafcass, lamentations about the loss of a child are merely the personal pre-occupation of the applicant parent.

Cafcass’ focus is directed at unearthing some other welfare concern - neglect, violence, coercion, abuse, whatever - that falls within its ambit.

In the context of an adversarial dispute between two disgruntled ex-partners, interpersonal allegations in this spectrum are not hard to elicit. So disputes are easily escalated. Meanwhile, and in the absence of an overview on what would be better for the child than the status quo, things are left to rot.

So we trundle along - under the existing dispensation.

The solution

The moment of transit from the old system to the new is recorded in an email to Jacqui Frisby, the Ministry of Justice’s Head of Private Law Reform:

From: oliver cyriax <olivercyriax@gmail.com> Subject: The child's best interests: a two-parent definition Date: 16 March 2023 16:40:30 GMT To: "Frisby, Jacqui" <Jacqui.Frisby@justice.gov.uk> Cc: "Moore, Stuart A" <Stuart.Moore@Justice.gov.uk>, Helen Adam <helen@wellsfamilymediation.co.uk>

Dear Jacqui,

The recent letter (which you have seen) of 13 March to the Private Law Advisory Board sets out the position on Section 8:

The Family Justice Review accepts that the needless rupture of a close child-parent bond is a child-welfare issue
Child-welfare issues go to the best interests of the child
There is no guidance on this issue
Cafcass says that the preparation of guidance on this issue is outside its remit

This, it seems to me, must be a gap in the family justice system (continues). I look forward to hearing from you, many thanks.

Yours sincerely,

Oliver Cyriax

Here is how that came about - by accident, at an official review.

The administration of justice?

The family justice system is managed and adjusted by periodic ‘family justice reviews’ and, as noted elsewhere, that process is sterile: these Reviews are convened and managed by Whitehall - Whitehall treats its incomplete 2001 creation, Cafcass, as complete experts for this sector - Cafcass concurs - Cafcass populates those Whitehall reviews, or oubliettes, as experts - and Cafcass cannot continue in anything resembling its present form if the key point (that it has no guidance for parents or its staff on the issue in dispute) receives airtime.

So neither the problem nor the solution can be discussed at Review.

Since the 1990s, Reviews have been the place where Thought came to die.

Successive enquiries contented themselves with the revelation that the newly-discerned objective was to put the child at the heart of the welfare enquiry; and, next time round, a few years later, at the very heart of the welfare enquiry; and, the time after that, at the centre of the very heart of the welfare enquiry; and so on, without the Reviews actually saying anything except ‘more of the same’.

The Heffalump Trap

This mattered - in the very limited sense that these Reviews could always receive official welcome - in the certainty that nothing had changed, or would change, and that nothing much needed doing. It was always safe to endorse the work of each successive Review, and by 2018 thinking on private law consisted of a flaccid accumulation of unacknowledged contradictions lolloping unstoppably forwards.

That can go on for really quite a long time, but not indefinitely: in the end, someone somewhere - by accident or no - will say something with discernible meaning.

The 2018-21 Review: A Comedy of Errors?

And so it came to pass: in 2020 things the came off the rails.

The family justice review at that time was overseen by an assemblage called 'the Private Law Working Group’ (PrLWG) with an eminent High Court family judge as chair.

The PrLWG had seven Cafcass officials and four Whitehall officials - who duly declined to notify the remainder of the PrLWG (i) that there was no guidance (or body of thought) on the issue in dispute - and that (ii) Cafcass was committed to ensuring that no such guidance was prepared. The PrLWG proceeded on the assumption that Cafcass had everything covered.

So the Review arrived at the traditional conclusion: longer-term thinking should start now - on how best to put the best interests of the child even more closely at the very centre of the very heart of the welfare enquiry. In this Best of All Possible Worlds, what harm could there be in the PrLWG appointing a subsidiary group of mediators and so on (the ‘Family Solutions Group’) to supplement the main PrLWG report with more declarations of empty good intentions?

Error 1

It was here that things went wrong, but not in the way one might expect.

As noted elsewhere, in addition to correctly saying the opposite, ever since 2004 the Department has long maintained, incorrectly, that the law is the opposite of itself: “After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society. And it is the current legal position” .

That is not the law, and never has been (the law is merely that, as long as it is safe, parents can have meaningless levels of contact - and meaningless relationships - with their children).

But the Family Solutions Group (FSG) followed the departmentally-sanctioned line that the law did indeed hold out the preservation of close or meaningful child-parent ties as the desired objective.

It would have been be unthinkable for the FSG to suppose otherwise. For over fifty years the general health literature has shown that the needless loss of a significant child-parent attachment (and a ‘safe haven’) is an adverse child experience and predictor of diminished development / cognitive performance / physical-&-mental health etc etc. The FSG could not conceivably imagine that Cafcass - which happens to run the court system - worked on the reverse premise.

So the FSG’s report (‘What about me?) proceeded on the misconceived basis that the law was the opposite of what it was.

That of itself did not imperil continuance of the regime led by Cafcass: if push came to shove, and someone noticed, no harm was done. The FSG was not there to supply legal expertise.

Error 2

However, the What about me? report went further.

Having made the mistake that the legal system was indeed based on the law as they understood it, being the opposite of the law as it is, the FSG set out all the things that would have been happening (had the law not been the opposite) as the things that were already happening - and the things that should be happening. It asserted that these imagined basics constituted the rightful platform on which the family law system already operated and should operate: and it commended this imaginary enterprise for its wisdom.

In the FSG’s estimation, that which was not (and that which had been strenuously obstructed) was that which should be.

So the FSG actually articulated the fundamental principles of the working family justice system we should have: where the identifiable risk to the child on separation is not (as per Cafcass) seeing the other parent - but not seeing the other parent; and further, that

the other parent is of value to the child
to lose a fit and willing parent for no good reason is a bad thing
children and parents should have a close relationship
to prevent a close relationship is a bad thing
the loss of the child-parent relationship is a child welfare issue
the retention of the child-parent relationship promotes a child’s wellbeing
family relationships should be protected
the objective is to promote co-parenting
a real risk to the child is that in the wake of separation one parent may try to eliminate or marginalise the other for no good reason

So, the FSG endorsed and proposed a Family Justice System that is, as near as possible, the reverse of the system we have and, by unavoidable implication, the reverse of the official strategy adopted by the PrLWG, whereby the best guidance for parents is no guidance.

But again, without more, no harm was done: no one would notice the difference, and no one would notice the unremarked contradictions. What about me? was simply something to nod through and shelve in the usual way.

Error 3

On first principles, the FSG’s report was destined for official censure - for getting the law back to front - and setting off on conjectural tangents that had no place in serious thinking.

But that would mean reading it.

The eminent judge chairing the Private Law Working Group did not notice either that (i) the FSG had inverted the law; or that (ii) the FSG’s s main thrust was that things should be organised on the premise that the child-parent bond should not be lightly set aside; or that (iii) the FSG ran against the two previous reports already published by the PrLWG (the FSG’s parent body) in 2019 and 2020.

So, in the usual tradition, the PrLWG’s Chair extended an enthusiastic welcome to this rogue report (which actually had a meaning) just as enthusiastic welcomes had always been safely extended to its various predecessors that had no meaning. What about me? was praised without qualification for its solid thinking, sound insights and welcome strategy, in fulsome terms: as impressive work straight down the middle of the track, rich with ideas and recommendations that built on the work of Private Law Working Group (which it negated) with energy and inspiration.

Sixes and Sevens

So the Private Law Working Group went head-to-head with itself. Not only is the child-parent-relationship a thing of no consequence that should be disregarded - as per PrLWG 1 and 2 - it is the cornerstone of the family justice system!

In this manner, and at last, and by mistake, a Family Justice Review finally acknowledged the existence of the child-parent bond.

Suddenly, there is a new kid on the block: in these disputes about maintaining the child-parent relationship, it matters whether the child-parent relationship is maintained. Unless and until the PrLWG resiles, the preservation of worthwhile child-parent bonds is a child-welfare concern. Who would have thought it?

In the ordinary course of events, no-one has noticed.

The Private Law Advisory Group

The implementation of the recommendations and thinking of the Private Law Working Group falls to yet another oversight group called the Private Law Advisory Group. From a letter dated 13 March 2023 to the Chair of the PLAG, widely copied within Whitehall:

“The purpose of this letter is to alert you to a structural anomaly in the recent Family Justice Review:

- the Review rightly maintains that the retention of worthwhile child-parent relations (with a parent who leaves home) is a significant child-welfare concern

but

- the private law system lacks any guidance for couples on the repeat-issues that flow from this concern, such as: if, when and why overnight visits should happen; at what age overnight access should be contemplated; and why the arrangement of adequate access might matter; and so on

The other stream of Section 8 disputes - with safeguarding concerns - is already well catered for by Cafcass. By contrast, disputes between responsible parents (that turn on the level of access) lack commensurate provision.

But the Review makes it plain - via the valuable work of the Family Solutions Group - that these access-only cases do indeed involve a prime child-welfare issue. From its seventh paragraph on, the FSG’s report What about me? proceeds on the footing that the needless loss of a worthwhile child-parent relationship is a child-welfare issue ‘no child should have thrust upon them’. The FSG included members from the domestic abuse sector; there were no dissenting voices.

As you know, the FSG was a subgroup of the full Private Law Working Group leading the Review. The FSG’s Chair was a member of the PrLWG; the FSG’s thinking was received with praise by the eminent judicial Chair of the PrLWG; and the FSG - in line with conventional opinion - rates the unwarranted loss of a close child-parent bond as a well-recognised risk on separation.

The FSG took this vector as an organising best-interests principle around which Section 8 child-welfare cases with no safeguarding issues should be (and are) constructed. But responsible parents will look in vain for guidance on topics like suggested best-interests patterns of visitation or the value of retaining viable child-parent attachment”.

What will happen next

Two prospects are now in view. First, the official process, which will happen, i.e., more of the same, i.e., nothing; and, second what should happen, which is now what could happen and might happen.

Until it does, family policy on the children of separation remains paralysed in every direction. After thirty years, we have arrived at the outer extremities of nonsense - where everything we want to do cannot be done, and nothing can work, and nothing will work - until we do the one easy thing that always should have been done.

For want of a nail a kingdom has been lost. The result is that every intended policy-aim is stymied:

1. The Policy Aim: making mediation work as well as it can

Mediation cannot work (to optimal effect) if no-one can say either what the child’s best interests are, or what the Courts would order in the child’s best interests if the parents do not agree. Solution - court-approved guidance

2. The Policy Aim: financial penalties / costs for unreasonable parents?

It is difficult to say which parent should be penalised for acting unreasonably in the absence of a framework outlining what is reasonable; and, the advent of this framework (see 3 below) will render this draconian expedient largely superfluous. Solution - court-approved guidance

3. The Policy Aim: preventing more parents from issuing legal proceedings

Parents are less likely to embark on litigation if they know (i) what they should do (ii) why they should do it and (iii) what the court is likely to order in the child’s best interests if they do not. Solution: court-approved guidance

4. The Policy Aim: turning more litigated disputes into early consent-agreements

Parents who have embarked on litigation are more likely to reach a consent agreement at or before the first hearing if they know (i) what they should do and (ii) what the court is likely to order in the child’s best interests if they do not (a fully-developed project to install and apply the guidance in a pilot court is ready to go). Method: installing and applying the court-approved guidance

5. The Policy Aim: settling more disputes privately - without recourse to mediation

It is easier for parents to reach a viable best-interests arrangement if they both work from a common framework outlining what best-interests arrangements are. Solution: court-approved guidance

6. The Policy Aim: devising a cost-effective way to deliver the message nationwide

Information of authority that is written down – that settles an issue in dispute – tends to reach those taking opposite sides on that issue (see p2, para 1). Solution: court-approved guidance

7. The Policy Aim: reducing parental conflict

Conflict that is initiated by preventing adequate child-parent involvement tends to be resolved by allowing child-parent involvement that is adequate. Solution: court-approved guidance

8. The Policy Aim: freeing up Cafcass to work on cases with more problematic issues

Solution: court-approved guidance for the ‘access-only’ cases

Where we Are Now - Summer 2023

Yet another pointless official Consultation is already in train. It is called Supporting earlier resolution of private family law arrangements.

It points the wrong way. The focus is on mediation, and how much better than is than litigation.

The focus is not on the magic ingredient that makes mediation tick, ie., a governing framework setting out what sort of child-arrangements are in the child’s best interests. Instead, attention is directed at overseas jurisdictions where mediation works - without noting that it works overseas because overseas jurisdictions, unlike ours, have an overview on what sort of case-outcomes are desirable on what sort of facts.

But the department does not know this. It is not aware either than we have no guidance or that other jurisdictions do, so it cannot pass this information on to the respondents to the consultation. The result of this misconceived endeavour will be increased recourse to mediation - without the framework that makes mediation work.

The scene is set for the next review around the turn of the decade, where the same mistake will be made again.

What Could Happen

The other possibility is that this sham will collapse under its own weight. Whereupon, we revert to 1996, when the absence of guidance was first drawn to the department’s attention.

The problems caused by the absence of guidance can be remedied by the introduction of guidance.

A new model court-system could be running within a year; and the guidance around which it is based will disseminate through society at large, reaching inter alia mediators and other family advisors, enabling them to broker realistic best-interests child arrangements without troubling the court: as has happened overseas for decades.

________________________________________________________________________

This section will be updated in the usual course of events. The material below represents the position as it was around six months ago, at the previous waypoint, in Autumn 2022

Crossing the Rubicon

It is not possible for the Department to resile from its new position that the needless rupture of a close child-parent bond is a child-welfare issue.

First, everyone outside Cafcass agrees that the child-parent bond should not be set lightly aside. Second, official policy can only be reversed by an official and publicised announcement that, contrary to what the Department has said, the needless rupture of a close child-parent bond is not a child-welfare issue, and does not matter a hoot.

It is one thing for an agency to operate unseen on that basis, hiding behind the headline banner that - whatever it does behind closed doors - it acts in the “child’s best interests”; quite another, for a Government Department to take to the press to announce that on better reflection they realise that worthwhile child-parent bonds are actually something that can be snuffed out on an aggrieved whim - and it could not matter less whether children are allowed to see their parents.

That would not go down well, anywhere. Equally embarrassing, an attempted disavowal of their own 2018-2023 Family Justice Review will involve the Department in a foot-in-mouth defence: to argue that the eminent judge leading their review did not know what the law was, and had it back to front, as did the Review, is not a good look. It completes a case against them further perfected by the Review’s slumbering contradictions: if Cafcass has things right, and the child-parent relationship is of no account, then the next show is Cafcass - v - the Rest of the World. So the Department have made their bed - which is the same bed it should have made almost three decades ago in 1996, when it first learned (as it has told ever since, time and again) that there was no guidance to commend a significant role for both parents, being the point of the Act: “new orders are introduced to reflect our emphasis on encouraging parents to participate fully in the children’s upbringing”, the Minister introducing the Bill, 27 April 1989.

The fact that we have reached the correct position after decades of going backwards, sideways, upside down, in circles, and everywhichway simultaneously, is no longer of import. The position in 2023 is the position where Parliament intended the Act should start in 1989. Thirty-four years late, work can commence.

________________________________________________________________________

The 2020-22 Family Justice Review, and its Private Law Programme, led by the Private Law Working Group, have been and gone without getting any nearer the ballpark than their predecessors. The central problem is not on the official agenda: there is no guidance for parents on the issue in dispute.

The Good News

This Review, and the events surrounding it, have nonetheless opened the door to useful change. A number of significant developments are now in play in the context of (i) an enlarging crisis within the Family Division and (ii) the recent dead-hand Review - which envisages an indefinite future of more-of-the-same.

Billed as a ‘Time for Change’, the Review’s recommendation - under the heading ‘Conclusion’ - after three years thinking - is, ‘we recommend that longer-term thinking starts now’.

The upshot: nothing useful is in the official pipeline - but the enlarging crisis means something useful has to be done. Meanwhile:

(i) Cafcass has said its duty is to ‘guard against’ producing the missing guidance (and the Family Justice Review concurred (PrLWG1, para 25))

(ii) the Family Justice Review says that no-one else should produce this guidance either (PrLWG2, para 50)

(iii) On 7 May 2021 Ministers granted an exemption: the judiciary can produce the guidance that Cafcass - and nobody else - can prepare (by letter, 7 May 2021, see below)

That is, preparation of the necessary guidance is not for the PrLWG, or for any PrLWG offshoot, or the Department or Cafcass but is a matter for judiciary. That is a perfect match: the President of the Family Division supports the judicially-led Early Interventions pilot project to introduce this guidance:

“Some years ago I called for there to be a statement of what ‘normal looks like’ to be available for parents to consider when they separate. The EI model is not, however, favoured by those who advise me in the Private Law Working Group (PrLWG) and, for the present, the Pathfinder Pilot does not include guidance of the sort that EI requires. I remain of the view that this is a concept that should be the subject of further consideration during the evaluation stage of the current pilots.”

Relaunching Family Mediation”, 29.9.22 https://www.judiciary.uk/speech-by-the-president-of-the-family-division-relaunching-family-mediation/

As the President points out, guidance of the type opposed by the PrLWG is essential to enable early interventions - and thus essential to enable the ‘early resolutions’ the Department says it seeks; and the exclusion of this guidance necessarily prevents the Department and the Family Justice Review from delivering their stated aims. Everything is in plain sight: the only way the aims of the Review can be delivered is via the project that the Department itself will not progress, which can be progressed by the judiciary, who want to progress it.

Reform is within reach, via the judicially-led EI reform, first passed for implementation 19 years ago.

This happy result is a matter of regular comment in the professional press and a talking point for dozens of professionals involved in the 2019-21 Review. We are nearing the tipping point, not least since the first evidence of the actual results of EI is now available, i.e., a 33-50% reduction in litigation. The damage that otherwise lies in store can now be aborted: by a judge of standing (say, Judge B) indicating a willingness to proceed (to Judge A) with a pre-approved pilot project, at a single court.

_________________________________________________

Here is the state of play, 11 October 2022. Jacqui Frisby is the Head of Private Law Reform:

From: oliver cyriax <olivercyriax@gmail.com> Subject: Private Family Law Update - Government Policy: Children of Divorce / Separation Date: 11 October 2022 11:24:40 BST

To: "Frisby, Jacqui" <Jacqui.Frisby@justice.gov.uk>

Cc: Helen Adam <helen@wellsfamilymediation.co.uk>, Jude Eyre <jeyre@nuffieldfoundation.org>, caroline.bowden@anthonygold.co.uk, Claire Field <claire@parentingapartprogramme.co.uk>, "Druker, Eleanor (LAA)" <Eleanor.Druker@Justice.gov.uk>, Stuart.moore@justice.gsi.gov.uk, karen.barham@moorebarlow.com, … and 55 others

Dear Jacqui,

Thank you for the email of 6 October. I welcome your assurance as Head of Private Family Law Reform that work is progressing at pace to consider “various options” for the “early resolution” of Section 8 disputes on child-access. But it is disappointing that you did not feel able to respond either in detail or to the full email chain. I say this because there is now considerable activity in this area - as Sir Andrew McFarlane, the President of the Family Division, made clear in a recent speech to the Family Mediation Association. He said:

I remain of the view that this is a concept that should be the subject of further consideration during the evaluation stage of the current pilots.”

“Relaunching Family Mediation”, 29.9.22

As the President points out, guidance of the type opposed by the PrLWG is essential to enable early interventions - and thus essential to enable the early resolutions sought by the Department.

So it seems to me the exclusion of such guidance must tie the Department’s hands in terms of delivering the aims of the Family Justice Review.

But this impasse can be overcome. Ministers have clarified in their helpful letter of 7 May 2021 that preparation of the necessary guidance is not for the PrLWG, or for any PrLWG offshoot, or the Department or Cafcass (which understandably concentrates on more complicated cases) but is a matter for judiciary. That opens the door to the judicially-led proposal advocated by the President of the Family Division, i.e., the Early Interventions project, which should do so much to deliver the gains sought by the Department.

Hence the suggestion that Andrew Bridgen MP raises in his recent letter to the Minister responsible, Lord Bellamy, that Government should “offer further support to Sir Andrew McFarlane on the Early Interventions project. This could include making funds available.”

A formal indication of the Government position in this area would be very helpful. In Sir Andrew’s words, EI’s outline of what “normal looks like” should help separating parents avoid the lengthy adversarial proceedings that harm them and their children. Statistics from other jurisdictions suggest EI may cut litigation by 33-50%; other potential benefits include a reinvigoration of mediation and the desired shift in public attitudes. The EI proposal, as you are aware, is fully-developed and straightforward to install. Its effects will be properly evaluated.

I am pressing you on this because there has been considerable delay since the EI proposal first received senior judicial approvals. The President’s reference to the ”head of steam for change” recounted how he had “long been in favour” of the EI approach - “along with [his] distinguished and much respected forebears, Dame Margaret Booth and Dame Joyanne Bracewell”.

Sir Andrew spoke at Dame Margaret’s seminal NATC conference on early interventions at The Royal Society in 2002, and the following year Dame Joyanne’s evaluation of the Early Interventions project concluded, “A pilot scheme has my strong support … this is the way forward… it would be incomprehensible if the pilot project did not receive official sanction.”

Dame Joyanne added, “The need is not so much for an open-ended inquiry into what to do, but rather the more proactive task of ensuring that an early interventions trial actually occurs” Fam Law 455 [2003].

You say that you no longer have the lead responsibility for this matter. I do think it would assist if you could let me have the contact details of the official now taking the Department’s work forward on the private law projects.

It would also be helpful if this official would agree to these emails being copied more widely. This is now, as indicated above, a matter of current debate.

As you are aware, many of these issues have been raised in the 20 September letter from Andrew Bridgen to Lord Bellamy and I look forward to his reply.

Kind regards

Oliver

NATC New Approaches to Contact 07828623579 web: newapproachestocontact.co.uk

____________________

From: "Frisby, Jacqui" <Jacqui.Frisby@justice.gov.uk> Subject: RE: Private Family Law Update: the EI proposal & the Time for Change Date: 6 October 2022 13:29:18 BST

To: oliver cyriax <olivercyriax@gmail.com>

Dear Oliver,

Thank you for your emails, and apologies for the delay in responding.

Although it no longer falls to my team, work is progressing at pace to consider various options for early resolution of private law matters - this work is being undertaken collaboratively with the judiciary and other stakeholders across the family justice system. Helen Adam, and other members of the Family Solutions Group, will be aware of this as there are FSG members engaged in the programme of work. I hope you will appreciate that, as this work is in development within formal governance structures and will be subject to ministerial decisions, it is not appropriate for me to respond in detail or to the full email chain.

You mentioned correspondence in your previous email and I can confirm that MoJ ministers have received a recent letter from Andrew Bridgen MP, and will be providing a response shortly.

Kind regards,

Jacqui

The ‘No’ from Cafcass

Taking this step-by-step, the negative side of the equation is now plain. Cafcass, Whitehall and the Family Justice Review are agreed: Cafcass - the Courts’ experts - cannot, will not, and must not provide general pre-court guidance on best-interests levels of contact:

1. The Minister [1] and Cafcass [2] have acknowledged that Cafcass has no guidance on best-interests levels of contact.

2. Cafcass accepts that at least a quarter of its Section 8 applications for defined contact have no safety concerns [4].

3. Cafcass told the Review that Cafcass should ‘guard against’ the provision of guidance on the level of access [5].

4. The Review agreed this was the proper course [6].

5. The Review found it would be wrong for the preparation of such guidance to form part of the Private Law Programme [8].

6. The Review did not consider the EI proposal (whereby, the judiciary produce the guidance that Cafcass will not prepare)[9]

The result is an official gap in the system (there is no practical guidance for these families) that is set for indefinite perpetuation. Formal departmental policy is that efforts to close this gap will not, cannot and must not originate from Cafcass - or Whitehall - or the Family Justice Board - or the Private Law Programme - or the official Family Justice Review process. This is on their say-so: those doors are closed.

The dismal result is that initiatives developed inside the Family Justice Review will continue to seek early dispute-resolution (for cases that only involve the best-interests levels of contact) without giving parents guidance on that issue.

The ‘Yes’ - from Those who Matter

However, on 7 May 2021 the Minister confirmed that parents can receive this guidance - provided this guidance is prepared by the judiciary and provided it is disseminated through a project managed by the judiciary: how, when and where the judiciary see fit.

This is the final link in the chain of pre-existing approvals. Prior to the Minister’s 2021 intervention, the first two of the three permissions were already in place:

1. On 25 June 2018 the President of the Family Division announced his willingness to implement EI at a pilot-court - provided that the introduction of court-issued guidance on best-interests patterns of contact was supported by his judges [10].

2. The support of the judiciary of the Central Family Court and many other professionals for such guidance was confirmed by the Private Law Working Group on 12 March 2020 [11].

The third assent - the coping stone - is the Ministerial approval of 7 May 2021 [12]:

“The specific Early Interventions project you raise relates to judicial guidance - that is properly a matter for the President of the Family Division and it is right for the Government to defer to the judiciary on this issue.”

The judiciary are free to proceed, of their own initiative.

______________________________________

Ancillary Benefits of Reform

In this process, layers of muddle will clear themselves up:

1. The PrLWG’s Family Solutions Group (FSG) set out conventional thinking on how these disputes should be resolved in the best interests of the child [13].

2. The PrLWG’s distinguished judicial Chair endorsed the FSG’s approach [15].

3. However, this thinking is the opposite of the approach adopted by Cafcass [14].

4. This contradiction passed unremarked. No means are envisaged to decide whether it is Cafcass, or orthodox opinion, that has things wrong - and Cafcass are the Courts’ experts. The FSG’s work is destined to lie fallow.

5. However, adoption of EI would ensure the immediate implementation of the FSG’s prospectus - and that would deliver the Family Justice Review’s long-term aspirations in the short-term.

6. That is, authoritative judicially-endorsed guidance on the issue in dispute (which is bound to take the conventional line) will be relayed with immediate effect, via the court’s website and lay / professional advisors, to the public. The information and guidance that parents want and need would be available from those who want and need to provide it: its immediate take-up is assured.

7. This “widespread dissemination of information” would soon extend to ‘touchpoints’ for the family like (GPs, schools, health visitors, CABs and Family Hubs: as sought by the Family Justice Review, What About Me? para 15).

8. The result delivered by EI - mostly, overnight - would be an immediate nationwide equivalent of the PrLWG’s conjectural ‘Family Solutions’ service - which cannot come to fruition - not least because the projected Service (for want of EI) will have no guidance on best-interests family solutions.

______________

In addition, development of the EI guidance, which is advocated by the judiciary, will bond the law as applied to what the law has long been held out to be, and to the Government’s stated view on what the law should be, likewise endorsed by the PrLWG’s distinguished judicial chair:

“After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society. And it is the current legal position” [16]

Personal communication at a senior level with the PrLWG’s Subgroup has confirmed it was unanimously agreed by the Subgroup that useful guidance for parents had to include guidance on the best-interests duration of contact (the Subgroup was not aware that the PrLWG had banned this).

The way ahead is clear. A system at fractional sixes and sevens with itself can now be reduced to sense: at last.

______________________________________

THE OPEN DOOR: Family Law Reform - practicalities

The task of putting an EI pilot together is not complicated. A committed judge, possessed of the relevant assents, and supported by a small Working Group of informed professionals, could have a pilot running in short order.

Early issues for determination include agreeing the pilot court and the lead judge to run it. Aside from that, the EI project’s two main components are readily deliverable:

Existing best-practice - on which there is already clear thinking - forms a likely basis for the judicial guidance. If so, its preparation amounts to a relatively straightforward matter of committing long-agreed wisdom to paper.
A few carefully-worded generalisations on the main categories of case - say, by age - or whatever - will be of powerful assistance. Precedents from overseas jurisdictions are available.
There is no particular difficulty in constructing EI’s new pre-hearing pathway to shepherd the separating parents towards best-interests consent orders.
As soon as the new judicial guidance is ready, the existing skilled teams of parent-educators and mediators can incorporate this material into their usual pre-court sessions: giving parents an indication of the court’s likely order in recognasible family circumstances. The impact of this innovation will be maximised if the sessions for potential litigants are controlled by the court, and delivered to the court’s timetable.

Funding will be required.

The reason for Whitehall’s involvement in ‘outside-business’ projects is typically to secure funding.

If funding is available from Whitehall, with no managerial strings attached, well and good.

At this writing, monies are not forthcoming from Whitehall. However, these funds can be sourced elsewhere. EI’s potential savings greatly outweigh expenditure. The provisional budget to install and host a one-year pilot at a sizeable family court is small: between £221,950 and £463,450 (depending on whether existing departmental ‘spends’ are reallocated to EI). This includes evaluation of outcomes to establish whether judicial guidance reduces the backlog of standard contact cases and improve the lot of children and parents.

Design

The flowchart for the EI project, setting out its detailed workings, should pass muster now as well as it did when Dame Joyanne chaired a high-level Lincoln’s Inn Seminar (attended inter alia by three Lords of Appeal) in 2003 to evaluate the proposal. She summed up:

“If only our caseload were approached differently, we could allocate our time better, concentrating on cases which really do need judicial intervention…

The pilot does not involve a huge investment; it would achieve savings in money and court time. A pilot scheme has my strong support. This is the way forward… it would be incomprehensible if a pilot did not receive official sanction.”

It now has. Useful change lacks is within reach. The match will be lit by a duly-sanctioned judge to lead the Working Group.

______________________________________

[1] 2.8.18, see newapproachestocontact.co.uk/insights/11xjo5hvvrhrx6h1k9dyo2lhgaii86

[2] 5.10.2017, see newapproachestocontact.co.uk/insights/post-1-w75jh

[4] PrLWG1, para 25

[5] Ibid

[6] PrLWG2, para 50

[8] Ibid

[9] NATC correspondence, available on request

[10] Keynote address, 25.6.2018; https://www.judiciary.uk/wp-content/uploads/2018/06/speech-lj-mcfarlane-fnf.pdf;

[11] PrLWG2, para 50

[12] 7 May 2021 Ref ADR86745, Lord Wolfson to Andrew Bridgen MP