November 6, 2018
What is a settlement conference?
Settlement conferences take place at court during proceedings concerning children. They can take place in public law cases involving local authorities (care proceedings) and in private law cases between individuals.
Settlement conferences were pioneered in Canada over 15 years ago, where all the indications are that they have been a success. They are now being piloted in several areas in the UK including Liverpool, Devon and Cornwall and Brighton after senior judges, including the former President of the Family Division, looked at innovative ways of minimising delay and costs within the family justice system.
It is an entirely voluntary and consensual process conducted in the presence of the parties’ lawyers with ample opportunity for advice to be given outside the process and for careful reflection by all parties before decisions are made.
During the course of the settlement conference the judge will hear from all parties on a without prejudice, confidential and legally privileged basis. If a settlement conference does not succeed in reaching agreement and there is a subsequent trial nothing disclosed at the settlement conference may be used at the trial which, moreover, will not be heard by the judge who conducted the settlement conference. Where a child is a party the child’s solicitor and/or guardian will ensure that the child’s wishes and feelings are made known.
The ethos of the settlement conference is not to pressure parties to settle but to explore whether the honesty and confidentiality of the process can help to reach common ground.
At any stage, if every party in the case agrees, a judge may refer the case for a settlement conference. This usually occurs at the IRH (Issues Resolution Hearing) in public law cases and at the FHDRA (First Hearing Dispute Resolution Appointment) in private law proceedings. At all private law settlement conferences, someone from CAFCASS will be there to represent the interests of the child. The expectation is that CAFCASS meet with parties first to see what, if anything, they might be able to achieve.
What can I expect at a settlement conference?
The conference itself is conducted by an allocated trained judge. The purpose is to try to resolve some or all issues or to find creative ways of helping the parties reach an agreement without the need for any further hearings.
After introducing themselves and reminding you of the principles and reasons for settlement conferences, the judge will sit with you and discuss your case directly with you in an informal way to explore the issues which need to be resolved.
The judge usually sits at the same level as parties and parties can be called by their first names. The conference is not as formal as a normal hearing and is designed to put people at ease.
No party or legal representative has to say anything to the judge if he/she does not wish to do so. Parties will never be separated from their legal representatives who are free to speak at any time but not to argue the case. Publicly funded (legal aid) representatives within ongoing publicly funded cases will also be funded to attend settlement conferences.
All parties will be given the opportunity to reflect or obtain advice from their legal representatives at all stages during the settlement conference.
Although everything said during the settlement conference is confidential to the process of the settlement conference and will not be referred to at hearing, if it is discovered during the process of the settlement conference that a child is at risk of significant harm, the judge will immediately end the conference and take appropriate steps to protect the child.
Any party can withdraw at any time from a settlement conference and this will not prejudice their case or lead to an adverse inference at any time.
The judge will not make the decision but if parties wish the judge can give an indication of what they would do if they were deciding the case.
At the end of the settlement conference some or all of the issues might be agreed. If all of them are agreed, an order can be made if it is needed or the agreement can be recorded. If not everything is agreed, whatever has been agreed will be recorded. In order to resolve the rest of the issues, there will always be the option of a hearing before a different Judge. This judge will make directions for filing of evidence and list for a final hearing (which may already be listed).
Laura Bayley is an experienced Family Law practitioner, who specialises in public and private law cases concerning children. In private law Laura provides advice and representation in disputes relating to living and contact arrangements for children following the breakdown of relationships, applications to remove children from the jurisdiction and specific issues relating to education, medical procedures and religion.
If you require the services of Laura Bayley to help with your case, get in touch with the clerks in our central Brighton office who will be able to put you in contact with her.
Laura Bayley | Family and Children