UK Family Law Reform

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CONFIDENTIALITY
- & -
THE SECRET HISTORY of FAMILY LAW REFORM

The move to end confidentiality in the family courts is a welcome forward step. But, of itself, the removal of confidentiality does not alter anything. Its effect is to allow things which are unaltered (the existing legal system) to be observed. Legal process, legal institutions and case outcomes will remain unchanged. In theory, their functioning will be ‘revealed’; in practice, if critics of the system are right, the main observable shift will be from a system which cannot be understood because it cannot be seen, to a system which can be seen – but still cannot be understood , because it borders on the incomprehensible. This vista may in due course provide a basis for a more-informed debate. Eventually the plans announced by Ms Harman might become a prelude to the elaboration of constructive proposals.

Thereafter, perhaps work might start – on a problem which has already been solved.

The seminal reforms, which everyone seeks, have already been devised, agreed, announced, funded - and passed for implementation by the Government in 2003. They still lie fallow.

These same reforms would already have introduced the long-overdue new model for the family courts. These measures, endorsed by the legal profession at senior level and approved by the Government, were killed in Whitehall without Ministerial knowledge. The blueprint remains in existence – fully articulated, fully-costed, fully-detailed and fully-endorsed, with an agreed management team geared to deliver the requisite procedural changes within nine months from start-up. http://www.mensaid.com/flr.htm

The suborning of this agreed professional reform is documented, beyond gainsay, in the professional journals; in the broadsheets; in Ministerial correspondence; in judicial pronouncements; in departmental records, letters and email; and in Hansard. Perhaps Ms Harman should be told.

DIVIDED RESPONSIBILITIES

How could a programme of orderly change supported by the High Court judiciary and endorsed by the Government simply ‘go missing’ in Whitehall? The June 2004 Green Paper, Parental Separation, expressly announced these reforms and the underlying principles on which they were based. Parliamentary time was set aside for the Children and Adoption Bill 2005 to enact them.

But, without Ministers knowing, the Green Paper had been subverted before it was published. The Children and Adoption Act 2006, designed to deliver the new procedural machinery, was stillborn. The measures it was intended to enact had been killed by Whitehall officials three years before.

The history of this misadventure is bound up in the fate of the seminal NATC Early Interventions pilot project. On 8 October 2003 the detailed proposals for this project were submitted to Whitehall, after 8 years in development, on a wave of unprecedented professional support. As recited in Family Law 835 (November 2004) the project had the written approval of the President, High Court Family judiciary, the Family Law Bar Association, leading lawyers, parenting groups and - vitally - the leading child development consultants. It was no surprise that, in October ‘03, the NATC EI project received Ministerial approval from the DCA’s Lord Filkin. The funds to implement this flagship project were located in the DfES. EI was passed to the DfES for implementation.

A DEPARTMENT OUT OF CONTROL ?

In accordance with usual timescales, the inaugural meeting of the DfES Design Team to process the new measures happened some five months later, on 17 March 2004. The Team’s chair was Mavis Maclean CBE. It was at this stage that finely-honed NATC EI template should have been translated into institutional practice.

But, by that stage, the EI reform had already been utterly destroyed. Work on the EI project was stopped before it started. The project was stifled pre-birth. Neither Mavis Maclean nor (with a single exception) anyone else on the Government's Design Team had significant knowledge of the NATC EI project. The Design Team was not told about it. Scrutiny of the 17 March 2004 minutes confirms the NATC Early Interventions project was not mentioned - then or later. Nor was the NATC. Nor was the Early Interventions project. The EI project was never discussed. The Design Team jettisoned 8 years of specialist development work, without being aware of it, starting its labours anew, from scratch, on a blank sheet of paper. On 19 April ‘04 it emerged that the NATC EI documentation had been 'mislaid' by the DfES before the Design Team met. On 29 April ‘04 it transpired that the EI documentation was never read.

Appointments to the DfES Design Team had been on the basis of hand-picked ignorance of the NATC EI principles. But, since EI was then a dominant topic in family law, this meant that those on the DfES Design Team knew little of the practicalities of family law litigation. The Design Team's novices had their work cut out merely to arrive at an approximate understanding of what the existing legal system was – and, in due course, that was re-rolled out, instead, as the finished project. This was the misbegotten Family Resolutions project interposed for EI. Since this new Family Resolutions system was all but an identical to the existing legal system, in proportion as it was rolled out, Family Resolutions disappeared.

NEW ALCHEMY: GOLD INTO BASE METAL

Two officials were involved in the Whitehall process of substitution, one from CAFCASS (a Mr Brian Kirby) and the other a DFES "child protection" specialist (a Mr Bruce Clark). The latter had sole charge of the EI project in Whitehall, within the DfES, during the crucial period from October ‘03 to March ‘04 - when EI went in, and Family Resolutions started to come out. This individual knew nothing of significance about Private Law family law disputes. He assumed that the law was what everyone would like it to be, which is the opposite of what it actually is. To his DfES way of thinking (and he declined advice) it followed that the framework which the NATC EI project would have implemented was already in force. So the EI project was superfluous. And, by the same token, the benefits of the EI project could be announced (without the trouble of actually doing anything) as ground-already-made-good: as a platform on which the other Green Paper proposals could be built. These measures, similarly founded on nothing, have also disappeared along with the DfES flagship of Family Resolutions itself.

Mr Clark applied a well-worn Whitehall adage: ‘It is truth universally acknowledged that the best way to take control of a project is to get rid of anyone who knows anything about it’. In order to achieve this own-goal, Mr Clark dispensed with the EI project originators and anyone who had meaningful involvement with it. He set up the Mavis Maclean's uncomprehending Design Team to have a go at ‘whatever the project was’ in this area. This is a direct quote. He colluded with CAFCASS to swap EI for the Fam Res spoiler wanted by CAFCASS. But ‘Family Resolutions’ was not a project. It existed merely as a two-word name. It was a CAFCASS idea - to start thinking of an idea - to do something. It is probable the Fam Res proposal had not generated one side of A4 prior to its substitution as the official 'reform' project slated for national roll-out.

An awkward problem throughout the process of substitution, from October ‘03 up until the project’s launch and incipient demise as Family Resolutions in September ‘04, was that the approved project was actually EI. For months the lead civil servant, repeatedly put to the point, issued misstatements and false assurances to Ministers and legal professionals that he was still progressing the measures and principles in the NATC EI project. He said that the same project was being carried forward: only the name (‘Family Resolutions’) had been changed. These same assurances were relayed by Ministers to the House and to the Press. Both were misled. The mistake was embodied in the June 2004 Green Paper. Family Resolutions, which was never more than a spoiler, duely sank without trace at the moment of launch. Mr Bruce Clark (who seems to have previously indulged in a similar escapade relating to another family law sector) was later subject to an ‘internal investigation’ by his Permanent Secretary, Sir David Normington, who cleared him of all wrong-doing on 19 September 2005[1].

THE FUTURE?

The upshot of these events is that both departments – the DCA and the DfES – are now unsighted. When the DCA passed the NATC EI project to the DfES in late 2003, it relinquished control over proposals to remodel the family court system – so much so, that DCA officials have yet to hear, for instance, that Family Resolutions has failed. For three years now, the DCA has countered representations on the EI/Fam Res fiasco with the response that it is not worth letting DCA Ministers (for instance, Harriet Harman) know about it. Family court reform is now a DfES responsibility.

But the DfES was never interested in the workings of the family courts. It is not something it knows about. Its officials do know what happened to Fam Res and EI, but to put things right would be to admit that things have gone wrong. The upshot is a ‘closed-ranks’ DfES strategy to prevent the restarting of useful work. Departmental damage-limitation succeeded to the extent that the next DfES Minister (there have been several) had no inkling that anything was wrong until he first presented the Children and Adoption Bill to Parliament on 12 October 2005. He did not know that his Bill had been voided of significance two years before by the DfES destruction of the EI project.

Thereafter, Whitehall-funded research (RR720) on the history of the Family Resolution debacle, conducted by the obliging Professor Trinder, similarly contrived to turn a blind eye. The Constitutional Affairs Committee, which deliberated on Section 8 reforms and the fate of the NATC EI project from Oct ‘04 to February ‘05, was likewise stage-managed by Whitehall staffers. The prime witness (the NATC) was not called. The DfES enterprise to obliterate the prospect of useful change in the family courts engineered by Mr Clark (perhaps inspired principally by ignorance, albeit self imposed) has at this writing been entirely successful.

The problem of ‘what to do next’ is rather delicate. The wheel, after all, has already been invented. There is no pressing need to waste decades, and billions of pounds, trying to re-invent family law reform or tinker at the margins. A modest first step may be to put Harriet Harman in the picture. Everything above will be news to her.

12 October 2006 - Consensus

[1] This history of pathetic mismanagement is explained away on various conflicting grounds. All are bogus. First, it is said that Fam Res is an ‘adaptation’ of the NATC EI project. This is untrue. The two projects are opposites. Second, that the NATC project was replaced after a period of ‘consideration’. But the EI project was never considered. The papers were merely thrown away. Third, that the EI project was not designed for the British judicature. But it was designed for and with British legal experts and British judges. Fourth, that the EI project never existed. Fifth, an odd red herring, called the ‘Florida project’, is wheeled into uncertain play. But there was no Florida project. And so on.

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