Fam
Law [2004] 835
November 2004
Newsline Extra
Family Resolutions v Early Interventions
The
EI project is not being taken forward:
Mavis
Maclean’s exposition of the family resolutions pilot project ([2004]
Fam Law 687) provides the answer to the question – whatever happened
to the early interventions project (EI project)? The EI project, formally
submitted to the Department for Education and Skills (DfES) and the
Department for Constitutional Affairs (DCA) on 8 October 2003, after
8 years’ development, was fully specified, properly designed and
costed. It commanded across-the-board professional support. The position
at that time was clear cut:
‘The
need was not so much for an open ended inquiry into what to do but the
more proactive task of ensuring that an early interventions trial …
actually occurred.’ ([2003] Fam Law 455)
A
close study of the EI project, as submitted, and the family resolutions
project (FR project) described a year later, does not disclose any significant
similarities between the two.
This is not what was meant to happen. ‘Family Resolutions’
was billed as ‘Early Intervention’ under a different name.
In the words of DCA Minister, Lord Filkin, in a letter to the Coalition
for Equal Parenting, dated 29 April 2004: ‘The early interventions
project, developed by the [organisation] New Approaches to Contact (NATC)
and others, is being developed and taken forward’. This letter,
which first introduced a sentiment repeated in Mavis Maclean’s
article, explained the technical reason why the project was ‘renamed
the Family Resolution Project’, namely that ‘whilst the
intended intervention is early in the current court process, it is not
early in the process of relationship breakdown’.
So
what are the differences between the two projects? And do they matter?
The core of the EI initiative hinged upon giving parents guidance, before
the case, on how much contact there should be. This development, which
finds no counterpart in the FR project, entailed a new partnership between
the courts and child development experts. Together they would devise
parenting plans which would set out norms of contact as a framework
for negotiation. Judicial support for the concept of parenting plans
always lay at the heart of the EI project. Without backing from the
court, any guidelines would be written in water. As Bracewell J observed,
summarising the NATC’s 2003 conference in its publication Early
Interventions – Towards a Pilot Project: ‘This is the way
forward … It would be incomprehensible if the pilot project did
not receive official sanction from the DfES’.
But
the incomprehensible did happen. On examination, it transpires that
the FR project is based upon a well-rehearsed mantra –‘every
case is different’ – which is the antithesis of EI.
Bringing
the two projects into alignment would not be a simple matter of changing
horses midstream. This is not just because the Children and Family Court
Advisory Support Services (CAFCASS), which will apply conciliation under
the FR pilot, has confirmed its stance that ‘every case is different’.
Its view that there are no categories of case (see Contact: Principles
Practice Guidance and Procedures (CAFCASS, 16 August 2004)) means that
there can be no parenting plans outlining what should happen in the
various case categories. Equally important, every component and every
protocol of the two divergent projects are designed for a different
function. The EI parenting plans would not be agreed by the court and
its experts, nor be backed by the court, nor be issued by the court,
nor be applied by the court, nor be disseminated by the court. Nor could
they take root throughout ancillary support services such as mediation,
legal professionals and potential litigants.
This
does not mean that the FR project is not a useful undertaking in
its own right. The pre-court group sessions – one ‘to refocus
on the child’s needs’ and the other, on ‘conflict
management’ – could pay dividends. FR is also bound to yield
valuable data on how much can be achieved by a careful repackaging of
the existing regime. But by the same token it is not the same as the
EI project.
Perhaps
the least useful outcome would have been a half-way house where a sound
concept was marred by poor construction or indifferent management; or
where a slipshod version of the new thinking was adopted. The FR project
eliminates this risk. There is no overlap between the two projects.
This
means that the way remains clear to pilot the EI project as originally
designed and agreed. The two pilots (EI and FR) could run side by side
as distinct comparative exercises at different courts. This could not
come too soon, not least because the support for EI, which was sufficient
to secure its submission, acceptance, ministerial assent and funding,
has not abated. Written statements of support are on the record from
the President of the Family Division (Re S (Contact: Promoting Relationship
with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [12]),
the High court judiciary (Munby J (Re D (Intractable Contact Dispute:
Publicity) [2004] EWCH 727 (Fam), [2004] 1 FLR 1226, at paras [37]–[38]),
Bracewell J (Early Interventions: Towards a Pilot Project (NATC, July
2003)), the Family Law Bar Association (by letter to the DfES Project
Chair (9 March 2004)), Solicitors Family Law Association Chair ((2004)
104 SFLA Review 12), the Coalition for Equal Parenting (by letter to
the DfES Project Chair (29 March 2004)), and Dr Hamish Cameron (Early
Interventions: Towards a Pilot Project (NATC, July 2003)).
The
Green Paper, Parental Separation; Children’s Needs and Parents’
Responsibilities, Cm 6273 (2004), adopts, at paras 4 and 55, the EI
concept of time linked parenting plans as the key to resolving contact
disputes. In line with the ministerial view on the continuity between
the FR and EI projects, parenting plans are proffered as the backbone
of the government’s s 8 reform project. Hence the conundrum of
the present situation: the FR pilot – produced by civil servants
– does not have the prime characteristic supported by the Cabinet
- but the civil servants have not produced the EI pilot, which does
have the prime characteristic supported by the Cabinet. The inference
– that EI lost its way in Whitehall’s bureaucracy –
is borne out by the project’s history. Put forward as a fully
articulated concept ready for installation, it has not been seen since.
Should
the FR project have been produced in-house by civil servants? After,
as the author is aware, the DCA forwarded the EI project to the DfES
for implementation – intact, approved and with a plan for external
local management – the DfES then set up its own in-house design
team. This curious step (for a project where the design had already
been finished) had a marked consequence. By the time the DfES design
team first met in March 2004, knowledge of what the project was about
had been lost. Core EI documents did not reach the DfES project manager
until May 2004 when the project was nearing completion.
How
did this happen? One answer is that ‘Family Resolutions’
is the name of an old CAFCASS project which was undefined and unfunded.
From the moment the EI project first went to the DCA in the autumn of
2003 it became evident that EI would attract funding. CAFCASS was well
placed to claim EI as ‘its’ project.
It
is the author’s understanding that the customary procedure would
have been to commission the project out to an independent management
agency which would have retained the project originators. Had this happened,
the EI pilot could and would have been up and running by September 2004.
Independent
management adds commitment and expertise and removes the project from
the political (in its broadest sense) arena. Under independent control,
turf wars, demarcation disputes and extraneous considerations of institutional
prestige should abate. Perhaps such a solution will have been adopted,
or be in the offing, by the time these words find their way into print.
Caroline
Willbourne, Barrister, One Garden Court, Temple, London
