CONFIDENTIALITY
- & -
THE SECRET HISTORY of FAMILY LAW REFORM
The ending of 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.
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 meaures 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 three 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
