Resolution national conference chairperson's address

02 Apr 2011

Challenges & opportunities – the changing face of family practice

When I stood before you last year I spoke about the turning point that we had arrived at in terms of the future for family law and also for Resolution. In my introduction I said “with an election around the corner and family issues top of the political agenda, the opportunities for influencing and shaping the future of family law are the best they have ever been”.

I could not have known then the challenges that we would face over the subsequent year. We seem to have jumped from a situation where it was difficult to interest parliamentarians in family law to one where each new week brings a new set of proposals for change.

Speaking of proposals for change you will all no doubt have read in newspapers of the interim recommendations of the Family Justice Review. As ever those headlines focused on some rather narrow aspects of the report and in large part were quite wrong. I have since read a good part of the report. It is a thoughtful and intelligent piece of work. It makes some radical proposals that, if implemented, are likely to improve significantly the experience of those who use the family justice system. I was particularly interested to read what is proposed about the emphasis on shared parental responsibility and the requirement that, before proceedings are commenced, to meet with a mediator who will carry out an assessment and who will be able to mediate if appropriate or refer to Parenting Information Programmes or to lawyers for collaborative law or representation. The challenge for us is likely to be to plan how we can best work within that system for the benefit of our clients.

I look forward to hearing from David Norgrove who I am sure will tell us more about the proposals and fill us in on the thinking behind them.

We started out last year knowing that the Family Justice Review would be taking a wide ranging and welcome look at the family justice system. Before long though that review was joined by other government initiatives which I hope David Norgrove will forgive me for saying appeared be published without apparent consideration for other similar reviews and some of which seemed to anticipate the findings of the review he was chairing.

Key amongst these were the government’s proposals on family legal aid and the rather rushed introduction of mediation information and assessment meetings.

As we spoke to Ministers and officials around the legal aid consultation it became clear that the tail was going to wag the dog and that the legal aid proposals were intended to provide a steer to the Family Justice review rather than the other way around, particularly in relation to the drive towards mediation. I was pleased to read that the Family Justice Review panel share some of our concerns about these proposals.

Legal aid lawyers started the year knowing that upheaval was coming in the shape of the new civil bid contracts – but found they faced new and even bigger challenges as the year progressed and the Government published their green paper on legal aid reform.

I know that not everyone agreed with the position that NC took around the civil bid contracts and that there was a period when some legal aid lawyers felt that they hadn’t been heard and for that I want to apologise. I can assure you all that both NC and the legal aid committee took their responsibilities very seriously and I am pleased that we were at least able to engage in a lively internal debate, with regional representatives coming to NC to present the alternative viewpoint.

Once the legal aid green paper was published however it became clear that there were newer issues and challenges for us to mobilise on.

None of us could have envisaged quite how draconian the legal aid green paper proposals would be. As you will all know, the proposal is that there should be an across the board reduction in fees paid by 10% and, more drastically, much of what we do will simply be removed from scope so that legal aid will be simply unavailable for most family law cases, save for mediation.

The deadline for submitting responses to the legal aid consultation was incredibly short. We worked hard to complete our response and having learnt the lessons of the bid contract – we made sure that there were forums for you all to feed into development of our response and our policy around the proposal. The comments and views you all expressed through the different social media we put in place were all looked at as part of that work.

If implemented the legal aid cuts will undoubtedly have a seriously detrimental impact on access to justice and of course for firms currently undertaking legal aid. The Law Society’s report into the impact of the proposals on legal aid firms says:

Our projections indicate that, as would be expected, the rate cut squeezes already tight profit margins, however the removal of work from scope will have a catastrophic impact on the supplier base. Many suppliers will not survive the withdrawal of work from scope and risk closure. In particular, firms that undertake family work in volume, that do large amounts of Crown Court work, or who specialise in many areas of civil work such as housing, immigration or clinical negligence will find the impact of proposals unsustainable”.

The impact on access to justice is likely to be even more serious as many people, faced with the option of mediation, potentially with a former partner who has been abusive and/or violent and where there may be a serious and significant power imbalance, or acting as a litigant in person, will simply give up. This is acknowledged by the government and indeed is one of the reasons they say that the problems we warn of in respect of litigants in person will not materialise.

Immediately following publication of the green paper national committee met and took the unanimous decision that legal aid would be the organisational priority for the foreseeable future. We have since formed a reforms task force, primarily focussed on legal aid reform and the family justice review, chaired by Dave Emmerson and me with members drawn from relevant committees.

We are also working with a number of other organisations and in particular, have formed a campaign group with the Family Law Bar Association, the Association of Lawyers for Children, The Law Society and the Legal Aid Practitioner’s Group. Separately we have formed close links with a number of special interest and pressure groups and will work together when opportunities arise.

Of course our first priority was to get the green paper response completed. Since then we have written to the Minister and sought a meeting, we have written to numerous MP’s setting out our concerns about the proposals and have offered to meet any who will hear from us. We have had meetings with the President of the Family Division, Sir Nicholas Wall and with other senior members of the judiciary. We have also met with Lord McNally the government’s spokesperson on legal aid in the House of Lords.

As I have said, legal aid will be the organisation’s priority for the foreseeable future. Resolution is (as you will have seen if you have read Steve Kirwan, our treasurer’s report) in the fortunate position of having fairly significant reserves. Although, when I spoke to you last year, I spoke about the need to manage our finances sensibly, I am clear that if we need to spend reserves to change what is proposed we must do so. Of course we should only spend reserves where we believe that spending will result in a better outcome for families going through the pain of separation and divorce and for our members. We have to be realistic about how much of the government’s proposals we can turn back but a positive is that the Minister has stated that the MOJ is looking again at the definition of domestic violence. Another positive is that both the Family Justice Review group and the Justice Select committee share many of our concerns about removal of some areas from scope.

This is not a campaign that your national committee will be able to carry out alone. It must involve all of us both on a national and regional level. We must seek to influence policy makers and the public and to influence at every opportunity. We need all of you to write to your MP’s and to meet with them where possible. We need you to find clients who presently have the benefit of legal aid and who would suffer under these proposals – clients who are willing to speak to the media and make the public realise that the proposals will affect real people and real families.

Working together we really do deliver – your thoughts and cases helped us produce an excellent response to the green paper. But I am especially pleased that 459 of you took the time to download the template response we had prepared. I am sure those of you who submitted your own responses played their part in taking the total number of responses to the consultation to over 5,000. Apparently the large number of responses has pushed the timetable for publication of the white paper on legal aid back into May.

Please don’t stop there though the campaign isn’t over and we need your continued involvement and we also need your ideas. We will only achieve anything if we all take part and believe that we can make a difference.

The other headline issue of the moment is of course

Mediation and ADR

As we all know, on Wednesday of the coming week the President’s Pre Application Protocol on Mediation Information and Assessment Meetings comes into force. From that date anyone who wishes to issue an application in respect of children or for ancillary relief on divorce must first (subject to certain exemptions) attend a meeting with a mediator to learn about mediation and other forms of ADR. This effectively puts privately paying clients on the same footing as legally aided clients.

Whilst we were all looking forward to the idea that the Family Justice Review would be able to take a holistic look at family justice in this jurisdiction – it would seem that the government had other ideas and whilst we certainly wouldn’t disagree with moves to promote mediation, one has to wonder has to wonder at the rationale for the introduction of MIAMS ahead of the results of the family justice review.

I know that some family lawyers will see this move as a threat. However, Resolution was established to promote better ways of working for the benefit of those going through the pain of separation and divorce and for their children. Whilst I am confident that every family lawyer here this morning will explore the possibility of mediation and other forms of ADR with their clients, there are others who do not do so and in that respect it cannot be a bad thing to enable those clients to have the opportunity they would get if they consulted a Resolution lawyer.

Of course the Pre Application Protocol is not perfect. It has few teeth and whilst ‘other forms of ADR’ are mentioned it is clearly focused on mediation and indeed the meetings can only be conducted by mediators. We all know that mediation cannot be a universal panacea and that, if there is to be this sort of requirement before proceedings are commenced, it would be much better if meetings dealt with all forms of ADR including collaborative law, arbitration and importantly parenting information & support.

Resolution, and in particular Sarah Lloyd Resolution’s director of ADR has made this point very clearly to the Ministry of Justice. What they say is that this is just the start and that they will certainly look favourably on extending these meetings to cover the full range of processes. If the meetings are to cover more than mediation, other ADR practitioners should be able to conduct them. I can assure you that Resolution has made that point also loudly and repeatedly. I do hope that David Norgrove will also take that point that we shall elaborate upon in our response to his consultation.

It is much easier to say this as an organisation that has always advocated ADR practice. We are in a principled position to have our say and there are many in government who do respect us and take on board our views.

I mentioned earlier the haste with which the government has introduced this measure which has left the mediation industry (for want of a better word) scrabbling to catch up. Sarah Lloyd our ADR director and the ADR committee have worked incredibly hard to get us all as prepared as we possibly can be in the short time available.

In anticipation of the increased interest in mediation training we have scheduled 7 foundation courses this year and 6 three day refresher courses for mediators whose practice has lapsed. These courses have proved very popular and we are looking at scheduling more to meet the demand from members. We’re putting on MIAMS training courses for those mediators who need to attend this course to be able to carry out the assessments and as fast as we schedule the courses they fill up. It is heartening to see that some mediators who are not obliged to attend this course are booking themselves on to it too. We’ve also prepared a distance learning module on financial eligibility (another requirement of the FMC) . All of these developments have been prepared under the tightest of timescales and as usual with the utmost professionalism we have come to expect of our highly valued Resolution staff and trainers.

The work that Resolution has done over the last year

I want to speak to you as well about the work that has been done by the various Resolution committees and the staff team over the last year.

It has been frankly monumental:

  • The publications team has continued to expand its activities with books on Emergency Financial Procedures, Company Valuations, Dispute Resolution, and some brand new titles available to view on the stand here today on Child Support, the new FPR, First Meetings and Cohabitation Disputes
  • 2,401 of you - 44% of the Resolution membership - attended a Resolution training course last year
  • As Resolution members continue to face a difficult economic climate, we have continued to offer low cost training. Putting on two day long conferences for the knock down price of £99 per day: “Maintenance – how much and for how long? ” in May; "Seeking safety – the whole picture” in October
  • Central office work tirelessly throughout the year – but I do want to recognise the extra effort they put in at the beginning of each year - one of their busiest times. Since the start of the membership renewal process in January they have been processing an average of 100 renewals each working day a total to date of 4,900 – whilst also continuing to handle day to day enquiries and administration and rising to the enormous challenge of organising this conference weekend.
  • We’ve been busy on the media front too and I hope you’ll forgive me for introducing a short musical interlude here to give a flavour of the activity undertaken by our regional and national media spokespeople last year.

I think the range of subjects covered there will have given you an indication of just how busy things have been on the policy front too.

We have continued to press for ‘no-fault divorce’ and for cohabitation law reform. We responded to the Family Justice review, gave oral evidence to the review committee and submitted a written response. In doing that we worked alongside the Family Law Bar Association, the Law Society and the Association of Lawyers for Children, something that we have continued to do in much of our campaigning.

In addition we responded to the Law Commission’s consultation on its next programme of work, responded to the Family Procedure Rules Committee on its proposed changes to costs rules. We’ve given written and oral evidence to the Justice Select committee on the Operation of the Family Courts and Access to Justice, responded to the consultation on unified courts and tribunals service.

On top of this we are currently responding to the green paper on Child Maintenance. Thank you to all those of you who responded to our recent survey. We have written to the relevant minister about our concerns in respect of the proposals not least because some of what has been consulted upon is already contained in the Welfare Reform Bill currently before parliament. We have linked up with Gingerbread, the Church of England and others to campaign against one of the most concerning proposals in that green paper around charges payable for applying to CMEC. The green paper also discusses the linking of financial support to child contact, something that we have always opposed. In his report David Norgrove does propose that support might be reduced or suspended where a parent with care refuses contact in extreme cases but not vice versa. I am sure we will all be interested to hear the thinking behind that.

There is of course also the response to the Law Commission consultation on marital property agreements. If you haven’t already completed the pre marital agreements survey please do so next week. The Law Commission has made it clear that it will really value any information we can give.

Organisational Review

Before I pass over to David Norgrove I do want to touch upon some of the organisational issues of last year.

Many of you will be aware that we are missing a familiar face from conference this year. Karen Mackay our Chief Executive took a period of extended leave in June last year, before finally leaving the organisation in December. We were therefore without a chief executive for most of last year and as a consequence Liz Edwards and I as well as the Executive Committee had to take a much more ‘hands on’ approach to the day to day management of the organisation.

Happily we have now appointed a new CEO, Colin Jones who will be joining us on the 11th April. Colin joins us from the London Development Agency where he was Director of Youth and Volunteering. Prior to that Colin was Deputy CEO for YouthNet UK. Colin is someone with a clear history of managing change and getting the most out of people. In a time when government is taking a fresh look at family law and procedure and when David Norgrove’s team is considering radical options in his review of family justice, we took the view that it would be a positive benefit for Resolution also to be headed by someone who is able to take a similar fresh view. Colin was the first choice of your Executive Committee from a large number of excellent candidates and we are confident that he is the right person to head your organisation.

When I delivered this speech at last year’s conference I spoke about the organisational review that we intended to undertake following the last conference. Your national committee spent 4 days considering what the organisation does well and how it needs to change to meet the demands we face and, importantly, to continue to be relevant to you, the members. We decided that we needed to have an organisational Vision, Mission & Values. We came up with a draft. We also considered how the structure of the organisation should change to better meet demand and to remain adaptable. We have come up with an alternative structure. We also prepared a strategic plan.

We haven’t yet been able to move ahead with this, largely because we have been without a Chief Executive for much of the year and have had the numerous consultations and reviews to deal with. This is though something that we shall be returning to once our new Chief Executive, Colin Jones, is in place. We will undoubtedly need further input from you so please do let us have your views. It is only with your input that we will make Resolution the organisation that you want it to be.

We have however been able to move forward with some of what was agreed in the organisational review. We were very keen to ensure that the views of ordinary members were taken on board. We decided that, in addition to continuing the regular Regional Liaison Committee meetings that each member of the national committee should take responsibility for one or more regions and act as a conduit between the region and the national committee. Every region will have heard from their national committee member offering to come to the region and talk to local members. Many of you will have already met your national committee member and others will have meetings planned – I am certainly looking forward to my meeting with the Devon region in June. If you have not taken this opportunity please do so. We cannot represent your views without input from you.

Since last year we have also improved considerably the member communications. You will all have become used to the various e-news letters that are sent on a regular basis and many of you will have taken part in the various LinkedIn groups. This is something that we intend to continue and to develop over the coming year.

Conclusion

I am conscious that I have covered a lot of ground. Like you I am very keen to hear what David Norgrove has to say, but before that the key messages that I want you take away from my speech today are:

1. This is your association – please work with us, get involved, tell us what you think and help shape the association. We can make a difference but only with your involvement and support

2. We have had a challenging year and there are further changes ahead, nevertheless your organisation is in the best shape it can be to meet those challenges;

And lastly

3. In the words of Robert F Kennedy: Like it or not we live in interesting times. They are times of danger and uncertainty; but they are also more open to the creative energy of men than any other time in history.

All change creates opportunity and we will work hard to exploit those opportunities for you. We will have to be adaptable and I am confident we can be. Resolution started with the intention of changing the way we practice for the benefit of families going through the pain of separation and divorce and we have always advocated better ways of working. We are therefore ideally placed to lead change going forwards.