Parenting Hearings Programme Pilot Evaluation Report
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Executive summary
Introduction
The Parenting Hearings Programme (PHP) pilot is a new process initiated by the Principal Family Court Judge, Judge P Boshier. It commenced in six courts on 1 November 2006. The pilot is intended to provide an early response to urgent applications under the Care of Children Act 2004, and to cases not resolved through counselling or mediation.
A key feature of the PHP is to deal with cases faster than the usual court system, thus reducing damage to co-parenting and parent–child relationships, and producing better results for children. PHP also intends to be less adversarial, and provide opportunities for parties to participate more in the process, particularly at the Preliminary Hearing.
The evaluation included exploratory work at two PHP courts, followed by key informant interviews,[1] a postal survey of parents, an Internet survey of Family Court lawyers involved in PHP, and discussions with a small number of key PHP stakeholders. Statistical analysis of Case Management System (CMS) data was also undertaken. The statistical analysis report does not include definitive statements on the effects of PHP versus non-PHP because the small number and variability of PHP cases meant that a robust non-PHP comparison group could not be identified.
The PHP process
The PHP process has generally been implemented as described in the PHP Guidelines. Two types of cases are considered potentially suitable for PHP. ‘Track A’ cases are urgent applications and other high-risk cases, often involving domestic violence, abuse or mental health. ‘Track B’ are those not resolved through counselling or mediation.
A key component of PHP is that cases will be dealt with faster than in the usual court system, thus reducing the impact of protracted court proceedings on families. The suitability of cases for PHP is determined by a judge at the PHP Judge’s List. Those deemed suitable are set down for a Preliminary Hearing which the Guidelines indicate should be within two weeks. Cases considered not suitable for PHP continue in the usual Family Court process.
The Preliminary Hearing is less adversarial than a traditional hearing. It tends to be judge-led, focuses on a narrow range of issues identified at the Judge’s List, and provides opportunities for parents to speak directly to the judge. Parents are encouraged to resolve issues at the Preliminary Hearing. A Lawyer for the Child has been appointed for nearly all PHP cases.
A Final Hearing, which is supposed to be within two months, is scheduled for cases not resolved at the Preliminary Hearing. Final hearings in the PHP process generally follow the traditional hearing process, rather than the less adversarial procedures in the Preliminary Hearing.
PHP cases
The number of cases placed on the PHP was smaller than expected. Of the 4554 care of children cases in the six pilot sites which were current (in the court system when the PHP began), or new (started after the introduction of the pilot on 1 November 2006), 319 (7%) were placed on the PHP (as at 4 August 2008).[2] Of this number, 225 (71%) cases were new and 94 (29%) were current. This finding raises questions about how case numbers might be increased. An increase may be achieved by re-examining how potential PHP cases are identified and suitable cases subsequently allocated to the PHP.
Nineteen percent of completed PHP cases had neither a Preliminary Hearing nor a Final Hearing. Two-thirds of the completed PHP cases (66%) in the analysis had just a Preliminary Hearing, and only 14 percent had both a Preliminary and Final Hearing.
Aspects of PHP considered beneficial included parents participating in the Preliminary Hearing, the same judge being involved in PHP cases from start to finish, and parents completing the ‘Parenting Through Separation’ course before they went to a Preliminary Hearing.
Variation between PHP judges and between PHP courts
Variation in practice between both PHP courts and PHP judges became evident during interviews with key informants. While some lawyers were not concerned about this as they had experienced variation in other Family Court processes, others were more concerned. Of those lawyers who responded to the survey, half believed there is a lack of consistency between judges that impacts negatively on the PHP process (19% ‘strongly agreed’). Just under a half (46%) reported a lack of consistency between judges that impacts negatively on the PHP outcomes (18% ‘strongly agreed’).
Some lawyers indicated during the interviews that a more consistent approach would help them prepare their clients. They suggested protocols or more guidance might reduce the PHP’s variation. A particular concern here was that the introductory DVD’s portrayal of the PHP process very often differed from that experienced by parties.
Other examples of variation reported during interviews included differences in extent to which specialist reports are requested, the degree to which judges and lawyers participated in the Preliminary Hearing, and under what circumstances a case might be suspended or removed from the PHP.
Involvement of children and young people
PHP appeared to have little or no impact on the extent to which children and young people participated in the process. Stakeholders suggested their greater involvement in court processes had occurred as a result of the Care of Children Act 2004, rather than through the PHP pilot.
Changes in PHP after the pilot started
The PHP process appears to have changed in a variety of ways after its implementation. For example, some judges now spend more time at the start of the Preliminary Hearing putting parties at ease, and ensuring parties have the opportunity to participate than they did when the pilot was first introduced. Some administrative changes have also been instituted.
Suitability of cases for PHP
Types of cases considered generally most suitable for PHP were those where parties were willing to resolve matters, where issues had not become too entrenched, and where cases involved narrow issues. Eighty-two percent of lawyers who responded to the survey indicated suitable cases were being included in PHP.
In the interviews cases considered least suitable for PHP included those involving allegations of sexual abuse of children, significant safety issues, violence, significant and complex issues. Cases relating to s60 Care of Children Act 2004,[3] particularly those involving domestic violence, drug use, as well as those relating to discharge of Child Youth and Family orders, were also considered unsuitable for PHP.
Domestic violence and PHP
Views differed about the extent to which domestic violence cases should be included in PHP. There was, however, general acknowledgement by judges and lawyers that the majority of domestic violence issues will be dealt with at a s60 hearing, and then, if considered suitable for PHP, the case will go to a PHP Preliminary Hearing as soon as possible. This was particularly so for domestic violence cases involving less serious or ‘minor’ allegations. A number of judges, lawyers and court staff, acknowledged the need for a faster process for domestic violence matters.
Disadvantages of including domestic violence cases in PHP were also cited. These included a lack of information to the court because of faster process, in some circumstances an early response may be counter-productive, and that the emphasis on a quick resolution may pressure parties to compromise or reach agreement, in spite of safety concerns.
Timeliness
Entry on to PHP and Preliminary Hearing
Once a judge has decided a case is suitable for PHP it is directed to a two-hour Preliminary Hearing which should be held within 14 days.
Using CMS data to measure timeframes of the PHP cases, the evaluation identified that only one in five of the PHP cases that had a Preliminary Hearing[4] had this hearing within two weeks of entry on to the PHP. Only approximately half the cases that had a Preliminary Hearing had this hearing within four weeks of entry on to the PHP.
Although the prescribed timeframes are not generally being met, overall PHP is still seen as faster than non-PHP. This faster process is viewed very positively, and is considered a key advantage for both parents and children. There was considerable support from judges, lawyers, parents and court staff for a faster process, and the benefits of a timely resolution for children. This faster response may simply include the court system engaging with parties at an early stage, as well as holding a hearing in a timely fashion.
It was also noted in some interviews that a faster process may not always be appropriate. In some situations, an early hearing may be counter-productive, and could lead to parents having more, rather than less, court involvement. Some parents may benefit from further counselling. Others might require additional time for damaged relationships to heal before they can make constructive decisions about the care of their children.
Some interviewed judges, lawyers, and court staff were concerned PHP was not achieving its recommended timeframes. A few wondered whether these timeframes were realistic, given delays in receiving specialist reports, insufficient judge time, and other resource issues.
The evaluation investigated whether urgent interim hearings in the non-PHP system would provide the same benefits as PHP Preliminary Hearings. Responses suggested support for some form of early response. Most lawyers believed similar benefits would be provided, the main reason being that issues could be resolved quickly. Reasons why similar benefits would not be provided, according to lawyers, were because urgent interim hearings did not have the same flexibility as PHP, and did not use a less adversarial approach. Indicative information suggests judges are less likely to agree that urgent interim hearings in the non-PHP system would provide the same benefits as PHP Preliminary Hearings.
Parents and children
Lawyers who responded to the survey believed the PHP process is very effective at providing a timeframe appropriate for the parents (80% rated it as effective and 81% as more effective than the non-PHP process), and for the children (83% effective and 81% more effective than non-PHP).
Lawyer for the Child
Some interviewed Lawyers for the Child commented that the tight PHP timeframes could create additional work pressures for them.
When the Lawyers for the Child who responded to the survey were asked to indicate whether they had enough time to prepare for specific stages in the PHP process, seven out of ten stated they had enough time to prepare before the Judge’s List. Eight in ten reported they had enough time prior to the Preliminary Hearing.
Specialist report writers
All groups interviewed reported difficulties obtaining specialist reports within PHP’s timeframes, particularly if requests for these reports were broad in their scope. Insufficient psychologists and CYF social workers were considered the main reason for these difficulties. The court sometimes granted extensions when requested, but occasionally hearings might proceed without these reports.
The lawyers’ survey asked about the effectiveness of PHP in ensuring that psychologist or social worker reports were requested when appropriate. Thirty-eight percent of lawyers who responded to the survey believed PHP was not effective in ensuring psychologist reports are requested when appropriate, and 35 percent believed this was the case for social worker reports. However, PHP was not generally considered less effective than non-PHP so this issue does not appear to be specific to PHP.
Judicial resources and case scheduling
While not solely related to PHP, insufficient judicial resources, case scheduling difficulties and court staff turnover were considered factors impacting on the PHP, particularly the extent it was able to achieve the expected timeframes.
PHP’s less adversarial model
The PHP seeks to apply a less adversarial model than the usual Family Court process. Most judges, lawyers and report writers interviewed believed the PHP was generally less adversarial because of its lack of formality, length of the hearing, and the judge-led approach.
When asked to what extent PHP provided a less adversarial process overall for the parties, 77 percent of lawyers who responded to the survey believed PHP was effective. Seventy percent believed PHP was more effective than non-PHP in this respect.
Seventy-four percent thought PHP was effective in providing a less adversarial experience at the court hearings. Seventy-five percent of lawyers believed the PHP was more effective than non-PHP in providing a less adversarial experience at the court hearing.
Opportunities for parties to participate
Providing opportunities for parties to participate in the court process is a key component of the PHP pilot, and most parents interviewed had appreciated this opportunity. Nearly all lawyers who responded to the survey (91%) agreed it is useful for parties to be able to speak directly to the judge. Six in ten (61%) ‘strongly agreed’ that this was useful.
Views were mixed on the extent to which PHP’s less adversarial process suited everybody. Generally considered more ‘user friendly’ than the traditional court process for self-represented litigants, the potential for it to be less helpful, for example, to people who are less articulate was acknowledged. In these situations, however, it was reported that lawyers spoke more on behalf of their clients, and judges asked parties more questions than might otherwise be the case.
Courts’ firmer control
Depending on the case, judges tended to firmly control PHP proceedings by, for example, limiting issues to be addressed so the court can focus on the most relevant issues. Seventy-eight percent of lawyers who responded to the survey believed the PHP was effective in appropriately limiting issues to be addressed.
Limiting opportunities for cross-examination, another component of the court firmly controlling the PHP process, was generally considered a positive development as it helped, for example, to speed up the process. Some lawyers, however, mentioned that limiting or denying cross-examination raised natural justice concerns with them.
Seventy-three percent of lawyers who responded to the survey believed the PHP was ‘effective’ at appropriately limiting cross-examination (28% ‘very effective’ and 45% ‘quite effective’). Sixty-nine percent responded that the PHP was more effective than non-PHP in appropriately limiting cross-examination.
Limiting affidavits or information in affidavits was a further component of PHP’s less adversarial nature. Sixty-two percent of lawyers who responded to the survey believed the PHP pilot was effective in appropriately limiting information in affidavits.
Outcomes
PHP seeks to provide a better response to cases that have the potential to become intractable, and aims to encourage parties to focus on future parenting proposals. Although a faster process is important, processes should also be fair and just, and outcomes durable.
Fair for parties and children
All interviewed judges and most of the interviewed lawyers and report writers stated PHP outcomes were fair, or the best that could be achieved given the circumstances of the case. Providing parties with the opportunity to have their say and input into the outcomes was considered by judges and lawyers to be an important part of parties thinking the outcome was fair.
Less positive, and less frequent, comments about fairness of outcomes included the possibility that parties could feel “bullied” into agreeing because of PHP’s short timeframes, and some issues not being dealt with.
Almost three-quarters of the lawyers who responded to the survey rated the PHP process as being effective in resulting in fair and appropriate outcomes. However, the PHP process was rated by many lawyers as being about the same as the non-PHP process in achieving this (42%). Of the remainder, 35 percent rated PHP as more effective than non-PHP in resulting in fair and appropriate outcomes, and 14 percent less effective than PHP.
Satisfaction
A reasonable level of satisfaction with PHP outcomes was evident, both from interviews and the parents’ survey, in that more parents were satisfied than dissatisfied.
Interviewed lawyers believed most of their clients were reasonably satisfied, and some indicated PHP’s faster timeframe contributed to people feeling happier with the outcome.
Durability
The extent to which PHP cases were completed and parties did not return to court was measured through CMS data[5] and interview and survey questions. A higher proportion of completed cases with a Notice of Defence[6] filed returned in pilot site courts (18% PHP and non-PHP) over the specified time period, than returned in non-pilot court sites (16%). An even higher proportion of the PHP cases returned (21%).
As the numbers are small this finding should be treated with caution. It may also be a reflection that more complex cases are being placed on the PHP. Close monitoring of the extent to which PHP cases are returning to court is required.
Stakeholder views
Stakeholder groups were divided as to whether PHP outcomes would be more durable than non-PHP case outcomes. The largest group of judges indicated they would wait to see the statistics before commenting. Those who considered PHP outcomes would last longer or be more durable believed this was because of the parents’ involvement in the process. Some lawyers believed it was too soon to tell, and others thought there would be no difference between PHP and non-PHP.
PHP and natural justice
Approximately half the interviewed lawyers commented about PHP and issues of natural justice, and around half of these reported they had these concerns. The other half were aware of the discussion but were not concerned. As some of the lawyers who had these concerns acknowledged they had no direct experience of this happening with PHP, some appear to be ‘potential’ concerns, rather than actual experiences of PHP breaching natural justice.
When lawyers were asked whether they had philosophical concerns about PHP almost half (47%) indicated they did. Fifty-three percent of lawyers with more than 10 years’ experience practising family law reported these philosophical concerns, compared to a third of lawyers with up to 10 years’ experience.
Limiting cross-examination in PHP was the most frequent natural justice concern identified by interviewed lawyers. Twenty percent of lawyers who responded to the survey reported they had not been given the opportunity to cross-examine when necessary.
The faster PHP process was another concern raised by some lawyers in relation to natural justice. This appeared to be related to the faster process creating potential for the court to miss relevant information. Forty-four percent of lawyers who responded to the survey agreed that PHP does pressure people too much to come to an agreement, but 34 percent disagreed with this.
An additional concern mentioned by interviewed lawyers was the limited opportunity in PHP for lawyers to speak on behalf of their clients. Nineteen percent of lawyers who responded to the survey reported they did not have the opportunity to raise issues of interest not raised by their client. This aspect of PHP may require further consideration.
Further concerns included judges being overly directive, and the role and involvement of support people at hearings.
Interviewed judges reported no concerns about natural justice and PHP, although a few acknowledged that the process might potentially give rise to these concerns. Judges considered these concerns can be allayed if they ensured that all relevant issues were covered and checking this with parties’ lawyers and Lawyers for the Child.
Expansion of PHP
All the interviewed judges and most lawyers and report writers were positive about the PHP. When asked, they indicated that the pilot should be extended to all courts because of the opportunities it provides for parties to participate, the quicker timeframe, early judicial intervention, less adversarial approach, and its focus on key issues.
If PHP is to be implemented nationally, interviewed judges, lawyers and report writers believed that scheduling and resource issues would need to be addressed. These include, for example, increasing judge time and courtroom availability.
Review and further development of the guidelines was suggested as a way of improving consistency in the PHP process, and might help allay lawyers’ concerns about natural justice issues. In addition, better consultation with lawyers prior to and throughout implementation would increase support for the initiative, and help disseminate information about PHP’s objectives and processes.
Conclusion
In conclusion, this evaluation has identified that the PHP process offers a number of important benefits. While some findings may not have been entirely positive, the evaluation found the pilot has provided a less adversarial process and greater opportunities for parents to participate. Although PHP cases have not been resolved within the targeted timeframes, the PHP process appears to be faster than that available in the usual Family Court process. Overall the PHP pilot provides a very worthwhile opportunity for courts to enhance their response to Care of Children Act 2004 cases.
Footnotes
[1] Family Court judges, Family Court staff, lawyers, parents, psychologists and CYF social workers (s132 and s133 Care of Children Act report writers), and community group representatives.
[2] A cut-off date of 4 August 2008 was required to create the PHP database and undertake analysis.
[3] Procedure for dealing with proceedings in s59 (1) Allegation of violence made in proceedings relating to parenting orders.
[4] 252 cases (both completed and not completed) had a Preliminary Hearing.
[5] An analysis was undertaken of CMS data on cases completed before February 2008, which gave a period of at least six months (ie, up to August 2008) for a case to return to court after disposal.
[6] When comparing proportions of completed cases for PHP and non-PHP that returned to court, it is more relevant to compare only those where a Notice of Defence was filed, rather than compare all PHP and non-PHP cases.
Full Report
Parenting Hearings Programme Pilot Evaluation Report.pdf
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