The Parenting Hearings Programme Halfway through its pilot: a view from the bar
01 Title slide
PRESENTATION HANDOUT 11 MARCH 2008
Berry Zondag LLB(Hons) BBS MMGT PGDBA FAMINZ(arb) MAANZ
[email protected]
Survey context – PhD study, with the thesis titled: “The Parenting Hearings Programme Pilot in the New Zealand Family Courts: constitutional, philosophical, legal and practical issues with a semi‐inquisitorial process in a common law system”
02 Survey context
My study involves a narrow topic, part of the process that may be involved in determining disputes between parents about the care for their children after separation. Nevertheless, the sheer number of these disputes makes the topic highly relevant, despite the fact that only a small number actually make it to a formal determination by the Court. Current social and psychological thinking (although increasingly debated for continued conflict situations) holds that it is in the best interest of the children to maintain some meaningful relationship with both parents, and this has effectively been cast into legislation, and is certainly the presumption used in judicial determination, bar exceptional situations, such as those involving child abuse, violence, mental disorders, severe substance abuse etc. In other words, policy objectives ask parents to bridge their irreconcilable divides to satisfy this social objective. In the majority of cases that seems to present only minor problems, and those can be overcome by the parents, although statistics suggest that a majority do seek some sort of court involvement. For some parents, however, the dynamics of the conflict between them or the total lack of any empathy or cooperative relationship make it impossible for them to achieve this objective autonomously. Ultimately such problems present themselves to the courts. It appears generally accepted that the legal process (and especially the adversarial version) is not helpful, or even exacerbates the frictions between the parties. This is the background of legislative and judicial attempts to create alternative or adjusted procedures that are thought to be less disruptive to the cooperative goal. The PHP is an example of such an attempt.
2
Thesis: theories informing study – ADR theory and methodology: – Justice without law or “bargaining in the shadow of the law” – Mediation v litigation, or is that an unhelpful dichotomy?
– Socio‐psychological context; the field of conflict theory: – Why do people fight and how do they do it, the structure of conflict – The role of power and control – Emotion v substance, or is that an unhelpful dichotomy?
– Continental inquisitorial process; Dutch Law and legal theory: – Adversarial v inquisitorial process, or is that an unhelpful dichotomy?
– Constitutional theory: – Natural justice, the rule of law and a court’s powers to fundamentally amend its process – Law v ‘judicial leadership’, or is that an unhelpful dichotomy?
03 Theories informing study
Thesis: approaches – Social, psychological and legal context of divorce and post‐separation parenting – The perceived problem: (adversarial) legal process and its effect on post‐separation family dynamics – Policy responses in New Zealand and abroad, the developing views of judicial authority – Comparison between the Australian CCP (now LAT) and the PHP; law, process and surrounding infrastructure – Evaluate PHP using the theories informing the study (theoretical) and against its own objectives (practical)
04 Approaches
3
PHP Evaluation in my study – Theoretical perspectives: • ADR, conflict theory, civil systems, constitutional issues
– Practical perspectives: • • • •
Court observation in PHP cases Discussion with professionals involved PHP file study to obtain quantitative data Surveys of family law practitioners – November 2007 and November 2008
05 Evaluation in study
Why survey family law practitioners? – Fast and effective – Professional comparison of PHP with the ‘old process’ – Unbiased re the outcome of the study – Not affected by facts and outcome of individual cases – Fine‐grained comments/observations in addition to statistical material
06 Why survey practitioners
4
Method – Emails to all available email addresses of family law practitioners (N=735), with one‐week reminder – Link to website with anonymous survey forms – Questions in topical ‘blocks’ • • • •
General and specific, some for PHP lawyers only Random order of questions in each block (‘narrative bias’) ‘Likert scales’ ‘Open’ questions allowing for individual comment (qualitative)
– Total number of participants 156 (21%)
07 Method
Respondent sample details Practising Family Law (yrs)
< 3
75‐ 100
4 ‐ 7
50‐ 75
> 8
08 Sample details
Parenting case workload (%)
PHP experience ‐
< 25 Yes 25‐ 50
No
5
Respondents’ PHP knowledge I have heard or read about it, but would have to look into it if I got a PHP case
42 %
I am acquainted with it
22 %
I am confident that I know enough about it
35 %
I am an expert
2 %
• 95% of those “confident” or “expert” had acted in PHP cases • 5% of those with no actual PHP experience were “confident” • One practitioner with PHP experience desired to obtain more info CONCLUSIONS: • Practical experience is currently the way to gain PHP knowledge • The PHP process itself is not very complicated • The quality of the available information about the PHP is limited
09 PHP knowledge
Sources of PHP information 100 90 80 70 60 50 40 30 20 10 0
No PHP Exp PHP Exp
10 Sources of information
6
Quality of PHP information VERY GOOD
# Item
x
C.I. low
C.I. high
1 CLARITY FC info
3.47
3.31
3.62
2 COMPREHENSIVENESS FC info
3.32
3.16
3.48
GOOD
AVERAGE
3 AVAILABILITY FC info
3.51
3.33
3.70
4 CLARITY LS info
3.17
3.01
3.33
5 COMPREHENSIVENESS LS info
3.10
2.93
3.26
POOR
VERY POOR
6 AVAILABILITY LS info
3.13
2.96
11 Quality of PHP information
3.29
1
2
3
4
5
6
This table shows the practitioners’ opinion about the quality of information about the PHP as obtained from the Family Court (FC) organisation and/or the Law Society (LS). Quality was scored on a scale from very poor (1) to poor (2), average (3), good (4) to very good (5). The table gives the mean of the scores (total of the scores on each topic, divided by the number of responses on that topic). It also provides the low and high values for the 95% confidence interval (the range in which the average would statistically be expected to fall in 95/100 similar samples from the same population). The figure presents these numbers in graphical format. The fat horizontal bars represent the mean, while the thin vertical bars show the confidence interval. The dots at the ends of the vertical bar show the location of the low and high values of that range. As can be seen, the information emanating from the Family Court scores higher on all aspects, although this difference was statistically significant on only two of the three aspects. The low scores overall indicate that practitioners would probably welcome some improvement of the information supplied by the court, and it seems advisable to achieve that before a further ‘roll‐out’ of the programme. It appears that the Law Society should also improve its supporting role in this respect. Given the results of the previous question, briefing sessions that allow for practitioner interaction and that would involve both theoretical and practical approaches (i.e. ‘role play’ or ‘mooting’) appear to be the best way to achieve that.
7
The disadvantages of the adversarial process Agreement with the following # statements:
x
C.I. low
STRONGLY AGREE
C.I. high
AGREE
The adversarial court process 1 often escalates conflict between 3.98 3.85 4.11 parents NEUTRAL
The adversarial court process may seriously damage the 2 relationship between children and one or both parents
3.79
The adv court process often results in a worse relationship 3 between the parents, destroying any chance of reaching agreement later on
3.41
3.65
3.94 DISAGREE
3.24
3.59
12 Disadvantages of adversarial process
1
2
3
STRONGLY DISAGREE
The argument by which the PHP is promoted starts with assumptions about the disadvantages of the adversarial process, followed with the observation that the process needs to (re‐)focus on the interests of the children. The argument then proceeds to presume that these problems can be cured by changing the role and powers of the judge, which will (it is suggested) also lead to increased speed, more flexibility and less formality. The argument is then concluded by referring to the successful pilot in Australia and its subsequent nationwide introduction, apparently suggesting a default position whereby New Zealand should invariably follow Australia’s lead in these matters. The construction of this argument leaves questions: whether practitioners actually agree with these assumptions and presumptions, and with the conclusion drawn; and whether they would perhaps conceive that there are alternatives to adopting the Australian approach. This was tested by asking all the respondents to rate their agreement with a number of statements, and to do this by ‘scoring’ on a scale from ‘strongly disagree’ (1) to ‘disagree’ (2), ‘neutral’ (3), ‘agree’ (4) to ‘strongly agree’ (5). The table and graph above show the results for three statements about the adversarial process. The table provides the mean score and the range for the confidence interval. The figure represents these numbers graphically. As can be seen, there is substantial support for the suggestions about the perceived disadvantages of the adversarial system. However, the text responses provide many nuances to the generality of the statements that had been given to respond to. It is instructive to include a selection of some of the comments:
8
…There are elements of both the inquisitorial and adversarial systems that are useful in the context of resolution of parenting disputes as are elements of social science, child development etc. It is not as simple as one system being better for these sorts of disputes than the other… …It is not easy to say that "all" cases are made more difficult by adversarial process, some parties and families require it and it can therefore lessen conflict for children by having a "hearing" and formal determination by evidence and cross examination… …In my experience, it's the parents more than the Court process that's adversarial… …Sometimes people need their day in court and can move on from there… …The adversarial process begins because the parents are already in serious disagreement so the process cannot be entirely blamed; sometimes but certainly not always a hearing can be quite cathartic for parents and their relationship may improve thereafter. Important decisions need to be made with all the facts known whatever the system, this has to be the bottom line the main problem with current system is slowness of decision making and that is simply an under resourcing issue as with most government provided services… …There are some matters where a very short, focused hearing and a quick determination is either less damaging or more appropriate than attempts at consensus that are unlikely to succeed. Such cases include where there is already a very high level of conflict between the parties or when urgent interim orders need to be made… …There are cases where the 'bloodletting' experience of the court allows the parents to simply get it out of their system; the more unpleasant the experience the more likely they are to never want to go back there again and to force themselves to adopt a more reasonable approach… …Getting the adults before a judge earlier so that they can vent their spleen and then get on with it is important. Having them wait for months and running them through hoop after hoop of well meaning but basically empty warm fuzzy nonsense doesn't help…. ….Retribution for perceived wrongs, petty point scoring and thereby an element of control over the other parent often seems to be the desired outcome. Unfortunately the children’s interests become submerged in an effort to establish 'bragging rights'. The parents often have a soap opera mentality to such disputes and seem to thrive on conflict and confrontation…. …It is an easy assumption to make, that the adversarial process makes things worse, when in fact the quality of advocates and wisdom of judge are significant factors in making the outcome positive. …I have often considered that the lawyer, who has to win at any cost, is the one who does more harm to the parties and their children, rather than the process per se…. …Whether by adversarial or inquisitorial process, some parties are in strong conflict and unlikely to change their views. Others are more willing to separate their own issues from what will be best for the children involved. By either process they are more likely to have better outcomes… …It needs to be remembered that the parenting issues resolved by adversarial hearings are for the most part the intractable ones that are probably not amenable to more mediatory styles of resolution. The alternative processes must be available and offered but if they are not successful the sooner an "adversarial" decision is made the lesser the trauma to all involved…
9
Is changing the role of the judge the solution to that problem? #
Agreement with the following statements: The way to resolve problems with the adversarial process is by
1 changing the court process,
C.I. low
C.I. high
2.91
2.74
3.07
3.44
3.28
3.59
x
STRONGLY AGREE
AGREE
specifically the role of the judge Judges should have more control of
2 proceedings, by way of case
NEUTRAL
management Judges should have more
3 inquisitorial powers and decide what 3.43 3.24 3.62 DISAGREE
further evidence may be required Judges should have more power to decide what issues are relevant to 4 the case, and not leave this to the parties and their lawyers
2.74
13 Changing role of the judge
2.57
2.92
1
2
3
4
STRONGLY DISAGREE
The responses show that practitioners do not agree with the general proposition that changing the role of the judge is the solution to the problems assumedly caused by the adversarial system. There is support for extended powers in respect of case management and some additional power to decide what further evidence is required. However, the next step, real inquisitorial powers is rejected. Some of the remarks from respondents: …I have a serious issue as to the Judge having the ability to determine what evidence should or should not be called. Whilst I appreciate that there is a lot of unnecessary and irrelevant evidence filed under the present system if the Judges were more active in making rulings to strike out evidence that is opinion, submission or irrelevant then many of the current problems with the current system would be addressed… …The role of a lawyer cannot and should not be minimized in their relationship with their client, particularly ascertaining the client's legal issues. This relationship cannot be superseded by Judges, as their role does not include dealing direct with clients!... …Judges can easily miss important issues particularly when dealing with those of a different socio economic position in life to themselves (common) and a different ethic, cultural back ground (happens often) therefore they can shut out very relevant issues pertaining to the welfare of the child etc. Lawyers cannot always advocate to the judge the relevance of issues fully without being able to present evidence in support of their argument, and yet they must make such arguments before, not after, producing any such evidence. Judges may need considerable persuasion from a person such as an expert witness to credit relevance to issues which in their world has no such relevance… …Giving the Judge's more power and control over evidence and other aspects of the process may have administrative benefits but they can never know as much about the issues as the lawyers do and if decisions are made on insufficient evidence then that will prevent parties accepting the decision and that in itself may lead to further conflict between the parents and/or the children….
10
Other options? Agreement with the following # statements:
x
C.I. low
STRONGLY AGREE
C.I. high
AGREE
There could be other ways to resolve problems with adversarial process, for instance by providing more judicial and administrative 1 capacity or increasing the use of modern technology, without changing the fundamentals of the existing process
NEUTRAL
3.73 3.58 3.88
DISAGREE
Parenting issues should not be
2 dealt with in court at all, but by a social services agency
14 Other options
1.82 1.68 1.96
1
2
STRONGLY DISAGREE
The respondents agreed that there might be other options to resolve the problems with the current system. The many remarks provide some core issues, such as adherence to rules of evidence, resourcing, processing times and case management: …If there was a greater adherence to the laws of evidence and procedure, and legislative timeframes, the adversarial process may work better than it does now. At present, the main issue is delay, and the most positive thing to come out of PHP is that matters get dealt with relatively quickly. In my experience it is delay and the Court failing to move matters to a hearing that is the most damaging to the relationship between the parties and their children… …Court processes correctly applied and followed, and court time made available promptly and not weeks or months after it is really required would remove a lot of the difficulties. The maxim justice delayed is justice denied is highly pertinent… …When I compare the facilities and resources available in the employer/employee relationship (The Authority and the Court) I am dismayed at the funding available to the family, in the Family Court… … We should be reluctant to throw it [the adversarial system] away on a whim. Proper procedure needs to be put into place so there is consistency; proper evaluation needs to be done… …Most Family Court Judges are good at sorting out issues, especially involving children. The big problem I see is that there is not enough Judge time available. It can take six months to get a hearing regarding contact, and counseling and mediation often will not work at all in the meantime where one party will not budge. The standard processes may be fine, if sped up. Where Judges handle list dates, matters are not so bad, because interim orders can be made, but Registrars are not equipped to handle this…
11
Auckland
22
37
50
30
Rot
Palmerston North
4
7
8
5
Well
Tauranga
13
22
32
19
Wellington
13
22
38
23
Rotorua
5
8
15
9
Dunedin
6
6
23
14
%
Cases
Family Courts in which PHP experienced
Lawyers
PHP experience in the sample % Dun
Taur Palm Auck Lwrs
Cases
• 66 respondents had PHP experience in a total of 190 cases • Highest no. of cases for individual lawyer was 8; 72% had acted in 1‐3 cases • 59% acted mostly for parties, 22% mostly as L4C, 29% had evenly mixed roles
15 PHP experience
The next part of the survey sought opinions from practitioners with PHP experience, i.e. wo had acted in PHP cases. The table and graph show the PHP experience in the sample. (Note that the case numbers don’t add up to the exact total number, this is because it could not be ascertained for all cases in which court the cases had been heard, also note that more then one practitioner may have responded referring to the same case) As of yet, there are no statistics available from the Court or the Ministry, but it seems that a representative sample has been obtained for this study. There are certainly enough respondents with experience in enough cases to validate the data about the actual experiences with the process as follows.
12
The assertions used to promote the PHP process #
Agreement with the following statements:
STRONGLY AGREE x
C.I. low
C.I. high AGREE
The PHP represents a much better environment for deciding 3.03 2.78 3.29 1 what is in the best interest of the children
2
NEUTRAL
The PHP process will result in 3.68 3.40 3.96 cases being decided much faster.
DISAGREE
Because of the judge’s direct control, the parties stay focused 3.27 3.00 3.54 3 on the children rather than on the parents' issues.
1
2
STRONGLY DISAGREE
3
16 Assertions used to promote PHP / 1
The assertions used to promote the PHP process Agreement with the following # statements: 4
The PHP process guarantees an outcome that will last longer.
x
2.43
C.I. low
C.I. high
2.21
2.65
STRONGLY AGREE
AGREE
The PHP process guarantees an 5 outcome that is better accepted 2.72 2.50 2.93 by the parents. The PHP process guarantees an 2.66 2.42 2.91 6 outcome that is better for the children. Once parents have been through a PHP process they will in the 7 future be better able to resolve 2.65 2.45 2.85 issues between themselves without assistance The PHP process complies with 8 the rules of natural justice
2.45
2.18
2.73
17 Assertions used to promote PHP / 2
NEUTRAL
DISAGREE
4
5
6
7
8
STRONGLY DISAGREE
13
…I am not suggesting that the adversarial way is the way that is always appropriate, however there are many circumstances where there just needs to be a hearing and I have real concerns that the PHP programme and the processes involved under that system are just not constitutional… … I do have concerns about the PHP being a de facto mediation but where the Judge makes orders at the end… …The adversarial process has its faults particularly when parties take inflexible positions and parenting matters remain unresolved for long periods. However there is a need to balance the powers of the court to intervene with the rights of the parties to be fully heard and properly represented in any judicial process… …the clients are railroaded into settling, often without the chance to cross examine psychologists or social workers or anyone else it appears that fundamental dynamics between parties are being missed (e.g. alienation vs. violence power and control etc) by such urgent early assessment of issues controlled by the judge who has never met the parties before or only briefly… the rules of natural justice are being breached… …Speed is helpful to nip matters in the bud. Still serious problems remain, with one party being emotionally and intellectually stronger than the other, with interplay of power and control. So much depends on the Judge being adequately skilled to do the job… …parents who have been stymied from airing their grievances on the basis that the judge doesn’t think they are relevant may well have unresolved issues that will appear later. Communication between judges and clients directly can be very poor; judges don't necessarily understand the lingo clients speak… …Is this [the PHP] good enough for long term decisions impacting on children? I think our children deserve better…not being able to cross examine parties is not appropriate... …The PHP is specifically supposed to include cases involving allegations of abuse and violence, especially where commenced by a without notice application. These cases are complex and require proper determination of facts. The PHP process is not suited to those types of cases and in my view can result in unsafe outcomes because the process is inadequate… …PHP hearings particularly disadvantage victims of domestic violence and those who are inarticulate or powerless. They are a vehicle whereby Judges can conveniently ignore power inequalities and deny relevant evidence in the name of judicial expediency… …The major concern expressed by many counsel, in my experience, is that natural justice issues are not always addressed this has not been resolved and may lead to a situation where there are more appeal proceedings… …The PHP hearings programme is all about Judges and increasing their power …It goes against the principles of natural justice… …I thought the PHP process was just great like mediation with teeth… …It is a big positive, because the defended hearing process is ridiculously slow, often increasing volume of evidence as things happen between issuing proceedings and getting to defended hearing…
14
The assertions used to promote the PHP process #
Agreement with the following statements:
9
The PHP process improves the parties’ ability to have their say
x
C.I. low
STRONGLY AGREE
C.I. high
AGREE
3.38
3.10
3.67 NEUTRAL
The parties appreciate the 10 possibility to directly address the judge
3.85
3.67
4.02
The direct interaction between the parties and the judge reveals that issues are often 3.25 2.99 3.51 11 less extreme than they appear in affidavits and written statements
DISAGREE
9
10
11
STRONGLY DISAGREE
18 Assertions used to promote PHP / 3
The assertions used to promote the PHP process: conclusions Practitioners experienced in PHP hearings opine: – Notable disagreement with the main outcome assertions underlying the PHP process – Too much sacrifice in procedural safeguards, in order to gain relatively minor advantages – Main advantages are speed and direct interaction between parties and judge, but these may be achieved by amending the existing process
19 Assertions used to promote PHP / Conclusions
15
The changes introduced by the PHP process #
Agreement with the following statements: The PHP process devaluates the role
1 of the parties’ counsel.
The PHP process increases the role
2 of the children’s counsel. 3
4
5
6
It is appropriate that the Judge can switch between different modes of operation, i.e. mediation and adjudication. The time limits imposed by the PHP process are adequate to deal with parenting disputes. Other agencies or professionals, such as report writers, can comply with the time limits set by the PHP process. The legal services agency can adequately deal with the constraints set by the PHP process.
x
C.I. low
C.I. high
3.02
2.76
3.27
2.98
2.73
3.23
3.17
2.85
3.50
2.74
2.45
3.03
STRONGLY AGREE
AGREE
NEUTRAL
DISAGREE
2.39
2.60
2.16
2.36
2.61
2.85
1
2
3
4
5
6
STRONGLY DISAGREE
20 Changes introduced
Changes in the roles of counsel and judge: division of opinion Strongly Disagree
The PHP process devaluates the role of parties' counsel
Disagree
The PHP process increases the role of children's counsel
Neutral Agree
It is appropriate that the judge can switch beween different modes
Strongly Agree 0%
21 Role changes, divided opinion
50%
100%
16
The ‘strategic’ objectives of the PHP project #
Agreement with the following statements:
x
C.I. low
C.I. high
3.68
3.95
3.38
3.66
2.51
2.80
2.65
2.98
2.87
3.19
STRONGLY AGREE
The PHP process is a genuine
1 attempt to provide better outcomes 3.82 for parents and children The PHP is an attempt to reduce the 3.52 2 costs of the Family Court system The PHP is an attempt to force 3 parents to comply with government 2.65 policy objectives The PHP will lead to further dominance by social agencies and 2.82 4 reduce the role of lawyers, to the detriment of justice The PHP will provide better access to
5 justice
3.03
Inquisitorial process should have no 1.96 6 place in our common law system
22 The strategic objectives
1.84
2.08
AGREE
NEUTRAL
DISAGREE
1
2
3
4
5
6
STRONGLY DISAGREE
The objectives of a programme such as the PHP include process‐outcomes, such as faster resolution of cases, less disruption to parent‐ and parent‐child relationships, or creating arrangements that are more durable. Another category of objectives may be termed “underlying objectives” or perhaps “strategic objectives”, i.e. objectives that the programme as a whole seeks to achieve, apart from its impact on individual cases. Examples of such outcomes are reducing the costs of the court system for dealing with parenting dispute, improving access to justice, enforcing government policy etc. The PHP briefing paper and other information do not state what these strategic objectives may be, and are indeed more concerned with process outcomes. In order to obtain opinions from family law practitioners about possible other underlying objectives, a block of statements was offered to all participants, to be rated on a scale from strongly disagree (1) to strongly agree (5). The accompanying instruction was: “In order to investigate your views on the objectives underlying the PHP experiment, could you please indicate your agreement with the following statements:” The results are represented in the table and graph above.
17
Pilot projects generally, and the PHP pilot specifically #
Agreement with the following statements: There should be no place for
1 experiments in the Courts at all. Important rule changes should be
2 brought about by legislation only.
The PHP process affects substantive
3 justice.
The PHP pilot is well executed in
4 practice
x
C.I. low
C.I. high
2.21
2.06
2.36
3.23
3.05
3.41
3.21
3.05
3.37
3.00
2.87
3.13
STRONGLY AGREE
AGREE
NEUTRAL
DISAGREE
The PHP process and pilot have been
5 introduced ultra vires
3.08
2.92
3.24
6 already been made to introduce this 3.08
2.92
3.25
The pilot is a farce, decision has process
1
2
3
4
5
6
STRONGLY DISAGREE
23 Pilot projects
The next block of questions (presented to all participants) addressed the use of pilot projects generally and the PHP pilot specifically. The instruction was: “In order to investigate your views about the use of pilot projects in the Family Courts, could you please indicate your agreement with the following statements”. The results are found in the table and graph above. There is little problem with some experimentation in the Family Court, albeit tempered by the importance of the innovation being tested. Practitioners thought that the PHP process affected substantive justice, which, in combination with the low score on the natural justice issue, gives reason for some concern. The last three items scored almost neutral, but like on the items about the changing roles of lawyers and judges, these neutral scores hide a divided opinion. This can again be expressed graphically:
18
The PHP pilot: division of opinion Strongly Disagree
The PHP pilot is well executed in practice
Disagree
The PHP process and pilot have been introduced ulra vires
Neutral Agree
The pilot is a farce, a decision has already been made to introduce PHP
Strongly Agree 0%
24 PHP pilot, divided opinion
50%
100%
For such an important innovation as the PHP, one would have hoped for a high score on the first, and very low scores on the last two questions, especially because the briefing information emphasises the importance of practitioners “buying into” and supporting the PHP process, and “becoming skilled” in explaining the process to their clients and guiding them through it. In conclusion, the respondents are still “sitting on the fence” in rather large numbers, and those who have opinions are equally divided in them. The free text comments on the pilot process contain some clear opinions, some of which are collected below: …It is good that things be tried. However, using actual parties in test runs makes guinea pigs of them, which may be unfair for them, especially if the test system then proves to be flawed… …'Experiments' ought to have a legislative basis… …As far as I am aware it fits within the Care of Children Act framework. I have to believe the powers that be, that it is a pilot....nothing else… …The court does have some jurisdiction to control its processes. I generally support pilot programmes and believe that family court is an evolving process that is what it should be always seen as. The needs of children change, as do needs of families. If there is an element of experimentation, that is not all bad. What is bad is the potential for a lack of truly independent appraisal of those pilots… …The PHP was introduced in haste and without adequate consultation with the legal profession and with the wider community. At the time it was introduced it should have had a very clear arrangement in place to monitor the programme and the outcomes of the programme.
19
…The profession should have been involved at the earliest stage of planning. Clearly, planning decisions and implementation was a fait accompli as if we were children who needed to be managed. We have strong constitutional and jurisdictional issues which should have been canvassed thoroughly and no excuse such as getting it quickly into operation should again be used… …There is a place for innovation and improvement in Family Court processes. "Experimentation" is a strong word, but I do consider the PHP to be experimentation because of the lack of consultation, inadequate conceptual framework, lack of monitoring and evaluation, and differences from the Australian system (which requires "buy in" from the parties, as opposed to the NZ system which is imposed on the parties)… …THIS IS NOT A PILOT….there must be monitoring set up first to watch how a pilot is going… …We always need to look at different ways of improving access to justice. We constantly need to examine ourselves and the system that we are working under. It is very important to bring all the stakeholders along with any new system, but there will always be detractors. Lawyers on the whole are very conservative but we are interested in justice and it is crucial to society that justice is accessible. But any new scheme must be openly debated; views of stakeholders listened to and principles of natural justice adhered to. Importantly independent evaluation must be carried out from the inception of any new system. In NZ there is virtually none of this… …What happened to public consultation or at least participation/consultation of family lawyers prior to the pilot being implemented?... ...I am concerned that the Australian model appears far better resourced, particularly in terms of the quality and training of Family Court counselors, than the NZ pilot. The NZ pilot seems to be a poor cousin of the Australian system, and I cannot see how the system will work to its optimum without evidence from highly skilled social science practitioners. In pure theoretical terms inquisitorial processes and adversarial processes are problematic when merged. However in reality all Judges are inquisitorial to some extent and particularly so in the Family Court…. …there are very real concerns that a process put in place without adequate consideration and without sufficient checks and balances will not deliver appropriate longterm positive results for the subjects of the proceedings. The inquisitorial system is highly dependent on the quality of the tribunal, and that leaves real risks where that is inadequate… …The PHP is imported from Australia but the essence has been taken out of it. I believe that is a genuine attempt to provide better outcomes but the cynical part of me also thinks that it is a way to make "figures" look better for a number of agencies. This system is not government led as far as I am aware…
20
The PHP: overall conclusions – The picture that emerges is not overwhelmingly positive – Agreement that adversarial process has disadvantages.. ....BUT........practitioners NOT convinced PHP will cure these shortcomings – Support for extending role of judge: • case management • determining what further evidence may be required
– No support for extended ‘inquisitorial’ powers
25 Overall conclusions / 1
The PHP: overall conclusions Practitioners report that: – Direct interaction parties‐judge: • helpful • appreciated by clients
– Doubts about standards of natural justice – Question: Is it necessary to replace the current system, if the problems are: • resourcing • case management • tighter control of evidence (as per rules)
– Maybe other solutions available?
26 Overall conclusions / 2
21
The PHP: overall conclusions Practitioners report that: – Uncertainty about: • impact character of individual judges • lack of uniformity between approach of judges
– Too hard for judge to come to grips with case in time available – Judges may lack understanding about the realities of the parties, but the process requires it – Relationship judge‐party is very different from that of lawyer‐client.
27 Overall conclusions / 3
The PHP: overall conclusions – Room for improvement: • information exchange Family Court ‐ practitioners • Supporting role Law Society
– Insufficient consultation with the specialized profession prior to PHP launch – PHP objectives perhaps too ambitious: have the potential advantages been ‘oversold’ ?
28 Overall conclusions / 4
22
The PHP: overall conclusions – Can PHP be validly compared with the Australian CCP (now LAT), so as to claim similar advantages? • different infrastructure and organization • different budgets
– Doubts: • • • •
is the PHP and its pilot constitutional / intra vires is the matter pre‐determined anyway quality of the pilot process lack of clarity about PHP evaluation
29 Overall conclusions / 5
23