The Young Persons Appointment Pilot

Alvaro Loxton (pupil) recently had the opportunity to observe a Young Persons Appointment (YPA) with his supervisor, Mark Ablett. This gave him an insight into how the courts are attempting to manage the strain on their resources and on CAFCASS.

It remains to be seen whether this pilot strikes the right balance between efficiency and justice. In this blog post, Alvaro will explore and compare its relative merits.

Context

The YPA pilot seeks to change the way the court relies on Cafcass officers (CO) in private children hearings. This scheme offers the court the ability to have a same-day oral report on the children’s wishes and feelings from a CO, who will have spoken to the children in a neutral setting earlier in the day. The CO gives their oral report to the judge in front of the parties and is then available for any suitable (and relevant) questions.

At present, when a court considers whether a s.7 (Children Act 1989) report is necessary they have to take into account the inevitable delay that it would take to prepare one. The Red Book commentary to s.7 highlights in particular:

“In deciding whether to order a report, the court will therefore have to have in mind s 1(2) (the delay principle) and balance any prejudice that there is likely to be to the child through delay against the desirability of obtaining a report, the child’s welfare being the paramount consideration (see Re H (Minors) (Welfare Reports) [1990] 2 FLR 172, CA)”

There is therefore an immediate appeal to the YPA in the right case.

Pros

• Speed and efficiency

This process allows the court to have faster access to the input of the children in family care proceedings. It allows courts to operate with greater speed as the written aspect of the report is dispensed with.

Cafcass reports are taking 16 weeks+ at present. The YPA process can resolve cases from start to finish in the same time.

• Greater involvement

This will depend on the case, however, the children are likely to feel more involved in the process. There is a proximity to their interview being almost immediately relayed to the court. This could also be seen as a negative should it be felt children are already excessively involved in an adult dispute. On balance, children feeling like they’re not being heard will likely take comfort in the immediacy of their wishes being neutrally conveyed to their parents in a forum where their parents cannot question them.

• Children’s views are taken more seriously

The live evidence on the children’s wishes and feelings may carry more weight with the parents in court, with the knowledge that they have just been conveyed to the CO. There is less likely to be a sense that the CO has interpreted the children’s wishes to suit their own opinion.

• Immediate feedback

The CO can be questioned immediately on their views and elaborate while the children’s comments are fresh in their mind. The right CO should be able to provide on the spot analysis as to whether they felt the children’s wishes and feelings can be taken at face value.

Cons

• Oversimplification.

There is a risk of oversimplification in certain cases. A s.7 report is something that goes to the heart of the welfare of the children. It should be a carefully curated and considered report with insightful analysis. It should give an impartial view into an inherently partisan process.

A s.7 report will also gather information from external sources. Feedback from children’s schools for example, is often very helpful in understanding how proceedings have affected children.

At a YPA, a CO may view this as an exercise where they simply relay the views of the children. No matter how articulate children may be, their wishes and feelings have to be analysed and taken in context.

• Lack of clear recommendation and fast track to trial

A section 7 report will generally end with clear recommendations for child arrangements. A CO at a YPA will not do so, as they are just relaying the child’s wishes and feelings. Where this is not enough to break the deadlock, there is a risk that this hearing proves a waste. If settlement is not achieved at a YPA, the court will not order a s.7 report and will instead list the case for a final hearing. This could end up being an unnecessary escalation of the case.

• Risk for abuse

This hearing is likely to be the first time the parents are going to hear the unfiltered views of their children. That is at least the expectation. If, however, there are concerns of Domestic Abuse or Parental Alienation, then one can see the risk of a quickly prepared oral summary on the day of court.

The example need not be so extreme, bias may be prevalent in un-acrimonious relationships when one is a disciplinarian parent and the other is the fun/more laissez-faire one. A lack of proper consideration may overlook the necessary yin and yang parenting style and therefore bring an imbalance to the equation. Whilst the CO will not make a clear recommendation (for these reasons), it again feeds into the concern about the amount of weight placed on expressed wishes and feelings.

• Lack of analysis

Traditionally a s.7 report provides a considered analysis of what can be an emotionally complex situation.

The courts are dealing with children at different developmental stages, progressing through the formative years of their lives. These are added complications which require insight, understanding and then time to process. All of these are possible through written reports, and not easily achieved in orally delivered evidence. Wishes and feelings need analysis, they cannot just be taken at face value in every case. As highlighted above, in cases with alleged parental alienation for example, there needs to be consideration of whether the children sound rehearsed or coached.

• Excessive weight

The children’s wishes and feelings are just one factor in the welfare checklist. The risk in a YPA is that this factor is elevated beyond all others because of the centrality of the CO’s oral report.

Limitations

The YPA will not be suitable for every case, especially those requiring a slightly more detailed understanding of the family dynamic and how this dynamic will likely influence the child’s view. It is also not suitable for certain issues such as domestic abuse or parental alienation, which present high risk factors and generally require a fact-finding hearing.

Most cases will exhibit a degree of these risk factors, and it will be for the court and advocates at FHDRA to assess those cases that fall within the remit of the YPA. There is also a risk that a finely balanced case which is sent down the YPA route develops in a way which renders it incompatible with the YPA, generating additional delay.

Receiving a report orally also puts litigants on the spot. This could particularly impact those who require the assistance of an interpreter or vulnerable parents who struggle to process information received in this way.

Practical considerations

The hearing itself is left open to the parties and the judge on how the evidence should be heard. However, typically the hearing starts with the CO, explaining what has happened today with the children and then proceeds to deliver the children’s wishes and feelings. These are all being heard for the first time by the parties, the advocates and the judge.

There is a relative informality to the hearing; questions are asked of the CO but more in an exploratory manner, as opposed to formal cross-examination.

Taking instructions

Depending on how the hearing unfolds, taking instructions during a discussion between the parties, the CO and the judge can be difficult.

This places greater importance on the pre-hearing conference and fully establishing with the client their parameters for agreement. However, given the uncertainty over what the CO will say to the court, it would not be unreasonable to ask the judge for a short adjournment to take instructions after the CO’s evidence.

Giving advice

This broadly fits into the category above, where giving advice is also hampered by the style of the hearing. Most arrangements are not legally contentious, certainly not those which would be the subject of a YPA. However, being able to advise on the implications of an agreed outcome would be difficult in chambers with the judge present.

It will be important for any advocate to strike the right balance between being overly interventionist and respecting our clients’ autonomy. There is a risk of an advocate becoming an impediment to the flow of the hearing rather than being of assistance, in a hearing which at times borders on mediation in style.

Cafcass Questioning

Advocates are unable to prepare questions in advance. Whilst formal cross-examination is not expected, inevitably there will be queries about what the children were asked, how they answered etc. It presents a different challenge to barristers usually given time to read a report, digest, take instructions and prepare for cross-examination.

Concluding remarks

There are clear benefits to the use of this scheme. It avoids potentially colossal delay and champions the voice of the child. In cases where there is a basic dispute about overnight stays or handover times, the YPA should be here to stay.

However, these are the exact cases that we are told should not get to court in the first place and should instead be settled in NCDR. One queries therefore, the extent to which this pilot will clear the backlog. That being said, cases that should settle do not always. In the case I observed, the very clear views of the children broke the deadlock between the parties and led to an agreement which at first blush had seemed to need the input of a judge.

Clearly, the YPA will not be suitable for cases where there is domestic abuse (at least not initially), parental alienation or other complicating features. That being said, relocation cases are generally considered complex but with a child of say 12 years old, a YPA to obtain the child’s views may short-circuit a process which otherwise generally heads to final hearing.

On balance, the YPA is a positive step towards a less adversarial, more child-led process. It is not suitable for every case, but family law has never been a “one size fits all” field.

Alvaro Loxton

Pupil Barrister