Select Committee on Lord Chancellor's Department Minutes of Evidence


Examination of Witnesses (Questions 44 - 59)

TUESDAY 8 APRIL 2003

RT HON DAME ELIZABETH BUTLER-SLOSS DBE, MR JUSTICE JOHNSON, HIS HONOUR JUDGE MARTIN ALLWEIS AND DISTRICT JUDGE NICHOLAS CRICHTON

Chairman

  44. Dame Elizabeth, gentlemen, welcome. We are very glad to have you in front of us. We recognise there are certain limits on what judges can and should say in public and to select committees, but your experience in these matters is hugely relevant and essential to our inquiries and we are glad to have you with us, Dame Elizabeth, Mr Justice Johnson, Judge Allweis and District Judge Crichton. We would like to start simply by getting a picture from you of how big the problem of delay has been.

  (Dame Elizabeth Butler-Sloss) Delay in the trying of children cases is across the board both in respect of public law cases and private law cases and it has a lot of different causes. Perhaps I could concentrate on care cases in the public sector because I think all judges believe the children who may be removed from home are the children who we should be most concerned about, and the delays are partly in the courts and partly from the local authorities bringing the cases in time. Badly under-resourced local authorities wait sometimes too long to bring cases and so they are urgent before they arrive.

  45. You mean they wait before they actually remove the child from home?
  (Dame Elizabeth Butler-Sloss) Absolutely, and wait before they issue proceedings. We have surges of cases. There is no way that either the courts or CAFCASS can control the volume of work. One month there will be more cases, another month there will be less and undoubtedly there has been a surge in cases over the last few months and during last year. We have to respond when cases come because they are children. So we have a problem with being able to respond, in the courts, the judges and the magistrates trying the cases, we have a problem with the local authorities getting their act together, we have a problem with CAFCASS being able to provide guardians and we have a problem with having the right experts because there is a very small pool of experts available in the really most difficult cases. CAFCASS is one of the problems, it is not the only problem.

  46. Is it the greatest?
  (Dame Elizabeth Butler-Sloss) No, I would not say it is the greatest, it is the most acute in certain parts of the country. We are devising a protocol which has been initiated by two High Court judges of my division and it has now become the Lord Chancellor's Advisory Committee on Delay. That protocol has gone in draft to the Lord Chancellor and it will require judges to be involved in intense case management from day one that the case comes up from the magistrates. All care cases start in the Magistrates' Court and come up to us when they are difficult. There will be an equivalent protocol for the magistrates, and District Judge Crichton is very involved on this delay committee, a number of judges are. We hope the Lord Chancellor will approve the protocol and at that point CAFCASS will be under an obligation to provide a guardian, if possible, effectively on day one or day two that it gets before the circuit judge or High Court judge.

  47. Do you think that the opportunity of convergence amongst the professionals within CAFCASS has been lost in the first two years and that therefore the management of the workload could have been a lot better if the initial objective of drawing on the two different pools of staff had been followed through?
  (Dame Elizabeth Butler-Sloss) I think there is a major problem about convergence because the pools of those who came into CAFCASS were very different. There were three separate pools: the case workers of the official solicitor, the probation service provided on the whole for the welfare officers, and the social work background for the guardians. You cannot expect somebody with a probation officer background to go in and become a guardian which requires a very different sort of abilities, and perhaps I could pass that to Judge Allweis to say a little more on that.
  (Judge Allweis) I think we are all in favour of convergence and the aspiration is that in time officers of CAFCASS will be able to operate in a mixed economy doing public and private law cases according to demand, but it will take time. I think the President is right to emphasise that in a care case there has, almost certainly at the moment, to be a social work background in the guardian. Certainly in Greater Manchester we are developing schemes whereby in the very complex private law case where separate representation of the child is an option somebody with a private law background would have as a mentor somebody with a public law background, but I do think it is an aspiration and that it is perhaps important at the moment to concentrate on the matters which have been emphasised, delay, the need to have a guardian in place at once rather than days, weeks or sometimes months later, although that is not the case in Greater Manchester. [1]

Keith Vaz

  48. Could I ask you a general question, Dame Elizabeth. When I practised at Islington Council doing child care work I used to pop down to the High Court and we used to ward most of our children, obviously children who were subject to Care Orders. We used to get the report within four weeks. Is that just a romantic vision I have had or did that actually happen? Is it much worse now?
  (Dame Elizabeth Butler-Sloss) The wardship cases vary tremendously. I am trying to remember back to that time. I think it would vary from four weeks to three months is my recollection. Mr Justice Johnson might remember, his and my experience is over a very similar period.
  (Mr Justice Johnson) I agree, Chairman.

  49. So it is roughly the same because the delay we are talking about is about 12 weeks?
  (Dame Elizabeth Butler-Sloss) That depends. Even in the High Court cases in London we are having, particularly in the County Court and the Family Proceedings Court at Wells Street, the delay can be much longer because the problem is the allocation of the guardian in London. I believe there is something like 180 or 190 cases waiting allocation. District Judge Crichton could tell you more about that.
  (Judge Crichton) The figure varies, as I understand it, between 180 and 200 cases at the moment. There is a priority list and I cannot tell you the exact criteria for getting onto the priority list, but it is very small children and other significant problems. The priority list itself is 70. I do not know if it is helpful to give you a snapshot, but I had a case the week before last where a guardian was requested on 9 January and a contested interim care hearing had to be listed for 25 March because it was thought that we could not get a guardian in that time. On 26 February the solicitor for the child was told you are now number three on the priority list and we should get you an allocation this week. On 13 March apologies were given and he was told you are now number six on the priority list, so other cases had jumped ahead, but that he would have one with a high degree of confidence before the hearing on 25 March, but when the case came on 25 March we still had no guardian. These were eastern European immigrant children believed to have been sexually abused by the mother's partner, aged ten, eight and five, who are now saying, notwithstanding their experiences at home, they wish to go home and be with their mother even though the partner is there and we still did not have a Guardian who could assist us in understanding what might be in the best interests of the child.

Chairman

  50. Where were the children during this period?
  (Judge Crichton) In foster care.

  51. Together or separate?
  (Judge Crichton) Together.
  (Dame Elizabeth Butler-Sloss) Could I just give the other side of the coin because Judge Allweis sits in Manchester and that is not the problem in Manchester.
  (Judge Allweis) Manchester is the biggest care centre in the country outside London. I have read the submissions to this Committee and have been stunned by what I have been reading, delays of weeks or months. That is not the picture in Greater Manchester. We are very fortunate because historically most of the guardians in what were the four panels within Greater Manchester were employed guardians have remained within the service. There are the beginnings of some delay. The delay I am confronting in one or two patches of Greater Manchester is measurable in days. I had my first experience of a delay last week. Of course, I do not necessarily see the case on day one because it will be in the Family Proceedings Court before transfer, but last week I dealt with a very difficult neglect case; the guardian had been appointed three weeks after the case began, a day or two before the substantive directions hearing before me, and I inquired as to the reasons for what I thought was an unacceptable delay. I think Judge Crichton would welcome a delay of three weeks. I was told that there has been an increase of work in the last few weeks. The President emphasised this. When one has, in Greater Manchester, the equivalent of just over 14 whole-time equivalent public law guardians, if you have two or three on long-term illness and a sudden influx of work it creates problems. In Manchester care centre I am told the numbers are beginning to creep up; in the last three months we have had 90-odd transfers as opposed to a comparison of 60-odd last year. That is a huge percentage increase. Sometimes the reasons for the increase are positive—failing local authorities getting to grips with dealing with neglect cases or the impact of well-publicised public inquiries which hammer home to local authorities the message that neglected children cannot be left in neglectful homes.

Keith Vaz

  52. Nevertheless, there is a delay in other parts of the country.
  (Judge Allweis) So I am told.

  53. We cannot all go to Manchester to put our cases in there. What do you think the most appropriate way of coping with the current shortage of guardians should be? How do we deal with the shortage?
  (Dame Elizabeth Butler-Sloss) I think there are a number of ways. As I understand it, they are looking , in London, to recruit people specifically, and there has been a considerable amount of recruitment drives—so I have been told by CAFCASS who are regularly in touch with me because, of course, I get a picture, to some extent, of what is going on round the country. The designated family judges, such as Judge Allweis, will be in touch with me to ask what is going wrong. Mr Justice Johnson is a Family Division Liaison Judge for the south-eastern circuit; he deals with all care centres in the south-eastern circuit and there are a great many delays there. I think first is recruitment, but, of course, as I said in the paper that we presented to you, there is a small pool, and the pool is being sought by social services as well as by the guardians. One of the problems for London, for example, which is the worst, is that London is a difficult place to work in—we all know that—because of the cost of living and so on. One possibility is to provide some sort of duty guardian as an emergency, and I have been discussing that. It was a suggestion made to me by a very senior guardian. I then asked Charles Prest, the head of CAFCASS Legal Services, to come and see me and he and I have been discussing whether that is something that he should take to the Chief Executive with a view to trying to put that sort of job in an emergency situation in place. Of course, if one does it you will then get to be taking a guardian from doing other duties. I do think we have got to have some short-term measures until the long-term situation calms down.

  54. I had a constituent who came to me last Saturday at my surgery (and I want all the judges' views on this because it is not often that you get to address four judges at the same time), and he said that the service is biased against fathers. Have you heard that in your hearings?
  (Dame Elizabeth Butler-Sloss) I get it every day. I have demonstrations outside my private address in Devon on a regular basis.

  55. From fathers?
  (Dame Elizabeth Butler-Sloss) Of course, because the perception of fathers is, in many cases, that they are unjustly treated. I do not myself believe it to be true. There are a number of organisations who are doing very good work, actually, in supporting fathers and some of the organisations support mothers as well, who also have not succeeded. "Families Need Fathers", I believe, has some mothers who are also supported. The fact is—and these are all private law disputes, Chairman—that emotions run extremely high.

  56. You do not get many mothers saying that the system is biased against them, do you?
  (Dame Elizabeth Butler-Sloss) No, not on the whole.

  57. What about the fathers? Could I ask them? Do they share that view?
  (Mr Justice Johnson) I absolutely agree with Mr Vaz that there are enormous number of men who feel that the system is biased against them: their wife goes off with the milkman, they lose the house, they lose the children; the system is loaded against men. Personally, I do not think it is and we have long since got away from the situation in which we said "Here is a little boy of four, therefore he must be brought up by his mother". I do not think there is that sort of gender bias, but there is certainly a perception of it.

Mr Dawson

  58. First of all, can I apologise for my `phone going off in the middle of that outrageous case that Judge Crichton brought to our attention. Could you just tell me: in a case like that, what power does the individual judge have to bring that matter to wider attention?
  (Judge Crichton) I suppose there are all sorts of things he could do. I do not want to strike too depressing a note. That was not an untypical case but it is not every case. We are assisted, particularly in London, by extremely experienced Children Panel solicitors, and if we have not got a guardian, as we have not routinely in every case at the moment, the Court immediately appoints a panel solicitor to represent the interests of the child. Those solicitors, with their experience, can do something to narrow the gap in the information being brought to the Court, but it is asking of them a great deal more than they are normally trained and expected to do. We then have to make decisions according to our experience and the information that is available to us as best we can. By telephoning the Guardian Panel manager and demanding action and a guardian, what you are doing is sapping her energy and her time because she is trying to juggle her resources to meet the number of cases that we are worrying about. In the really bad cases, of course, we can write to CAFCASS and point out the problem and ask them to deal with it urgently, but they are getting a lot of those requests at the moment.
  (Dame Elizabeth Butler-Sloss) Could I just add to that that at the County Court level and the High Court level the judges come to me and if they write in to me I send that on to CAFCASS and to the Lord Chancellor's Department. So all the letters that come through go on to both those organisations.

Keith Vaz

  59. Just two quick final questions. On the issue of wardship, do you lament the reduction of the number of cases that can go to the High Court on children matters?
  (Dame Elizabeth Butler-Sloss) Personally, yes, but there was a policy decision, when the Children Act of 1989 was actually passed, that the wardship system was inappropriate and it removed from the primary court, which was the magistrates' court, the cases. Now all have to start in the magistrates' court. However, the plus of that was that although we lost the wardship, every case now requires a judicial decision where in the past it did not because local authorities had the right to put children into care without judicial approval. So I think there were pluses and minuses to it. Personally, I am old enough—if I may say so—to have thought wardship was a good idea, but there was a strong policy decision in 1989.


   1 Note by witness: The Committee heard evidence about separate representation of children in private law cases (Q 47) and a Member raised the question of separate representation (Q89). In Greater Manchester CAFCASS are able to make an officer available to be appointed as the child's guardian ad litem (who will then appoint a solicitor for the child) in exceptional circumstances in private law cases where the court considers the child as a party should be separately represented. The appointment is made pursuant to Rule 9.5 of the Family Proceedings Rules 1991. I enclose a copy of the Protocol agreement and Simple Quick Reference Guide agreed between CAFCASS and Manchester County Court (not printed). It is a valuable way of ensuring the child's voice is heard (and interests are represented) in the most difficult/complex private law disputes. The Protocol in effect operates across Greater Manchester. Provided judges do not abuse the system or use it too routinely, CAFCASS have the resources locally to act in a limited number of cases. Back


 
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