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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