Examination of Witnesses (Questions 60
- 79)
TUESDAY 8 APRIL 2003
RT HON
DAME ELIZABETH
BUTLER-SLOSS
DBE, MR JUSTICE
JOHNSON, HIS
HONOUR JUDGE
MARTIN ALLWEIS
AND DISTRICT
JUDGE NICHOLAS
CRICHTON
60. Are we going to require more reports in
order to ensure compliance with Articles 6 and 8 of the ECHR?
(Dame Elizabeth Butler-Sloss) No, not more reports.
This is very much private law, because a child is entitled to
a guardian or, if old enough, to his own lawyer in every public
law case. The only problem in public law is getting the guardian
there in time. In the private law cases, I think it is desirable
in the majority of cases to have a court report and up until very
recently those court reports have been provided. Currently there
is some difficulty in getting court reports quickly enough because
of the difficulty of CAFCASS. The Government has, through Rosie
Winterton MP, expressed in the House the view that there should
be more children represented in private law proceedings.
61. Final question to Judge Crichton: in your
evidence to this Committee you say, in your conclusion, "the
vision is under threat". In sixty seconds, what is the vision?
(Judge Crichton) The vision is a wider-based, more
integrated service for children with a louder voice for children
and greater services for children in terms of contact centres,
domestic violence programmes, and all the other supports that
families can be given. Such have been the battles of the last
two years in CAFCASS that nobody has been able to focus on these
issues at all.
62. So CAFCASS has failed?
(Judge Crichton) It is a question of time-scale, I
think. I look forward to the day when they can start focusing
on those issues and providing the services that we had hoped might
have come sooner.
Mr Soley
63. Perhaps this is the appropriate point for
me to repeat my question that I put to the inspector. If you took
a photograph of the decisions made today, would you expect a child
to get the right decision in the right time-scale? Would they
be more likely to get that than they were prior to CAFCASS appearing
on the scene?
(Dame Elizabeth Butler-Sloss) The decision, of course,
is the judge's job; for the time-scale the judge is dependent
upon many other factors. I do not think that children, on the
whole, in the parts of the country where there is a shortage of
both court reporters and a shortage of guardians are getting as
good a service as they did in those areas if those people were
in place—which basically they were. Again, in the North
West, fortunately, and in other parts of the country, the service
is continuing. The service, on the whole, when provided, is good.
The problem is getting the service in place. A great many guardians
voted with their feet and went. Therefore, that is what has done
it. The very good, experienced people are not there. They have
got to be built up for the future. I heard what I think either
Mr Poyser or Mr Chivers said, that there was not exactly an aging
workforce—that would be unkind, because they are all younger
than me—but there was a middle-aged workforce which was
not actually going to be continuing for all that much longer.
So they are going to have to get their people in with proper training.
64. Can I ask Mr Justice Johnson the same question?
(Mr Justice Johnson) Undoubtedly, on the south-eastern
circuit the position of the child would be worse than before,
but not because of the quality. I personally have never come across
a guardian or a welfare officer whose opinion was not worthy of
respect. I think the quality is very high; it is the quantity
of them that is lacking. For example, in Guildford, if you have
an ordinary husband and wife dispute about the children you can
wait six months for the welfare officers' report. I believe that
to be totally unacceptable. In public law cases, if you take a
baby away from the disadvantaged mother who has just given birth,
having carried the baby for nine months, and you then say to her
"You may or may not be keeping your baby. We will let you
know in a year's time", I believe that is unacceptable. Mr
Vaz spoke about human rights. For goodness sake; some of these
consequences of delay are inhuman. However, may I say—and
I do not want to get involved in discussion on management because
that is not our field—on the ground, one designated family
judge said to me when I was asking questions before coming here
today "They are working their socks off". Overall, I
think, there is a feeling of optimism. That is just a feeling
and I cannot put it any higher.
65. Would you regard the quality of the report
you read now as better or worse than the period before CAFCASS?
(Judge Allweis) I do not think there has been any
fall in quality. It is perhaps fortunate that in public and private
law quality remains high, partly because a substantial proportion
of pre-CAFCASS staff remain on board. I do not under-estimate
the significance of delay. I read in one of the submissions that
two months is one 1% of a child's life and therefore any delay
is unacceptable. It is perhaps unfortunate that we have come to
accept modest delay as acceptable when it is not. However, the
quality of reports remains high, and the quality of the service
when provided is a very positive and good one. The problem, of
course, is that resources are tight and there is no slack in resources—no
time to carry out the creative, innovative work that Judge Crichton
referred to, and which is a vital aspiration for CAFCASS.
(Dame Elizabeth Butler-Sloss) I think there is a different
view from Family Proceedings Court in London. Perhaps Judge Crichton
ought to give it.
66. I would also like to know, in your answer,
whether you think the case you quoted of East European immigrants
would have been more likely or less likely to have happened prior
to CAFCASS.
(Judge Crichton) To answer your last question first,
we are getting more and more of those sorts of cases now. I am
not sure that we were getting any of those sorts of cases two
years ago. There may have been one or two but I do not remember
details.
67. You mean because they were East European
immigrants? That is the only difference?
(Judge Crichton) Yes.
68. The case, otherwise, could be the same?
(Judge Crichton) Yes. I have to be honest: I think
our experience is that the quality of work from guardians—I
am not going to say has deteriorated because that would be disrespectful
to some of those guardians who are still doing extraordinarily
good work—has become more variable. I think we are getting
work now that is less good than we used to expect and be accustomed
to, and very occasionally we get work that is not good enough.
69. In a way, the concern of all of you is about
the standards across the regions, if I can put it that way?
(Dame Elizabeth Butler-Sloss) I think what District
Judge Crichton says is not reflected in what I have heard across
the country. I sit in a different part of the country for a brief
period each term and meet everyone. That is not been, interestingly,
a criticism that I have heard in Leeds, in Manchester, in Birmingham,
in Norwich or Brighton—just thinking of the places I have
been to recently. I do not think it is your view, Robert, is it?
(Mr Justice Johnson) No, it is not. I think the quality
is very, very high.
70. I have maybe given the wrong lead with my
question. What I was suggesting is not that necessarily it was
bad across the regions but the differences between regions are
quite serious and, maybe, there are just very different and there
is no overall standard against which to judge it. Is that right?
(Dame Elizabeth Butler-Sloss) My impression is that
overall the standard is good. There are some variations which
have become less good. It crosses my mind that it may be because
they have had to get staff in rather quickly in the London region
in order to cope with the very, very serious shortfall in guardians.
Chairman: As opposed to Manchester, where
you still have the same people?
71. But it is regional. The point I am trying
to make here is that there is not a national standard. You do
not seem to be against what CAFCASS is trying to do, you do seem
to be giving a certain message about how good it is in the different
regions and the variations between regions.
(Dame Elizabeth Butler-Sloss) I am not sure I would
agree with that, Chairman. My view is that overall the standard
has remained good, and in many cases very good. There are some
areas where there have been some reports which have been less
good, but I do not believe that is the standard; I believe there
has been a drop from that standard in a few places. I am reasonably
confident that CAFCASS is providing both in public law and private
law good reports, in the main, but there are a few which have
been less good.
72. Would you welcome a national standard by
CAFCASS with which you could then compare London, the North West,
or whatever?
(Dame Elizabeth Butler-Sloss) As I understand it,
they have just produced a national standards plan earlier this
year. I have not seen it yet; I meant to call for it and I am
sorry I have not seen it. My private secretary tells me there
is a national standards, which I think came out at the beginning
of this year or the end of last year.
73. I think the answer I got originally is that
they were thinking about producing a national standard. I would
have to check the record.
(Dame Elizabeth Butler-Sloss) I have not seen it,
certainly. Quite clearly, this is something that is very important.
Whether the judiciary are competent to judge it, I am not at all
sure. I do not think that is our job, actually.
Chairman: Our understanding is that it
is still in draft form.
Mr Dawson
74. How important is the independence of the
children's guardian? Do you think that that has changed at all
with the coming of CAFCASS?
(Dame Elizabeth Butler-Sloss) I have had no personal
reason to believe that the guardians who have given evidence,
or have provided reports, have not done so in an utterly independent
way. That is the assumption of the courts. Insofar as how they
may feel, I do not think that is an answer that the judges would
be able to give.
75. We have heard considerable concern from
all of you, I think, about the voice of the child and the implications
of the rights of the child in the current situation. How do you
individually feel that we could improve the adherence of systems
to Article 12 of the UN Convention on Children's Rights to ensure
that children's voices are heard more clearly in both public and
private law?
(Dame Elizabeth Butler-Sloss) In public law a child
has a guardian. So as long as the child gets a guardian we are
then, it seems to me, compliant both with Articles 6 and 8 of
the Human Rights' Convention and I would hope we were compliant
with Article 12 of the United Nations CLC. In the private law
cases, my view is that in the majority of cases it is sufficient
for the child to have a welfare report in which the child is given
the opportunity to express views. In a minority of cases I have
no doubt at all that children should be represented and have an
opportunity to have a say through their own guardian as to what
should be happening. I do think that the time has come, perhaps,
for us, particularly bearing in mind a number of decisions from
the Strasbourg Court, where we ought to be rethinking a bit how
we do find out what children think, much more broadly. I was very,
very struck by the NSPCC Report on children where over 700 children
answered a questionnaire sent to all children in care. I thought
that questionnaire was extremely revealing- I am sure the Committee
has seen it. The NSPCC produced all 700 responses in a document
which was launched about three weeks ago, which I attended. I
think we need to be more imaginative. I suspect one way, which
is done in the Principal Registry of the Family Division, which
I think is excellent, is that they hold in private law cases conciliation
meetings at the very early stage. The children are invited to
attend and invited with the parents to go and see the court reporter
who is based on the same premises. The children get an opportunity
to tell the court reporter, at a very early stage of the parents
bringing the proceedings in, how they feel about it. I am not
sure we get enough of that out.
Chairman
76. Is that the Families in Conflict
study or is that a different study? It showed that less than half
the children in the study felt that their voices had been heard.
(Dame Elizabeth Butler-Sloss) The NSPCC commissioned
two studies of adults and of children. They were children in care,
but what they had to say I think will be replicated for children
in private law proceedings. I do think we ought to be having,
where it is possible, a CAFCASS reporter on the premises in the
Family Proceedings Court, or the County Court, in private law
cases where a CAFCASS officer can tell the parents the enormous
disadvantages of fighting over the children and hear what the
children feel . For instance, I do not think parents in dispute
realise that children love them both. That is the most basic point.
Those are the sorts of things that the welfare officer can discuss
with them. You are doing this a bit in Manchester, are you not?
(Judge Allweis) Yes. How the voice of the child is
heard is actually quite a complex matter. There are some who say
that the child should come and speak to the judge; I have my skills—such
as they may be—but I am not necessarily skilled at "interviewing"
children to ascertain their wishes and feelings. I will rely on
officers to do that and make judgment. What we have, and what
I think should be replicated across the country, is a system where
on the first directions hearing on any private law application,
officers of CAFCASS are present at court and meet the parents
(at the moment, not the children) for prior discussion. The district
judges who operate this scheme, and it is operated across the
board throughout Greater Manchester but not necessarily nationally,
find this immensely helpful. The officer can analyse problems,
point out the bitterness that would be engendered by unnecessary
conflict and if need be point the way towards mediation or conciliation
services. If that were to be expanded, as happens in the Principal
Registry, with the child there (I think it is children from the
age of 9), that would have resource implications but the savings
long-term would be enormous, not merely for the lowering of tension
and bitterness but for the resolution of disputes and, therefore,
less contested cases and the need for less reports. Children are
not always listened to and do need to have a voice, and that voice
can often just be present to talk to a reporter. If that does
not happen then, of course, the reporter when preparing a report
should be alive to the wishes and feelings of the child, whatever
the child's age.
(Mr Justice Johnson) Chairman, may I just interpose
to say that I agree with everything that the President and Martin
Allweis have said, but one does not want to put the child into
a position of having to choose between parents. There is a risk,
if the case gets too far and the child is represented by the lawyers,
of confrontation between one of the parents and the child, and
that is very, very damaging to the whole situation. I firmly agree
that we should listen—and may I say I think we do.
Mrs Cryer
77. I want to ask you about the provision of
the service by CAFCASS Legal and whether you are completely satisfied
with how it is working. Do you feel that there could be changes
which would benefit the service if you had sufficient resources?
Dame Elizabeth quoted Mr Prest, the CAFCASS Director of Legal
Services. He says in a submission ". . . that the service
CAFCASS Legal is offering is markedly inferior to the service
formerly offered by the Official Solicitor." He puts this
down, partly, to the fact that the staff are on secondment rather
than transfer from the Lord Chancellor's Department. Dame Elizabeth,
in your submission you actually say "CAFCASS Legal has inherited
much of the work formerly carried out by the Official Solicitor,
which it continues to do well, despite severe restrictions on
its capacity to do so." I wonder if you could enlarge on
that?
(Dame Elizabeth Butler-Sloss) I think they are two
quite separate things. What CAFCASS Legal does they do well. They
are not doing the work that the Official Solicitor did, and it
is the lack of being able to take the cases that is the criticism.
That, I think, is what Charles Prest is picking up. In the old
days, the Official Solicitor, as a matter of practice, accepted
all cases from the Court of Appeal. When I have sat in the Court
of Appeal, which I do regularly from time to time, I expect the
Official Solicitor, now CAFCASS to come in, even at the Court
of Appeal stage, to take over a case. That we knew the Official
Solicitor would do. We knew the Official Solicitor would take
any case that a High Court Judge asked for; on the whole he did
not accept work from the County Court. That was a distinction
because of a lack of resources beyond the High Court. I understand
that Charles Prest is finding enormous difficulty in being able
to do even this. I expect if I ask I get it, and so I have been
getting CAFCASS Legal to do the work when I have asked for it.
I am right, am I not, Robert, that not all High Court Judges are
getting it at the moment?
(Mr Justice Johnson) That is true, President.
(Dame Elizabeth Butler-Sloss) I should not be getting
it and he is not getting it, is the point. What I am extremely
concerned about—and I do make the point in my addendum to
the judges' paper—was that they firstly need more lawyers.
They are seriously under-resourced for lawyers. I did actually
say this at the very beginning when CAFCASS was in the process
of being dealt with and people came to talk to me about it. I
said one important thing was that CAFCASS Legal had a role that
was going to be, I hoped, broader than the role of the Official
Solicitor; that not only would it do the work of the County Court,
the Court of Appeal and the High Court, adoption, difficult foreign
cases and some care work (but not a great deal), but what I hoped
it would do would be able to provide principles of good practice
which it would be promulgating right across the country and, in
particular, not only disseminating it but ironing out some differences
of practice in different parts of the country. This, I think,
they have not even begun to do because they do not have the resources.
It is unfortunate, I think, that the case workers went across
from the Official Solicitor, on secondment I understand, and most
of them have gone back. Therefore, they are very short of case
workers. My personal view, for what it is worth (and I am not,
of course, able to do more than give a personal view) is that
the lawyers are the basis of the CAFCASS Legal service, and what
they want to do about their own case workers I do not have any
understanding of. I do know that the lawyers have an invaluable
role to play both in the guidance of those round the country and,
also, in doing the cases for the High Court Judges. If they had
enough lawyers round the country they would be able to advise
guardians who might wonder what they ought to be doing. I have
always hoped that guardians, and indeed local solicitors, might
be able to be in touch with the expertise of CAFCASS Legal and
say "We have got a very awkward situation here. Should you
take it over or would you like to advise us from a distance?"
In the old days the Official Solicitor used to give informal advice
on cases without actually coming on the record as the solicitor.
That was very valuable background information and help which,
again, CAFCASS Legal ought to be able to do as part of its expertise.
It ought to be the centre of expertise and it is not being given
the opportunity to be at the moment. Charles Prest, if you will
allow me to say so, is outstanding. Everybody who has dealt with
him thinks he is outstanding, and he ought to be able to have
a team with him that he could work into the system.
78. Are you putting down this inability to spread
good practice and take on cases to the fact that you are short
of cash and, therefore, cannot take on additional lawyers, or
is it that there is a shortage of lawyers?
(Dame Elizabeth Butler-Sloss) There are a great many
lawyers around. I am not competent to say what the budget restrictions
are, I just notice there are not as many lawyers at CAFCASS as
there ought to be.
Chairman
79. Is there an issue about staff going back
to the Lord Chancellor's Department who had merely had been seconded?
(Dame Elizabeth Butler-Sloss) The only really outstanding
person who has been seconded from the Lord Chancellor's Department
is Jonathan Tross, who has been a tremendous asset to CAFCASS.
As I understand it, he has had his secondment extended for another
year. I think we all should be very glad about that.
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