Examination of Witnesses (Questions 80
- 89)
TUESDAY 8 APRIL 2003
RT HON
DAME ELIZABETH
BUTLER-SLOSS
DBE, MR JUSTICE
JOHNSON, HIS
HONOUR JUDGE
MARTIN ALLWEIS
AND DISTRICT
JUDGE NICHOLAS
CRICHTON
80. As far as lawyers are concerned—
(Dame Elizabeth Butler-Sloss) I do not think any lawyers
went back. The main lawyer who came over was Mike Hinchcliffe,
who is invaluable because he has all the Official Solicitor expertise
and he is the deputy to Charles Prest. As far as I know, they
divided the lawyers. One of them unfortunately was taken off by
the Lord Chancellor's Department to do what probably was better
work—Claire Johnston—but the lawyers were half with
the Official Solicitor and half with CAFCASS. So I do not think
there has been any secondment of lawyers; the secondment was case
workers.
Mrs Cryer
81. The referral to staff going back to the
Lord Chancellor's Department and leaving CAFCASS woefully understaffed
is not referring to lawyers. Who would they be?
(Dame Elizabeth Butler-Sloss) CAFCASS Legal had case
workers who were not actually social workers but they were very
experienced people who, for many years, had done this work, but
for most of them without a social work background. They had learnt
on the job. They came over from the Official Solicitor to help
out, and most of them have gone back to the Official Solicitor.
That is second-hand information that I have.
82. The mention here is that they re going back
to the Lord Chancellor's Department leaving CAFCASS Legal woefully
understaffed. That is from Mr Prest's comments.
(Dame Elizabeth Butler-Sloss) I understand, Chairman,
that that was related to case workers. I have got no personal
knowledge of that.
Mr Soley
83. When I intervened on your answer on the
East European case and said that the only difference was the East
European origin, were you saying that such cases would be less
likely to happen prior to CAFCASS, or about the same, or more
or what?
(Judge Crichton) No. The problem with the asylum seeker
cases is we are not only dealing with the extremely concerning
facts about the experiences of the children but we are dealing,
also, with families for whom English is not their first language,
and often for whom English is not even a language at all because
they have not been here very long. We are dealing with parents
who have had little or no education and we are dealing with children
for whom education has not been part of their lives. So that inevitably
makes the cases much more difficult for us to deal with in court
than anything we would have had from families that were presenting
the same factual difficulties without all those additional difficulties.
We have to deal with those cases through interpreters. Sometimes
it is impossible to find an interpreter who speaks the particular
dialect that the family speak and we are struggling through interpreters
who are struggling. We are doing it without the insight of a guardian
coming in and helping us to understand the position of the children
within that very complicated situation. I think it is fair to
say this, that in the Family Proceedings Courts we are at the
coalface, and my learned friends to my right get cases that are
sent up. We are getting the cases from a daily catalogue of those
sorts of cases, of the children born suffering the dreadful effects
of mother's drug abuse during pregnancy; children in families
with multiple sex abuse where the parents are unwilling or unable
to protect them; children with learning difficulties; children
with parents with learning difficulties, and we are getting these—if
it is fair to say it in this way—"hot off the pavement",
sometimes on emergency applications. That is where we desperately
need the assistance of guardians, and they are just not available.
They used to be available. We used to be able to appoint a guardian
and have a guardian in within 24 or 48 hours, and if we had to
make a decision to get us through the first week we knew that
at the end of that week we would have the assistance of a guardian
who had been able to start some sort of inquiry on behalf of the
children and assist the Court.
84. A large part of the case would have been
complicated in any event, regardless of if it was before or after
CAFCASS?
(Judge Crichton) Yes.
85. Simply on the basis of the population movements
that are now more complex than they were before—
(Judge Crichton) Yes.
(Dame Elizabeth Butler-Sloss) I wonder if I might
say, I do hope you do not think that we are not at the coalface
too—if, maybe, slightly higher up the coal!
Peter Bottomley
86. Our role is limited but we ought to put
on record how grateful we are to all the social workers and case
workers and the management of CAFCASS and the court staff trying
to process far too many people in difficulties that are often
enormous to them. That is not our role, but we need to understand
that and, also, commend the submissions both from the judges and
Nicholas Crichton to those who may not have picked up completely
what we have had the chance of understanding. He puts a number
of these points very well. We have spent a lot of time on the
consequences of forcing CAFCASS into existence on too short a
time-scale to match the national Probation Service change, and
the effects of that, combined with events, have been highly undesirable.
Moving forward, as the Bill went through Parliament and became
an Act, with the possibility of support services, would some of
you like to tell us what support services you would have wished
and whether they have happened or whether they might happen?
(Dame Elizabeth Butler-Sloss) Could I start by saying
that CAFCASS, as an ideal, is wonderful. We all, I think, support
the idea of having an organisation to deal with all sorts of children
that come through. The way in which it started, which is not our
business—we just have to deal with the fallout—clearly
was unfortunate and we have all been, including CAFCASS, suffering
from it. Therefore, they have not started to look yet at what
is mean by the second "S" in support services. It was
interestingly expressed in the second of the two reports by the
Children's Act Sub-committee, Mr Justice Wall's Report on Making
Contact Work. That was very helpful. We would like, I think,
to see all sorts of things done: helping on information; helping
children who are suffering (as children do suffer) because their
parents are separating and cannot agree; helping very much in
teaching parents that they should be allowing their children to
meet the other parent. There are Australian, New Zealand and,
I think, Canadian, arrangements which have been set out in Mr
Justice Wall's very interesting Report Making Contact Work
as to providing training for recalcitrant parents, making them
go to information meetings; making them, if necessary, have some
sort of community service to encourage them, which would have
to be overseen, it seems to me, by CAFCASS officers. I think you
are quite interested in this, are you not, Martin?
(Judge Allweis) This is the aspiration for the future.
Whatever the positives of CAFCASS, which I have highlighted in
my region, I recognise that resources are tight and there simply
has not been the slack in the system—either financial resources
or human resources—to carry out this development in training
and ideas. The President has mentioned some of them, but there
is a whole range. The obvious ones, which we have touched upon,
are presence at first directions hearings, conciliation work,
contact centres. CAFCASS, in their submissions to Mr Justice Wall's
committee, actually said that they saw a co-ordinating role for
them in the provision of services—the giving of information,
disseminating Parenting Plans, Lord Chancellor's Department leaflets
about families that are splitting up, providing information to
children who, often, are unaware that their parents have separated,
let alone are getting divorced, putting money into mediation and
training. We all support the notion of training, and I think you
emphasised its importance a little earlier, but for training you
need dedicated training staff and you need the time, and time
is not always available. In Manchester we have recently, with
tremendous input from one of the private law CAFCASS managers,
opened, a year or so ago, the first supervised contact centre
in the provinces, which is really dealing with the most complex
of intractable private law disputes—the cases where professional
supervision is necessary to break the problems and move the case
forward. Domestic violence programmes. At the moment CAFCASS have
informal links with perpetrator programmes, anger management programmes,
but they have not got the resources or the time to commission
programmes of their own which match the sort of programmes which
the Probation Service operate in the criminal field. There is
a whole range of ideas. Some CAFCASS managers are keen on expanding
the role of the family assistance order which would have, post-final
order, an officer present actively involved in advancing contact
arrangements—if need be supervising contact where that is
necessary—for a period of months after the order. At the
moment, that is hardly used but is an aspiration for the future.
The corrosive effects of domestic violence have really monopolised
private law work and are a feature of a high percentage of private
law cases, but CAFCASS has not got the programmes or the ability
to work with the perpetrators, the victims and the children for
the reasons I have advanced. That is the "S".
(Dame Elizabeth Butler-Sloss) Could I just come back
and say that chapter 6 of that extraordinarily good Report Making
Contact Work very helpfully sets out the support element of
CAFCASS.
87. Can I ask about family assistance orders?
Is the fact that they are not coming into existence because people
are not asking for them or because judges feel there are not the
resources for them to work?
(Judge Allweis) There are not the resources, essentially.
Family assistance orders can be made in favour of a local authority,
if they have been historically involved with the family, or CAFCASS.
At the moment it is supposed to be made in exceptional circumstances
for six months, and when resources are tight—whether CAFCASS
or local authority resources—they will not always see a
Family assistance order as a high priority. There are some CAFCASS
officers who appreciate the need for active involvement after
the court hearing and will volunteer to be the officer who will
take on board a family assistance order. That is a growing trend
but I suspect it is not part of a formal structured plan.
88. For a Court to make a family assistance
order it needs to be asked to do so?
(Mr Justice Johnson) There is a point of law here,
and I hesitate to refer to it in case I am wrong. The parties
have to agree. If they do not agree then you cannot have a family
assistance order.
(Judge Crichton) I think it is very much a regional
thing. In central London social services are so overworked that
family assistance orders have a very low priority indeed, and
it is very difficult to make them work. I sit as a Recorder in
Milton Keynes and there they are very effective because they are
not subject to quite the same pressures.
Ross Cranston
89. Can I apologise for not being here for the
whole of the session; I was in a debate in Westminster Hall. Could
I ask about private lawyers? We heard that there was some pressure
because of the European jurisprudence about separate representation
in private contact cases, and that has been picked up to some
extent in the Court of Appeal here. If we had that, would there
be a need for fewer private lawyers? We had the Lord Chancellor
last week talking about budgetary pressures. Would the priority
be to put money into CAFCASS rather than as much money into the
community legal service in terms of the family side of it?
(Dame Elizabeth Butler-Sloss) I have not thought about
it so I am thinking about it off the top of my head. I think,
myself, there are advantages for parties having lawyers. If the
lawyers and CAFCASS can work together to reduce the temperature
and the Solicitors' Family Law Association and the Family Law
Bar Association have guidance that they should be looking to the
best interests of the child rather than just to the interests
of their respective clients (and they do follow that very well
indeed—the Law Society has produced an excellent protocol
in private law cases, a very valuable protocol, on how one should
be behaving in these cases) the lawyers are very important to
guide the parties but if you can get CAFCASS in quick enough—for
instance, the percentage success, I believe, in the Principal
Registry is 80%—you are not going to need either lawyers
or CAFCASS because everyone is going away and they are not coming
back to court. I would think that you do need to pay for lawyers
at the early stage, but you would hope with sufficient CAFCASS
input that the bill would be cut, and we would all want that bill
to be cut because we all know that the Legal Aid bill is spiralling
out of control—though largely on asylum, I have to say,
rather than family work. [2]
Chairman: Dame Elizabeth, gentlemen,
thank you very much indeed for a most helpful session.
2 Ref footnote to Q47 Back
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