Examination of Witnesses (Questions 100-119)
7 DECEMBER 2004
CHRISTINA BLACKLAWS,
HILARY LLOYD,
KIM BEATSON,
CHRISTOPHER GOULDEN
AND PHILIP
MOOR QC
Q100 Mr Soley: What do they find uncomfortable
about it, apart from the fact they are talking about deeply personal
issues?
Christopher Goulden: Well, the
court process of giving evidence is an extremely uncomfortable
one and they feel disempowered by the idea of decisions which
reflect very closely their most deeply-held personal feelings
being dealt with in a relatively public way and dealt with by
strangers.
Q101 Mr Soley: So it is the discomfort
of talking about relationship issues?
Christopher Goulden: Yes, in a
formal setting.
Q102 Mr Soley: What about the issue of
bias, have you come across a feeling of bias about mothers or
fathers as parents?
Christina Blacklaws: No, I do
not think that there is any bias that can be evidenced in the
court process or in the family justice system itself. A lot is
talked about it, I know, and I am aware of that, however, in my
experience and I think probably the anecdotal experience of everybody
on this bench, I have always found the courts to be gender blind
in the way that they deal with the cases that are before them.
However obviously many, many children do live with their mothers
and if that is the status quo that will often be upheld by the
courts. The courts will not change that status quo unless there
is good reason to do so. Hence sometimes there may be a perception
that the courts are biased towards mothers in these circumstances.
Q103 Mr Soley: Could that bias go back
to the position of separation where for other reasons in a sense
a man might often be the one who leaves the home and then the
mother is with the children and that possession puts them in a
stronger position at the beginning. Is that right or not?
Christina Blacklaws: It may well
be the case but I think what we are doing with family law always
is that we are dealing with the situations that face us. If the
father has left the home and a status quo has been established
with the children living successfully perhaps with the mother
then it would be difficult for the courts to overturn that just
because that is what the father wanted.
Q104 Mr Soley: It there not a difference
though in the sense, if you take the gender issue out of it, it
is about the non-resident parent, is it not, so the parent who
leaves the home in the sense of leaving the other parent with
the children, does that parent who has got the children not start
off a court process with an advantage in the sense there is a
presumption that that is where custody will end up? Do you think
that happens or not?
Christina Blacklaws: I think that
there is an element of truth in that and one of the reasons because
of—and we have already mentioned this before and I think
you will find this is going to be a theme of our evidence—the
delay which is endemic in the family court process is if you as
a non-resident parent who has with good cause an application to
make before the court, whether it is for residence or for contact
with their child, have to wait 14 or 16 weeks before you can even
get to the first stage, and that is assuming that you have the
funds to be able to make an application to court on the day that
you wish to, then of course you are going to be disadvantaged.
This status quo which I have already mentioned will have been
established. That is without looking at the difficulties of getting
public funding and the processes that you have to go through to
obtain a legal aid public funding certificate to take a matter
to court. If you are a self-employed person the Legal Services
Commission quite often have great difficulty in assessing your
eligibility for public funding. I have had a case that took six
months for the Legal Services Commission to say, "yes, this
person is eligible for public funding" so, yes, you can be
terribly disadvantaged, I think, as a non resident parent or even
as a parent who just wishes to see your child.
Q105 Mr Soley: Are you saying that it
is the time factor then that might distort the situation in that
the non-resident parent slowly loses out? Is that what you are
saying?
Christina Blacklaws: Yes, I think
in terms of residence that is the case. If a status quo has been
established with one set-up of the family then it is unlikely
that the court will change that, unless there is very good reason.
With regard to parents seeing their children, then obviously the
longer that they go without seeing their children the more difficult
it is to re-establish their contact.
Q106 Mr Soley: Is not the assumption
in society that the male role is actually to withdraw in that
situation and leave the mother with the children? Is that not
a general assumption? Leave aside whether it is right or wrong,
does the court not reflect that to some extent and that is where
the feeling of bias comes from?
Christina Blacklaws: I think it
is a bit of a chicken and egg. That is what often happens in our
experience. Often as the family that is left behind, for whatever
reason, and sometimes on the part of the father very good reasons—to
ensure that the children have stability, that they can continue
to attend their school, that their housing needs are put first—yes,
that is often the situation. Then we as lawyers and the courts
themselves have to deal with the reality that we are given. So
of course that is often reflected in the courts' decision-making.
Q107 Mr Soley: My colleagues will want
to come in in moment but could I just ask you a final question.
Would it be your assumption that the Government ought to reduce
the use of courts in these situations if possible, if you like,
to try and discourage it so that you get a settlement prior to
the court or outside the court without invoking a court procedure?
Christina Blacklaws: Yes, but
I need to qualify that slightly. Obviously I think you have heard
before that only about 10% of cases actually come to court so
90% of families settle their matters without coming to court.
Of those 10%, there are inevitably going to be perhaps quite a
large number who have to have a judicial decision and the reason
is that they have, for example, very serious allegations of perhaps
sexual abuse or domestic violence, or there are intractable problems
in terms of the parents coming to some form of agreement. Obviously
there are a number of family cases—for example child care
cases and adoption cases—and these sorts of matters have
to be determined by the court. I do not think we can aim to get
every single family case out of the court process. However, having
said that, then, yes, there is a core group of cases which can
rightly be diverted into other dispute resolution processes and
we very much at the Law Society welcome the pilot projects that
have been set up over the country to look into how this can be
achieved. Obviously it is at its early stages yet but we look
forward to seeing how the evidence from those pilot projects pans
out.
Q108 Mr Dawson: I think we have started
to veer slightly into public law there but in terms of private
law entirely, are you happy that the courts actually do recognise
evidence of domestic violence and respond to it appropriately?
Christopher Goulden: That is certainly
much improved. Going back some years it could be said that courts
did not recognise them sufficiently but there is a much more heightened
understanding of the implications of domestic abuse and so I think
generally the answer to your question would be yes.
Q109 Mr Dawson: Despite the wide prevalence
of domestic violence, courts still are very, very reluctant to
refuse contact orders, are they not? Does that imply that they
are very good at making arrangements for safe contact for children?
Christina Blacklaws: Is the Committee
aware of the new forms that have been developed? Yes. I think
that there are real problems in domestic violence issues being
brought to the fore at a very early stage. It is very important
that this is recognised right at the outset. It is an allegation
and it may not be true, it may be that (archetypally) the mother
is trying to prevent contact for no other reason than her own,
but the allegation itself needs to be taken very seriously, needs
to be investigated early on and a judicial decision made as to
whether those facts are made out and then the court can go on
to determine what is in the best interests of the child on that
basis. It is very important that that is identified and dealt
with at the earliest stage in the case as possible.
Q110 Mr Dawson: These are new procedures
which come in early next year and they respond to Section 120
of the Adoption and Children Act, I believe?
Christina Blacklaws: That is right
so at the very outset of the case the court will be aware if there
are any allegations of any sort of abuse of the children and any
possibility of the children being adopted, so these two issues
are very clear at the beginning.
Q111 Mr Dawson: You are confident about
that? Domestic violence, I hardly need to stress, the point is
something that is hidden and that has taken decades, or centuries
even to achieve the prominence that it has. Surely there are many
occasions on which women are reluctant even now to give evidence
of the abuse that they have suffered?
Christina Blacklaws: Yes, absolutely.
I think that there has been great progress, certainly in the courts'
approach to this issue of domestic violence, and a greater awareness
and understanding of its prevalence, and the court and the lawyers
need to be vigilant to ensure that the issue of domestic violence
is not something that is just addressed at the beginning of the
case because actually, as you have said, a lot of victims of domestic
violence take some time to be able to tell their story and that
is something that needs to be checked all the way through.
Q112 Mr Dawson: So when you said, as
you said earlier when you talked about women wilfully refusing
contact (and certainly the Family Law Bar Association talk about
a small group of women who are obdurately refusing contact) is
it not likely that domestic violence underpins a great deal of
those women's position to contact?
Christina Blacklaws: It may well
be the case. Having had these cases myself sometimes it is very
difficult to get to the bottom of why contact is being so very
forcibly rejected but, yes, it certainly has to be in every lawyer's
mind, "Is this because of a threat of harm either to (archetypally)
the mother or the children themselves?" and that needs to
be carefully and with a lot of sensitivity explored with the client.
Q113 Chairman: Can I just clarify whether
it is your view that a past experience of violence between the
parents is in all circumstances a bar to contact with the children?
Christina Blacklaws: No, not at
all, sir. It is something that needs to be carefully looked at
and then what I would say is that contact needs to be safe. As
long as safe contact can take place and as long as it is always
in the children's best interests then, of course, it is no bar.
Q114 Mr Dawson: Experience of domestic
violence is now acknowledged as a factor of significant harm,
is it not, under the same procedures we are talking about?
Christina Blacklaws: Yes.
Q115 Mr Dawson: Can I just ask how well
you feel the voices of children are heard in private law proceedings?
Philip Moor: I think they are
heard pretty well. In fact, in the Principal Registry in London,
when an application is made and a child is over the age of nine,
the child comes along to the first conciliation appointment and
the CAFCASS officer will see the child, usually privately without
the parents, then if it is still impossible on that occasion to
reach a sensible compromise in the interests of the child then
the CAFCASS report will be directed, and my experience certainly
is that the voice of the child is heard during that process. Of
course it can be very difficult for the child because the one
thing the child wants is for the parents to stay together in general.
They want the situation to carry on as though there was nothing
wrong. It is very difficult for children to choose between parents
and we have to recognise that.
Kim Beatson: Philip has described
the arrangement in the Principal Registry which involves children
over nine attending conciliation appointments. It is the view
of the Solicitors Family Law Association that children should
not be obliged to attend conciliation appointments on court premises
and that there is a better way of hearing children without the
shadow of the law children who are effectively being taken out
of school with one parent, knowing that they may have to speak
against the other parent, and we find that not the best way of
hearing children.
Philip Moor: I would agree with
that.
Christina Blacklaws: I think that
ideally children's voices should be heard much more clearly in
the private law context as they are in the public law context.
However, we come up against the problem of resources time and
time again. There are perhaps not the resources to be able to
effect the Rule 9.5 Practice Direction from the President that
you probably heard about on the last occasion whereby children
can be separately represented so they are not just caught between
their two warring parents, they have some support, and their voices
can be heard, as Kim has said, without putting them before the
court and making them say what they want in those circumstances.
It is a problem of resources and there are not sufficient CAFCASS
officers to be able to properly offer that service at the moment.
Christopher Goulden: Possibly
behind why the children are asked to go to the Principal Registry
is because it is a lot easier for the courts administration.
Q116 Mr Dawson: Indeed. The President
of the Family Division certainly spoke strongly about the system
of tandem representation a" la the situation in public
law. Is that something that you would like to see operated more
in the private law field?
Christina Blacklaws: It is certainly
not necessary in every case but in those cases which are the ones
that hit the headlines that concern the judiciary and the lawyers
the most, the intractable cases that go on and on and on, and
children's voices are not heard and their best interests are not
seen to, in those circumstances, I think it would be most welcome
if they had that sort of protection to ensure that their rights
were protected as well.
Christopher Goulden: If I could
say the experience of Lord Justice Wall when he gave evidence
to you, the fact that you can so quickly crack an intractable
case, is certainly my experience of 9.5 appointments. As Christina
has said, the last thing you want is children being represented
in every case or indeed in a lot of cases, but for those few it
can be a magic wand.
Q117 Chairman: In your written evidence
you suggested that there should be a statutory presumption that
the children should have contact with both parents following separation.
How would that relate to the existing presumption that the court
must act in the best interests of the children?
Christopher Goulden: I have to
deviate slightly from the SFLA line on that. We have had subsequent
discussions about that. I do not think that that is as well put
as it might have been, with all due respect to my organisation.
I think a better way would be perhaps to follow what the President
said which is to have it as part of the welfare check-list and
then it would get over that problem of there being, as it were,
two conflicting presumptions. There is nothing wrong with having
a presumption which is rebuttable, as was the recommendation in
our written evidence, but as long as it came in perhaps by means
of being part of the welfare check-list.
Q118 Chairman: When Dame Elizabeth was
before us she said that she could see a case for something slightly
less than the legal presumption such as "that the courts
should have regard to the importance of a relationship between
the children and a non-residential parent."
Christopher Goulden: I think that
is well put and that is more or less what we were saying.
Q119 Chairman: That is generally supported
across the table, is it?
Christina Blacklaws: Yes, it could
go into the welfare check-list which is what guides the court
in its decision-making process on all of the issues that it needs
to take into consideration when making any decision about children.
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