Examination of Witnesses (Questions 120-139)
7 DECEMBER 2004
CHRISTINA BLACKLAWS,
HILARY LLOYD,
KIM BEATSON,
CHRISTOPHER GOULDEN
AND PHILIP
MOOR QC
Q120 Chairman: Do you think that should
be embodied in Section 1 of the Children Act?
Christina Blacklaws: I do not
think that any of us could see that that would do any harm at
all and if it supports families and children then yes.
Q121 Mr Cranston: Mr Soley raised the
issue about reducing the role of the courts. Could I ask you about
reducing the role of lawyers and in particular the impact of legal
aid. Casual observation—and there is some academic writing
about this—makes the contrast between our system and the
system, say, in some parts of North America or Australasia where
lawyers seem to have a lesser role, where there is more do-it-yourself
activity and that has happened for quite a long time; could you
give a general view of that before we move on to legal aid.
Kim Beatson: From the point of
view of the solicitors organisation we do not feel possessive
at all about these cases. We are talking now about contact cases,
are we not? In our own proposals we suggest there is an intervention
appointment as soon as an application is made to court. The intervention
appointment would not involve us, it would involve a CAFCASS officer
acting in an assertive capacity. I do not think that most of us
have any enjoyment out of difficult contact cases and I think
that is something you really have to understand. We are as frustrated
about the difficulties in enforcing orders as the applicants tend
to be.
Q122 Mr Cranston: What about on the public
law side?
Christopher Goulden: I can speak
as a practitioner who uses public funding for contact cases and
I understand that what you may be saying is that you think there
is an overuse of lawyers using public funding—
Q123 Mr Cranston: —I have got no
presumptions, I am just asking questions.
Christopher Goulden: —Because
there seems to be a myth going round that these cases are unnecessarily
prolonged by practitioners using public funding. I do not think
in my experience over some 20 years that that is something which
I recognise. They are not well remunerated. The delays in being
paid are such that it is not good for your cash flow and therefore
I do not again recognise this idea of these cases being abused
simply because they have public funding.
Christina Blacklaws: I can add
to that to say that given that so many family lawyers are stopping
undertaking publicly-funded work, those of us who continue to
do so are flooded with cases, more cases than we can possibly
handle, and in those circumstances again it does not make any
sense that we would be "milking" those cases of publicly-financed
work. It is quite important for the lawyers—we run our own
private businesses—that we get those cases dealt with as
expeditiously as possible because, as Chris has said, it can take
nine months from the end of the case until we are actually paid.
Q124 Mr Cranston: I was more asking the
question, in a previous session I put Professor Eekelaar and his
colleagues' research, namely that family lawyers are very caring
and often mediate in situations and do not generate conflict and
so on, but there is still this more general issue that we have
more lawyers involved in family law work than other comparable
jurisdictions and, query, should we?
Christina Blacklaws: I think we
cannot ignore the fact that 81% of people who have a family law
problem go to see a solicitor so we are often the first point
of call for people who have just experienced family breakdown.
Q125 Mr Cranston: But that is the culture.
Should we have a different culture?
Christina Blacklaws: I would say
that one of the benefits about that (and this is something that
is very much part of the FAInS programme which might have been
mentioned to you) is that the solicitor is the point of call for
the client, the service user, to be able to access all the other
services that they may need, so effectively the middle of the
wheel with you as a solicitor being able to signpost your clients
to—and obviously there are often a number of problems associated
with family breakdown—debt counselling, welfare benefits,
housing issues, all of these social welfare issues, to ensure
that all of that person's problems are dealt with by the right
people in the right way so as a sort of manager of the process.
That is a model that actually works very well. It is not "lawyering
up" the process in any way but it is ensuring that somebody
holds that so that that person is assisted to access all the things
that they need to solve their problems.
Q126 Mr Cranston: I am not sure that
Richard Moorhead's evidence actually demonstrates that lawyers
do that the best. I think his evidence shows that CABs might do
that the best. I do not know. Mr Moor seems anxious to say something
about this general issue.
Philip Moor: There are a large
number of areas that you have problems with when your relationship
breaks down and it is not just contact. You have to sort out your
housing arrangements and that may give rise to applications for
ouster injunctions. There may be molestation issues or domestic
violence issue that we have already heard about. There may well
be maintenance problems. This is often the only time that these
people will come into contact with our courts in this country
and, in my view, it is a harrowing process to go through a relationship
breakdown and you need expert help to get you through that process
and make sure that you come to sensible solutions which are in
the interests of your children and the family as a whole.
Q127 Mr Cranston: Could I ask about delay.
What, in your experience, is the major cause? I think you have
refuted the notion that it is legal aid or the fact that these
are publicly funded. In some of the evidence CAFCASS was mentioned
as a possibility. There is also the operation of the courts. What
is the major problem?
Christopher Goulden: I do not
know which of us said that but I do not think either of us meant
to give the impression that delay was not caused by legal aid.
I do not know if I heard you wrongly there. We did not refute
it. We said there was considerable delay caused by the process
of getting legal aid.
Q128 Mr Cranston: In getting legal aid,
yes, sorry. The more general allegation is that the fact there
is public funding through legal aid prolongs these cases, which
in a way was the sort of proposition I was putting to you. Incidentally,
with no preconceptions at all; I was just trying to get to the
bottom of this since I do not practise in the area. What is the
major cause?
Christina Blacklaws: We need to
distinguish between what is good delay, planned and purposeful
delay as we say, that perhaps enables a new regime of contact
to be tried within the protective ambit of the court process or
an assessment to be undertaken, and what is avoidable delay which
is not in anybody's, particularly children's best interests. I
think you will see that there are some clear reasons for this
delay (which we all accept does occur in our family justice system)
and there are ways of resolving it. One of the ways is, as we
have already said, to take out of the court process those cases
which can be dealt with in another dispute resolution forum, and
we all support that. As Kim has said, it does not give any of
us—any family practitioner—any joy to try and work
through a case that should be a mediation case or should be in
family therapy.
Q129 Mr Cranston: Assuming it cannot
be mediated, where is the major problem or is it a series of problems
in terms of the delay?
Christina Blacklaws: I think there
are maybe two or three reasons. One of the major issues is about
court management and that is something that the judiciary has
started to very successfully address. One real problem there again
is resources. This is my major point about delay—that we
do not have enough judiciary. I phoned the Principal Registry
yesterday to find out when the first one-day hearing was—and
this is for any type of family matter, childcare, financial or
private law children matter and the first day available is 20
July 2005. We can manage ourselves in our court process, we can
have protocols, we can do all of that but if we cannot get before
a judge for seven or eight months, well then, that is going to
do untold harm to the family, and the same applies with regard
to the availability of CAFCASS or other experts that we use in
difficult family cases, for example child and adolescent psychiatrists.
It can take six months for us to be able to identify a good one
and get them to prepare a report, so those sorts of delays—and
I know I stray on to the public law arena but it is just as bad
in private law as well as the public law—are the real things
that we cannot actually do anything about. It would be up to Government
to put more resources in there.
Q130 Chairman: Your tone suggests that
lawyers are always trying to avoid delay but if a mother does
not want contact to take place, given what you said earlier that
it is generally to the disadvantage of the non-resident parent
trying to get contact if delay takes place, are you confident
that lawyers advise their clients not to pursue avenues which
produce the very delay that might actually reduce the likelihood
that the contact will be granted in the end?
Philip Moor: The court does not
or should not allow us to do that. The problem is if you cannot
get a hearing date for another six months, it happens by default.
In the last 30 years the number of Family Division High Court
judges has gone up by two from 17 to 19 whereas in the same period
the number of Queen's Bench judges has gone up by 28 from 45 to
73. It is absolutely awful to have to tell your client that the
first hearing date is next October but it happens all the time.
Q131 Chairman: You have not answered
my question which is are you confident that lawyers acting for
the resident parent, usually the mother, in circumstances where
the mother is resisting contact will advise their clients against
prolonging or delaying proceedings?
Philip Moor: Yes, I am quite confident
that the membership of the Family Law Bar Association spends the
vast majority of their time trying to be sensible and trying to
get people to come to agreements and to avoid conflict unless
it is absolutely necessary.
Christopher Goulden: To add to
what Philip said, the sort of thing you are suggesting I suppose
is an unnecessary request for an expert report or something like
that. There are two advocates, as it were, in the field and you
have to prove your case before a judge if you want an expert.
If the judge says ultimately, "I need an expert in this case,"
then, yes, there will be delay. It is difficult to see how that
could be improper.
Q132 Mr Cranston: What about joint expert
reports? Do we have too many experts' reports?
Christopher Goulden: There is
very strong encouragement that there should be a jointly appointed
expert.
Q133 Mr Cranston: One of the theories
in other areas of the civil law where you have got problems of
this nature where there is a shortage of justice is that you push
the cases down into lower courts. What possibility is there of
that? We heard from one magistrate and I think he is the only
full-time magistrate who does family work. Is that a possibility?
Philip Moor: It is an extremely
good idea but when I started practising, district judges just
did the ancillary relief work, the financial work. They now do
all the injunctions, they do the contact cases, they do the residence
cases, and they are just as busy in fact as the High Court judges
are.
Q134 Mr Cranston: But if we want more
judicial power, as it were, is that the way to go, rather than
increasing the number of High Court family judges beyond 19?
Philip Moor: We support a position
in which the district judge acts as the gatekeeper and decides
which is the appropriate tier of court to determine each particular
case. Clearly delay will be one of the factors in that, trying
to get the case on quickly, but there are certain cases that have
to be heard by a High Court judge and certain which are quite
able to be dealt with in the Family Proceedings Court.
Christina Blacklaws: One thing
that would really assist, and it is part of our evidence from
the Law Society, is a unified family court system. If you had
a dedicated family court system you would have the expertise at
all levels of the court, which would hopefully assist in terms
of efficiency but also in terms of quality of decision-making
and I think that is one of the worries Philip has talked about
High Court to county court and county court to family proceedings
court level, and there are some concerns that if lay magistrates
were dealing with a case of great complexity and difficulty it
might take them longer to deal with that case. They might come
up with a very good decision but in terms of Court Service time
then that might not be an effective way to deal with it.
Q135 Mr Cranston: That is Law Society
policy, is it, that there be a unified family court? Maybe Ms
Lloyd can say something so she at least gets on the record.
Christina Blacklaws: All family
lawyers have been saying for a very, very long time that is what
is needed.
Q136 Mr Cranston: Of course this is the
Australian system.
Christina Blacklaws: Yes.
Mr Cranston: Thank you, Chairman.
Q137 Keith Vaz: What is your experience
of the family proceedings court? Is judicial continuity a problem
in the handling of cases?
Christopher Goulden: Inevitably.
Typically a case will be heard by three magistrates and you have
got to get three people together instead of just the one you would
with the district judge or a district judge magistrates' court,
like Mr Crichton you heard from.
Christina Blacklaws: The other
problem is that district judges in the magistrates' courts tend
to be criminal district judges. My point about the unified family
system is there is no direct route for an experienced family lawyer
to become a district judge in the family proceedings court. You
have to become a district judge in the magistrates' court and
then get a family ticket. Those people only tend to sit for approximately
eight weeks a year in the family proceedings court.
Q138 Keith Vaz: Sure. One of the things
that has changed, of course, is that this is one of the areas
where legal aid has been in a sense—and I know you would
not agree with this—protected because family cases are so
important. Do you think the type of practitioner going into family
law work is different than it was 10 or 15 years ago? Are there
more people coming in?
Christina Blacklaws: Can I say
first of all I think there is a dispute as to whether family legal
aid is protected. There is one legal aid budget and obviously
last year we had a £100 million overspend in terms of the
criminal budget. That means that at the softer end—the family
and the civil budget—gets squeezed. I do not think there
is any protection per se for family legal aid.
Q139 Keith Vaz: Right. What about the
type of people going in. All of you have been practising in family
law for many, many years. Do you see a difference? Do you see
people going out in droves and all becoming commercial litigation
solicitors at Linklaters?
Philip Moor: When the family graduated
fees came in lots of people were not being attracted to our work
and other people were trying not to do the work and, yes, we did
feel that there was a serious problem.
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