Examination of Witnesses (Questions 160-179)
7 DECEMBER 2004
CHRISTINA BLACKLAWS,
HILARY LLOYD,
KIM BEATSON,
CHRISTOPHER GOULDEN
AND PHILIP
MOOR QC
Q160 Mr Dawson: But have we not talked
previously about the tremendous difficulties that judges must
face in deciding where there are real issues of safety in particular
cases and does not a presumption of parenting plans and a template
work against the idea that we should try and tailor solutions
very carefully to particular individual circumstances?
Philip Moor: If there are serious
issues such as domestic violence, which you mentioned, then it
would not go into the scheme in the first place and it would have
to go for determination as to whether the violence is proved or
not. So we are talking here about the cases where there are not
those serious issues. I would certainly take the view that the
vast majority of cases do not raise those sorts of serious issues.
Q161 Mr Dawson: But children are murdered
on contact visits in this country and clearly those are appalling
circumstances.
Philip Moor: Of course.
Q162 Mr Dawson: Clearly we are not 100%
good at identifying circumstances in which there are very, very
serious risks of abuse and injury and death. So does not a presumption
work against the best interests of the children? Would it not
be better to look in close detail at the circumstances of particular
cases rather than simply trying to apply a template to those very
difficult and very individual circumstances?
Christopher Goulden: I think the
Family Law Protocol asks practitioners at an early stage to carry
out a domestic abuse audit. We are encouraged right at the very
outset, even if the client does not say "I am being threatened",
to ask a client whether there are any of these issues, and yes
that must be looked at.
Q163 Chairman: Incidentally, that sometimes
causes offence to some clients, does it not?
Christina Blacklaws: We are trained
to ask them in a fairly oblique manner so that we are not either
putting words into people's mouths or indeed offending them by
the very suggestion that there may be those issues, so it is quite
a subtle interview but equally a very, very important one. Can
I just add on mediation, Kim and I are both experienced mediators
and it is an excellent way for many people to resolve their matters
but it is not for everybody and it would be very difficult to
see how it would be right to force people into what is a voluntary
process. It would not be mediation, it would be something else
then. One of the reasons why it is not right thing for a lot of
couples is because of the power imbalance and that can be for
a number of reasons. It can be economic but it can also be about
abusive behaviour and relationships, so those sorts of cases would
never be appropriate for mediation and it is a worry that parents
who are in the lower courts are sometimes left to their own devises
to come up with a solution that the court then rubber stamps as
an agreement and that solution is (a) not in the children's best
interest and (b) and, equally worrying, not safe for that child
or for that child's carer, so yes it is something that needs to
be properly managed.
Q164 Mr Dawson: Can I just ask about
your experience because you are obviously both skilled and experienced
mediators; how does that accord with your legal expertise? Does
your legal background and experience contribute to that mediation
or is it completely unnecessary? What is your experience?
Kim Beatson: The Solicitors Family
Law Association trains lawyer mediators and we find it particularly
helpful when dealing with financial mediation to have the expertise
to be able to give legal information to the couple, and indeed
they expect it, so it is particularly helpful in that forum. What
I think we have to do, though, is be quite careful about the use
of the word "mediation". It is a voluntary process.
We prefer to use the expression "family intervention appointment"
because I think that is essentially what the SFLA is looking for
in its proposals, not compulsory mediation.
Mr Dawson: You talk about financial mediation.
Clearly people will be mediating about close and intimate aspects
of the couple's relationship, the way that they deal with the
children the way that they make arrangements for the children.
That is a social work task, is it not?
Q165 Mr Cranston: Many commercial lawyers
are now mediators, Hilton. It is widely used in the law.
Christina Blacklaws: Yes, there
are social work aspects to it, but as experienced family lawyers
hopefully we have also developed some of those skills that we
could bring to it. I would say that it is rare that you have a
mediation case that is solely about whether the children should
be picked up at five o'clock or six o'clock and that sort of thing.
In family breakdown, as I said before, there is often a range
of issues that this family faces and even if it is just about
maintenance for the child it is very helpful to have the legal
knowledge and experience in the room to be able to assist the
couple.
Q166 Mr Dawson: The CSA.
Kim Beatson: We are not suggesting
that only lawyers can mediate. You asked about the skills that
lawyer mediators can bring to the process.
Christina Blacklaws: It is about
financial matters as well. I just wanted to make the point that
it does take a very long time for financial matters to get before
the court. If I make an application today I will not get an appointment
for four months and that can be just as disruptive and corrosive
to a family breakdown situation and really impacts, even though
it should not, on contact and relationships between the adults,
so that is a real problem as well.
Q167 Mr Dawson: Is it necessary to have
lawyers mediating?
Kim Beatson: No, it is not. At
the moment there are mediators from all backgrounds. It is a different
skill but obviously members of the public may choose a lawyer
mediator knowing that that is their background because there may
be reasonably complex pension issues, for example, that are better
dealt with by a lawyer mediator.
Q168 Mr Soley: I was going to ask you,
Ms Beatson, if you can tell us in your view what are the advantages
and disadvantages of the collaborative law system and whether
we ought to be promoting that a bit more than we are at present?
Kim Beatson: Do you all understand
what the system involves? It essentially involves the couple choosing
two lawyers both of whom have training in collaborative law. Then
the four sign a contract in which they agree to rule out any legal
proceedings and most of the case is dealt with by four-way meetings.
It is quite hard it explain how it works but probably the best
thing I can mention is the fact that neither of the lawyers must
polarise the client, so if you are giving advice about the range
of outcomes the lawyers would actually discuss what the range
of outcomes would be and then that would be presented to the client.
There is no "without prejudice". There is no, "Ask
for A, but expect to arrive at B". It is a very open process.
It is equally applicable to barristers, and we are training barristers
as well. It is not the cheapest process because four-way meetings
are quite expensive in terms of time. There is less correspondence,
and most of it is done face-to-face. If it all crumbles and you
cannot reach a solution then those lawyers have to drop out of
the process and the couple then instruct other lawyers in a traditional
capacity. There is some interest in it at the moment from the
LSC. They are trying to choose two areas in England to pilot.
It is very difficult at the moment to find enough collaborative
lawyers willing to do publicly funded work; but we are training
more people in March. I think it is probably going to be a fairly
slow roll-out. You have to have an optimum number of trained collaborative
lawyers for you to be able to refer work when it comes in.
Q169 Mr Soley: I asked you for the advantages
and disadvantages and you have given me two of the disadvantages—the
expense and the fact if it goes pear-shaped you have to start
all over again—but what are the advantages?
Kim Beatson: The advantage is
probably the expense compared to litigation.
Q170 Mr Soley: This is cheaper?
Kim Beatson: Yes, it is infinitely
cheaper than litigating.
Q171 Chairman: With the likelihood of
an accepted outcome?
Kim Beatson: I think that is the
main advantage of all, that the couple own the outcome. It is
a wholly different process to mediation. Everyone is committed
to working for a family-orientated solution.
Q172 Mr Soley: Without putting words
in your mouth, I am trying get out what you think is the main
advantage. Are you saying that it actually is a better opportunity
of reaching an agreement which satisfies all the parties, including
the children?
Kim Beatson: Yes, that is absolutely
right. Comparing it to mediation, it is much more appropriate
for a couple who may feel they need the support of lawyers but
are adamantly opposed to litigating. Unlike mediation, where you
have perhaps one lawyer/mediator acting as a facilitator, in collaborative
law both parties have the support of their own lawyer but acting
in quite a different capacity looking for a family solution.
Q173 Mr Soley: How long does it take
to train a lawyer?
Kim Beatson: Two days.
Q174 Dr Whitehead: Could we move back
to the notion of media coverage. Mr Moor, you mentioned a little
earlier you felt that greater openness and general reporting of
the proceedings in Family Courts was something you think you would
important?
Philip Moor: Yes.
Q175 Dr Whitehead: Do you think that
that openness should simply be full reports of the proceedings
or edited reports of the proceedings or, where possible, judgments
publicly handed down? Where would you see the line being drawn?
Philip Moor: I would see the line
being drawn at edited versions, because I do not think in the
vast majority of cases it is at all helpful to identify the children.
I can see absolutely no problem whatsoever in publishing the reasons
why judges come to a particular view: for example, the reason
why someone was given permission to take the children out of the
country to go and live in Australia. Because there is a great
deal of ignorance as to the way in which the family courts work
I think it would be of assistance.
Q176 Dr Whitehead: You think that would
be the main advantage, an educative advantage as it were, and
the myths and misapprehensions might be dispelled?
Philip Moor: That would certainly
be one important role of it, yes.
Q177 Dr Whitehead: Who would then do
the editing?
Philip Moor: The judge would normally
do that in coordination with the lawyers.
Q178 Dr Whitehead: How would that then,
as it were, add to the idea that the way the process works would
thereby be scrutinised, if the purpose would be explicitly simply
to say to people, "Well, actually some of the things you
are saying about us, the anecdotes you are putting forward, are
not right"? Do you think there is a further issue here in
terms of ensuring that the process is seen to be done? Indeed,
as one of our previous witnesses, Mr Justice Munby, has described
the court should no longer be perceived as being a secret justice
system?
Philip Moor: As I understand it,
there are also proposals to enable people to have greater access,
for example, to their Members of Parliament if they have a problem
in relation to the family justice system. As I understand it at
the moment the restrictions make it very difficult for them. I
would certainly support those sorts of changes as well. I think
this specific one is just so people can see the reasons why decisions
are taken in the way that they are.
Q179 Chairman: Is there not a wider point
within individual cases that many of the fathers' organisations
regard the system as a whole as very secretive, and the only knowledge
they have of it is based on the experience of others who share
their personal experience of a case going against them? So we
have no general picture available to people of the range of reasons
why particular decisions are taken—reasons which do not
have to be attached to a named individual but which in any other
area of court activity are readily available. If you run through
a string of cases, press reports can compare how various judgments
have been made; they do not always do it accurately or well, but
there are a number of ways in which you get a general picture
of why decisions are taken. Instead, in this area, for a number
of witnesses and potential witnesses the whole thing is secret
and their perception is entirely based on similar experiences
to their own.
Philip Moor: Yes, I would agree
with that.
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