Examination of Witnesses (Questions 240-247)
14 DECEMBER 2004
MAVIS MACLEAN
CBE AND JOHN
EEKELAAR
Q240 Mr Clappison: We have been helpfully
supplied with the headnotes of the case, which I am sure you are
familiar with, V & V, in front of Mr Justice Bracewell. It
is a very recent case, this year, a case which was dealing with
a mother who showed implacable hostility towards the father having
a right of contact, and in the end the judge made a residence
order in favour of the father, after going through all the issues
and finding that the mother had been unreasonable and shown hostility.
It is a fairly robust case, but is there anything wrong with that
case, in your view?
John Eekelaar: I cannot remember
the details of that. Maybe I am mixing it up with another one
where I think a care order was made.
Mr Clappison: This was a case in which
the mother was found to have shown implacable hostility, and the
headnote takes us through all the things which the mother had
said, which turned out to be wrong, and at the end of the day
the judge robustly gave a residence order in favour of the father.
Have you seen this? It was Mr Justice Bracewell.
Q241 Chairman: This is speaking to an
individual case, but Mr Clappison mentioned another step the court
can take in carrying out this judgment?
John Eekelaar: Exactly, so transferring
the residence is certainly an action. I would say again that the
test for that should be is the present harm the child is suffering
by what the mother was doing in not allowing the contact greater
than whatever harm might be caused by forcibly taking the child
away from the mother and giving it to the father? If the judge
came to a clear conclusion and thought that the present harm to
the child was greater than any disruption, etc, caused by the
removal and came to her decision, that is what the judge is there
to do and probably I would agree.
Q242 Mr Dawson: Just a few questions
on the Family Resolutions Pilot Project, which people are very
interested in, we were discussing it on the floor of the House
only last night. Mavis, why was it not possible to make the Family
Resolutions Pilot Project mandatory, and do you think that it
would work differently if that element of compulsion was involved?
Mavis Maclean: To make it mandatory
would have required primary legislation. This was a small pilot
scheme and it simply was not appropriate to delay introducing
the scheme in order to consider primary legislation. If the scheme
is a resounding success and national roll-out is on the cards
then of course that could be revisited. I think myself that it
would make a very minor difference, in that this is a scheme to
which parents are referred by the court, they come to court, somebody
is asking for a contact order, they are then directed by the court,
very firmly, towards this scheme and I think it would take a lot
of resolution to resist this direction. Also, I am sure that advisers
would intimate to parents that if they went on directly into court,
by-passing the scheme, the court would not be too pleased with
their choice. I think a lot has been made of this issue, but I
think actually, in practice, it is a very minor point.
Q243 Mr Dawson: Are you seeing any resistance
to the project at the moment?
Mavis Maclean: It is very early
days, but certainly the courts are very enthusiastic, the judiciary
are very enthusiastic, it has had a lot of support from local
solicitors, so I do not envisage difficulties so far.
Q244 Chairman: Surely you cannot test
how a compulsory scheme with parenting plans would work by piloting
a voluntary scheme. You may learn something from a voluntary scheme,
it might work out to be very good indeed, but you are not testing
the same thing, are you?
Mavis Maclean: I do not understand
the question.
Q245 Chairman: The essence of the scheme
that was not proceeded with, because it would have required primary
legislation, was compulsion. You are not piloting compulsion.
You cannot draw conclusions about whether a system with those
features would work better when it is not being piloted?
Mavis Maclean: If everybody goes
into it, in effect, you are—
Q246 Chairman: Surely the whole character
of the scheme is different, if it is voluntary from the start
and every aspect of it is voluntary? Are there not two different
things here, each of which may have merit but they are not the
same?
Mavis Maclean: Indeed, but the
Florida scheme, which has been much discussed, was compulsory,
simply because judges in Florida have different powers. If a scheme
is offered and everybody who is eligible takes it up then the
mandatory nature is there.
Q247 Chairman: It is not just signing
up to it, it is the obligations you undertake when you become
part of it?
Mavis Maclean: The primary reason
for not making the scheme mandatory was the legal position, but
I think there is also a very positive aspect of not being mandatory,
in that it is widely accepted that decisions which people take
part in, make for themselves, sign up to, have a higher level
of acceptance and sustainability than those which are imposed.
I think there are two strands to this issue.
Chairman: Thank you very much indeed
and thank you both for your help this morning.
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