Examination of Witnesses (Questions 340-345)
11 JANUARY 2005
TONY COE,
JOHN BAKER
AND CELIA
CONRAD
Q340 Dr Whitehead: Mr Baker, you say
enforcement has to take place and we know that where enforcement
takes place either repeated returns to the court to implement
enforcement are undertaken or, if the enforcement is undertaken,
it is arguable on occasions that the interests of the child is
thereby compromised, ie someone is locked up or removed from the
process of parenting and there is a catastrophic outcome. Is that
something you would advocate?
John Baker: No. This is why the
judges need to have a battery of provisions, not just the crude
ones but quite a long list, of which my favourite one is community
service of some sort, so that while the child is seeing the parent
the other person has to do community service. I think there must
be in the last resort, if the whole legal process is not going
to be compromised from the beginning, some idea that there is
going to be enforcement in the end. I would say anyone who puts
themselves in prison and lets their children be neglected while
they are in prison rather than letting them see the other parent
is carrying out appalling parenting. It is not like criminal proceedings
where sometimes it is unthinking actions or irrational people.
Contact disputes never get to the point of enforcement without
it being a deliberate, conscious, chosen decision with the options
to drop out being available at every stage. It is precisely the
sort of behaviour where certainty of result will change the behaviour
that leads up to that.
Q341 Dr Whitehead: Having seen some transcripts
of repeated attempts to obtain enforcement, is there not a point
at which, notwithstanding the points made about the fact that
the behaviour of parents in potentially going to prison rather
than agreeing to access means the situation is that the court
is faced with a position of colluding with making that happen
in the absence of any other way forward and the courts may be
reluctant to do that?
John Baker: I think they may be
reluctant to do that. With the lack of options that they have
now it is a very real dilemma. Nobody is going to want to see
anyone going to prison over this sort of thing, of course they
are not. There has got to be another more satisfactory outcome
except in flagrant and extreme cases, but the principle is that
people cannot voluntarily set aside a decision of the court, that
is the important thing. I do not think too much should be made
of these very rare cases.
Q342 Mr Soley: If the British system
were to be relaxed what would be the parameters to it? How far
should we relax it and in what way should we relax it?
Celia Conrad: At the moment there
is a slight contradiction because obviously in the first hearing
everything is completely anonymous, the children's names are not
known or anything, but if it goes to appeal, the initials of the
children are there and people can find out who they are. That
is slightly silly because it defeats the purpose. I certainly
think that judgments could be given in public. People need to
understand a little bit more how judgments are given because then
they would understand the process. Everyone thinks it is closed
at the moment and we do not know anything about it and it is all
in secret and that breeds for more discontent. I definitely think
we should be more open. I know of experiences in other jurisdictions
where they do have more of an open system, they do not have reporters
there all the time reporting on things, they are not that interested
in family cases. That might be a concern which one should not
be overly concerned about, but I certainly think that we should
be looking to open the system up a lot more, yes.
John Baker: We have seen in criminal
jurisdictions the protection of the identity of the children and
that seems to work quite well and I would advocate transporting
that to the Family Court, but all the substance of the issues
needs to be out in the open and needs to be researchable as well.
It would diffuse a lot of the arguments my organisation gets of
stories of the most appalling decisions made against fathers.
You go to Women's Aid and you hear stories of the most appalling
decisions being made that are failing to protect women and children.
The odds are they are both true because there is not the consistency
of procedure across the court and in part it can be inconsistent
because it is not subject to examination and people do not know
what happened exactly and rumour spreads. I think it should be
on the same basis as the criminal courts. There is a further issue
which affects my organisation very crucially and that is the confidentiality
of court documents. There was a case when somebody approached
my organisation about their CAFCASS welfare report and therefore
we had to talk about the welfare of the report and this was brought
back as a contempt of court and later thrown out. People need
to be able to seek advice and assistance as part of their services
and that involves the court documents not being confidential except
with this protection of the identity of the children and that
is what needs to be done, that is the position of my organisation
on this and we think it will benefit the procedures of parents.
Tony Coe: There is a lot I could
say on this issue. As far as we are concerned the administration
of justice must be open. On the radio this morning there was mention
of a case where a mother cannot get compensation from the Home
Office because she was wrongly imprisoned. It reminds me of the
Sally Clark case. It was only really because people were determined
enough to get the matter in the public domain that the Court of
Appeal the second time around did the right thing.
Q343 Mr Soley: Would you include naming
the child?
Tony Coe: I do not see any reason
for not doing it. I can certainly see the other side of the argument
and I do not have any particularly strong feelings that one should
name the child. I do have strong feelings that we have to be as
open as possible.
Q344 Mr Soley: Would you recommend that
the child has no secrecy protection?
Tony Coe: I would recommend total
openness and I would point again to the North American system
where they have total openness. My organisation has not heard
of any cases where publicity has adversely impacted a child or
anybody else. On the contrary, I feel openness leads to fair and
balanced justice.
Q345 Chairman: I think we have covered
the ground we wanted to cover and we have had some very helpful
evidence from you on a number of points which have been of great
concern to this Committee. You have also given us detailed written
submissions and indeed occasionally supplementary ones and this
process will continue and we shall put forward some proposals
at the end of it. Thank you very much for your help this morning.
Tony Coe: Thank you, Chairman.
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