Examination of Witnesses (Questions 400-419)
18 JANUARY 2005
BARONESS ASHTON
OF UPHOLLAND
AND RT
HON MARGARET
HODGE MBE, MP
Q400 Ross Cranston: May I just ask you
two very specific questions and it may be that you cannot answer.
Just comparing the Next Steps document published this morning
with Making Contact Work in 2001, it seems to me that there were
at least two points which seemed to be dropped. First of all,
there was the power to allow courts to refer parents to a psychologist
or psychiatrist, which was going to be publicly funded at first
instance, and the other one was to allow courts to have the power
to refer a non-resident parent to a specific education or perpetrator
programme. Has it been a conscious decision to abandon these and,
if so, why?
Baroness Ashton of Upholland:
What Lord Justice Wall was talking about in that particular context
was the opportunity to look at whether one could have a professional
assessment. You cannot make somebody go to a psychiatrist or a
psychologist because that is not the way they work, nor can you
have compulsory discussions with a doctor, it does not work like
that. I think they would find that unacceptable in terms of clinical
practice.
Q401 Ross Cranston: So the problem is
not the public funding side?
Baroness Ashton of Upholland:
No, it is not. It is that one would not be able to refer somebody
in that manner without breaching all of the ways in which we deal
with medical good practice.
Q402 Ross Cranston: What about the education
programme, the second aspect?
Margaret Hodge: It is the point
at which there will be a power to refer either party to particular
programmes as part of the enforcement powers.
Q403 Ross Cranston: The Making Contact
Work document suggested that might come earlier. Could you write
to us about that one?
Margaret Hodge: Yes. I am just
trying to think through the compulsion point. It comes back to
the compulsory mediation point and whether at some point you could
say to someone you have got to go to mediation, you have got to
go a parenting class or you have to go to an anger management
class or whatever. I think that would be difficult.
Baroness Ashton of Upholland:
One of the pieces of work that we are doing, which is being led
by Baroness Scotland, in terms of the whole question of domestic
violence and perpetrators is to examine where best referrals and
perpetrator programmes might take effect, because critically beyond
this discussion there is an issue about ensuring that those who
perpetrate domestic violence do not continue to do so and there
are real issues about their relationship with their children as
well. I will write to you in that context to set that out because
I think that overlays this in a sense and it is being looked at
by a group of ministers.
Q404 Chairman: On page 25 of the paper
there is a passage which bears the signs of a bit of redrafting.
Maybe I am being too forensic, but it looks as though someone
decided at the last minute that it needed to be changed. It raises
the question about how you are going to deal with the judiciary.
It says, "We will work with the senior judiciary to find
out the best way to strongly to encourage parties to attend mediation."
It looks to me as though somebody changed that sentence at some
point. What does that mean? Is it that you are going to work with
the senior judiciary who are not going to be given a power of
compulsion in circumstances like mediation or the situation we
have just described but they are going to tell you of some other
way in which you can make parties go to mediation?
Margaret Hodge: I think this is
part of things like the Family Resolutions Pilots where there
is an expectation there. The way that that has been designed is
that there is an expectation that people will participate in mediation
and conciliation processes. We want to see how that works. We
want to learn from that and the evaluation of that scheme as to
whether or not there are other ways that we can use, through directions
or expectations or whatever, to strengthen the trend towards mediation
and conciliation.
Q405 Chairman: Are you sure it was not
just a vague aspiration, someone saying, "We'd better tighten
this up a bit"?
Margaret Hodge: No, it is not.
All the collaborative law changes, the in-court conciliation,
the changes within CAFCASS, are quite dramatic changes. We need
to evaluate them consistently and then, if necessary, make further
changes to improve the process more.
Baroness Ashton of Upholland:
We have had conversations with the judiciary and they are clear
that, again bearing in mind that each case is different, there
are critical fault lines in the process where the judge is able
to strongly recommend things to the parties that might be successful.
What that is suggesting is that we need to think through, in the
light of what the President is doing in terms of the way she is
looking at private law cases and the proposals that she has put
out this morning, how we build on that and inject in to that some
kind of mediation services that might be available. So it is not
just a woolly aspiration. I apologise for the grammar.
Margaret Hodge: We could look
again, if experience tells us to, at the court rules and see whether
or not we need to amend those in any way. I hope the Committee
will continue to keep a vigilant eye on this area and see how
some of these proposals work in practice.
Q406 Ross Cranston: I think paragraph
51 is in your defence. I want to take you on to this issue of
resources. Our special advisers dug out the figures for between
1979 and 2004 in terms of "judge power". The Queen's
Bench Division went up from 47 to 74 judges, Chancery went up
from 11 to 17, but the Family Division only went up from 16 to
18, which was a much lesser increase. You might want to comment
on that. In particular, can you comment on whether you think there
is the "judge power" available, first of all, to implement
general case management and, secondly, the President's framework?
Is there an intention to increase "judge power"? I should
say by way of preface that, having worked on the issues of case
management over the years, I do not believe that "judge power"
is necessarily a solution, but the Family Division increase is
certainly much less than in other divisions of the High Court.
Baroness Ashton of Upholland:
And certainly the President in her evidence to you was suggesting
that there was a need to increase "judge power". There
is a review going on at the moment involving the senior judiciary
looking at whether we have the right number of judiciary at present
but also looking at future trends as well, because it is quite
important to be ready for that and that will come to some conclusions
in the not too distant future and recommendations to the Lord
Chancellor will take into account these issues. So that is under
review. The second thing I would say is that when one looks at
the unified courts structure that we are examining, as well as
some of the proposals to shift from the crisis management in the
sense that that is the court process to trying to get resolution
earlier, the ambition is that the resources will be used differently
as well as the additional resources coming into play. What we
are trying to do by virtue of the review and also the implementation
programme for this is to see whether we have enough judges in
the right place and whether we have also got the right level of
support being shifted, if that is the right decision, to look
at what happens before people end up in the courtroom.
Q407 Ross Cranston: Have you got any
idea when this might report?
Baroness Ashton of Upholland:
It is in the next few weeks or the next couple of months the review
is due to finish. I am not sure whether it will report formally.
It is for the Lord Chancellor to determine, having looked at this
whole thing holistically, whether the resource is in the right
place so that we address those issues, but certainly the President
has made that point and we listen very carefully to what she says.
Q408 Ross Cranston: We would like to
know as soon as any decisions are made about that because obviously
if you do not have the resources to provide case management and
to implement the framework then you are not going to achieve anything.
Baroness Ashton of Upholland:
If one looks at the framework that the President has put out,
quite a number of those things are about the best of good practice,
they are not necessarily about new resources.
Q409 Ross Cranston: That is why I made
the point that "judge power" is not necessarily the
answer.
Baroness Ashton of Upholland:
But because the President feels very strongly about these issues
they are taken very seriously by the Department.
Q410 Mr Dawson: Is the quality of our
judges good enough? The President said in evidence to us that
if judges ignore issues of abuse and domestic violence she would
consider removing their ticket from them. There have been some
disastrous decisions in the contact cases made by judges, have
there not?
Baroness Ashton of Upholland:
I am not aware of a disastrous case that has come to my attention.
Q411 Mr Dawson: 29 children have died
on contact visits, some of them ordered by judges against the
advice of CAFCASS for instance.
Baroness Ashton of Upholland:
If one looks at the 29 cases that have been put forward, the vast
majority of those have never been near a court. There are real
issues when one looks underneath those figures to try and establish
where the courts have played a role and what role that is. We
all know from the press reports we hear about these awful tragedies
that sometimes there is no indication the parent is going to behave
in that manner and murder the children, they are issues often
around severe distress or mental health or other issues. So it
is not necessarily the case that there is any history or any suggestion
of violence in advance. Where the case has gone to court, the
President would always look very carefully at it and it would
be for her to look at what the implications would be in those
circumstances. They are all terrible cases. I simply make the
point that not all of them have been anywhere near a courtroom
where the courts could have intervened if they had been able to.
Q412 Mr Dawson: But any death is completely
unacceptable.
Baroness Ashton of Upholland:
I accept that.
Margaret Hodge: Mr Dawson knows
better than anyone that these professional judgments around what
is the appropriate decision to take in the interests of the child
are incredibly difficult to make and sadly they are not always
right, but they are not always right in the courts, they are not
always right by social services, they are not always right by
paediatricians and medical practitioners as well. Although we
have got some very really, really tragic instances and we have
all read that report, I do not think we should immediately leap
from that to questioning the quality of the judiciary where they
are being asked to make incredibly complex judgments just as social
workers, doctors and others have to do.
Q413 Mr Dawson: I think everyone's judgment
is open to question. Can we be assured that the new President
of the Family Division will keep the actions in these very difficult
cases very firmly under scrutiny?
Baroness Ashton of Upholland:
I am sure the new President will do a fantastic job. He is a judge
with an amazing record in terms of the work that he has done and
I am delighted that he has been appointed. I think the critical
factor in this as well comes back to making sure that the court,
when it is making a decision, has as much evidence as it possibly
can have. We all know that there is a link between violence to
children and domestic violence. I hope the new forms that we are
producing will play some part in that by being able to work with
parents to ensure that if there are issues around domestic violence,
those are recognised and recognised quickly.
Ross Cranston: I would just associate
myself with your answers to Mr Dawson's questions and say that
Lord Justice Potter is an outstanding judge and humane person.
Chairman: This is not a confirmation
hearing!
Q414 Ross Cranston: Hilton and I also
disagree about the next issue that I want to ask you about, which
is the confidentiality or secrecy surrounding the courts. The
President said that she thought that the courts ought to be more
open. Yes, you would have to protect the names of children, you
might have to protect certain of the evidence that is given, but
in as much as there was to be more openness, that would have to
be a change agreed to by the Lord Chancellor in terms of some
of the rules. First of all, can you comment on the general principle
about openness? We have had background notes about the situation
in other countries. Secondly, could you say whether or not the
Department is prepared to agree to a change in the rules?
Baroness Ashton of Upholland:
You will know, Mr Cranston, from the 1992 or 1993 report on this
through to the work that Sarah Harman has done in her reports
on Canada, which I know have come forward to the Committee as
well, that there is a huge amount of interest in this and the
President herself has commented on this. The position of the Department
is that we are very firmly of the view that the anonymity of children
must be protected. I think one of the persons giving evidence
to you talked about their clients, on arriving at court, saying,
"This is going to be in private, isn't it?" and that
is because there is a fear that people have. The issues around
if one had a public presence what kind of public one would get,
campaigning groups able to stand in the gallery and shout, that
kind of thing, these are incredibly difficult circumstances where
people are often in huge distress. What the President and the
judiciary are looking for is to be able to be more open about
their judgments and I think there is a general view that this
could be a positive move and provide greater understanding of
the way that the family courts work. So the proposal that she
is looking towards is that there might be able to be a presence
but that the normal reporting restrictions around children would
apply, but there would be a more general understanding of the
way the courts work. What we have said is that we want to look
at this very carefully so that we address the issues that are
coming from both directions, those of anonymity, those of making
sure that we do not put those who are in court into a more difficult
situation where they feel unable to give the evidence and that
we do not just make this such an open situation that in a sense
that risks justice being done. Justice must be done and justice
must be seen to be done. The position of the Department is that
we are in conversation and dialogue about this and I think the
Lord Chancellor earlier this week said that he was interested
to explore what we might do but within the very strict ground
rules about the protection of children.
Q415 Ross Cranston: So you are going
to take the lead from what the judges say, are you? Is that your
approach?
Baroness Ashton of Upholland:
It is not that we will take our lead from the judges. The judiciary
have raised an important question, others have raised it too and
we want to look very carefully to see how best we address that
whilst recognising that what the judiciary are saying is that
this is not about removing anonymity, this is not about creating
a situation where people feel intimidated by who is in the gallery
or anything like that, but about a greater understanding of how
the family courts work.
Q416 Ross Cranston: Quite apart from
that, the utilitarian argument, to make people understand the
system better, there is the principle that we run our courts on
a basis of open justice.
Baroness Ashton of Upholland:
Indeed. There are differences, as you will know very well, between
what happens in the magistrates' courts and what happens in the
county courts and as we move to a unified courts system we will
need to review this in any event because the two systems are different.
Q417 Ross Cranston: Is there going to
be a consultation paper about this or how are you going to take
this forward?
Baroness Ashton of Upholland:
As we move towards a unified courts system we will need to review
the procedures in any event because we have different procedures.
In doing that we will be taking account of all that has been said
and trying to move towards our proposals on that. It will be for
the Lord Chancellor to decide if he wants to do a formal consultation
on that, but certainly we will consult and listen very carefully
to the views that are being brought forward.
Q418 Chairman: Does that mean that you
are going to discourage the judiciary from taking their own action
where they think it appropriate, as they have done in a number
of cases and giving judgments in open court, for example?
Baroness Ashton of Upholland:
Not at all. That is for them to decide and it must be for them
to decide. What I am merely describing is that as we move towards
the new unified system, if one looks across and says what makes
most sense, the judiciary will take their own decisions in their
own courts as appropriate, as indeed they do. As they said in
evidence to you, there were some circumstances, as in the case
of the two babies, where, because there was a lot of press coverage,
it was appropriate to keep that in the public view. That must
be for them to decide.
Q419 Peter Bottomley: Among the helpful
submissions was the Department for Constitutional Affairs one
on 1 November 2004 where on pages 20 and 21 there are references
to "changing the law to make sure that families could consult
their Members of Parliament without breaking court restrictions."
I do not see any reference in the Green Paper today to that. Could
we know at some stage what the proposals are and whether actual
changes to the law are necessary?
Margaret Hodge: I think we have
issued a consultation paper on that. I will make sure that you
get a copy of that.
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