House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

CONSTITUATIONAL AFFAIRS COMMITTEE

 

 

family justice: the operation of the family courts

 

 

Tuesday 7 December 2004

CHRISTINA BLACKLAWS, HILARY LLOYD, KIM BEATSON, CHRISTOPHER GOULDEN and PHILIP MOOR QC

Evidence heard in Public Questions 98 - 186

 

 

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Oral Evidence

Taken before the Constitutional Affairs Committee

on Tuesday 7 December 2004

Members present

Mr A J Beith, in the Chair

Peter Bottomley

Ross Cranston

Mr Hilton Dawson

Mr Clive Soley

Keith Vaz

Dr Alan Whitehead

 

________________

Witnesses: Christina Blacklaws, Chair, Family Law Committee and Hilary Lloyd, Head of Strategic Policy (Research), The Law Society; Kim Beatson, Chairman, and Christopher Goulden, The Solicitors Family Law Association; and Philip Moor QC, The Family Law Bar Association, examined.

 

Chairman: Good morning and welcome everyone. We have got a splendid team of witnesses and we are very glad to have you with us. We have Philip Moor, from the Family Law Bar Association; Kim Beatson and Christopher Goulden from The Solicitors Family Law Association; and Christina Blacklaws and Hilary Lloyd from The Law Society. You are all very welcome. I think we had just better declare any interests.

Mr Cranston: I am a barrister.

Keith Vaz: My wife holds a part‑time judicial post and I am a non‑practising barrister. Chairman: Please do not feel obliged to answer every question. Between you I think we can have a very good source of ideas and comments. On the other hand, if something is said which you feel does not reflect your own standpoint by all means feel free to indicate that you want to contribute on that point as well. Mr Soley?

Q98 Mr Soley: I would like to know about the feeling of dissatisfaction by parents with family courts generally. We are told that there is quite a high level of dissatisfaction. First of all, do you think that is correct? Secondly, what do you think the cause of it is? Bearing in mind the Chairman's comments that you do not all have to answer, but in a way it crosses all your expertise, so who wants to start?

Christopher Goulden: If I could comment first. I feel sure that most people would agree that what parents particularly object to about the family justice system is the length of time it takes to get anything done, and there are a number of reasons for that, but delay is a great source of dissatisfaction.

Q99 Mr Soley: Okay, that is delay. What about process?

Christopher Goulden: The process itself to an extent they would have objections to because they find it an uncomfortable process but, ultimately, they have an idea of what they want and they have an idea of when they want it and so long as those two are met I do not suppose they would actually object to the actual process itself.

Q100 Mr Soley: What do they find uncomfortable about it, apart from the fact they are talking about deeply personal issues?

Christopher Goulden: Well, the court process of giving evidence is an extremely uncomfortable one and they feel disempowered by the idea of decisions which reflect very closely their most deeply‑held personal feelings being dealt with in a relatively public way and dealt with by strangers.

Q101 Mr Soley: So it is the discomfort of talking about relationship issues?

Christopher Goulden: Yes, in a formal setting.

Q102 Mr Soley: What about the issue of bias, have you come across a feeling of bias about mothers or fathers as parents?

Christina Blacklaws: No, I do not think that there is any bias that can be evidenced in the court process or in the family justice system itself. A lot is talked about it, I know, and I am aware of that, however, in my experience and I think probably the anecdotal experience of everybody on this bench, I have always found the courts to be gender blind in the way that they deal with the cases that are before them. However obviously many, many children do live with their mothers and if that is the status quo that will often be upheld by the courts. The courts will not change that status quo unless there is good reason to do so. Hence sometimes there may be a perception that the courts are biased towards mothers in these circumstances.

Q103 Mr Soley: Could that bias go back to the position of separation where for other reasons in a sense a man might often be the one who leaves the home and then the mother is with the children and that possession puts them in a stronger position at the beginning. Is that right or not?

Christina Blacklaws: It may well be the case but I think what we are doing with family law always is that we are dealing with the situations that face us. If the father has left the home and a status quo has been established with the children living successfully perhaps with the mother then it would be difficult for the courts to overturn that just because that is what the father wanted.

Q104 Mr Soley: It there not a difference though in the sense, if you take the gender issue out of it, it is about the non‑resident parent, is it not, so the parent who leaves the home in the sense of leaving the other parent with the children, does that parent who has got the children not start off a court process with an advantage in the sense there is a presumption that that is where custody will end up? Do you think that happens or not?

Christina Blacklaws: I think that there is an element of truth in that and one of the reasons because of ‑ and we have already mentioned this before and I think you will find this is going to be a theme of our evidence - the delay which is endemic in the family court process is if you as a non‑resident parent who has with good cause an application to make before the court, whether it is for residence or for contact with their child, have to wait 14 or 16 weeks before you can even get to the first stage, and that is assuming that you have the funds to be able to make an application to court on the day that you wish to, then of course you are going to be disadvantaged. This status quo which I have already mentioned will have been established. That is without looking at the difficulties of getting public funding and the processes that you have to go through to obtain a legal aid public funding certificate to take a matter to court. If you are a self‑employed person the Legal Services Commission quite often have great difficulty in assessing your eligibility for public funding. I have had a case that took six months for the Legal Services Commission to say, "yes, this person is eligible for public funding" so, yes, you can be terribly disadvantaged, I think, as a non resident parent or even as a parent who just wishes to see your child.

Q105 Mr Soley: Are you saying that it is the time factor then that might distort the situation in that the non‑resident parent slowly loses out? Is that what you are saying?

Christina Blacklaws: Yes, I think in terms of residence that is the case. If a status quo has been established with one set‑up of the family then it is unlikely that the court will change that, unless there is very good reason. With regard to parents seeing their children, then obviously the longer that they go without seeing their children the more difficult it is to re-establish their contact.

Q106 Mr Soley: Is not the assumption in society that the male role is actually to withdraw in that situation and leave the mother with the children? Is that not a general assumption? Leave aside whether it is right or wrong, does the court not reflect that to some extent and that is where the feeling of bias comes from?

Christina Blacklaws: I think it is a bit of a chicken and egg. That is what often happens in our experience. Often as the family that is left behind, for whatever reason, and sometimes on the part of the father very good reasons - to ensure that the children have stability, that they can continue to attend their school, that their housing needs are put first - yes, that is often the situation. Then we as lawyers and the courts themselves have to deal with the reality that we are given. So of course that is often reflected in the courts' decision-making.

Q107 Mr Soley: My colleagues will want to come in in moment but could I just ask you a final question. Would it be your assumption that the Government ought to reduce the use of courts in these situations if possible, if you like, to try and discourage it so that you get a settlement prior to the court or outside the court without invoking a court procedure?

Christina Blacklaws: Yes, but I need to qualify that slightly. Obviously I think you have heard before that only about 10% of cases actually come to court so 90% of families settle their matters without coming to court. Of those 10%, there are inevitably going to be perhaps quite a large number who have to have a judicial decision and the reason is that they have, for example, very serious allegations of perhaps sexual abuse or domestic violence, or there are intractable problems in terms of the parents coming to some form of agreement. Obviously there are a number of family cases - for example child care cases and adoption cases - and these sorts of matters have to be determined by the court. I do not think we can aim to get every single family case out of the court process. However, having said that, then, yes, there is a core group of cases which can rightly be diverted into other dispute resolution processes and we very much at the Law Society welcome the pilot projects that have been set up over the country to look into how this can be achieved. Obviously it is at its early stages yet but we look forward to seeing how the evidence from those pilot projects pans out.

Q108 Mr Dawson: I think we have started to veer slightly into public law there but in terms of private law entirely, are you happy that the courts actually do recognise evidence of domestic violence and respond to it appropriately?

Christopher Goulden: That is certainly much improved. Going back some years it could be said that courts did not recognise them sufficiently but there is a much more heightened understanding of the implications of domestic abuse and so I think generally the answer to your question would be yes.

Q109 Mr Dawson: Despite the wide prevalence of domestic violence, courts still are very, very reluctant to refuse contact orders, are they not? Does that imply that they are very good at making arrangements for safe contact for children?

Christina Blacklaws: Is the Committee aware of the new forms that have been developed? Yes. I think that there are real problems in domestic violence issues being brought to the fore at a very early stage. It is very important that this is recognised right at the outset. It is an allegation and it may not be true, it may be that (archetypally) the mother is trying to prevent contact for no other reason than her own, but the allegation itself needs to be taken very seriously, needs to be investigated early on and a judicial decision made as to whether those facts are made out and then the court can go on to determine what is in the best interests of the child on that basis. It is very important that that is identified and dealt with at the earliest stage in the case as possible.

Q110 Mr Dawson: These are new procedures which come in early next year and they respond to Section 120 of the Adoption and Children Act, I believe?

Christina Blacklaws: That is right so at the very outset of the case the court will be aware if there are any allegations of any sort of abuse of the children and any possibility of the children being adopted, so these two issues are very clear at the beginning.

Q111 Mr Dawson: You are confident about that? Domestic violence, I hardly need to stress, the point is something that is hidden and that has taken decades, or centuries even to achieve the prominence that it has. Surely there are many occasions on which women are reluctant even now to give evidence of the abuse that they have suffered?

Christina Blacklaws: Yes, absolutely. I think that there has been great progress, certainly in the courts' approach to this issue of domestic violence, and a greater awareness and understanding of its prevalence, and the court and the lawyers need to be vigilant to ensure that the issue of domestic violence is not something that is just addressed at the beginning of the case because actually, as you have said, a lot of victims of domestic violence take some time to be able to tell their story and that is something that needs to be checked all the way through.

Q112 Mr Dawson: So when you said, as you said earlier when you talked about women wilfully refusing contact (and certainly the Family Law Bar Association talk about a small group of women who are obdurately refusing contact) is it not likely that domestic violence underpins a great deal of those women's position to contact?

Christina Blacklaws: It may well be the case. Having had these cases myself sometimes it is very difficult to get to the bottom of why contact is being so very forcibly rejected but, yes, it certainly has to be in every lawyer's mind, "Is this because of a threat of harm either to (archetypally) the mother or the children themselves?" and that needs to be carefully and with a lot of sensitivity explored with the client.

Q113 Chairman: Can I just clarify whether it is your view that a past experience of violence between the parents is in all circumstances a bar to contact with the children?

Christina Blacklaws: No, not at all, sir. It is something that needs to be carefully looked at and then what I would say is that contact needs to be safe. As long as safe contact can take place and as long as it is always in the children's best interests then, of course, it is no bar.

Q114 Mr Dawson: Experience of domestic violence is now acknowledged as a factor of significant harm, is it not, under the same procedures we are talking about?

Christina Blacklaws: Yes.

Q115 Mr Dawson: Can I just ask how well you feel the voices of children are heard in private law proceedings?

Philip Moor: I think they are heard pretty well. In fact, in the Principal Registry in London, when an application is made and a child is over the age of nine, the child comes along to the first conciliation appointment and the CAFCASS officer will see the child, usually privately without the parents, then if it is still impossible on that occasion to reach a sensible compromise in the interests of the child then the CAFCASS report will be directed, and my experience certainly is that the voice of the child is heard during that process. Of course it can be very difficult for the child because the one thing the child wants is for the parents to stay together in general. They want the situation to carry on as though there was nothing wrong. It is very difficult for children to choose between parents and we have to recognise that.

Kim Beatson: Philip has described the arrangement in the Principal Registry which involves children over nine attending conciliation appointments. It is the view of the Solicitors Family Law Association that children should not be obliged to attend conciliation appointments on court premises and that there is a better way of hearing children without the shadow of the law children who are effectively being taken out of school with one parent, knowing that they may have to speak against the other parent, and we find that not the best way of hearing children.

Philip Moor: I would agree with that.

Christina Blacklaws: I think that ideally children's voices should be heard much more clearly in the private law context as they are in the public law context. However, we come up against the problem of resources time and time again. There are perhaps not the resources to be able to effect the Rule 9.5 Practice Direction from the President that you probably heard about on the last occasion whereby children can be separately represented so they are not just caught between their two warring parents, they have some support, and their voices can be heard, as Kim has said, without putting them before the court and making them say what they want in those circumstances. It is a problem of resources and there are not sufficient CAFCASS officers to be able to properly offer that service at the moment.

Christopher Goulden: Possibly behind why the children are asked to go to the Principal Registry is because it is a lot easier for the courts administration.

Q116 Mr Dawson: Indeed. The President of the Family Division certainly spoke strongly about the system of tandem representation à la the situation in public law. Is that something that you would like to see operated more in the private law field?

Christina Blacklaws: It is certainly not necessary in every case but in those cases which are the ones that hit the headlines that concern the judiciary and the lawyers the most, the intractable cases that go on and on and on, and children's voices are not heard and their best interests are not seen to, in those circumstances, I think it would be most welcome if they had that sort of protection to ensure that their rights were protected as well.

Christopher Goulden: If I could say the experience of Lord Justice Wall when he gave evidence to you, the fact that you can so quickly crack an intractable case, is certainly my experience of 9.5 appointments. As Christina has said, the last thing you want is children being represented in every case or indeed in a lot of cases, but for those few it can be a magic wand.

Q117 Chairman: In your written evidence you suggested that there should be a statutory presumption that the children should have contact with both parents following separation. How would that relate to the existing presumption that the court must act in the best interests of the children?

Christopher Goulden: I have to deviate slightly from the SFLA line on that. We have had subsequent discussions about that. I do not think that that is as well put as it might have been, with all due respect to my organisation. I think a better way would be perhaps to follow what the President said which is to have it as part of the welfare check‑list and then it would get over that problem of there being, as it were, two conflicting presumptions. There is nothing wrong with having a presumption which is rebuttable, as was the recommendation in our written evidence, but as long as it came in perhaps by means of being part of the welfare check‑list.

Q118 Chairman: When Dame Elizabeth was before us she said that she could see a case for something slightly less than the legal presumption such as "that the courts should have regard to the importance of a relationship between the children and a non‑residential parent."

Christopher Goulden: I think that is well put and that is more or less what we were saying.

Q119 Chairman: That is generally supported across the table, is it?

Christina Blacklaws: Yes, it could go into the welfare check‑list which is what guides the court in its decision‑making process on all of the issues that it needs to take into consideration when making any decision about children.

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 91% 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 Moorehead'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, the 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 as 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 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 ten 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 £1 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.

Q140 Keith Vaz: Would a system of accreditation help?

Hilary Lloyd: It has and it has not. The issue with family law, unlike criminal law for example where the vast majority is legal aid and therefore if you are a criminal lawyer you tend to need to stay in the system, is that in family law because there is so much opportunity for private work a lot of very experienced solicitors move out of the legal aid type of work and into the more lucrative financial dispute resolution area. The Family Law Protocol that the Law Society developed with the support of the SFLA the DCA, the LSC and generally everyone working in the family field has, I think, changed the nature of the person going into family law in that they are now working very much towards a less adversarial approach and developing the right skills needed to deal with difficult family cases. So the person is different but we are not finding as many of them coming in and certainly not as many staying in the legal aid arena when there are other opportunities elsewhere.

Q141 Keith Vaz: Is this one of the areas where there are more women practising than men? For example, if you looked at the percentage of women at the family law Bar, would that be a bigger percentage than other areas of law?

Philip Moor: Yes I think it would, overall.

Q142 Keith Vaz: Is it a noticeable percentage?

Philip Moor: I think it is noticeable in the sense that it is at all levels of the family Bar whereas I think that the Bar as a whole is becoming more representative of society as a whole and therefore at the lower levels it is perhaps not so marked in family law but overall, yes, if we have a conference we would expect to get over 50% of women.

Q143 Keith Vaz: What about the solicitors?

Kim Beatson: It is certainly true for the SFLA. The membership is something like two‑thirds women and I think probably that is representative throughout practice. Miss Blacklaws was quite emphatic that she did not believe there is a bias against fathers in the family court system. You were quite emphatic about, were you not?

Christina Blacklaws: Yes.

Q144 Keith Vaz: And you were offering us anecdotal evidence to suggest the opposite that actually everything is fine.

Christina Blacklaws: Not exactly the opposite, just that the courts often reflect what is the status quo. I have also mentioned that sometimes that status quo develops not for good reasons but because there is difficulty in getting before the courts to be able to resolve these matters.

Keith Vaz: The Solicitors Family Law Association sitting at your side have come up with this proposal that there should be a presumption in favour of contact ---

Chairman: We have covered that, could you move on to another question.

Q145 Keith Vaz: As part of that, enforcement becomes a pretty important issue, does it not?

Christina Blacklaws: Absolutely.

Q146 Keith Vaz: As part of that presumption that everything is fair in the system that we have, how do you think the current system is working as far as the defaulting parent is concerned?

Christina Blacklaws: I think that there is a high degree of frustration amongst everyone who works in the family justice system that there is not the range of remedies on enforcement that is needed. At the moment we have very blunt instruments. A defaulting parent can be imprisoned, fined, or residence can be transferred, or the courts can do nothing about it at all, and that is a real concern. If there were a greater range of remedies, as is proposed in the Green Paper, then that certainly would be very helpful and would enable the judiciary to be much more creative in terms of taking the family forward than, as I say, the very blunt instruments that we have to punish recalcitrant parents.

Q147 Keith Vaz: But do you think that it is more likely to be a deterrent against defaulting fathers as opposed to defaulting mothers? The courts are very reluctant to send mothers to jail, for example, if they default whereas as far as fathers are concerned it is probably easier.

Christina Blacklaws: As I said, I think it is probably rarely in the children's best interests for any parent to be sent to jail.

Q148 Keith Vaz: Sure, I understand that.

Christina Blacklaws: So if we could have a range of other measures including softer measures they might be just as effective. I know one of the proposals is if there has been loss financially that the other parent compensates the parent who has had the financial loss on default of contact.

Q149 Keith Vaz: Mr Goulden, does it have any effect on the intransigent parent? Does the power to send somebody to jail for not turning up on time have any effect?

Christopher Goulden: I do not think anyone would seriously be making an application to court to send a parent to jail for not turning up on time. The enforcement measures are not effective. I do not think anyone would argue with that. Yes, ultimately, being sent to prison may be effective, I do not know, it only happens in very extraordinary cases.

Q150 Keith Vaz: Do you know how many parents were sent to prison last year?

Christopher Goulden: I would think no more than a handful, no more than that. Where I practise in Bristol I can think of one occasion since I have been there and that was the talk of the town, it is that unusual, but what would be much more effective would be to be able to say if it does not happen on a Saturday then the following week you are going to be back explaining. That is going to be effective.

Kim Beatson: It also envisages quite a different role for CAFCASS whereby instead of lengthy report writing CAFCASS is there as a facilitator. CAFCASS, not the father who has missed his contact visit, will be phoning up the mother on Monday and saying, "Why didn't this happen? I will collect the child on Friday and I will make sure that he is taken to the father," and just playing a more active role in making sure that contact works and that it is not the father who is having to complain and take the case back to court and suffer more delays in enforcement.

Q151 Keith Vaz: Both the FLPA and the Law Society raise the issue of funding for the new range of enforcement powers. Do you think sufficient consideration has been given towards these ideas by the Government?

Christina Blacklaws: The Law Society is very clear that any new proposals, particularly any legislation, need to be properly costed out in terms of their impact upon each and every budget. It is a real worry that although everyone here and everyone we represent fully support the proposals, how are they going to be funded? Where are the resources going to come from? This is our concern. CAFCASS as an organisation still finds difficulty, although there has been great improvement, in meeting their fundamental obligations in terms of representation in public law proceedings and the Rule 9.5 proceedings that we have already discussed. It is a real worry. We would love to see CAFCASS as an organisation that assists families pre the court process and post the court process to ensure that these orders once made or agreements can be effected without hitting hurdles, as often happens.

Q152 Keith Vaz: There seem to be plethora of pressure groups on family issues, speaking on behalf of fathers, mothers and single parents, et cetera. Do you think that there is enough contact between these groups and the judiciary, for example? The people who make the decisions are the judges and you just appear before judges and put the case of your clients. Do you think that there ought to be more contact and better understanding of what the concerns of these groups are?

Philip Moor: One thing we do welcome is to have more judgments in open court. None of us wants to have the hearings in open court. It is amazing how often the client will say to you as you are on your way to court, "It is not going to be in public, is it?" The vast majority are terrified of it being in public.

Chairman: That is a question that will be debated in stages.

Q153 Keith Vaz: We will deal with judgments in open court later, but what about contact between these various pressure groups? We had the President of the Family Division here recently and I put to her that she perhaps should meet Fathers for Justice and some of these other organisations. She was dead against it.

Philip Moor: We have contact with Families Need Fathers who have an important role to play.

Q154 Keith Vaz: But do you think that there ought to be better contact between the judiciary and whichever groups they are, not just the fathers' groups but the children's groups and the mothers' groups?

Kim Beatson: We cannot speak on behalf of the judiciary; we can speak for our own organisations and we have fairly close contact with some of the fathers' organisations, but Fathers for Justice are not here today for a reason and the same reason applies as to why we do not have contact with them. Debate is turned into a publicity stunt. Our members are intimidated and harassed and we do not find it useful to focus on gender when we feel the main problems in the system are delay and enforcement.

Q155 Keith Vaz: But there are other groups, are there not?

Kim Beatson: There are and we are in close contact with them.

Q156 Keith Vaz: That contact is worth having?

Kim Beatson: Very worthwhile.

Q157 Keith Vaz: Is there a forum that will bring together the Law Society, the Bar Association, the Bar Council, the Solicitors Family Law Association, the judiciary and groups together on a regular basis that will explore these issues?

Christina Blacklaws: We have the development of the Family Justice Council now. That is a multi‑disciplinary forum which is only just established but the idea is that we will have local family justice councils as well and that will be one way of ensuring that this communication, which is absolutely essential, continues outside of the court process as well. We are constantly sharing committees and negotiating and discussing and developing ideas with many of the other groups and individuals involved in the family justice system. It is a very important part of the work that the Law Society and FSLA undertake.

Q158 Mr Dawson: Would it not help to deal with delay and enforcement and actually improve the whole mediation between parents and produce more satisfactory outcomes if there was a compulsory referral to mediation in the first place? Is not Mr Moor's idea that because the legal profession can deal with a number of different issues which might arise at the time of divorce or separation quite wrongheaded because issues of family contact, residence and all the rest of it are quite distinct and quite different from some of the other issues that you might be faced with?

Philip Moor: We have absolutely no problem with a mediation system. To make it compulsory I think you would have to change the law but effectively at the moment the one that operates in the Principal Registry happens in every case, and we strongly support the Early Interventions Pilot Project (which has become the Family Resolutions Project). There is a slight problem with that and that is in our view the parenting plans were a good idea and we liked the idea that you have a sort of template for these cases and that the parents that went into the system knew that unless there was something pretty exceptional in the case the template was the sort of order that the court would be thinking of making. We thought that set things out pretty clearly for them at the beginning and that is a project that we would like to see carried through.

Q159 Chairman: The present project does not in your view test all of the innovations which the original proposal had in it?

Philip Moor: That is right. We would like to see the parenting plans in there and we would like it to be pretty well‑known that that is what the judges are going to do if the mediation breaks down and there are no good reasons for a change from the parenting plans.

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.

Q180 Chairman: What do you envisage being the outcome of the edited version you refer to? In all cases, a section of cases, or what?

Philip Moor: There were two cases earlier this year, were there not? In one, Mrs Justice Bracewell giving judgment in open court explained the reasons why she had moved some children from the mother, who was implacably opposed to contact, to the father. There is one good example. There was also the decision of Mr Justice Munby, who explained how the system had let down one particular father in his quest for contact. It is that sort of situation.

Q181 Ross Cranston: How did we get to the position where the family courts are confidential and secret? Is that because it was in chambers historically? Coming from the outside, at first blush I find the notion that you can do all this behind closed doors rather objectionable?

Philip Moor: Of course originally all the defended divorces used to be in public.

Q182 Ross Cranston: Of course. Why have we got to this situation?

Philip Moor: I think it is just a perception, is it not, with disputes about money and children it is in the interests of the people concerned to keep that private in the interests of them giving a full and frank account to the court. I do not know about the experience of the others, but the vast majority of my clients are extremely keen that it should be in private. They do not want the newspapers -----

Q183 Ross Cranston: That is the case with most litigants, is it not?

Christopher Goulden: From the child's point of view it must be right that evidence regarding that child should not become public in such a way that the child can be identified. I do not think anybody would have any problem with that.

Mr Dawson: That is an excellent point, but there is another point which is, even where the child is not identified, the child knows who they are; and sometimes cases which become public law cases are reported as criminal cases. That child knows who they are. Given the irresponsibility of the media in this country, they are sometimes reported in the most grotesque and appalling terms, and that simply compounds the abuse that child has experienced.

Q184 Chairman: We are asking our witnesses questions. We have other opportunities to discuss the matter. Finally, could I establish from you very briefly what your general perception of the Government's Green Paper is? I know you have provided detailed submissions, but is this heading in the right direction?

Christina Blacklaws: Yes. I can probably speak for us all. We are all very much in favour of it. We have concerns about how it is going to be funded.

Q185 Mr Soley: The Green Paper or the general policy of the Government which has been brought out?

Christina Blacklaws: The Green Paper.

Q186 Chairman: That is obviously a general view?

Philip Moor: That is the view of us.

Christopher Goulden: It is essential that as much attention is given to coming up with initiatives as actually funding them. They must have that potential as well.

Christina Blacklaws: They need to be analysed. We need to make sure these initiatives actually work before we roll them out. What we have is a situation where we do not have much hard evidence about what works and what does not work, and we need to build up that body of evidence through these pilot projects.

Kim Beatson: It is also essential in the lead-up to a general election that this does not become a political football.

Chairman: That is a very wise note on which to end. Thank you very much.