Examination of Witnesses (Questions 80-97)
9 NOVEMBER 2004
HIS HONOUR
JUDGE MESTON
QC, DISTRICT JUDGE
MICHAEL WALKER
AND DISTRICT
JUDGE NICHOLAS
CRICHTON
Q80 Chairman: This is not a presumption,
these are frameworks offered in the mediation process?
Judge Crichton: Exactly so.
Q81 Mr Soley: I know it is difficult
to prejudge it as it is a pilot project but is your gut feeling
that that system is better than the court system?
Judge Crichton: Yes. If it can
be made to work it has to be better.
Q82 Mr Soley: The problem is whether
or not it can be made to work or encouraged to work, to use that
phrase.
Judge Crichton: Yes, there are
issues about whether families will go into the process willingly
and how far courts can direct people into the process. They do
it in America but the Americans, I think, are more biddable. It
remains to be seen. I hope that people will do it wholeheartedly.
Q83 Mr Soley: From what you know of it
so far and also from your general experience, do you think it
could be done better prior to people seeing solicitors or is it
a situation which is more likely to work if the court, rather
on the basis you described with this pilot, makes an assessment
and then refers them back to the mediation process?
Judge Crichton: I do not know
how we find the families unless they come to us through solicitors.
Somebody has to make an application to court. We do get unrepresented
parties coming to court and when they fill in the forms they are
helped by the court staff to do that, but the vast majority of
cases that come to us still come through solicitors' offices.
What we need to be doing—and the Legal Services Commission
have taken this on board—is making sure that from the solicitor's
point of view it should not be a prerequisite that they engage
in correspondence to try to see if they can resolve the issue
because that correspondence frequently makes things worse.
Judge Meston: I was going to say
I think you are looking really for the trigger for mediation and
there is, I think, a case for re-visiting the Family Law Act 1996
which never got off the ground which, if I remember rightly, made
an attempt at mediation between married couples—because
it only applied in divorce cases—a pre-condition to public
funding, and I think it is unfortunate that perhaps that has been
lost sight of.
Q84 Mr Soley: But it focused more on
marriage, did it not, rather than children?
Judge Meston: It was mainly to
do with revising our divorce laws, but it tried to do a lot else
and that probably was the source of its failure.
Judge Walker: May I also remind
you that 90% of these cases never actually come to court at all.
The courts deal with 10% of contact cases, 90% are resolved by
the parties or, to be honest, very often (and one should not forget
it) by negotiation that is being spearheaded by solicitors. I
was a matrimonial solicitor myself for 15 years before I took
my appointment and so were a lot of my colleagues and an enormous
amount of work is done in private practice between solicitors
finding out what the problems are and very often very quickly
and very amicably resolving them. We ought not to forget that.
We deal with the minority of cases, not the majority.
Q85 Mr Soley: I recognise you are dealing
with the most intractable cases by definition.
Judge Crichton: It is a part of
the Family Resolutions pilot that if at any time down the road
the parents say, "We have understood the message, we want
to come out of the system," we let them out because that
is what we want to achieve for all parents anyway, that is what
we would like to see happen. If, on the other hand, they want
to reach the end of the pilot and say, "We understand, we
have got an agreement but we would very much like to have the
judge's stamp on it," we will happily give the judge's stamp
if that makes them feel more confident with the arrangement that
they have arrived at.
Q86 Mr Soley: Is it to early to say how
you think this pilot is going?
Judge Crichton: I am ever the
optimist. You do not do this work unless you are an optimist.
Q87 Mr Soley: That is a slightly different
answer to the question.
Judge Crichton: I am optimistic.
Q88 Dr Whitehead: I am interested to
get a feeling for the proportion of cases that come before you
where somebody, either before the case or during the case, makes
an accusation of domestic violence against the other person? What
proportion would you say that happens in?
Judge Walker: I do not know. I
have never, to be honest, kept a tally in the 10 years I have
been doing it, but it is the minority. If I said 25% I would certainly
be over-pitching it. The problem, though, is not so much the cases
where normally the mother will say, "There has been violence
and I am concerned about the risk the children will be put to";
the real problem cases are those where it is not said to you at
all and one is left realising during the course of whatever discussion
or hearing one is having that actually there is a domestic violence
problem which is going unsaid. Very often it is unspoken.
Q89 Dr Whitehead: Would you actively
seek to bring that out? Would you refer cases to the police?
Judge Walker: No, I would not
refer it to the police but obviously if it is there one brings
it out into the open because one has got to. It is where I find
CAFCASS are very helpful indeed. They can pick it up and if necessary
they will go off and have a one-to-one with the mother or the
father and come back and tell you that there is a serious problem
that is going unsaid.
Judge Meston: I suspect I deal
with a higher proportion because they are sent up to the circuit
judge to deal with. It is necessary to deal with allegations and
to make the necessary findings if at all possible because it sets
the agenda for the future for the child, and it is much better
to deal with the allegations when they emerge rather than try
and suppress them and brush them under the carpet, only for them
to fester and emerge several years down the track which, I am
afraid does sometimes happen, and leaves the court in a very difficult
position of having to adjudicate upon what are by then historical
allegations. If I could be anecdotal for a moment, mention was
made earlier of the value of guardians. I had one of these very
difficult cases in which the guardian was appointed in what appeared
to be a case in which only violence was alleged. The value of
the guardian in that case was that she was able to get access
to social services' records for other places where this particular
father had lived and, unknown to the mother, unearthed a very
considerable range of previous allegations which had been made
against him by other women in other domestic settings, which put
a very different complexion on the whole case and enabled the
court, albeit many years after these allegations, to form a much
better-informed view of this man.
Q90 Chairman: How did you say this came
to light?
Judge Meston: Through the guardian
being introduced into an already difficult private law family
dispute involving a child.
Judge Walker: May I pick up something
that was said before. There was criticism of the fact that it
was believed the average case takes 36 weeks to resolve. What
sometimes happens and what gives rise to those sorts of figures
is that you might have a situation where there is domestic violence
and the father is quite prepared to concede that it has happened.
He might have a different explanation for it but it is there and
it is conceded. One might at a very early stage, and we are dealing
with these cases sometimes four to six weeks after they have been
issued, be somewhat reluctant to have the normal unrestricted
contact taking place. One therefore for instance might be seeing
whether there is a grandparent or if there could be contact at
a contact centre, something of that sort, for a period of time.
And a typical order may be for contact at the contact centre once
a fortnight for six/eight/ten weeks; one might say, "Fine,
I want the case back in 10 weeks" or whatever, we will then
look at it and we will see if we can alter the order to a more
common sort of contact arrangement. That is adding to the period
of time it is taking ultimately to resolve the case but in reality
the contact is taking place and it is resolved a lot quicker than
36 weeks.
Q91 Chairman: In truth, this is not a
case to be resolved within a period of time, the court is engaged
in a continuous monitoring role of something which is happening
and perhaps improving.
Judge Walker: There is a limit
obviously to the number of times one wants to have a case coming
back but it is not uncommon to see a case come back three or four
times.
Q92 Dr Whitehead: Some fathers, though,
have in the past claimed that this is effectively the nuclear
bomb of the proceedings, that a mother may claim domestic violence
knowing that that then, as it were, stops the contact or could
stop the contact. What facilities do you have during cases to
check the veracity of claims so that that may or may not happen?
Judge Meston: If there are no
admissions or there have not been separate injunction proceedings
in which domestic violence allegations have already been tested
and adjudicated upon, all the court can do, if issues are raised
in a children case, is to set a timetable, to set sometimes a
separate hearing to have the allegations set out in a manageable
form and adjudicate upon them, to hear the parties, and to have
the fact-finding hearing as soon as possible. The problem is when
the allegations emerge late in the day because either the mother
has been reluctant to articulate them or because they have emerged
through some other source, CAFCASS, or they have emerged much
later on in the sort of circumstances I described earlier. You
are having to deal with allegations which may by then be quite
stale but come to have an importance, and all the court can do
is to say we will have a hearing to adjudicate upon these allegations
as soon as possible so that the whole basis upon which the case
proceeds and arrangements for contact proceed is clear to everybody.
CAFCASS are very reluctant to make firm recommendations if there
are untested allegations hanging around. They want the court to
get on and adjudicate, which the court tries to do.
Judge Crichton: I think there
is a problem here with the new forms that are coming out on 1
January and there is a fear that some mothers, a small minority
of course, may wish to play the domestic violence card. I read
a psychiatric report last week which did not refer to it as domestic
violence, it referred to it as "intimate partner aggression".
I hope it does not catch on!
Judge Meston: Inter-actional dysfunction!
Judge Crichton: But there is an
issue here because the guidelines that were handed down following
the Court of Appeal decision in L v V and others which
we have heard about this morning, make it clear that the court
has to make an early decision about the relevance of the allegations
of domestic violence to the issue of contact. In the Court of
Appeal and the High Court, of course, they are getting the worst
cases but there is a much wider spectrum than that and we get
the other end of the spectrum in the family proceedings courts.
I would not want anything I am about to say to be thought to mean
that I do not take any allegation of domestic violence seriously
because it is always serious, but there is the other end of the
scale and it may have been two months of unpleasantness which
may have involved pushing and shoving, may have involved slapping,
but happened at the time the relationship was breaking down and
we are now six/eight/12 months on from there and we are dealing
with the interests of the children and the relevance of that difficult
time may not be that great in considering the issue of contact,
particularly if the children did not witness it. We do sometimes
get a CAFCASS report for which we have waited weeks which says,
"I have spoken to the parents. There is an allegation of
violence. I am going no further until the court has held a fact-finding
hearing." By the time that gets back to us and we find a
couple of days in our list to hear those allegations and make
a decision we are losing time all the way along the line. I cannot
resist saying that two months is 1% of a child's childhood and
we are losing it all the time.
Q93 Dr Whitehead: How would you respond
to the contrary claim that courts effectively allow contact in
a way that puts children's safety at risk because of domestic
violence?
Judge Crichton: I would hope that
we would never do that but that is part of assessing the relevance
of the allegation to the issue of contact. If it is a threat to
the child physically or emotionally then I hope that we would
identify that threat and not permit in contact.
Judge Meston: The statutory framework
requires us to have regard to the risk. The whole business of
what we are about is very often assessing risk, measuring risk,
and deciding how to manage risk, and inevitably, but I hope rarely,
things go wrong.
Judge Walker: If I may say so,
we are all human—judges too. 19 children have been killed
during contact since 1999 and no judge wants one of those 19 cases
to be a case where he made a contact order. One is instinctively
trying to do one's best to protect the children.
Q94 Mr Dawson: Just to make the point
that domestic violence still goes widely unreported, I think that
is generally accepted, and again it is generally accepted that
the moment of separation or the time shortly after separation
is also a very, very dangerous time for victims of domestic violence.
Domestic violence does not end at the moment of separation. You
clearly have a very difficult job to do in these circumstances.
Judge Crichton: Could I say a
word about the issue of secrecy of courts. We have been approached
by many responsible television companies who want to do programmes—this
is an issue that is now in the public domain—to demonstrate
the difficulties that courts face in making decisions both in
public and in private law, but of course as soon as we tell them
that they cannot film in our courts and they cannot do anything
that would identify the family or particularly the children that
we are dealing with, I am not going to say they lose interest
but they begin to find how difficult it is if they lose the human
angle on it. To come to the issue of the press, it is a little
known fact but section 69, I think it is, of the Magistrates'
Courts Act 1980 includes a list of people who may be in the family
proceedings court, and it includes the press. I had a reporter
in my court last week. He asked if he could come and I said did
he want to sit in the back of the court. He said, "I did
not know I could." And I said, "You can but subject
to my control of my own court and I will only allow you in my
court if the parties are all comfortable with it." I had
two private law cases, which is what interested him most, but
the parents were in extreme distress and they said, "Please,
no." I said, "He is not going to be reporting on the
case. He is just trying to feel the flavour, trying to feel the
atmosphere of the family proceedings court," and they said,
"Still not, please, no," and he very kindly withdraw,
but it is a fact that they are permitted to be there, subject
to the judge's discretion, as they are in the youth court.
Q95 Peter Bottomley: Changing the subject,
we know the importance of continuity. We also know that most of
the cases are at the lower courts. We also know that most district
judges sitting in magistrates' court spend a lot of their time
on criminal work. Who has the power to say they want to have more
people to work better, or to have more district judges in magistrates'
courts who will specialise in these family proceedings?
Judge Crichton: I would think
the Lord Chancellor. It is something that I have been discussing
with my immediate boss but he has control of district judge magistrates'
courts all over the country and I am just one and I am the only
one who deals with family proceedings. I am begging him to give
me a deputy and he is saying he cannot do it because nobody amongst
my colleagues wants to do the work full time. I think we need
to be going to the specialist practitioners and advertising these
jobs for these people to come in and bring their expertise in
at FPC level, but we have got the Unified Courts Administration
coming up next year and I think really we have got to wait for
that to happen before we start discussing these issues in more
detail, but I intend to.
Q96 Peter Bottomley: What you do is up
to you. I suspect we could then expect to question the Lord Chancellor
or his representatives and say are there any real inhibitions
on getting the kinds of minor changes which would allow reasonably
specialist qualified people to give nearly all their time to these
sorts of issues where continuity matters.
Judge Crichton: Yes please.
Ross Cranston: Some judges might want
variety. They might want to spend 50% of their time in family
and 50% in crime.
Peter Bottomley: But the cost is continuity.
Ross Cranston: Not necessarily.
Chairman: We are having a debate between
members of the Committee at the moment. If you want to add anything,
please do!
Q97 Mr Dawson: Can I just ask would that
help with public law cases as well?
Judge Crichton: Absolutely.
Chairman: Thank you very much indeed
for your help this morning and for the evidence you have given
to us beforehand. We appreciate it very much.
| 
