Examination of Witnesses (Questions 360-379)
18 JANUARY 2005
BARONESS ASHTON
OF UPHOLLAND
AND RT
HON MARGARET
HODGE MBE, MP
Q360 Chairman: What do you say to the
charge that these proposals announced today are unambitious and
do not carry us any further forward, indeed represent a step back,
in some respects, from the proposals that were produced in 2001,
the Making Contact Work proposals to which the Department responded
in 2002?
Margaret Hodge: I am disappointed
by that assertion.
Q361 Chairman: It is a question lots
of people are asking.
Margaret Hodge: Are we going to
make people happy out of this? Are we going to find an answer
to every individual problem that individual families face? I think
the honest answer to you has to be "No", we will not
be able to do that: because the best way of resolving these issues
is for adults to change the way in which they behave when they
try and determine the future for their children. What we are attempting
to do, and I think the package is pretty comprehensive, Chairman,
if I may say so, is to put this whole emphasis on supporting parents
to mediate, conciliate, find their own solution without recourse
to the adversarial litigation that takes place in the court room.
There are a lot of carrots, in a sense, in that side of the agenda
to bring people together, and at the other side of the agenda
what we are then doing is introducing a set of sticks. I think
it is an ambitious package; I think it is a comprehensive package.
Will it work in 100% of cases? No. That is because there is a
limit to what we in the government, the courts, the mediators,
anybody, can do to actually reconcile conflicting adult individuals.
Chairman: You will have to come back
to us at that point because it really comes up here to compulsory
mediation, which is the notable absence from the proposals announced
today. Mr Dawson.
Q362 Mr Dawson: We had some excellent
evidence last week from the National Family Mediation Service
which was very encouraging about the benefits and potential of
mediation, and it is good that the Government are committed to
it, but certainly what we have got from a very experienced practitioner
there was that it was a view that, where it was safe (and mediation
would not be used where it was not safe anyway) there was nothing
wrong with the degree of compulsion placed upon people to undertake
mediation. Why have the Government not chosen to go down that
particular route?
Baroness Ashton of Upholland:
We did consider that. We talked to a lot of people involved in
mediation. Our conclusions at the moment are that there is a sort
of almost contradiction in terms, if I can put it like that, between
compulsion and mediation that we felt it was really important
for the courts to give a very strong steer that couples should
consider mediation, that they should be looking to do that, but
we have not got as far as saying that they should be compelled.
It would take primary legislation to do that. We are not convinced
from those we have spoken to and, I agree, there have been some
interesting very well considered views taking different views,
if I might say that, around this, but our view at the moment is
that we think it better to have a very strong steer, and the role
of the courts in that is absolutely critical, but not to say,
"You are compelled to sit in a room to try to find a solution
to this", because the situations that arise with some of
these cases, as you will know, Mr Dawson, are very intractable.
People find it very difficult. It just might not be possible in
all cases, and it might not be the right solution in all cases.
Therefore we did not want to make it compulsory. That does not
mean, in any way, that we do not think it is a really critical
and important path to go down for a huge number of people, but,
we felt, compulsion suggests that it is a solution, but it cannot
always be.
Margaret Hodge: There is an expectation,
or there will be—there is in some instances and there will
be increasingly—right through the system that the first
port of call is mediation, where it is safe to do so. Looking
at the evidence that you did get last week, the argument appears
to be whether there should be compulsion about whether mediation
should be considered, not whether there is compulsion about whether
mediation should be entered into. I think, again, we are on the
margins here, because certainly in the Family Resolutions Pilot,
in the work that Elizabeth Butler-Sloss (the President of the
Family Court Division) has done, there is an expectation right
through the system that the first port of call will be a consideration
of mediation, and I think that is an important distinction.
Q363 Mr Dawson: Do we not have a significant
anomaly at the moment? You are quite right to point out that the
requirement would be to at least explore the option of mediation,
but that is something which is imposed on publicly funded court
users at the moment in order to guarantee the continuation of
that public funding. Obviously the same pressure does not apply
to people who are funding themselves, and the evidence that we
have heard is that that can undermine the whole process where
you have one party with significantly less pressure on them than
the other?
Margaret Hodge: The judgment is
difficult on this one. It is whether you think it is appropriate
to force people into sitting in a room staring at each other and
refusing to talk each other.
Q364 Chairman: You do think it is appropriate
if public funding is involved?
Margaret Hodge: What we are saying
is that where public money is strongly involved, it would be sensible
to try and go down that route. It is a judgment. It is whether
it should be an expectation or compulsion, and you can play that
either way. I think what you will find with the reforms that we
have introduced today is that the expectation is now so strong
that consideration of whether mediation will work in a particular
set of circumstances will occur in, I would have thought, most
cases, with the exception of domestic violence cases where it
is not safe for that to take place.
Q365 Mr Dawson: I am encouraged by the
statement and by Next Steps that you are also looking at other
ways of involving children in mediation. Are you able to say anything
more at this stage about how you are proposing to do that?
Baroness Ashton of Upholland:
We are looking at the whole question of how do you make sure the
child's voice is heard across the court system? For many children
the voice can be heard through the parents, even though they happen
to be in court, and I would not wish to take that away. For quite
a lot of children that will be not appropriate, and the role of
the CAFCASS officer—and Margaret may want to talk more about
that—will be critical in listening to the child's views.
I know there is some discussion about where to position that within
the process, whether the child should be listened to first before
meeting the parents, and that is in a sense an operational question
to look at what works best as we roll out some of these initiatives,
and, of course, finally, there is the question of whether a child
needs to be legally represented at the other end of the spectrum,
but that will be there, quite rightly, because having a solicitor
to represent you does not necessarily equate to learning effectively
what the child wishes to have. Central to this must be the child's
position in the process and making sure through the courts that
we know the child's wishes and feelings, but—and it is a
huge "but"—not asking the child to decide or make
choices, for all the reasons that you would expect.
Q366 Mr Dawson: Moving on, if I may.
We have touched on funding already, but I am certainly not one
of those who thinks that no changes have been made. I think that
what has been proposed would be a transformation and a huge cultural
shift in the way that the courts and society deal with the problems
around relationship break up; but in developing Parenting Plans,
in court conciliation, Family Resolutions Pilot Project and in
developing mediation, in developing the other S in CAFCASS much
more effectively than it has been, there is a massive results
implication in this, is there not? Can you say more about the
ways in which these particular things are going to be funded,
and are there, in fact, any savings that could develop from changing
the emphasis so much away from the current system?
Margaret Hodge: We have over time
put more money into mediation, and I have said we will continue
to seek to add to the resources there. When I first got responsibility
for contact centres there was not a budget line. We now have a
solid budget line, and we have announced today we are increasing
that in 06-07, 07-08, to £7,000,000, if my figure is right,
£7,500,000, extra, which no doubt you will want to talk about
in greater detail. I think we have now put the building blocks
in place which ought to ensure that CAFCASS provides the sort
of service that the Committee aspires for it and that we aspire
for it and actually the families and children aspire for it, and
included in that I think the budget—again my figures may
be wrong, and I will correct them to the Committee if I have got
them wrong—when we inherited it, was about £95,000,000.[1]
We are talking now about an 05-06 budget of £107,000,000.
So that is a pretty considerable increase, some of which we have
secured at a time when public funding has been rather less generous
than before. We have also secured the money to ensure that the
issues around domestic violence with the new definition of "harm"
and the forms and the training have been properly funded. I feel
pretty good about the extra money that we have been able to put
into the system. I also think if we can get CAFCASS right, particularly
in relation to these issues around private law, and if we really
can get everybody involved, the judges demanding fewer reports
and CAFCASS officers not writing these lengthy documents, which
are not only costly to write but costly to consider, there should
be some resource redistribution towards the conciliation and the
mediation that we seek. Just to correct my figures: £107,000,000
is 04-05, not 05-06.
Q367 Peter Bottomley: The Family Resolutions
Pilots Project, which we understand to have been running for some
time, why was it not possible to have an early interventions project
alongside to see which worked better?
Margaret Hodge: I know there has
been a lot of discourse on this issue, and probably, if I reflect
on it, the mistake we made was renaming it. We did it for very
good reasons, and I think it reflects better what we are doing,
but I think the renaming has caused greater hassle and misunderstanding
than the benefits we gained from having a new name. This is an
attempt to ensure that before matters get locked into court there
is an early intervention.
Q368 Peter Bottomley: I am sure we will
find some way of incorporating the very useful parliamentary answer
I got, which can maybe save us a bit of time now. The only question
I was asking was would it not have been possible to have had the
Early Interventions Project Pilot running alongside the Family
Resolutions Pilot Project?
Margaret Hodge: We are back on
the issue of compulsion around mediation, and our current legislative
framework does not allow us to have compulsory mediation. We could
not, therefore, have had the same structure which existed in the
Florida experiment. We could not have done that. What we have
done is adjust, learn from the Florida and other experiments in
this to fit in with our appropriate legislative framework. We
have already had that debate. We could change the legislation
and then we might try and do the experiment, but at the moment,
under the current legislative framework, we have framed an appropriate
pilot for our UK circumstances.
Q369 Peter Bottomley: I think the Committee
need to understand, in the absence of compulsion you cannot make
it compulsory. I am not sure the Committee yet understands why
it was not possible to have a project that brought in early intervention:
because one of the reasons for changing the name was the fact
that Family Resolution Pilot Projects are not as early as the
Early Resolution Intervention Projects were intended to be?
Margaret Hodge: I would be interested
in hearing from you, what earlier point before the first point
when somebody tells the court they want to engage in litigation
are you referring to? What earlier point?
Q370 Peter Bottomley: Again, I do not
want to go through your parliamentary answer, which was useful?
Margaret Hodge: I do not understand
it; I genuinely do not.
Q371 Peter Bottomley: I hope you do understand
it, because I thought I understood it when you made it.
Margaret Hodge: But I do not understand
the earlier point. The moment people appear in court the expectation
is that they will engage in the process of the Family Resolutions
Pilot. At what point could we have sought an earlier intervention?
Peter Bottomley: I recognise that the
roles have been reversed?
Chairman: Is this customary? It is for
us to ask you the questions!
Q372 Peter Bottomley: The earliest is
when parents start believing they are not going to reach agreement
without the use of a court, and from that point the time they
actually appear in court provides a gap which would allow early
intervention?
Margaret Hodge: I am sorry to
interrupt, because this is quite an important point, because I
know there has been a lot of criticism. If parents decide they
cannot take a decision without going to the court. What do they
then do?
Q373 Peter Bottomley: They then get professional
advice, normally, and they then find themselves in a queue to
go to court and then weeks follow. Once they get to court, the
present—
Baroness Ashton of Upholland:
That brings in two of the proposals. One is the role of the professional
advice, which is from a solicitor. Two things on that: one is
the accreditation, so that we are clear about what the role will
be, and also what we call family help, which is enabling solicitors
to provide a longer session with parents in a sort of mini-conciliatory
role to see whether there is room for manoeuvre, which I think
is quite important when you look at that; also for the parents
to think about the other opportunities that they will have to
get the kind of information and advice as well. So, when they
arrive at that point, what we are doing is ensuring that we have
provided for them to get the support. The other one is collaborative
law, which is where they have an option to each have a solicitor,
a model that seems to be working quite well in Canada particularly,
also in the US, but Canada is the model I would look to, where
they each get a solicitor and the four of them, in a sense, within
a court setting, quite often, but not in a court room if I can
make the difference, agree to try and reach a decision. If they
completely fail, then those solicitors go out of the picture and
it goes through the normal court process. Those are examples where
we have tried to develop new models that will fit different circumstances,
because the difficulty for this group of people who arrive in
court is that they are very varied in their relationships with
each other and with the children in question. I am sure, if you
have talked to some of our judges, they will describe how different
and difficult it can be. Those are some other models that, alongside
the pilot, we hope will provide different opportunities, depending
on the needs of the parents in those circumstances.
Margaret Hodge: Can I, finally,
make it absolutely clear to Mr Bottomley that the moment an application
is lodged with the court the applicants are referred to the Family
Resolutions Pilot. They do not wait for that first court appearance.
The moment the application is lodged, before that application
lodged, the court will not know about the family.
Q374 Chairman: The difference might be,
of course, if the solicitor was saying to the family, the two
parents, "There is no point in my making an application to
the court unless you first go into this project and you embark
on a Parenting Plan straightaway as part of this process"?
Margaret Hodge: I hope that will
roll from the fact that the moment they do make the application
they will be referred. That follows, in a sense, does it not?
Chairman: Before I call upon Mr Vaz and
Mr Cranston, I am going to ask anyone to declare any interests
they might have.
Keith Vaz: I am a non-practising barrister
and my wife holds a part-time judicial appointment.
Ross Cranston: I am a barrister and Recorder.
Q375 Keith Vaz: In its written evidence
the Equal Parenting Council has complained that "the children
minister, Margaret Hodge, has looked my colleague and me straight
in the eye and told us that if a custodial parent is determined
enough to exclude other parent, there is nothing a court can do
about it. With that sort of leadership on this issue the Government
is beaten before it starts." Do you remember that conversation?
Margaret Hodge: Those precise
words I do not, but, in a sense, I have said not a dissimilar
thing this morning at the Committee, that at the end of the day
the authority and power of the courts, the Government and any
other agency will not of itself resolve very, very conflicting
relationships, and to pretend that we can I think is wrong. It
is an interesting area, because we are often, Chairman, accused
of being the Nanny State on many issues, and this is an area where
I am saying actually recognise the limits of the state to resolve
issues within the family, and that was really the point I was
making. If it was interpreted in that way, I apologise, because
clearly the propositions that we are putting forward today are
trying to strengthen the armoury of both judges and ourselves,
but we may not be able to resolve all of these things.
Q376 Keith Vaz: There is no need to apologise
if the statement is true and that is what you believe, but do
you accept that the court system is currently failing fathers?
Margaret Hodge: I think the court
system is failing families, and, importantly, the court system
is failing children. Probably I would say that as children's minister.
Q377 Keith Vaz: Do you think that there
is perceived to be a bias against fathers?
Margaret Hodge: I am absolutely
clear that there is not a bias; there is not a gender bias at
all. The reality, as we all know, is that in most families the
mother takes prime responsibility for the care of the children,
and if one needs to decide with whom the child will live, you
will tend to place the child with the person who has prime care
and responsibility. That is changing a bit, and I welcome that,
and I welcome the increasing role of fathers in the family, but,
equally, do not let's look at this through rose-tinted spectacles.
That is the reality of the situation. Where I do think there is
a problem in the court process—and I think we all agree
on this in government—is that because it often takes so
long to get to court, to get the final decision, you are then
in a situation where the status quo becomes the best interests
of the child, and, if there is a sort of bias in the system, it
is the length of the proceedings which then lead to a situation
which could of itself be interpreted as a bias.
Q378 Keith Vaz: Baroness Ashton?
Baroness Ashton of Upholland:
If you look at the evidence that I know the Committee has already
received, I think the President (Dame Butler-Sloss) talked about
an average of about 40 weeks in private law, but I know you have
also had evidence talking around 58 weeks.
Q379 Keith Vaz: That is the delay. I
am I am talking specifically about a particular group: fathers
feeling that the system is letting them down because of what they
perceive to be a bias in favour of mothers?
Baroness Ashton of Upholland:
Indeed. I was adding on to the point—
1 Note by witness: Financial year 2003-04 Back
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