Letter from Rt Hon Alan Beith MP, Chairman, Constitutional
Affairs Committee to Rt Hon Lord Falconer of Thoroton, Lord Chancellor
and Secretary of State for Constitutional Affairs
THE PROVISION OF LEGAL ADVISERS IN FAMILY PROCEEDINGS
Following receipt of a letter from Alex Allan about
DCA resourcing and our recent evidence session on 2 May 2006 with
several family court judges, including Sir Mark Potter, I am writing
to you in respect of the provision of legal officers in Family
Proceedings Courts (FPCs).
It was made plain by the judiciary that in order
for cases to be cascaded down to the Family Proceedings Courts
(where we understand that there is spare capacity) it will be
necessary for sufficient legal officers to be made available.
Whilst we appreciate the resource limitations that
the Department is currently operating under, it would appear short-sighted
if unnecessary pressure was placed on the High Court or Principal
Registry of the Family Division by a failure to provide sufficient
In those circumstances, I hope that you are in a
position to be able to assure the Committee that the Department
will use its best endeavours to secure an increase in the number
of legal officers available to the FPCs and that in any event,
there will be no reduction in the numbers of those officers.
I have copied this letter to Rt Hon Sir Mark Potter,
the President of the Family Division.
9 May 2006
Letter from Rt Hon Lord Falconer of Thoroton,
Lord Chancellor and Secretary of State for Constitutional Affairs
to Rt Hon Alan Beith MP, Chairman, Constitutional Affairs Committee
Thank you for your letter of 9 May about the provision
of Legal Advisers in Family Proceedings Courts. You asked for
reassurances about our commitment to maintaining, and if possible
increasing, the numbers of legal officers available in the FPCs.
On the creation of HMCS, the HMCS Board set up 'The
Justices' Clerks and Legal Advisers Working Group' to consider
issues relating to recruitment, retention, career path and management
structures for lawyers employed by HMCS and their relationship
with other lawyers within the Government Legal Service.
A major work stream of the Working Group is the development
of a National Legal Adviser Recruitment and Retention Policy.
The creation of this policy should address the long term succession
planning to take place with regard to the ongoing recruitment
of Legal Advisers to ensure sufficient establishment levels to
adequately run the criminal and family courts within HMCS. Work
is on-going with the Human Resources Department to develop this
Within the work on developing a proposed new career
structure for Legal Advisers, it is recognised that an important
area of career progression and development is within the area
of Family Law.
HMCS has many very dedicated Legal Advisers who work
in the Family Proceedings Courts. It is anticipated that the proposed
new career structure will be developed to offer two strands of
career progression for those Legal Advisers who undertake or wish
to undertake family work.
Firstly, the route where a Legal Adviser would undertake
family work in the Family Proceedings Court, whilst also undertaking
the full range of criminal and civil courts in the Magistrates'
Secondly, the route of a Legal Adviser who may wish
to become a 'Family Specialist' and work predominately in the
specified family courts (as currently happens now in London and
in the longer term may be rolled out elsewhere in the country.)
Whilst accepting the resource limitations currently
in place, HMCS is committed to the efficient and effective delivery
of front-line services of which the provision of Family Proceedings
Courts to deal with Public Law Care cases is a priority.
I have copied this letter to Sir Mark Potter, President
of the Family Division.
19 May 2006
Letter from Sir Mark Potter, President of the
Family Division to Rt Hon Alan Beith MP, Chairman, Constitutional
Having received an invitation to comment further
on certain matters referred to in the letter from Alexander Horne
dated 18th May 2006, I take the opportunity to add
the following observations.
CONCERNS RELATING TO CHILDREN & ADOPTION BILL
The concerns which I aired to the Committee in headline
terms related to the following:
1. The nature of the proposed contact activity
directions and contact activity conditions which the court may
impose at interim and final order stage.
I understand that activities to be provided will
be commissioned by CAFCASS from existing providers such as Relate.
At present, possible providers are scattered throughout the country.
CAFCASS will be carrying out a scoping project to see what programmes
are in existence and what the likely need for them will be. The
cost of securing adequate provision is as yet unknown.
2. Post-order monitoring
CAFCASS and the judiciary will need to establish
a detailed protocol to clarify how monitoring will be effected.
At one level, it may simply involve an administrative follow-up,
for example a telephone call to confirm that contact took place
as ordered. In other cases, it may be more difficult to clarify
reasons for failure, and CAFCASS will need to be sure what judges
expect from them.
In this connection the active participation of CAFCASS
in the facilitation and enforcement of contact orders is crucial
to the success of the measures in the Bill and CAFCASS will need
to be properly funded to do the work.
3. Enforcement orders/unpaid work requirement
The expectation is that this requirement will be
provided by the Probation service. It is said that, as numbers
of orders are likely to be fairly low, there will be little or
no additional cost. However, the court will want the type of work
ordered to meet
the aims and aspirations of the Bill, i.e. to secure
the person's compliance with the contact order. The Probation
service will need to provide appropriate work in all court areas,
risk assessments will need to be undertaken and work provided
which does not involve mixing with criminal offenders. In cases
where there are young children, the practicalities of sole carers
being available to perform the work may prove a limiting factor.
POWERS TO RESOLVE CONTACT DISPUTES
I would first refer you to the recommendations of
the Children Act Sub-Committee, dated March 2001, following the
consultation paper, "Making Contact Work"; see pages
119-121, paras 25-29. These pages are attached. I would endorse
the recommendations. Some of the proposals have not been taken
forward by the government. In this connection it was particularly
disappointing to see omitted a power of the court to refer an
intransigent parent to a psychiatrist or psychologist.
When my team gave evidence to the Select Committee,
we were asked whether we thought the use of financial penalties
for failure to comply with contact orders might assist the courts.
I, Munby J. and DJ Crichton all gave evidence on this point, setting
out the reservations that we have regarding the utility of imposing
financial penalties for non-compliance where children are involved.
When pressed on the subject, we agreed that financial penalties
might be an option in the very small number of cases where the
defaulting party has substantial means. That remains our position.
However, in this connection please note that, when
replying to question 28, DJ Crichton drew attention that the courts
can already fine or imprison for contempt of court. The Children
and Adoption Bill, Clause 4, creating new Section 11J(13) in the
Children Act 1989, specifically retains Section 63(3) Magistrates'
Courts Act 1989 as it applies in relation to contact orders. In
cases where the aggrieved parent makes an application under Section
63, the court is empowered to impose a financial penalty in respect
of the failure to comply with an order of the court.
This matter was addressed at some length in the evidence
of my team on 2nd May. Broadly speaking, I accept and
endorse the principle of openness. It is vital that the public
have confidence in the family courts. In our evidence, you will
note reservations which need consideration, particularly in relation
to allowing members of the general public into the courtroom.
We also drew attention to the distinction between cases which
are essentially private cases, and those where the public has
a greater interest, i.e. care proceedings, where the state is
interfering in the life of a family and children may be removed
permanently from their parents. You will be aware of the attached
article entitled "Access to and reporting of Family Proceedings"
by Munby J. and reported in the December 2005 edition of Family
Law at page 945.
It is necessary, however, to sound four notes of
caution in relation to the views expressed by the senior judiciary.
1. Their views are not likely to be reflected
at levels below the High Court amongst those concerned "at
the coalface" with the practicalities of conducting children
act proceedings in local courts, particularly in relation to the
right of the public (as distinct from the press) to be present.
2. Even less are they likely to be shared by
care professionals who are concerned not only for the welfare
of children (in relation to gossip, teasing and bullying in their
every day lives), but the willingness of witnesses to become involved
and, in a number of cases, the harassment of professionals by
precisely those pressure groups that wish to attend as members
of the public in cases involving their members or issues of particular
interest to them.
3. There is a strong feeling among the judges
that, quite apart from proper welfare concerns for the child,
a rule or presumption of a public right to access, with the discretion
to the judge to consider exclusion of any particular member(s)
of the public would be burdensome, difficult to police, and likely
to add to the length of the proceedings. In particular, it would
raise considerable difficulties in identifying and challenging
"undesirables" as well as giving rise to inhibition
(and on occasion intimidation) of parties and witnesses, with
consequent adverse effects on the outcome of the hearing. Those
legitimate concerns explain why I favour the proposal to restrict
access to those with a genuine interest in the case, for example,
lay advocates to assist parents with learning difficulties and
members of the family or others who will support the parties through
the hearing and in dealing with the outcome of the hearing.
4. There are a number of logistical objections
and difficulties. For instance, in local County Courts, District
Judges who deal with the vast majority of children cases, often
occupy rooms in which cases are heard which can barely accommodate
the parties, their advisors and care workers, let alone interested
members of the public.
The government is shortly to publish its consultation
document on transparency, and I would expect a wide range of interest
groups to respond. This issue is high on the agenda of the Family
Justice Council which is a senior body representing agencies across
the family Justice System. Representations from this quarter will
merit careful consideration.
Finally, I welcome the indication that government
is looking at other jurisdictions, including New Zealand, in order
to learn from their experiences.
RESOURCES PROVIDED TO THE FPC
As stated to the Committee on 2nd May,
a key element in the success of my strategy of "cascading
down" work within the system is the number, role and expertise
of Legal Advisers. The Protocol for Judicial Case Management
in Public Law Children Act Cases emphasises the benefits of judicial
continuity and the need for expert and proactive case management
prior to the hearing. This requirement will intensify with
the implementation of the recommendations in the
recent Child Care Proceedings Review.
In the FPCs, this function is discharged by the Legal
Advisers amongst whom there is a pressing need for additional
specialist family advisers across the Country, not only
in connection with public law work, but also in private
law proceedings where, again, the Legal Advisers (rather than
the Magistrates) perform an essential role in facilitating in-court
conciliation in conjunction with CAFCASS.
If more family work is to be retained by and passed
down to the FPCs, the career structure and training of Legal Advisers
in family is a key issue. Their career opportunities have historically
been compromised by the priority given to criminal work, advancement
being tied to their services in that area. In relation to training,
the Judicial Studies Board is in the process of providing a suitable
training module, which will support those legal advisers who wish
to choose the option of specialising in family, without it being
detrimental to their career. The joint combination of experienced
family legal advisers sitting with competent Magistrates is crucial.
I would draw to the Committee's attention the Justices' Clerks'
Society's excellent position paper on 'Legal Advisers in the Family
Proceedings Courts' which sets out the functions of Legal Advisers
and their views on specialism (the summary and conclusions in
that paper appear at page 5).
25 May 2006