Select Committee on Constitutional Affairs Sixth Report


Appendices


Appendix 1

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 COURTS

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 legal officers.

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

Appendix 2

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 policy.

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' Courts.

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

Appendix 3

Letter from Sir Mark Potter, President of the Family Division to Rt Hon Alan Beith MP, Chairman, Constitutional Affairs Committee

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.

TRANSPARENCY

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


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2006
Prepared 11 June 2006