Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 1-19)


2 MAY 2006

  Chairman: Sir Mark, Mr Justice Munby, Judge Crichton, Audrey Damazer, we are very pleased to see you this afternoon. We have first to declare interests around the table.

  Keith Vaz: I am a non-practising barrister and my wife holds a part-time judicial appointment.

  Q1  Chairman: Sir Mark, you wanted to make an opening statement.

  Sir Mark Potter: If I may. I am grateful for the opportunity to make this opening statement by way of background. I was of course appointed just a year ago in succession to Dame Elizabeth Butler-Sloss, who appeared before this Committee to give oral evidence at its session for 2004-05. It may well be that particular concerns of the Committee today are directed to discrete issues to be addressed largely by way of follow-up to its report and recommendations at the end of that session. However, a number of them will require to be considered in the context of the developments over the last year with which I have largely been preoccupied. These stem from the ever-present problem of delay in the dispatch of cases and the limited resources in terms of the judges and courts available to deal with what is an increasing workload in the field of public law care proceedings. In May 2005 the senior judiciary accepted the recommendation of the Judicial Resources Review that within the new unified administration (now including the magistrates' courts) it is necessary to introduce a strategy of "cascading down" within the system in order to relieve the pressure from the High Court judiciary, whose workload is increasing and whose numbers are capped; and in turn to relieve the workload on the judges of the county court. For this purpose, in my first year I have been focussing on the initial steps to be taken in a three-year strategy to achieve greater flexibility in distributing work between family judges in the county court, district judges and family magistrates in the family proceedings courts (FPCs) where there is undoubtedly spare capacity. For this purpose it is necessary to remove a number of obstacles to dispose of the work lower down the system. So far as the district judges are concerned, an alteration in the allocation of judiciary directions, which are already made, will enable them now to hear cases, whereas they were previously restricted to giving directions. In the case of the magistrates, a variety of measures are being instituted to encourage a shift of work to the FPCs. A key requirement in that respect is that those magistrates who wish to do so should be allowed to specialise in family work and to sit for longer periods for the purpose of hearing the more substantial cases, rather than being required, as hitherto, to give much of their time to criminal work. If this strategy is successful—and it will need to be if the delays are to be contained—then consideration of the workings of family justice will need to concentrate upon the work of the FPCs as much as on the High Court and county court; and the work of CAFCASS will have to be similarly expanded. In this connection may I reiterate the views expressed before you in your last session by the President and Lord Justice Wall that the work of CAFCASS is absolutely critical to the successful operation of the family justice system, not merely for their work as guardians in public law cases but for their work reporting and acting as conciliators in the private law system and representing the voice of the child. Delays and difficulties in the work of CAFCASS resulting from resource problems are felt and reflected right through the system. I hasten to say that as a result of having seen the work of CAFCASS in all parts of the country during my first year of office, and my regular contacts with Anthony Douglas, the Director of CAFCASS, I regard them as having made remarkable advances in the last year. Those advances are largely responsible for considerable improvement in the disposal of business under the private law programme as a result of the work done at the first conciliation hearing in contact cases. This has achieved a success rate as high as 80% in securing agreements leading to a swift end to contact disputes. So far as resources are concerned, while I am aware that these are not directly my province, I would express one particular concern to the Committee in relation to the work of the FPCs. Integral to the conduct of this work is the number and expertise of the legal officers available to advise magistrates. At that level they are as vital as CAFCASS. I am most concerned that wherever cuts may fall in Her Majesty's Court Service, in the light of the recent announcement of the necessity for savings, it should not be by reduction in the number of legal officers. On the contrary, there is an urgent need for additional legal officers to be available to run the specialist FPCs, which I see as critical to the expansion of their work and a reduction in delays throughout the system.

  Q2  Chairman: Thank you, Sir Mark. You will know of course that this Committee has taken a longstanding interest in CAFCASS, and although primary responsibility for it has been moved to a different department and now rests with a different committee, we continue to take an interest because of its impact on the work of the courts, and the Family Division in particular.

  Sir Mark Potter: I have found that that is one of the difficulties in grappling with the system and discussing the need for resources, as we do with the departments, because when you are dealing with different budgets, with different responsibilities, it is sometimes difficult to get co-ordinated effort towards the end that is undoubtedly required.

  Chairman: You will not find any disagreement around this table on the point. I hope we can continue to pursue it, along with the other resource issues that you mention in your statement. Let us turn to the delay issue.

  Q3  Keith Vaz: Sir Mark, one of the reasons why the Committee did not call you to give evidence soon after your appointment—that is why it has taken us a year to get you here—was to give you the opportunity of looking at the situation in the Family Division. You set out your programme quite clearly, but are you confident that you are dealing with the large number of outstanding cases currently in the division?

  Sir Mark Potter: Yes, I am confident that things are very slowly improving, but I am extremely concerned—and I cannot emphasise this too strongly—over what appears to be at least a 5% annual increase in the public law care proceedings, which are very time-consuming and are the most difficult and bulky of the cases. The level at which one can achieve improvements in delays in the system overall will tend to be eaten up by that advance in work; so that if the position is, as indeed it is, that resources have to be contained and in some cases cut, the idea that any dramatic achievement will be achieved right across the board is, I fear, an optimistic one.

  Q4  Keith Vaz: What sort of figures do you have for us today? What is the current level of backlog of the Family Division?

  Sir Mark Potter: One of the difficulties is the criteria by which the time in which care proceedings should be completed—the terms in which those criteria are laid down. There is a target period of 40 weeks, based on what notionally—and I do not know who decided this—the average care case should take. There is absolutely no average care case; they are all highly individual. One of the features that I am satisfied about, without any figures of formal research to back it up, are that there is an increase in the length and complication of care cases, not simply because of the notorious shortage of experts and the time taken in obtaining appropriate reports, but because of the inherent complication of many of the cases being dealt with. Many of the cases have medical complications. Perhaps I can pause there and say that local authorities have a duty towards children who are found to be in need in their area, regardless of their source or their difficulties. There is undoubtedly an increasing number of cases, sometimes of abandoned children and sometimes of children who are simply found to be in need of care, arising out of families whose immigration status is uncertain, who may emerge gradually with claims by members of the family to look after a child who has initially been taken into care because of its medical condition or something of that sort. This aspect is undoubtedly leading to an increase in the complication of cases. I do not put it all down to that. The fact is, there are unfortunately an increasing number of cases where children are badly in need, but where parents will fight, so far as they can, to keep their children—naturally enough. You asked me what figures I have for the High Court. The figures I have essentially relate to the High Court and the Principal Registry of the Family Division, which together form the London Court Centre. There has been very little improvement in the last year in the time taken for the disposition of cases, until very recently, when a number of steps taken seem to have worked through. The long term national aim is for 70% of cases to be disposed of in 40 weeks.[1] It had been running at 40% and below in the London Care Centre. Fortunately, in January and February, excluding the High Court, which is really dealing with the highest level of complication, the PRFD figures have substantially improved at 45% and 52% in January and February respectively, which are the latest figures I have.

  Q5 Keith Vaz: Have you seen the figures that the Law Society produced in response to its campaign last year to try and find out what the delays were in the family courts? 90% of cases have delays of more than three months, 58% of which have delays of more than six months; private children's law cases, 84% of cases have delays of more than three months, and 45% of those cases have delays of six months or more. Obviously, this is not an absolute set of figures, but they are the figures that were produced as a result of the research they conducted. This is not a good record, is it?

  Sir Mark Potter: The picture is not good at all, but those are figures with which I am quite incapable of dealing, because having applied to the Law Society for details of their statistics, and what those actual periods of delay were, they have declined to supply the figures. I suppose that is because they are not ready to produce the whole study yet.

  Q6  Keith Vaz: I am absolutely certain there is somebody from the Law Society sitting behind you, and they have heard what you have said. As you leave at the end of the session, they will rush up and give you the figures.

  Sir Mark Potter: I understand informally that the periods being referred to are the times it is taking to get an appointment for final hearing. The figures mentioned in relation to public law cases are ones which permit of completion of the public law hearing within the target period of 40 weeks, so that while it is obviously an unfortunate figure it is within the targets that have been set. However, as so often happens—and this is the real problem—when dates like that are fixed and the parties should be ready to appear with their reports for a final hearing, there are constantly applications for adjournments because reports are not ready, and matters of that kind. The court has no control over these things. They are largely the product of extreme difficulty among the local authorities in processing this work, with their great difficulties of resources in relation to continuity and expertise of their social workers.

  Q7  Keith Vaz: One of the points that was made at the time of your appointment—because you do not have a huge family law background—was that you were appointed to try and sort out the problems that clearly had existed over a number of years. You had inherited a lot of these problems. Surely there must be a role for the judiciary in all this; it cannot just be a case of judges saying that documents have not been filed? Should the judges, especially in cases concerning families and children, take a much more active interest in case management?

  Sir Mark Potter: We should, and they are, is the answer to that. Certainly when I came to the system, rather as you indicated it appeared to be one which was unsatisfactory and readily amenable to some sort of prodding. As always happens when one gets into it, the matter is far more complicated than that. The real problem so far as delays in fixing hearings is concerned, is simply one of capacity. The District Registry Family Division has twenty courts, which are constantly manned. It is far and away the largest care centre in the whole of England. The figures are that it is 12% of the total number of public law care and supervision cases—in a jurisdiction which receives cases from 31 local authorities. The nearest figure to that is the Manchester conurbation which does 9% of the work from only 11 local authorities, and all the others are way below. They are flat out with their judges and their courtrooms are full.

  Q8  Keith Vaz: Since you have become President you have either issued a directive or a practice note, or you have sent a memorandum to your fellow judges to tell them that they need to manage their cases better. Something has been done in the last year.

  Sir Mark Potter: It is the constant theme of my own President's Conference, what the Judicial Studies Board teach, and what I say as I go round the country. Having painted it in those gloomy terms, I am happy to say that as a result of not only pressure by me but by James Munby here, we are achieving an improvement in the London area, in that we have secured resources for the opening of five new courts at Gee Street, which should begin to be operative in October, which will considerably ease the burden at the High Court and in the Principal Registry, and should make something of a difference. In conjunction with the policy operative within the DCA we have succeeded in opening two `outsourcing courts', as it were, at Barnet and Kingston, which are already taking work that originates in their catchment area, and easing the position as well. I would certainly hope that by the end of the year, with Gee Street operative and those outsourcing courts active, there will be a substantial improvement in the figures.

  Q9  Keith Vaz: Do you think you need more family judges?

  Sir Mark Potter: Ideally! There is little doubt about it.

  Q10  Keith Vaz: Have you had any increase in the last year?

  Sir Mark Potter: Apart from those five judges for which authority has been given, no.

  Q11  Keith Vaz: Have you made any request to the Lord Chancellor for more resources over the last year?

  Sir Mark Potter: It is one's constant theme, but one is being realistic. Indeed, the `cascading-down?' policy has been developed on the assumption that no major resources will be forthcoming. It is fair to say also that there is spare capacity in the family proceedings courts, where magistrates are trained to do the work and eager to do the work, but have not been getting the work for a variety of reasons. I skated over those by use of collective terms at the beginning of my opening statement, but there are a number of factors operating, the first of which is the reluctance of professionals to be in the family proceedings court rather than the county court for good economic reasons, in that the remuneration for solicitors is somewhat higher in the county court than in the family proceedings court. However, it is also fair to say that the judicial method is quicker and cases are dealt with at a higher level of expertise in case management terms, broadly speaking, than in many parts of the family proceedings courts. Many of the FPCs are quite excellent and some are not so good, but the real point is that without the specialisation in the magistrates there is both a professional and a judicial reluctance to consign cases that can be dealt with with more dispatch and a better grip in terms of case management at county court level; but it is a chicken-and-egg situation.

  Q12  Keith Vaz: It is. You paint a very depressing picture for this Committee. Has the Lord Chancellor not put you in an impossible situation? He has taken you out of the Court of Appeal; he has made you President of the Family Division; he has asked you to sort out the problem; he has not given you any more money; he has not given you any more judges; there has been a 5% increase in cases: you are bound to fail in trying to sort out the delays problem, are you not?

  Sir Mark Potter: This is precisely the situation which, in DCA speak, is called `challenging'!

  Q13  Keith Vaz: You do not have to worry about criticising him because he is not the head of the judiciary any more!

  Sir Mark Potter: No. I was quite surprised when I came into this jurisdiction and realised how much sympathy I had with a large number of ministers and civil servants, in the face of what I understand to be Treasury policy; and so I do not regard it as a criticism of the Lord Chancellor or his department formerly; but it is quite plain that there is a Treasury hand of restraint on all departments, and it certainly seems that it is fairly heavy in the DCA. The real point and the difficulty is that with the overspend on the legal aid budget regularly affected, and last year amounting to some £120 million overspend, the Treasury is simply requiring the DCA to fund that deficit out of other areas, principally HMCS.

  Q14  Keith Vaz: You are finding excuses for politicians, which you are not supposed to as a judge! In conclusion, before other colleagues come in, the latest proposals for cuts in the court service which will directly affect you—your plea is that if these go ahead it will make it very difficult for you to meet your targets.

  Sir Mark Potter: No question about it.

  Q15  Chairman: While we are on the subject of the magistrates' courts and the family proceedings courts taking a larger role, is there anything you want to say about that and the challenge?

  Audrey Damazer: I think a key issue is ensuring that the work is dealt with at the correct level. Delays are caused by a number of factors: lack of expertise of social workers, et cetera; and the cases are taking a longer time. However, from our perspective and from the magistrates' courts point of view, we would see a number of cases—and I think the President agrees with this—that are being dealt with in the higher court that could be dealt with at the family proceedings court level. Therefore, we are looking for encouragement for those cases, and directives that those cases be dealt with at FPC level. We have set up the Barnet specialist court where we are sitting there together with the judges in the county court; but one of our fears is, as the President pointed out, that if there are going to be cuts and we do not increase the number of legal advisers, or not replace the legal advisers we have, then we are not going to be able to take on this work, because we have approximately 6,000 magistrates trained to deal with family proceedings work, but it is a catch-22 situation because in a number of FPCs we do not have sufficient work; therefore the expertise is not there because they have not had the work to maintain their competence.

  Q16  Chairman: Are you ready for a situation in which magistrates dealing with these cases would need to be taken off some of the other responsibilities which prevent them in the busier courts from developing the expertise and experience that the judges seem to think they need in order to do this?

  Audrey Damazer: First, there is a tension between the criminal jurisdiction and the family jurisdiction; and there is so much political pressure in the criminal field that legal advisors and courtroom space are often used for criminal work rather than family work. We have to ensure that the pressure is put upon the family proceedings court and upon the DCA to ensure that there are sufficient resources available. Going back to expertise, there has been a consultation paper on specialisation—and the President touched on this—that magistrates should have the option to specialise in family proceedings so that they can build up their expertise and so that the public will then have confidence and therefore will take the work to the family proceedings court and allow the work to be dealt with at that level. I think that that is incredibly important.

  Sir Mark Potter: Wells Street is a fine example. It is the one court centre of magistrates dedicated entirely to family work. It has a bunch of expert magistrates who dispatch business as well as it could be dispatched; and they are a very good example of what, with expertise and specialisation, can be achieved. It is also right to say that this arises out of the conflict between family and crime, but there are a substantial number of district judges (magistrates' courts) that spend their entire time dealing with the criminal list, because they dispatch them very well and quickly. They were themselves sometimes family practitioners who are well-qualified to hear family law cases at FPC level, but who are simply not given the opportunity to do it because of the demands of the criminal listing.

  District Judge Crichton: I would agree with that, and would like to add to that. When we are talking about pressure on the courts, the increase in public law applications at Wells Street this year is 16%. The effect that that has on social services, on CAFCASS and on the courts' capacity to process that sort of work is very considerable, at a time when we are learning of financial constraints and cuts in all those areas—so there is a real problem there. I am still, sadly, the only district judge in the magistrates' courts who sits in family full-time; I would wish very much that that were not the case. I have 18 colleagues who come in from the criminal courts and give six, eight or 10 weeks per year to Wells Street.

  Q17  Chairman: This is lay magistrates.

  District Judge Crichton: No, these are district judges (magistrates' courts). There is nobody amongst their number who wants to sit in the work full-time, but there are many solicitors and members of the Bar who appear in my court regularly who would willingly accept the opportunity, if such an opportunity existed, to come and sit as deputies at Wells Street, and hopefully one day seek appointment in a specialist position. At the moment that is not possible.

  Q18  Chairman: What is the bar to that?

  District Judge Crichton: I do not really know. I have been pushing for it for a long time, but I am told it cannot happen. I do not see any good reason why it should not happen. There are also the legal advisers who sit in our court, and particularly at Wells Street where they are specialists. They are all legally qualified, and many of them would make excellent deputies and possibly future appointments; but at the moment we do not seem to be able to get past that obstacle, which I find very disappointing.

  Q19  Mr Tyrie: I wanted to ask about contact orders and the Children and Adoption Bill. Do you think the Children and Adoption Bill will reduce the number of contact disputes and help the courts enforce orders that are made?

  Sir Mark Potter: I hope very much that it will. The courts have lacked means, short of the nuclear option of prison for contempt, in order to bring pressure to bear upon recalcitrant carers. However, it will very much depend, in my view, on the practicalities of the arrangements that are made. The ultimate sanction is simply a work order, and at the moment it is not clear who will arrange the work, or where suitable work will be available. There appears to be a kind of assumption that—I understand the intention is that the probation services would arrange the work. They of course arrange work pursuant to community service orders in the criminal field. There is often a shortage of work of the right kind in any event so far as the Probation Service is concerned. You are not going to be able to have recalcitrant mothers cleaning off graffiti in the company of persons who have been given a community service order as an alternative to imprisonment, and I am a little bit concerned about what the practical arrangements are which will be made to give teeth so far as work orders are concerned, which are the ultimate punishment for a recalcitrant carer, if you like.

1   Note by witness: The national targets for 2005-06 were 48% for County Courts and 56% for FPCs. The London targets for 2005-06 were 37% for County Courts and 44% for FPCs Back

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