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
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 successfuland
it will need to be if the delays are to be containedthen
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
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 appointmentthat is why it has taken us a year
to get you herewas 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 concernedand
I cannot emphasise this too stronglyover 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 completedthe terms in which those criteria are laid
down. There is a target period of 40 weeks, based on what notionallyand
I do not know who decided thisthe 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 childrennaturally
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.
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
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
happensand this is the real problemwhen 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 appointmentbecause you do
not have a huge family law backgroundwas 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
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 casesin 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
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 youyour
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
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 casesand
I think the President agrees with thisthat 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 specialisationand
the President touched on thisthat 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 areasso
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
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
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 thatI
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