Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 20-39)


2 MAY 2006

  Q20  Mr Tyrie: It sounds as though you are not convinced that we are going to make much progress because you are alluding to the long-standing practical problems we have known about for some time.

  Sir Mark Potter: I have to say that I am not an expert in that matter, but it is something that occurs to me as a matter of ordinary observation. Where I do think the Bill is important is the emphasis it gives to the ability to make orders at an earlier stage—family assistance orders and directions to CAFCASS to provide monitoring of arrangements made. More and more, CAFCASS will be brought into the matter to assist, when at the present stage they have neither the time nor resources, nor does the court have the powers to order that they assist at that stage, the better. Again, that will be a question of resources. I am firmly in favour of all the matters included in the Bill. I think it is unfortunate that the court is not allowed to order mediation rather than order information about mediation, as it were; but that again is another topic.

  Q21  Mr Tyrie: In cases where the parties have at least some means, do you think it might be worth considering imposing a financial penalty for failure to obey contact orders?

  Sir Mark Potter: Where parties have the means, yes.

  Q22  Mr Tyrie: Which might include suspension of part of maintenance.

  Sir Mark Potter: It might indeed. I am thinking—I will not say `on my feet' but in my chair—but that is the big proviso.

  Q23  Mr Tyrie: That is not on the face of the Bill.

  Sir Mark Potter: No, I am sorry the big proviso is about parties having the means. Broadly speaking, the problems develop in areas where parties are unlikely to have the means.

  Q24  Mr Tyrie: The majority.

  Sir Mark Potter: The majority of cases; there are no means to give the court that leverage.

  Q25  Mr Tyrie: In that area we might be able to find some kind of financial penalty, which is not on the face of the Bill at the moment.

  Sir Mark Potter: Yes.

  Q26  Mr Tyrie: I am trying to draw from you whether you think it would be worthwhile considering putting it on the face of the Bill.

  Mr Justice Munby: I would be inclined to think that in appropriate cases—and unfortunately it would be few of them because most defaulting parents do not fit into a situation where there is spare money—some kind of financial penalty might be appropriate. I confess that I would be concerned about linking obstruction of contact with termination or cessation of maintenance, for two reasons. One is that as a matter of principle I should have thought that they should be kept separate. The second is a more pragmatic reason: if you have an intransigent custodial parent who refuses to give contact, as a consequence of which the maintenance is suspended or reduced, it is likely to be odds-on that the intransigent parent will say to the child, "you cannot have this or that because that nasty man/woman has stopped paying the money". The fact that it may be the court that had ordered cessation of the money will not solve the problem. One of the difficulties in general with adopting tough remedies with intransigent parents is the fear that it will be distorted and twisted and used by the intransigent parent as a weapon against the other parent, and therefore might serve to make matters worse rather than better.

  Q27  Mr Tyrie: This links up awkwardly with part of the more general perceived problem of unfairness towards non-resident parents—would you not agree—and we need to bring greater balance between non-resident and resident parents? Do you agree?

  Mr Justice Munby: There are different views on this, and this Committee last year, as I recall, asked the then President whether the judges supported a statutory presumption. I think the answer was "no", and certainly no statutory presumption was included in the Bill, which subsequently became an Act. One might find differences of view on that subject amongst the judiciary. The basic problem is that experience teaches us that there is no `one size fits all' solution to these cases. One needs the widest possible range of remedies, and where appropriate, weapons, so that one has the best possible chance of finding in a particular case the particular technique, the particular remedy, or, if one wants to put it this way, the particular weapon that will best achieve the objective. Therefore, anything which gives us more weapons, more tools, is to be welcomed.

  Q28  Mr Tyrie: What we are trying to do is frame what those weapons should be while we have an opportunity to put them into statute, which is what I am trying to elicit from you, bearing in mind that we have agreed between ourselves, just in these few minutes, that what is on the face of the Bill will not crack the problem.

  District Judge Crichton: The power to impose a financial penalty is already there, just as is the power to impose a sentence of imprisonment, because somebody who disobeys an order of the court can be found guilty of contempt. Those are the sanctions that the court has available to it. However, if we are thinking about what is in the best interests of a child, sending a mother to prison clearly is not in the best interests of the child. With most of the families we are dealing with, they are on Income Support, and to impose a financial penalty will deprive the mother of the opportunity to buy the child a pair of shoes.

  Q29  Mr Tyrie: Which is why I began with the cases of the two parents which had means, as a hypothetical example to see how you would react to that.

  District Judge Crichton: We very rarely see parents with means.

  Q30  Mr Tyrie: The current practice would not be to impose a financial penalty, would it?

  District Judge Crichton: No, it would not.

  Mr Tyrie: Right, and so my first question—and I am still on my first question really—is this: do you think there should be something on the face of the Bill—

  Chairman: Is it not an Act?

  Q31  Mr Tyrie: If you are right, it is still not implemented.

  District Judge Crichton: But still not implemented. I would welcome any opportunity. Whether it would work or not remains to be seen, but I would welcome a wider variety of options. Exactly how it would work in practice—and it is not yet in practice—remains to be seen.

  Mr Justice Munby: It should be borne in mind that there are situations where the threat of imposing a sanction will do the trick. The difficulty there is that one has to be very, very careful, because nothing is more counter-productive than making the threat, having your bluff called, and then backing off.

  Q32  Mr Tyrie: So we are in a search for weapons here together, and we have not managed to find any so far. Earlier you said, rightly I am sure, that a great concern would be that a child will end up suffering as a consequence, and everyone nodded their heads in agreement when we discussed it a minute ago. Is there any merit in the concept of alienation, that is placing in law some recognition that a parent may deliberately be trying to alienate a child from the other parent?

  Mr Justice Munby: My answer to that would be initially a somewhat defensive response to the terminology.

  Q33  Mr Tyrie: I am taking this from the US practice.

  Mr Justice Munby: Indeed. Alienation in this context is a term of art, as you no doubt appreciate, which is used by some but by no means all experts, and has become something of a slogan in some quarters. Many people in this country, both judicial and non-judicial and experts, think the more helpful way of looking at this is not so much to refer to parental alienation—certainly if you attach to it the word `syndrome'—but rather to talk about intransigent parents or parental intransigence, I have no doubt myself that there are intransigent custodial parents who, for one reason or another, quite deliberately set out to prevent, to destroy a relationship between the child and the other parent, or set out to prevent the resumption of such a relationship. There is no doubt about the phenomenon.

  Q34  Mr Tyrie: The question is what to do about it. I began with the contact order, and I have now moved on to the more general issue because we are all agreed that where we are sitting it is inadequate, unsatisfactory; and I am looking for advice from practitioners on how to improve it, and I have not heard it yet.

  Mr Justice Munby: There is no panacea, no one thing that will crack the problem or do the trick. For my own part, as you are probably aware, I have held the view for some time that much could be done in many cases—although not, I emphasise, in the most intransigent cases—if we got in much sooner, and in particular if we prevented people getting into the court system at the outset, and made much more play with mediation, reconciliation—or call it what you will. I think in those cases, which I would hope would be a much smaller number of cases than at present that go through the court system, and do have to go through the court system, one could adjust the process so that the period in which such cases last is measured in weeks rather than months, and months rather than years. I have not the slightest doubt myself that in the most intransigent case a significant contributory cause to the eventual problem is the sheer passage of time and the fact that as a result of that parents become more and more entrenched and intransigent; and when you are the age, dare I say it, of most people sitting in this room, three months is not very long; but if you are a young child three months is a very long time indeed.

  Q35  Chairman: A point that the Committee made.

  Mr Justice Munby: Indeed. One of the troubles is that if three months goes by before a judge gets to grips with it and nothing has happened, during that time the intransigent parent or the unhelpful parent is reinforcing messages in the child's mind and the other parent is not there and is simply unable to counter those messages, and it gets more and more difficult.

  Mr Tyrie: I realise that I may get a nil return from this as well, but can I end by asking if you could reflect on this issue and come back to us in writing with any suggestions you can think of for better enforcement of contact orders and the related concept of issues that travel under the name of `alienation'. I am sure a number of us around this table have had cases of this type in our constituency surgeries, and this is a growing phenomenon, I suspect. We have to try and find, even though we will not find a panacea, at least a palliative that can bring some downward pressure on the number of cases we are getting.

  Q36  Chairman: You should give a lecture, Mr Justice Munby, like the one you gave in October 2005, which gave a valuable spur on the issue of transparency, to which I want to turn. The Committee reported on this subject and argued strongly in favour of greater transparency. Do you think there has been any progress since then, or has progress been prevented by a feeling that you have to wait for the law to change?

  Sir Mark Potter: I think progress has been inhibited over the last few months by our waiting for the Government consultation paper, which we expected to be with us by now but which is not yet. The Government is reviewing the whole question of transparency for the purpose of issuing a consultation paper, which will then no doubt receive comments from members of the public as well as the views of the judiciary. I think there has been progress in the sense that I, and High Court and Court of Appeal decisions, have been emphasising the desirability of giving judgments in open court, subject to anonymity, in cases where issues are raised which are thought to be of interest or significance to the public. There are two questions: the question of access to the court; and reporting and publicity. I studied the conclusions and recommendations of this Committee. I share entirely the concern about complaints of secret justice and lack of openness, and sometimes bias against fathers, which I really believe the public would be assisted in forming a view about if there were more publicity available. So far as access is concerned, it would be my inclination to adopt a solution along the lines of what I understand to have been recently adopted in New Zealand, and what is essentially applicable in our own magistrates' courts, which would give the press the right to attend, subject to the right to exclude it by reference to defined criteria for the unusual case. So far as members of the public are concerned, I would restrict admission to those with an interest in the proceedings such as members of the family and close friends, the domestic violence support worker and McKenzie friends. One can think of various categories of persons with a genuine, legitimate purpose in assisting the progress of the proceedings or their outcome, but I would not extend access to the general public for all the reasons originally articulated in Scott v Scott and still valid on the question of the essential nature of the proceedings, the need for co-operation from witnesses and for people to come along and give their evidence free from what one might call prurient interests of members of the public, fellow inhabitants of the council estate coming along simply to satisfy their curiosity.

  Q37  Chairman: That is a problem the courts face all the time, is it not? In most aspects of the law it is not considered to be a large enough problem to preclude open justice. It would be a bit strange to say to the public, "your only way of knowing what is going on in the court under transparency would be through the medium of the press"—which do not attend many of these hearings of course.

  Sir Mark Potter: I take your point. I pray in aid at this stage the view that Strasbourg has certainly found us Convention-compliant in taking the view—which is a view taken in many jurisdictions in the world—that there should be restricted access to the public to what are essentially called "truly domestic affairs" in Scott v Scott. There is a real public interest in encouraging frank cooperation by relations, doctors, teachers, et cetera, able to give frank evidence in private. So far as that is concerned, I would for my part restrict the admission of the public to what we broadly call people with a legitimate interest in the proceedings, rather than those simply with a desire to watch. The rationale of Scott v Scott that the public—which of course includes the press as a section of the public, and a very powerful section—should be admitted is in order to see that judges are behaving themselves and not behaving badly on the bench or adopting methods or procedures that might cause outrage or concern to the public. So far as access is concerned, I would certainly give a right to the press—and the press are ex hypothesi attending the proceedings—to apply to the judge for liberty to report certain aspects of the case, or to make disclosure in relation to certain features of it, which the judge would then be able to rule upon. As I say, I am a Scott v Scott man, subject to exceptions. So far as the general public are concerned, the press seem to me to be the best safeguard of whether propriety is being observed or not.

  Q38  Chairman: Does it not seem a bit strange that you could exclude from proceedings people who might have a genuine interest in how justice was operating in this field, who might have prejudices that could be dispelled by attending the proceedings? Would it not be sufficient for the court to have the capacity to exclude people that it thought likely to misuse the proceedings or risk making disclosures they should not make? Are you confident that there is a neat division between the press, obviously very broadly interpreted, and the public, that in some way you think you can discipline the press but you cannot discipline the public with respect to disclosures?

  Sir Mark Potter: I think this is a broad question of policy, and it is one where you have to make a decision whether you are going to allow complete admission to the public or not; and, if not, then there ought to be criteria set down so that the public can know what they are. I do regard family proceedings traditionally in that respect as being prima facie domestic affairs, which would be quite badly inhibited if persons other than persons with a legitimate interest in the proceedings, that is the subject of the particular proceedings, rather than just a general curiosity or interest, attended.

  Q39  Chairman: You have to set that against the belief that quite a lot of people hold that under this veil of secrecy there is a pattern of judgments and arguments which is inimical to the point of view for example of the non-resident parents, and that would not necessarily be dispelled if the only press reports appearing were those of a limited number of cases that the press chose to attend. We all know that many a day in court the press bench will be empty because the papers have got other things to report.

  Sir Mark Potter: I certainly think that, on any view, there ought to be a discretion in the court to exclude. I think that it would be undesirable to have a situation where courts tended to take a broad view and started making orders excluding the press on a basis which was not established or laid down but was simply a view of the court in the particular case that it was unsuitable for members of the public to be admitted.

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