Examination of Witnesses (Questions 20-39)
RT HON
SIR MARK
POTTER, HON
MR JUSTICE
MUNBY, DISTRICT
JUDGE (MAGISTRATES'
COURTS) NICHOLAS
CRICHTON AND
AUDREY DAMAZER
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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