Examination of Witnesses (Questions 40-59)
RT HON
SIR MARK
POTTER, HON
MR JUSTICE
MUNBY, DISTRICT
JUDGE (MAGISTRATES'
COURTS) NICHOLAS
CRICHTON AND
AUDREY DAMAZER
2 MAY 2006
Q40 Chairman: It is those sorts of
issue that attract quite a bit of debate. Does Mr Justice Munby
want to say anything about that?
Mr Justice Munby: In a sense I
do not have very much to add to what I said in the lecture I gave
last year. My judicial expressed views are set out and I think
the judgments I have given are clear enough and are a matter of
public record. If I can put it shortly, even more so than with
the President, when I first became a judge of the division I was
an outsider. I had not spent the whole of my professional life
at the family bar. I had done a certain amount of family work
but much of my professional life had been spent in other divisions
where the rule of open justice prevailed. Perhaps for that reason
I have always had a slightly more sceptical view of this than
those who have spent their entire professional lives steeped in
the system. I have come over the years since I began to sit firmly
to the view that the balance which is currently held between the
confidentiality and privacy interests of the parties and the public
interest in open justice is badly skewed, in the sense that the
arguments in favour of confidentiality and privacy have left what
I believe to be a very serious diminution of public confidence
in the system. It seems to me that something has got to be done
to restore confidence in the system. It needs to be borne in mind
that it is not just certain well-known campaigning groups or pressure
groups who voice lack of confidence in the system. Whatever part
of the media you either watch or read, whether it is the so-called
broadsheet press or the tabloid press or weekly periodicals, there
is a pretty relentless catalogue of complaint and has been now
for the last few years about what it is fashionable to call the
`secret justice system'. That has unfortunately led to an eroding
of public confidence. My own view—and I speak purely personally,
I do not pretend to represent the judges or express anybody's
view other than my own—is that any advantages which currently
can be gained in terms of the confidentiality and privacy of proceedings
are outweighed, and I believe fairly heavily outweighed, by the
constantly eroding damage to public confidence in the system.
It seems to me—and I made this clear in my lecture last
year—that the starting point has got to be application across
the media of the principle that the media, not just the print
media but also the broadcast media, should have access to the
courts. I am not suggesting that the broadcast media should be
able to broadcast proceedings, that is a different issue for a
different day, but the media, whether the print media or the broadcast
media, in my view, should be entitled, subject to limited exceptions
and obviously exclusion in a particular case, if exclusion is
justified in a particular case, generally speaking, to have a
right of access to all family courts. They have that right at
present in the family proceedings court and it strikes me as little
short of bizarre that Mr Rozenberg and Miss Dyer sitting over
there can go to Wells Street any day of the week if they wish
to to report what District Judge Crichton is doing but they cannot
come into my court and report what I am doing. Scott v Scott,
as the President has said, is the well-established principle,
now 90 years old, that truly domestic family matters do not stand
in quite the same position as litigation generally. That principle
perhaps in the view of some can be pushed too far and in any event
it breaks down completely in my view when one is concerned with
care cases. There is a debate going on about the extent to which
there should be publicity in relation to money cases but the main
controversy at present in relation to family justice, I suspect,
is in relation to children cases rather than money cases. There
are two different constituencies, two different concerns there.
There is one constituency which is concerned about the privacy
of care proceedings and that is very much wrapped up with concerns
about expert evidence. There is another constituency, which in
many cases is a different constituency, concerned about the privacy
of what we call private law proceedings. So far as public law
care proceedings are concerned, it seems to me—and I made
this point in my lecture and gave the reason for it—indefensible
for such proceedings to be heard in private. They are proceedings
where the state is seeking to take away somebody's child. In many
care proceedings the outcome is an adoption order, so the stakes
in many care cases are higher, I would think, than even in many
very serious crown court cases. I have to say it seems quite indefensible
that there should be no access by the media and no access by the
public to what is going on in courts where judges are day-by-day
taking people's children away. The argument in favour of private
law cases is perhaps rather different because there the state
is not involved and it is easier to put forward the argument that
they are truly private domestic matters which should not be litigated
out in public.
Q41 Chairman: Precedents are being
set, patterns of dealing with cases are being set, and these are
the things that attract a great deal of interest outside the court.
Mr Justice Munby: I began my professional
career at the chancery bar and a large part of my work as a junior
barrister for many years was litigating the ownership of what
we used to call the quasi matrimonial home as between two individuals
who were not married, and although the legal principles were rather
different, the emotional drivers to the litigation were not that
different to what drives ancillary relief litigation. For better
or worse, litigants who were not married were compelled to litigate
in open court in the chancery division whereas those who had chosen
to marry were able to litigate corresponding disputes in private
in the family division. I did not detect that the open justice
which was applied in the chancery division drove people from the
justice seat or led to all the terrible consequences which some
fear will happen if we go into open court. If I could add one
final point, the question of whether there should be public access
I think is a more debatable one. I suspect that is a matter on
which views differ. Although I emphasise I speak entirely for
myself, I would be inclined, as I think I rather hinted in my
lecture last year, perhaps to go somewhat further than the President,
but that is a purely personal view.
Mr Tyrie: Going back to the earlier exchanges
where I requested a piece of work on the issue of contact orders,
the Children and Adoption Bill is in the Commons and no date has
been set for report stage. It is amendable and suggestions that
you felt able to make will be extremely welcome and gratefully
received and will arrive at a very timely moment.
Q42 Chairman: An offer that is hard
to refuse, I hope.
District Judge Crichton: May I
just chip in because I think the two contributions we have just
heard show what a difficult issue this is. Routinely in my court
I will allow all members of extended family into the court because
I think it is helpful for members of the extended family to understand
what the difficult issues are and to give support to distressed
parties. As you have heard, the media are allowed into the family
proceedings court, and on the last occasion that I gave evidence
before this Committee I had a flurry of activity for about three
weeks and then it all died away. As far as the general public
are concerned, I think I sit right between those two contributions
because we have got to see it from the point of view of the children
for whom we are making decisions. If we allow the general public
in to listen to deeply personal issues relating to things that
are happening within this child's family, then we run a serious
risk that in the playground tomorrow somebody is going to be saying,
"We know your dad is knocking your mum about. We know that
your mummy is on drugs. We know how she earns the money to buy
the drugs", and that is a risk that we cannot take. It is
as simple as that.
Q43 Mr Tyrie: The same risk would
arise in the criminal court.
District Judge Crichton: The same
risk does arise in the criminal court but the criminal court is
not there to deal specifically with making a decision for a child.
We cannot lose the focus on that issue, in my view.
Q44 David Howarth: On that point,
surely the point is not the purpose but the effect and the effect
in a criminal trial would be the same effect and therefore you
might make the same argument. What I am asking is why is the purpose
important?
District Judge Crichton: Why is—?
Q45 David Howarth: Why is the purpose
of the proceedings important? Surely it is the effect of the proceedings
that is important?
District Judge Crichton: Perhaps
we should stop the general public attending criminal proceedings
if it has a deleterious effect upon children's lives.
Sir Mark Potter: The main purpose
of children's proceedings is to protect children and you are to
protect their welfare generally. If the effect of going into court
is not to protect them but to expose them to ridicule and abuse
which might not otherwise exist, it seems to me something that
is worthy of an exception from the publicity point.
Mr Justice Munby: In a sense the
question here may be what the starting point or what we might
call the default position is. I am certainly not suggesting that
either the media or the public should have an unrestricted right
of access in all circumstances to all family cases, or a system
under which a judge is powerless to say for good cause in a particular
case that there are good reasons either why some section of the
public or the media should be excluded or that even if they are
allowed to be in court there should be restrictions on what is
reported.
Q46 David Howarth: Are we assuming
that the existence of anonymity, the power to exclude certain
persons if necessary, and the power to enforce restraint on disclosure
whether by the press or indeed by anybody else have to be taken
for granted before we can proceed with that argument?
Mr Justice Munby: Indeed, I think
everybody, whatever differences of view they might have, would
sign up to those basic points. It is very curious that if I hear
a care case which is concerned with child brutality, a child who
is gravely injured or a child who is killed, sufficiently grave
and where the evidence justifies criminal proceedings, the same
case may be heard on successive occasions in the very same building.
When it is heard in front of me in the family division nobody
is there and effectively nothing is reported and nothing can be
reported. If exactly the same case comes back in six months' time
in the same courtroom in front of a judge wearing robes in the
crown court, everything which is being said is being reported.
Q47 Chairman: And the public can
attend?
Mr Justice Munby: And the public
can attend. I appreciate that because of the different forms of
proceedings the range of evidence which is likely to be heard
in the crown court is narrower than the very wide range of evidence
which is heard in the family court, but it is nonetheless curious,
I put it no higher than that, that in two sets of proceedings,
both of which are concerned with responsibility for and the consequences
of alleged child abuse, that the starting point in one system
should be that everything goes on in private, some prefer to say
in secret, whereas in the other system everything goes on in public.
Audrey Damazer: Could I just add
one thing. I think very much the focus in our proceedings is the
welfare of the child and the protection of the child. Some of
us have concerns that there will not be the disclosures that we
get now. I think some parties to proceedings, knowing that the
press are there, knowing that the public are there, may not disclose
in relation to areas that they are at the moment.
Q48 Chairman: But are they not there
in your court anyway?
Audrey Damazer: Yes, the press
are allowed in but they never come at all. They are never there.
Q49 Chairman: Hence my earlier questioning
of the President.
Audrey Damazer: That is right.
I think it is more in relation to opening it to the public as
well. That is what I have major concerns about.
Q50 Chairman: The press are alright
because they do not come!
Mr Justice Munby: It would be
worth considering, particularly in terms of public access, whether
there might be different parts of the proceedings to which the
public could have access. The most plausible argument for saying
the public should not have access is either the one which Audrey
just mentioned, that it actually inhibits people from giving evidence,
or the one that District Judge Crichton has mentioned. If the
concern is that having the public in will inhibit people giving
evidence, it would at least be worth considering whether there
should be a rule or a principle or a practice or a discretion
to exclude the public while evidence is being given whereas not
necessarily excluding the public during other parts of the case
where evidence is being read or submissions are being made. It
is not necessarily an all-or-nothing thing.
Q51 Julie Morgan: I am going to ask
about domestic violence and contact. Sir Mark, we have had your
letter to the Chairman drawing attention to Lord Justice Wall's
investigation into child homicide which I think was published
last month. We know that was as a result of the Women's Aid report
that highlighted 29 children who were killed by their fathers
some of whom were the subject of contact orders, and we note the
recommendation of Lord Justice Wall's investigation. Lord Justice
Wall indicated that "it is a non sequitur that a father
who is violent to the mother of his children is at the same time
`a good father'." You do accept that statement from Lord
Justice Wall?
Sir Mark Potter: As a broad proposition,
certainly yes.
Q52 Julie Morgan: Where there have
been allegations of domestic violence made by a mother but there
is no evidence the father has ever been violent towards the children,
what, if any, restrictions do you think should normally be placed
on contact?
Sir Mark Potter: I said as a broad
proposition because you may have a situation where in a very fraught
break-up, on occasion, away from the presence of the child and
not as a matter of routine, tempers are raised and the husband
or partner on one occasion uses violence. That seems to me a different
situation from one where he habitually uses violence against the
mother, even outside the presence of the child. So I say it as
a broad proposition. What I do think should happen is that, whenever
there is a situation where there may be violence involved, there
should be a risk assessment in relation to the matter before orders
are made, which is essentially a matter for CAFCASS, again as
a key aspect of private law proceedings. So I would not preclude
unsupervised contact in every case because there is no doubt that
a child may have a close and loving relationship with the parent,
being ignorant of that violence and in a situation where there
is no reason to think that it would ever be perpetrated vis-a"-vis
the child. While I agree with the proposition, again I do not
think it is something that can be applied willy-nilly to contact
or no contact. There must be great caution in relation to the
order which is appropriate and if there is any reason at all to
be concerned about the safety of contact then, at best, supervised
contact would probably be appropriate.
Q53 Julie Morgan: What sort of aspects
should a risk assessment look at?
Sir Mark Potter: This is a matter
which CAFCASS is considering fairly closely at the moment and
Her Majesty's Inspectorate report last October drew attention
to deficiencies in the risk assessment procedures within CAFCASS.
They should require a trained social worker to interview the parties
and of course to contact the police—and I think routine
enquiries are now made by CAFCASS in relation to these matters
of the police and local authorities—to see whether there
is a history of violence or a child may appear on the Child Protection
Register or something of that sort. CAFCASS should do an investigation
and to interview the parties in order to come to a view as to
what the risks are, because that is something which should be
reported to the court. It is not something which a judge is able
to do on the spot. If difficulties are presented and issues arise
then before contact is provided for there should be a hearing
to establish the facts.
Q54 Julie Morgan: Agencies like Women's
Aid do express a great deal of concern about contact and I have
certainly had some experience of that myself in my constituency,
so I think it is very difficult to make these decisions. To what
extent has there been training in relation to issues of domestic
violence in the courts?
Sir Mark Potter: As far as that
is concerned I must just say that the press release which my office
issued in relation to the report was misleading to the extent
that it may have suggested, when it reported Lord Justice's Walls
recommendation that there should be training, that there is not
training and there is. Lord Justice Wall, I note on revisiting
his recommendations, did say, "I am not aware of what the
position is so far as the Judicial Studies Board is concerned",
but certainly there is in both in the JSB induction programme
and the continuation programme emphasis on the effects of domestic
violence, not merely as between parties but on the children. The
very matters of concern which you have raised, particularly the
question to what extent can a father who has been guilty of violence
to his partner be regarded as a safe candidate for contact, are
raised and discussed in an inter-disciplinary context. For instance,
the 2006 induction programme included a Psychiatric Overview
of the Effects of Domestic Violence as both a written paper
and a lecture by a psychiatrist. There is also—and I have
seen it—a really quite remarkable performance by the Geese
Theatre, who are a group of actors who dissect and illustrate
the development of difficulties between parents in that way and
how it may affect children. There is a summary paper circulated
which deals with these matters before they arrive at the training
session. It is right to say that nothing yet has ever been specifically
directed to the question of investigation for the purposes of
approving consent orders, which is the area highlighted by Lord
Justice Wall in the two cases in which there might have been some
grounds for criticism. It is important to emphasise in relation
to those two cases that the judges were aware of the background,
and did explore and make enquiry simply to the extent that the
parties were before them, but they did not order any review by
CAFCASS or anything of that sort. I think it is right to say that
the guardian or social worker concerned in one of the cases was
actually in support of the consent order. That is the matter which
has been referred, on the recommendation of Lord Justice Wall,
to the Family Justice Council, which is an inter-disciplinary
body with access to the very best of child psychiatric opinion,
and they have already taken the matter on board and will in due
course—and I hope it will not be too long—issue recommendations
in relation to the question that was highlighted by Lord Justice
Wall and which I referred to the Family Justice Council. Broadly
speaking, the proposition remains as you ask me and as Lord Justice
Wall put it, but it has to be acknowledged that there may be some
cases where it may be appropriate, despite some history of violence,
to order contact. I think the level of enquiry required will receive
very close attention from those members of the Family Justice
Council who are concerned with these things. They have members
from CAFCASS, psychiatric opinion, paediatricians, and all kinds
of experts in that connection.
Q55 Julie Morgan: In what proportion
of contact cases do you believe domestic violence is an issue?
Sir Mark Potter: In contact cases
where there are difficulties—and one has to remember that
those that come before the courts are very much the tip of the
iceberg, the others have been resolved—I think in quite
a lot of cases. It is a sad fact, as I understand it (and this
is anecdotal but pretty good anecdotal evidence) that at one stage
when the box-ticking exercise had to be conducted on the form
which is required to be filled in for the initiation of proceedings,
the domestic violence box was being ticked in the belief that
this would obtain a quicker hearing before the court than if there
was no allegation of violence, so it may be that in one or two
cases the complaint is either not genuine or grossly exaggerated
but, broadly speaking, I think it is quite a high proportion of
cases.
Q56 Dr Whitehead: You mentioned earlier,
Sir Mark, about the question of whether mediation might be ordered.
When we were considering the question of mediation in our original
inquiry and whether that (with a compulsory preliminary meeting)
might be desirable, we heard of course about the `family resolutions'
pilot scheme which we were informed at the time did indeed have
judicial support.
Sir Mark Potter: Absolutely.
Q57 Dr Whitehead: What is your view
of the outcome of the pilot scheme?
Sir Mark Potter: I will hand over
to Nicholas Crichton on that, if I may, because he was one of
the progenitors of the scheme, saw it through, and followed it
up. Simply speaking the scheme was not in fact a mediation scheme
but really an information scheme and a scheme whereby parties
were certainly encouraged to talk through and settle their differences.
It was not a formal mediation scheme. The difficulties about ordering
mediation are two-fold. One is the philosophical point that you
cannot order people to mediate; they have got to be willing. I
just do not subscribe to that. If somebody is ordered to attend
a first mediation hearing it is a very peculiar human being indeed
who sits there with his or her arms folded and says, "I'm
not going to play" when an experienced mediator gets to work.
The other of course is the question of means because if the courts
are given power to order mediation as part of the justice system,
this is something to which legal aid would have to extend, and
that becomes a resource problem for the Government, which I know
concerns the Government. Having said that generally, may I hand
over to Nicholas Crichton on that point.
District Judge Crichton: I think
my brief perhaps was to cover not just the disappointment about
the family resolutions pilot but also the reasons why it was so
disappointing, so maybe I will be forgiven if I take a minute
or three over that. We have talked earlier about enforcement of
court orders and the point of the pilot, like many other such
schemes was to try to avoid getting into the position of having
court orders which can be disobeyed. It is far better for parties
to come to an agreement. The family resolutions pilot was originally
called `early intervention' and that is a phrase that we have
also heard. One of the difficulties early on was that, for some
reason that was beyond my control, the name of the project was
changed, without consultation, from `early interventions' to `family
resolutions', which was particularly unfortunate as a public relations
exercise because we had been working with some quite difficult
groups who thought thereby that something completely different
was being tested and so there was quite a lot of opposition to
the family resolutions pilot because they thought that they were
being outflanked. So that was an initial difficulty. The second
difficulty was that we set a date by which it ought to start,
and in my very clear view it was not ready to start when it did
start, and I tried to prevent it starting on the date that it
did but I was unsuccessful. I felt very strongly that there should
be a very wide sales pitch, if you like, to the family law profession,
the solicitors and barristers whose clients would be asked to
be coming into this project, and I did not think that we could
successfully proceed with the project unless we had them on board,
and that did not happen. There was another issue which was more
fundamental. In order to get a public funding certificate to contest
a contact issue in court, solicitors have to take clients through
what mediation means and introduce them to a mediator so that
they have an opportunity to understand that this is an alternative.
Those who declined to make use of that facility, which is a large
number, then filed their application and had the family resolutions
pilot discussed with them and they said, "This is more of
the same; we have already said we do not want it." So a considerable
number of people did not come in for that reason. There was a
difficulty because one of our partners in running the project
was Relate and they take a very purist attitude to domestic violence
and with the slightest hint of any kind of violence, even at the
lowest level—and I do not mean by talking about low levels
not to be taking it seriously; all domestic violence is a serious
issue but there is quite a spectrum—Relate were very reluctant
to allow anybody in who was alleging that there had been any kind
of violence, which made it very difficult to get people in. Finally,
there was the issue that we have already discussed which was that
it was not compulsory, and there are two schools of thought still
that it cannot be compulsory. I completely agree with the President.
I do not see a difficulty in saying to people, "If you want
access to a judge in a courtroom, which is a very expensive facility
and not necessarily the best facility to try to resolve your problems,
you have first of all to try one of a range of options to see
if we can find another solution to your problem", but because
we could not do that we got very significantly less people into
the project than we had hoped for.
Q58 Chairman: 62 instead of 1,000.
District Judge Crichton: Exactly
so. On a positive note, of those who did come in it was really
quite successful. I met a particular couple from an ethnic minority—and
we worried about how the ethnic minorities would view this sort
of project—and they came to court and said, "We have
reached complete agreement. We can come out of the project. Will
you stamp our agreed order? We are so grateful for the information
that we were given about the needs of our children." The
basis of our project was a robust provision of information about
the needs of your children in the middle of this situation and
the need to try to set aside your distress, your anger, your emotions
and focus on the needs of your children. By and large, for those
very few that came in it worked. The big disappointment was that
the Department for Education and Skills had indicated at the beginning
that this was a one-year project and towards the end of the year,
I had a discussion with District Judge Waller, the Senior District
Judge of the Principal Registry of the Family Division, who was
very supportive of what we were trying to do, who said if we could
persuade the Department to extend the project for another year
he would encourage his district judges at the Principal Registry
to send a certain number of cases to Wells Street to put them
into the project, but unfortunately the Department felt unable
to continue with it. That was a disappointment because we still
believe that we have got a project there which—and there
is no one size fits all and you will never have a scheme that
will suit every family—is still a significant way of working
with some families that could produce better results.
Sir Mark Potter: It has certainly
had considerable success in America.
Q59 Dr Whitehead: 6.2% of the suggested
target—and I am reluctant to talk about targets—is
pretty wide of the mark, is it not, really?
District Judge Crichton: I think
the legal aid point is a considerable one. We do not know, it
is anecdotal, but at about the time that we started trying to
run the project, more applications were made at the Principal
Registry and fewer were made in our court, and we think that there
was a general feeling to try to move away from it because it appeared
to them to be more of the same—more mediation, more conciliation.
|
