Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 40-59)


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.

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