UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be
published as HC 1086-i
House of COMMONS
MINUTES OF EVIDENCE
TAKEN BEFORE
CONSTITUTIONAL AFFAIRS COMMITTEE
Family Justice: THE OPERATION OF THE FAMILY COURTS
TUESday 2 MAY 2006
RT HON SIR MARK
POTTER, HON MR JUSTICE MUNBY,
DISTRICT JUDGE NICHOLAS
CRICHTON and AUDREY DAMAZER
Evidence heard in Public Questions 1 - 65
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Oral Evidence
Taken before the Constitutional Affairs Committee
on Tuesday 2 May 2006
Members present
Mr Alan Beith, in the Chair
David Howarth
Julie Morgan
Mr Andrew Tyrie
Keith Vaz
Dr Alan Whitehead
________________
Witnesses: Rt Hon Sir Mark Potter, President of the Family
Division, Hon Mr Justice Munby, District Judge Nicholas Crichton, and Audrey Damazer, Justices' Clerks'
Society, gave evidence.
Chairman: Sir Mark, Mr Justice Munby, Judge Crichton,
Audrey Damazar, we are very pleased to see you this afternoon. We have first to declare interests around
the table.
Keith Vaz: I am a non-practising barrister and my wife
holds a part-time judicial appointment.
Q1 Chairman:
Sir Mark, you wanted to make an opening statement.
Sir Mark Potter: If I may.
I am grateful for the opportunity to make this opening statement by way
of background. I was of course
appointed just a year ago in succession to Dame Elizabeth Butler-Sloss, who
appeared before this Committee to give oral evidence at its session for
2004-05. It may well be that particular
concerns of the Committee today are directed to discrete issues to be addressed
largely by way of follow-up to its report and recommendations at the end of
that session. However, a number of them
will require to be considered in the context of the developments over the last
year with which I have largely been preoccupied. These stem from the ever-present problem of delay in the dispatch
of cases and the limited resources in terms of the judges and courts available
to deal with what is an increasing workload in the field of public law care
proceedings. In May 2005 the senior
judiciary accepted the recommendation of the Judicial Resources Review that
within the new unified administration (now including the magistrates' courts)
it is necessary to introduce a strategy of "cascading down" within the system
in order to relieve the pressure from the High Court judiciary, whose workload
is increasing and whose numbers are capped; and in turn to relieve the workload
on the judges of the country court. For
this purpose, in my first year I have been focussing on the initial steps to be
taken in a three-year strategy to achieve greater flexibility in distributing
work between family judges in the county court, district judges and family
magistrates in the family proceedings courts (FPCs) where there is undoubtedly
spare capacity. For this purpose it is
necessary to remove a number of obstacles to dispose of the work lower down the
system. So far as the district judges
are concerned, an alteration in the allocation of judiciary directions, which
are already made, will enable them now to hear cases, whereas they were
previously restricted to giving directions.
In the case of the magistrates, a variety of measures are being
instituted to encourage a shift of work to the FPCs. A key requirement in that respect is that those magistrates who
wish to do so should be allowed to specialise in family work and to sit for
longer periods for the purpose of hearing the more substantial cases, rather
than being required, as hitherto, to give much of their time to criminal
work. If this strategy is successful -
and it will need to be if the delays are to be contained - then consideration
of the workings of family justice will need to concentrate upon the work of the
FPCs as much as on the High Court and county court; and the work of CAFCASS
will have to be similarly expanded. In
this connection may I reiterate the views expressed before you in your last
session by the President and Lord Justice Wall that the work of CAFCASS is
absolutely critical to the successful operation of the family justice system,
not merely for their work as guardians in public law cases but for their work
reporting and acting as conciliators in the private law system and representing
the voice of the child. Delays and
difficulties in the work of CAFCASS resulting from resource problems are felt
and reflected right through the system.
I hasten to say that as a result of having seen the work of CAFCASS in
all parts of the country during my first year of office, and my regular
contacts with Anthony Douglas, the Director of CAFCASS, I regard them as having
made remarkable advances in the last year.
Those advances are largely responsible for considerable improvement in
the disposal of business under the private law programme as a result of the
work done at the first conciliation hearing in contact cases. This has achieved a success rate as high as
80% in securing agreements leading to a swift end to contact disputes. So far as resources are concerned, while I
am aware that these are not directly my province, I would express one particular
concern to the Committee in relation to the work of the FPCs. Integral to the conduct of this work is the
number and expertise of the legal officers available to advise
magistrates. At that level they are as
vital as CAFCASS. I am most concerned
that wherever cuts may fall in Her Majesty's Court Service, in the light of the
recent announcement of the necessity for savings, it should not be by reduction
in the number of legal officers. On the
contrary, there is an urgent need for additional legal officers to be available
to run the specialist FPCs, which I see as critical to the expansion of their
work and a reduction in delays throughout the system.
Q2 Chairman:
Thank you, Sir Mark. You will know of
course that this Committee has taken a longstanding interest in CAFCASS, and
although primary responsibility for it has been moved to a different department
and now rests with a different committee, we continue to take an interest
because of its impact on the work of the courts, and the Family Division in
particular.
Sir Mark Potter: I have found that that is one of
the difficulties in grappling with the system and discussing the need for
resources, as we do with the departments, because when you are dealing with
different budgets, with different responsibilities, it is sometimes difficult
to get co‑ordinated effort towards the end that is undoubtedly required.
Chairman: You will not find any disagreement around
this table on the point. I hope we can
continue to pursue it, along with the other resource issues that you mention in
your statement. Let us turn to the
delay issue.
Q3 Keith Vaz:
Sir Mark, one of the reasons why the Committee did not call you to give
evidence soon after your appointment - that is why it has taken us a year to
get you here - was to give you the opportunity of looking at the situation in
the Family Division. You set out your
programme quite clearly, but are you confident that you are dealing with the
large number of outstanding cases currently in the division?
Sir Mark Potter: Yes, I am
confident that things are very slowly improving, but I am extremely concerned -
and I cannot emphasise this too strongly - with what appears to be at least a
5% increase in the public law care proceedings, which are very time-consuming
and are the most difficult and bulky of the cases. The level at which one can achieve improvements in the delay
system overall will tend to be eaten up by that advance in work; so that if the
position is, as indeed it is, that resources have to be contained and in some
cases cut, the idea that any dramatic achievement will be achieved right across
the board is, I fear, an optimistic one.
Q4 Keith Vaz:
What
sort of figures do you have for us today?
What is the current level of backlog of the Family Division?
Sir Mark Potter: One of the
difficulties is the criteria by which the time in which care proceedings should
be completed - the terms in which those criteria are laid down. There is a target period of 40 weeks, based
on what notionally - and I do not know who decided this - the average care
case should take. There is absolutely
no average care case; they are all highly individual. One of the features that I am satisfied about, without any
figures of formal research to back it up, are that there is an increase in the
length and complication of care cases, not simply because of the notorious
shortage of experts and the time taken in obtaining appropriate reports, but
because of the inherent complication of many of the cases being dealt
with. Many of the cases have medical complications. Perhaps I can pause there and say that local
authorities have a duty towards children who are found to be in need in their
area, regardless of their source or their difficulties. There is undoubtedly an increasing number of
cases, sometimes of abandoned children and sometimes of children who are simply
found to be in need of care, arising out of families whose immigration status
is uncertain, who may emerge gradually with claims by members of the family to
look after a child who has initially been taken into care because of its medical
condition or something of that sort.
This aspect is undoubtedly leading to an increase in the complication of
cases. I do not put it all down to
that. The fact is, there are
unfortunately an increasing number of cases where children are badly in need,
but where parents will fight, so far as they can, to keep their children -
naturally enough. You asked me what
figures I have for the High Court. The
figures I have essentially relate to the High Court and the Principal Registry
of the Family Division, which together form the London Court Centre. There has been very little improvement in
the last year in the time taken for the disposition of cases, until very
recently, when a number of steps taken have seemed to work through. The national target for cases to be disposed
of in 40 weeks, which is the criterion by which it is being judged, is
75%. It had been running at 40% and
below in the London Care Centre.
Fortunately, in January and February, excluding the High Court, which is
really dealing with the highest level of complication, the PRFD figures were
substantially improved at 45% and 52% in January and February respectively,
which are the latest figures I have.
Q5 Keith Vaz:
Have you seen the figures that the Law Society produced in response to its
campaign last year to try and find out what the delays were in the family
courts? Ninety% of cases have delays of
more than three months, 58% of which have delays of more than six months;
private children's law cases, 84% of cases have delays of more than three
months, and 45% of those cases have delays of six months or more. Obviously, this is not an absolute set of
figures, but they are the figures that were produced as a result of the
research they conducted. This is not a
good record, is it?
Sir Mark Potter: The picture is
not good at all, but those are figures with which I am quite incapable of
dealing, because having applied to the Law Society for details of their
statistics, and what those actual periods of delay were, they have declined to
supply the figures. I suppose that is because they are not ready to produce the
whole study yet.
Q6 Keith Vaz:
I am absolutely certain there is somebody from the Law Society sitting behind
you, and they have heard what you have said.
As you leave at the end of the session, they will rush up and give you
the figures.
Sir Mark Potter: I understand
informally that the periods being referred to are the times it is taking to get
an appointment for final hearing. The
figures mentioned in relation to public law cases are ones which permit of
completion of the public law hearing within the target period of 40 weeks, so
that while it is obviously an unfortunate figure it is within the targets that
have been set. However, as so often
happens - and this is the real problem - when dates like that are fixed and the
parties should be ready to appear with their reports for a final hearing, there
are constantly applications for adjournments because reports are not ready, and
matters of that kind. The court has no
control over these things. They are
largely the product of extreme difficulty among the local authorities in
processing this work, with their great difficulties of resources in relation to
continuity and expertise of their social workers.
Q7 Keith Vaz:
One of the points that was made at the time of your appointment - because you
do not have a huge family law background - was that you were appointed to try
and sort out the problems that clearly had existed over a number of years. You had inherited a lot of these
problems. Surely there must be a role
for the judiciary in all this; it cannot just be a case of judges saying that
documents have not been filed? Should
the judges, especially in cases concerning families and children, take a much
more active interest in case management?
Sir Mark Potter: We should, and
they are, is the answer to that.
Certainly when I came to the system, rather as you indicated it appeared
to be one which was unfortunate and readily amenable to some sort of prodding. As always happens when one gets into it, the
matter is far more complicated than that.
The real problem so far as delays in fixing hearings is concerned, is
simply one of capacity. The District
Registry Family Division has twenty courts, which are constantly manned. It is far and away the largest care centre
in the whole of England. The figures
are that it is 12% of the total number of public law care and supervision cases
- in a jurisdiction which receives cases from 31 local authorities. The nearest figure to that is the Manchester
conurbation which does 9% of the work from only 31 local authorities, and all
the others are way below. They are flat
out with their judges and their courtrooms are full.
Q8 Keith Vaz:
Since you have become President you have either issued a directive or a
practice note, or you have sent a memorandum to your fellow judges to tell them
that they need to manage their cases better.
Something has been done in the last year.
Sir
Mark Potter: It is the constant theme of my conference, what the
Judicial Studies Board teach, and what I say as I go round the country. Having painted it in those gloomy terms, I
am happy to say that as a result of not only pressure by me but by James Munby
here, we are achieving an improvement in the London area, in that we have secured
resources for the opening of five new courts at Gee Street, which should begin
to be operative in October, which will considerably ease the burden at the High
Court and in the Principal Registry, and should make something of a difference. In conjunction with the policy operative
within the DCA we have succeeded in opening two outsourcing courts, as it were,
at Barnet and Kingston, which are already taking work that originates in their
catchment area, and easing the position as well. I would certainly hope that by the end of the year, with Gee
Street operative and those outsourcing courts active, there will be a
substantial improvement in the figures.
Q9 Keith Vaz: Do you think you need more family judges?
Sir Mark Potter: Ideally! There is little doubt about it.
Q10 Keith Vaz:
Have you had any increase in the last year?
Sir Mark Potter: Apart from
those five judges for which authority has been given, no.
Q11 Keith Vaz:
Have you made any request to the Lord Chancellor for more resources over the
last year?
Sir Mark Potter: It is one's
constant theme, but one is being realistic.
Indeed, the "cascading-down?" policy has been developed on the
assumption that no major resources will be forthcoming. It is fair to say also that there is spare
capacity in the family proceedings courts, where magistrates are trained to do
the work and eager to do the work, but have not been getting the work for a
variety of reasons. I skated over those
by use of collective terms at the beginning of my opening statement, but there
are a number of factors operating, the first of which is the reluctance of
professionals to be in the family proceedings court rather than the county
court for good economic reasons, in that the remuneration for solicitors is
somewhat higher in the county court than in the family proceedings court. However, it is also fair to say that the
judicial method is quicker and cases are dealt with at a higher level of
expertise in case management terms, broadly speaking, than in many parts of the
family proceedings courts. Many of them
are quite excellent and some are not so good, but the real point is that with
the specialisation in the magistrates there is a professional and a judicial
reluctance to consign cases that can be dealt with with more dispatch and a better
grip in terms of case management at that level; but it is a chicken-and-egg
argument.
Q12 Keith Vaz: It is.
You paint a very depressing picture for this Committee. Has the Lord Chancellor not put you in an
impossible situation? He has taken you
out of the Court of Appeal; he has made you President of the Family Division;
he has asked you to sort out the problem; he has not given you any more money;
he has not given you any more judges; there has been a 5% increase in cases:
you are bound to fail in trying to sort out the delays problem, are you not?
Sir Mark Potter: This is
precisely the situation which, in DCA speak, is called "challenging"!
Q13 Keith Vaz: You do not have to worry about criticising
him because he is not the head of the judiciary any more!
Sir Mark Potter: No. I was quite surprised when I came into this
jurisdiction and realised how much sympathy I had with a large number of
ministers and civil servants, in the face of what I understand to be Treasury
policy; and so I do not regard it as a criticism of the Lord Chancellor or his
department formerly; but it is quite plain that there is a Treasury hand of
restraint on all departments, and it certainly seems that it is fairly heavy in
the DCA. The real point and the
difficulty is that with the overspend on the legal aid budget regularly
affected, and last year amounting to some 120 million overspend, the Treasury
is simply requiring the DCA to fund that deficit out of other areas.
Q14 Keith Vaz: You are finding excuses for
politicians, which you are not supposed to as a judge! In conclusion, before other colleagues come
in, the latest proposals for cuts in the court service which will directly
affect you - your plea is that if these go ahead it will make it very difficult
for you to meet your targets.
Sir Mark Potter: No
question about it.
Q15 Chairman:
While we are on the subject of the magistrates' courts and the family
proceedings courts taking a larger role, is there anything you want to say
about that and the challenge?
Audrey Damazar: I think a key is ensuring that the
work is dealt with at the correct level.
Delays are caused by a number of factors: lack of expertise of social
workers, et
cetera; and the cases are taking a longer time. However, from our perspective and from the
magistrates' courts point of view, we would see a number of cases - and I think
the President agrees with this - that are being dealt with in the higher court
that could be dealt with at the family proceedings court level. Therefore, we are looking for encouragement
for those cases, and directives that those cases be dealt with at FPC
level. We have set up the Barnet
specialist court where we are sitting there together with the judges in the
country court; but one of our fears is, as the President pointed out, that if there
are going to be cuts and we do not increase the number of legal advisers, or
not replace the legal advisers we have, then we are not going to be able to
take on this work, because we have approximately 6,000 magistrates trained to
deal with family proceedings work, but it is a catch-22 situation because in a
number of FPCs we do not have sufficient work; therefore the expertise is not
there because they have not had the work to maintain their competence.
Q16 Chairman:
Are you ready for a situation in which magistrates dealing with these cases
would need to be taken off some of the other responsibilities which prevent
them in the busier courts from developing the expertise and experience that the
judges seem to think they need in order to do this?
Audrey Damazar: First, there is
a tension between the criminal jurisdiction and the family jurisdiction; and
there is so much political pressure in the criminal field that legal advisors
and courtroom space are often used for criminal work rather than family work. We have to ensure that the pressure is put
upon the family proceedings court and upon the DCA to ensure that there are
sufficient resources available. Going
back to expertise, there has been a consultation paper on specialisation - and
the President touched on this - that magistrates should have the option to
specialise in family proceedings so that they can build up their expertise and
so that the public will then have confidence and therefore will take the work
to the family proceedings court and allow the work to be dealt with at that
level. I think that that is incredibly
important.
Sir Mark Potter: Wells
Street is a fine example. It is the one
court centre of magistrates dedicated entirely to family work. It has a bunch of expert magistrates who
dispatch business as well as it could be dispatched; and they are a very good
example of what, with expertise and specialisation, can be achieved. It is also right to say that this arises out
of the conflict between family and crime, but there are a substantial number of
district judges and magistrates' courts that spend their entire time dealing
with the criminal list, because they dispatch them very well and quickly. They were themselves sometimes family
practitioners who are well-qualified to hear family law cases at FPC level, but
who are simply not given the opportunity to do it because of the demands of the
criminal listing.
Deputy Judge Crichton: I would agree with that, and would like to
add to that. When we are talking about
pressure on the courts, the increase in public law applications at Wells Street
this year is 16%. The effect that that
has on social services, on CAFCASS and on the courts' capacity to
process that sort of work is very considerable, at a time when we are learning
of financial constraints and cuts in all those areas - so there is a real
problem there. I am still, sadly, the
only district judge in the magistrates' courts who sits in family full-time; I
would wish very much that that were not the case. I have 18 colleagues who have come in from the criminal courts
and give six, eight or ten weeks per year to Wells Street.
Q17 Chairman:
This is lay magistrates.
District Judge Crichton: No, these are district
judges. There is nobody amongst their
number who wants to sit in the work full-time, but there are many solicitors
and members of the Bar who appear in my court regularly who would willingly
accept the opportunity, if such an opportunity existed, to come and sit as
deputies at Wells Street, and hopefully one day seek appointment in a
specialist position. At the moment that
is not possible.
Q18 Chairman:
What is the bar to that?
District Judge Crichton: I do not really know. I have been pushing for it for a long time,
but I am told it cannot happen. I do
not see any good reason why it should not happen. There are also the legal advisers who sit in our court, and
particularly at Wells Street where they are specialists. They are all legally qualified, and many of
them would make excellent deputies and possibly future appointments; but at the
moment we do not seem to be able to get past that obstacle, which I find very
disappointing.
Q19 Mr Tyrie:
I wanted to ask about contact orders and the Children and Adoption Bill. Do you think the Children and Adoption Bill
will reduce the number of contact disputes and help the courts enforce orders
that are made?
Sir Mark Potter: I hope very
much that it will. The courts have
lacked means short of the nuclear option of prison for contempt in order to
bring pressure to bear upon recalcitrant carers. However, it will very much depend, in my view, on the
practicalities of the arrangements that are made. The ultimate sanction is simply a work order, and at the moment it
is not clear who will arrange the work, or where suitable work will be available. There appears to be a kind of assumption
that - I understand the intention is that the probation services would arrange
the work. They of course arrange the
work pursuant to community service orders and that sort of thing. There is often a shortage of work of the
right kind in any event so far as the probation is concerned. You are not going to be able to have
recalcitrant mothers cleaning off graffiti in the company of persons who have
been given a community service order as an alternative to imprisonment, and I
am a little bit concerned about what the practical arrangements are which will
be made to give teeth so far as these things are concerned. That is the ultimate punishment for a
recalcitrant carer, if you like.
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 could 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 among parties who have 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, 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 a
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 here 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: It is an act.
Q31 Mr
Tyrie: You are quite right, but 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 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 parental alienation - certainly
if you attach to it the word "syndrome" but rather 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
legislators on how to improve it, and I have not heard 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 courts 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 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 contract 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, where 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 of 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 would not extend it to the general public for all the reasons
originally articulated in Scott v. Scott
and still valid as far as 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 or
external interests of members of the public, fellow inhabitants of the council
estate coming along for a good -----
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 the legitimate interests 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 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 have a right in 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 - you
either have to make a decision whether you are going to allow complete
admission to the public or not; and, if so, 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 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.
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 review plans 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 in the present sense when I first became 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
and 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 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 confidentiality and privacy 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, 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 Rosenberg and Miss Tye (?) 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 19 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 like to 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 present, 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 in 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 that on
occasion, and away from the presence of the child and not as a matter of
routine, tempers are raised and the husband on one occasion uses violence, and
that seems to me a different situation from one who habitually uses violence
against the mother, even maybe outside the presence of the child. So I say it as a broad proposition. What I do think should happen is 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 a key aspect of private law
proceedings. So I would not preclude it
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-à-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 are a
matter for 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 a register or something of that sort - to 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
might 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, because 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 both in the 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 repository
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 - 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
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 were mentioned. It is important to emphasise in relation to
those two cases that the judges were aware of the background, 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 a 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 in due course
- issue recommendations in relation to that question that was highlighted by
Lord Justice Wall and referred to for reference 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 cases where it may be appropriate 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, 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 had. 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.
Q60 Dr
Whitehead: So we understand, as part of the pilot scheme it did
indeed permit people to simply evade having anything to do with it by issuing
proceedings in neighbouring courts?
District Judge Crichton: It is not the scheme
that permitted them to evade it except for the fact that we could not make it
compulsory, but there is freedom as to where you can come into the system. You can come into the system either at family
proceedings court level or at county court level so people who would have come
into the family proceedings court appear to have started going to the county
court.
Q61 Chairman:
I think they had been so advised.
District Judge Crichton: Presumably, but that is
because we had not been able to sell it to the practitioners, which I thought
was a fundamental part of what we should have been doing.
Q62 Dr
Whitehead: Is there a benefit in trialling a system rather than
piloting a system? I would assume by
trialling a system this would be a general trial and not a pilot in one or two
areas, to have compulsory preliminary meetings with mediators and perhaps that
is it, indeed as envisaged by section 31 of the Family Justice Act which has
not been implemented but could be?
Sir Mark Potter: I would welcome it but it has
resource implications which I think are really a very substantially inhibiting
factor so far as governmental support is concerned.
Q63 Chairman:
So does a growing caseload at the higher reaches of the judicial system
to deal with these cases?
Sir Mark Potter: I absolutely agree with
you. If one is going to be critical of
government thinking broadly in areas associated with family as well as this,
there is a terribly blinkered view that money spent in this accounting year for
which somebody will reap the benefit in their accounting year later, and
probably a different minister, is a reason not to put a bit of money forward in
order to save a great deal of money later.
Q64 Dr
Whitehead: Is there any easily correlatable relationship in the way
you have suggested; the direct relationship of money saved and money
invested? I realise this is a rather
unjudicial question.
Sir Mark Potter: I do not know how it would be
costed. I think the best example is
what has happened in the last year simply with the early conciliation hearing
in private law cases now that it has been largely up and running at county
court, principally district judge level, and it has led to early disposal of up
to 80% of cases in certain areas. That
is a situation where it has been gripped early as soon as it is in the court
system. Of course, some cases do not
work. Some where there is violence are
not amenable to it and matters of that sort, but it a quite startling
statistic. We are now in the course of
having discussions generally involving CAFCASS and the magistrates' courts as
well as the county courts to move the scheme forward into the magistrates'
courts, but that is the principle of the thing. It is not mediation properly so-called but it is an effort to
make parties resolve their decisions early as a result of some well-intentioned
and skilled person guiding them into that sort of agreement.
Dr Whitehead: Of the 62 people who did take part in the
pilot, was there any correlatable evidence in terms of their outcomes?
Q65 Chairman:
62 couples or ex-couples perhaps.
District Judge Crichton: It is difficult to
answer that question because I cannot remember the figure - it may have been
one-third - pulled out before they had completed. We do not know why they pulled out. They may have pulled out because they got the information that
enabled them to resolve their differences themselves. They may have pulled out because they were not satisfied, but
certainly they were told at the beginning that they could come out at any time
if they felt that they could now resolve their differences. That was the object of the exercise. I think that is an important thing to stress
because this was not just mediation.
This was two quite intensive information-giving sessions and you did not
attend with the other parent. You
attended with a whole lot of other parents but the other parent of your child
went to a different session and you had two of those sessions before you finally
met together with a CAFCASS officer to try to see if you could find a
resolution to your problems. The other
difficulty is that we had hoped that we would get people through the project
within about eight weeks, but that meant holding enough of those
information-giving sessions for people to be able to come either in the
afternoon or in the evening according to their work or childcare commitments,
and pretty swiftly one after the other.
Because we never got the critical mass of people into the project we
were never able to hold those sessions as frequently as we would like and
therefore the project took just as long as the court proceedings, which
defeated part of the object of the exercise.
Chairman: Thank you very much indeed. Thank you for giving us such a thorough
analysis which I think will be very helpful in discussing where we go from
here. Sir Mark Potter, Mr Justice
Munby, Judge Crichton, Ms Damazar, thank you very much indeed for your help
this afternoon.
