Examination of Witnesses (Questions 33
- 39)
TUESDAY 22 JANUARY 2008
DISTRICT JUDGE
MARILYN MORNINGTON,
LORD JUSTICE
WALL AND
MR PHIL
MACKIN
Q33 Chairman: We thank the witnesses
for coming. Lord Justice Wall, in your experience to what extent
is domestic violence an issue in family law cases?
Lord Justice Wall: It is very
substantial. If I had to identify two issues in the family justice
system at the moment, one would be resources and the other would
be domestic violence, which is a critical issue.
Q34 Chairman: I know it is difficult
to give precise figures today—or you may have those figures,
in which case please provide them?
Lord Justice Wall: District Judge
Mornington would be in a better position than I to do that.
District Judge Mornington: Yesterday
I asked the head of the domestic violence department at the ministry
about this and she told me that at present the official statistic
was 30% of all Children Act cases involve domestic violence. On
average we grant 30,000 injunctions every year. CAFCASS now reports
that up to 50% to 60% of its caseload is domestic violence and,
like the police, as we get better at our job in identifying these
cases those figures go up every year with huge resource implications.
Q35 Chairman: Lord Justice Wall,
how does the family justice system manage the risk posed to children
and partners where domestic violence is an issue in these cases?
Lord Justice Wall: The difficulty
with the family justice system is that it must be reactive to
a very substantial extent. Therefore, we have to be told because
we decide issues that domestic violence is an issue, and we are
doing our very best to ensure we are told. When we do the clear
guidance is that the first job of the judge is to find out what
the facts are. Has there been violence or has there not? Therefore,
the guidance is that there should be fact-finding hearings in
which the judge makes the decision. Having made the decision one
then has to feed it into the equation and decide what is in the
best interests of the child. Because domestic violence spreads
across such a wide spectrum there are cases in which the violence
is determinative of the issue in the family proceedings and there
are times when it is peripheral. The difficulty is that you do
not know where you are until you have ascertained the facts.
Q36 Chairman: The number of wardship
cases has declined over the years. Is that a significant factor
in cases where children are warded?
Lord Justice Wall: In my experience
it was not. Wardship has effectively disappeared. My experience—District
Judge Mornington is in a better position to advise you—was
that violence within the family was a major issue in most care
proceedings that I tried, and it is certainly a major issue in
most contact proceedings.
Q37 Ms Buck: What do you see as the
barriers to victims in terms of being able to access justice?
I refer to some of the points drawn out in the written evidence
about access to legal aid, the impact of fees and so forth.
District Judge Mornington: The
first and growing barrier is legal aid. The level at which people's
income means they can get legal aid is such that unless they are
on social security benefit it is almost impossible to get assistance.
Even in a town like Barnsley where I sit I face difficulties of
that kind daily. In the past few weeks I had a finding of fact
hearing involving a psychologist and psychiatrist listed for five
days. The woman did not have legal aid and serious allegations
were raised. How she could be expected to conduct that hearing
on her own was almost impossible to believe. Judges have to find
ways round this difficulty. Apart from the level of income at
which one can get legal aid, the next thing will be the Carter
reforms and the availability of solicitors to do this sort of
work effectively for their clients. The domestic violence steering
group of the Family Justice Council which I chair decided only
last week to initiate some research using its 43 local family
justice councils into what has happened post-Carter in reducing
the availability of such solicitors. There are also difficulties
about the training of lawyers. As Lord Justice Wall said, we can
deal with these cases only if the lawyers, the parties themselves
or CAFCASS, as is now often the case, tell us that there is domestic
violence. For a very long time I have believed that both family
and criminal lawyers should have compulsory accreditation for
this work. Throughout the country, apart from the CPS which has
done an excellent job in training its solicitors at all court
levels—crown courts, family courts or whatever—there
are lawyers who have had no training whatsoever in this work.
The best lawyers go onto voluntary training; those who really
need it do not do it. There is a huge gap which can be met without
any resource issues for the Government because the lawyers will
have to pay for it themselves. Training can be arranged at very
modest cost by organisations such Women's Aid and local family
justice councils. That is another big barrier. Another issue is
the lack of perpetrator programmes in the family justice system.
If as a result of your researches you discover that the perpetrator
programmes, as I believe they are, are very effective within the
criminal justice system I can tell you that, unlike Wales that
is developing wonderful services in this regard as it often does,
we have no access to such programmes. There is also a tremendous
shortage of centres to provide supervised contact.
Q38 Ms Buck: To pick up one or two
of those points, you are not by any means the only person to say
that legal aid is now almost always restricted to people on benefit.
Is it possible for you to give the proportion of cases in which
you believe there should be legal representation and they are
not dealt with effectively because legal aid is denied?
District Judge Mornington: I can
tell you that no domestic violence finding of fact hearing should
be done without the person being represented. It is akin to a
rape trial. You are asking somebody to be cross-examined by the
person whom it is alleged is the perpetrator of serious violence.
The proportion is growing all the time. We could get those statistics
from the ministry, but even in a town like Barnsley, for example,
there have been two serious cases in a small court within a month.
Q39 Ms Buck: Chairman, it would be
very helpful if we could ask for some information on the number
of cases where there is an absence of representation.
District Judge Mornington: We
could use the local family justice council web. Forty-three organisations
have compiled that information for you.
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