Examination of Witnesses (Questions 40
- 59)
TUESDAY 22 JANUARY 2008
DISTRICT JUDGE
MARILYN MORNINGTON,
LORD JUSTICE
WALL AND
MR PHIL
MACKIN
Q40 Ms Buck: As to the Carter review,
if that survey is being carried out now and the results are imminent
is it possible to share that with the Committee so we can get
a sense of the extent to which those proposals are changing access
to family lawyers?
District Judge Mornington: Legal
services said last week that it would assist me with that.
Chairman: That would be very helpful.
Q41 Ms Buck: As to training, you
said this would not have resource implications. Is there a willingness
or acceptance on the part of the profession that there is a need
for training? Therefore, what are the pros and cons of a mandatory
system which is to be self-financed? Would there be resistance
to that?
District Judge Mornington: Their
resistance has been based on the fact that they do not want to
pay for it. They say that they are not being paid any more money
and they ask why they should go on compulsory training. The only
way we will get training for those who really need it—I
think particularly of criminal defence lawyers—is to have
compulsory accreditation, as there is in some areas of family
law already.
Lord Justice Wall: Solicitors
who represent children, as they do in the care system and increasingly
in the private law system, need special skill. I was always enormously
impressed by those on the old children's panel who represented
children in family proceedings. One of the criteria which we have
laid down for protecting children in domestic violence cases is
that they should have separate representation. Although the Government
has a slightly dichotomous view on that, normally one can get
legal aid for a child because the child does not have any resources.
Q42 Mr Streeter: Because most lawyers
operating in this kind of law feel they are so badly remunerated
many firms no longer do it?
Lord Justice Wall: Absolutely.
Q43 Mr Streeter: Therefore, they
do not feel that they have extra resources to train themselves
to do it better. I agree it is a huge difficulty, but is that
not the source of the problem?
District Judge Mornington: It
is a double-edged sword. Carter means they get paid even less
than before and then we are asking them to be trained. My primary
aim is the safety of women and their children who are the victims
and to me that comes before the lawyers' interests, but lawyers
need to be adequately paid in order to do the work properly.
Q44 Chairman: I want to ask about
judicial training. We have heard about the training of lawyers,
but what steps are you taking with your responsibilities?
Lord Justice Wall: Again, District
Judge Mornington is probably better able to answer this than I
am, but, as I understand it, the Judicial Studies Board has a
training system so that anyone who sits in a family case for the
first time will have received training on domestic violence and
it will be kept up to date; there will be refresher courses.
Q45 Chairman: Does this go right
up to the level of the Court of Appeal?
Lord Justice Wall: Unfortunately,
it does not go to the Court of Appeal level, but anyone who sits
for the first time has training.
Q46 Chairman: Therefore, there is
no training for High Court and Court of Appeal judges?
Lord Justice Wall: I think some
High Court judges would go on refresher courses or may be part
of the system that operates them.
Q47 Chairman: Would they have to
pay for it?
Lord Justice Wall: You are quite
right. As far as I am aware, there is no training for members
of the Court of Appeal. Guidance is given, which I welcome; I
am not averse to it at all.
District Judge Mornington: All
judges apart from obviously the great and the good are now trained
both on induction and regularly through continuation courses in
domestic violence. The JSB is an independent body and therefore
the Government cannot dictate how that training is done, but I
can tell the Committee that there are vast improvements in that
training. It is necessary for that impetus for training to be
kept up as developments take place in our understanding of domestic
violence. We have also trained about 100,000 lay magistrates by
an excellent pack which we developed through the Judicial Studies
Board. The only difficulty is that in many parts of the country
their entire training is two hours. I have spent a lifetime on
this, as have many in this room, and I still do not know enough.
The level of training is very inadequate. I believe the next step
is to have all judges as well as lawyers trained in the specific
issues of forced marriages and honour-based violence. In the next
two weeks I have a meeting with one of the leaders of the Judicial
Studies Board, His Honour Judge Phillips, in the hope of encouraging
the board to move on to what we have learnt about those areas
and the particular difficulties that women face, but it is to
do with training; it is all together.
Chairman: The script must flow in a certain
way, so we will come to that later.
Q48 Mr Davies: We heard earlier that
children and young people under the age of 18 are apparently excluded
from domestic violence statistics. To what extent does this make
young people in abusive relationships, particularly those under
18, vulnerable and what can be done to ensure they have adequate
protection?
Lord Justice Wall: I find it absolutely
extraordinary that most of the victims in the cases with which
I deal are children. As I said in the St Albans paper, it seems
to me that we need a two-pronged attack. First, a great deal of
work must be done outside the courtroom to give children the opportunity
to make their difficulties known. I know that CAFCASS would love
to do it but it does not have the resources and cannot do it.
There are independent charity helplines and so on. But within
the courtroom in care proceedings children are automatically represented
by a solicitor and and usually a guardian. There is always solicitor
and guardian representation. That is a very valuable protection
for children, but outside the care system it is very haphazard;
indeed, there is discouragement from on high to have children
separately represented in that context.
Q49 Mr Davies: Apart from children
who are abused by parents or carers, do we have any idea of how
many people under the age of 18—presumably, those between
16 and 18—are involved in abusive relationships and may
be victims of conventional domestic violence, if I may put it
that way?
District Judge Mornington: I do
not have any statistics on that. I can ask my ministry about it.
I know from my own work that there is a large number. There is
no difficulty in accessing injunctive relief, which they often
obtain, or, if they have children, they will have a friend to
represent them in the family court. The difficulty may lie in
knowing that there are such remedies available to them. I chair
on behalf of the Government Raising the Standards. That involves
the Governments of England, Scotland, Northern Ireland and Wales.
Some of those jurisdictions have developed specific leaflets to
explain to children and young people their rights under the law.
I recommend that that happens also for England and Wales. There
is also quite a large issue concerning young people who are already
perpetrators of domestic violence. A lot of work has been done
on this, in particular on Merseyside with the Tulip project. They
fall through the definition. If you are not included in the definition
there are no targets for you. The inter-jurisdictional definition
of Raising the Standards deliberately does not exclude young people.
Mr Davies: I am trying to get an idea
of the size of the problem. I have a feeling that none of us knows
the answer to it. As a starting point, do we know how many people
in this country under the age of 18 are married? I do not know
whether that statistic is available anywhere.
Chairman: Pears Encyclopaedia
may have it.
Q50 Mr Davies: Judge Mornington,
just now you said that in Liverpool there was a problem with perpetrators.
District Judge Mornington: People
do not suddenly become violent perpetrators at age 21 or 18. Young
people who have witnessed violence as children start to act it
out at a very young age: they act it out at school, on their siblings
and on their mothers. A lot of work has been done on that in Merseyside.
There are also psychiatrists in Manchester who have done a lot
of work on that, the details of which I can obtain.
Q51 Mr Davies: We are dealing with
young people attacking their mothers quite often?
District Judge Mornington: Yes.
If you look at youth offenders—again, a big piece of work
was done on Merseyside—every young man on the 10 youth offending
teams had domestic violence as part of his history. If you want
to look at where the future criminals are, they have been victims
of domestic violence as children, which is why we need to tackle
it at a very early age.
Q52 Mr Davies: What is the age at
which you can enter an arranged marriage? Is it 16?
District Judge Mornington: It
is the same for everybody.
Q53 Margaret Moran: Lord Justice
Wall, you referred to the issue of child contact. We would be
remiss if we passed over that issue. As you will be aware, we
managed to put into legislation measures to protect children who
witness domestic violence.
Lord Justice Wall: Yes, and it
is a very useful amendment.
Q54 Margaret Moran: It was an amendment
tabled by me. But there has been a great struggle to try to persuade
the powers that be that there should be similar legislation regarding
direct harm to the child. What is your view of that? What do you
think we should be doing given that many of the child contact
cases are the result of domestic violence and are also a trigger
either for further domestic violence or homicide?
Lord Justice Wall: The overwhelming
evidence is that domestic violence has a very deleterious effect
on children both immediately and in their adult relationships.
In a seminal case in 2000 the Court of Appeal had a report from
Drs Sturge and Glazer in which that point was emphasised. The
difficulty is that we are aware of it and recognise it, but what
can we do about it? Our only functions at the moment in terms
of what we can do are care proceedings which separate the family—you
put the child in a place of safety with strangers or a different
environment—but in contact proceedings we are left ultimately
with orders or no orders. What has cheered me up very much is
the Children and Adoption Act 2006 which has put into legislation
for the first time the prospect of making orders which are educative;
you can send people off to courses and so on; you can put them
on perpetrator programme. I think the real test in the next year
will be whether that is implemented and funded by the Government.
There is no point in a court wanting to send someone on a course
if there is no course available. The real difficulty I fear is
that the 2006 Act which follows the report of the Children Act
Sub-Committee in a number of ways will not be implemented in a
way that enables perpetrators in particular to be treated. I was
heartened by what the CPS said about victims, but I should very
much like to know about the rates of recidivism. One of the depressing
aspects of domestic violence in the context of contact, as I am
sure you are aware, is the reluctance of most perpetrators to
admit that they have been guilty of it.
District Judge Mornington: The
Family Justice Council has just produced a report on which it
spent a year looking at the issue of contact and the courts. We
have said that there is a need for a change of culture so that
safe and positive contact is always in the interests of children.
The president of the Family Division will be producing a practice
direction for the courts along those lines with very strict guidelines
for the courts in the next few months. It is nearly finalised.
Again, having brought about that cultural change, where are we
left at the end? This happens to me every week. I have nowhere
to send these men when I make findings to enable them—as
they wish in many cases—to change their behaviour.
Q55 Martin Salter: Judge Mornington,
wearing your Family Justice Council hat, the council has argued
that the criminalisation of domestic violence injunctions has
been a retrograde step. That flowed from the 2004 Act which removed
the power of arrest in relation non-molestation orders from the
family courts to the police and CPS. Can you expand on why you
think it has been a retrograde step?
District Judge Mornington: This
has come as a total surprise to us. We have a web of 43 multi-agency
local family justice councils. The Act has been in force for only
six months. We have received totally unsolicited reports from
all over the country—I got an email from the judge only
yesterday—about serious concerns that the police are not
treating breaches of injunctions in the serious way they deserve
and in accordance with ACPO guidelines. They are either not arresting
the person for the breach in the first place or not charging him
or her with a criminal offence. They issue cautions when they
are not appropriate. Before July 2007 a breach would be dealt
with within hours by the civil judge; now it takes many weeks,
and we all know that means the victim becomes more and more reluctant
to continue and cases are stretched out. There is enormous concern
which the president asked me to pass on to the Committee. My committee
hopes to do make a survey of family justice councils to determine
how serious this is in conjunction with the Ministry of Justice
to see whether it has been a retrograde grade and how working
with the police we can put that right.
Q56 Martin Salter: Is this a procedural
or legislative problem? Is it a matter of the police failing to
give priority to breaches of injunctions?
District Judge Mornington: They
do not treat them seriously; they do not arrest for those breaches.
Q57 Martin Salter: What are you doing
about it in terms of talking to ACPO?
District Judge Mornington: I am
on ACPO with Brian Moore. It has happened that quickly. We have
had only seven months and it takes a few months to come through.
That is one of the advantages I have as a family judge working
across borders on ACPO. Mr Moore and I will be working together
but, to be honest, ACPO is still pretty toothless; it can send
out as many wonderful protocols as it wants but if the police
on the ground are not doing it nothing changes. I believe that
HMIC may be a valuable tool. I hope that you will hear from Robin
Field-Smith who has already done critical reports on police responses
to domestic violence. Unless the police are given targets and
are criticised very heavily it will continue.
Q58 Martin Salter: To summarise,
you hope that our inquiry will drill down, using management-speak—as
in Who Stole My BlackBerry? or whatever is the title of
that ridiculous book—and investigate further why the police
are not proceeding in the spirit of the changes in the legislation?
District Judge Mornington: Yes.
Q59 Martin Salter: Lord Justice Wall,
in a speech to the Hertfordshire Family Forum last year you argued
that family courts were ill-equipped to deal effectively with
domestic violence. What measures do you propose we should all
be taking to ensure that domestic violence is dealt with more
effectively both in family courts and in the wider context?
Lord Justice Wall: What I said
in the paper, which I stand by, is that in my view domestic violence
is endemic. It is a huge social evil and therefore it is for government
in terms of education and publicity to tackle it at every level
including in school. My concern is that the family justice system
is very limited in what it can achieve. It can protect people
and stop violent parents seeing their children, but until very
recently that has been the limit of its powers. It can fine people
if they disobey orders and so on. That was why when the Children
Act Sub-Committee reported on domestic violence it recommended
not only guidelines but in its second report the change now contained
in the 2006 Act. I think that the function of the family justice
system, apart from the protective element, is largely to ensure
that proper resources are devoted to people outside the family
justice system. Rather than have a five-day hearing in court I
would much prefer referring the family to a parenting programme
or an educative programme so it can learn outside the court structure
why the dispute is damaging the children. Having them in court
arguing with each other and telling them they are damaging their
children has very little effect in my experience. District Judge
Mornington and I would both be of the view that the best way to
address these problems is outside the family justice system through
programmes and matters like that.
| 
