Session 2010-11
Publications on the internet

To be published as HC 518-i

House of COMMONS



Justice Committee

Operation of the Family Courts

Tuesday 16 November 2010

Craig Pickering, Lynn Chesterman and Nicola Harwin

Dr Julia Brophy and Dr Lynne Harne

Evidence heard in Public Questions 1 - 76



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Oral Evidence

Taken before the Justice Committee

on Tuesday 16 November 2010

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Chris Evans

Mrs Helen Grant

Mrs Siân James

Mr Elfyn Llwyd

Claire Perry

Mrs Linda Riordan


Examination of Witnesses

Witnesses: Craig Pickering, Chief Executive, Families Need Fathers, Lynn Chesterman, Chief Executive, The Grandparents’ Association, and Nicola Harwin, Chief Executive, Women’s Aid, gave evidence.

Q1 Chair: Welcome, Nicola Harwin, Chief Executive of Women’s Aid; Lynn Chesterman, Chief Executive of The Grandparents’ Association; and Craig Pickering, Chief Executive of Families Need Fathers. We are very glad to have you with us.

For me, at any rate, and for Siân James, I think, it is going back to subject matter we have dealt with before in previous reports, particularly of course in relation to Cafcass. A previous report of ours led to the removal of the entire Board of Cafcass. We now seem to be in rather similar territory all over again with the Public Accounts Committee report last week. We are very glad to have you with us and to be able to explore with you some of the issues which come up in this area of family law, where there seems to be a degree of consensus that there is a limit to what courts can do, but there is still a considerable requirement on the courts system. I am going to ask Claire Perry to open up the questions.

Q2 Claire Perry: Good morning. Thank you very much for coming to help us with this very important problem today. Clearly you have made representations to us several times in the past, but what I am interested in really exploring is how we’ve got to this very adversarial system and how we might move beyond it. Do you think family courts make the right decisions or does the evidence suggest that the decisions made are wrong?

Lynn Chesterman: I think, to be perfectly honest, the people who come to any helpline are going to be the people who think that the decision has been wrong. I suppose I have to temper whatever I say with the fact that as an organisation we don’t get many people who say, "Wow, that was a fantastic experience." We can only deal with those who have felt that the decision is wrong. Why they think it’s wrong is often a matter of terminology. It’s still too often "win/lose". It is also the fact that a lot of grandparents-I speak for the whole extended family rather than just the birth parents-feel that the role they have in a child’s life isn’t always fully appreciated. There are a lot of stereotypical views. I have to remind people that our grandparents can be as young as 28, so we’re not talking about older people all the time, which is where grandparents tend to get pushed-into older people’s decisions.

Craig Pickering: Yes. Our members also come to us because they’ve got problems. It varies, though. They speak very well of some judges and they don’t speak at all well of some others. There are a variety of problems. There is a lack of continuity, both in the particular judge taking the case-we’ve got members who’ve had nine or 10 judges in the course of several years looking at the papers sometimes, making some sort of decisions, sometimes simply deferring the hearing for another few months at the cost of the child not seeing their parent for another few months-and there is also a lack of continuity in that two judges can look at the same set of facts and come to fairly contradictory positions. In that case, one of them, I think, or possibly both of them, must be wrong.

There is too often quite superficial examination of the evidence. Judges are too apt to apply, which I think is possibly what Lynn meant, a template of every second weekend and a bit of time during the holidays without really thinking about what’s most appropriate for the child. I think the root of it is that of course the Children Act 1989 says that family court decisions should be in the best interests of the child, but actually nobody has ever set out what that means. So when you enter the court system you are, frankly, in a bit of a lottery.

Q3 Claire Perry: So we have an evidence-poor system, if you like, around the family court system. Mrs Harwin, would you comment?

Nicola Harwin: As a grandparent and a parent, I strongly believe that children should have contact with all family members, where it is safe to do so. I think that needs to be the presumption underpinning the area we’re particularly concerned about, which is arrangements for children in the family courts, and contact and residence. Sadly, the information that we get from our service users and the survey that we carried out for the Home Affairs Select Committee Inquiry in 2007 showed that that was not the experience of most of our service users and that, though there had been some improvements following changes from the 2004 Children Act and subsequent guidance, a third of them felt that there really hadn’t been very much improvement and two thirds thought there had been very little at all. There was a great concern about the emphasis on mediation.

With regard to most of our service users-those 109,000 women who use refuge and specialist domestic violence services every year, bringing with them 40,000 children and the 140,000 calls we get to our National Domestic Violence helpline-overall, I think I’d agree, you don’t tend to get, "It was a fantastic experience." What you tend to get is, "I don’t feel my needs were taken into account. I think the court had all sorts of assumptions about me." There’s a great concern that, if a victim of domestic abuse is alleging that abuse, that is somehow malicious and there seems to be an underpinning assumption that that is the case. Of course, there will always be a minority; the exception that proves the rule. There always will be those situations where that may be happening, but that is not the majority of cases.

You have to remember that, of all the divorces and separations that happen in England and Wales, only 10% actually ever get into the family courts. All the research shows that in those cases, in a very high percentage, there is likely to be a history or incidence of domestic abuse. Indeed, research carried out by Hunt & Macleod showed that these were often the cases where there was the most risk, the most danger, the most concern. So it is very important that the appropriate risk assessment and risk management processes are taking place in whatever mechanisms the court decides to apply to discharge the case. That’s where we feel that isn’t happening. We don’t think that risk is being taken fully into account.

Q4 Claire Perry: Can I just press you a little bit on that point? What you are telling our Committee is that 10% of all divorces and separations actually make it to court, and you have evidence that in a high proportion of those cases that end up in court there is evidence of domestic violence.

Nicola Harwin: There is a range of pieces of evidence from back before Cafcass was formed, when it was the National Association of Probation Officers that provided court welfare officers. There was research then that showed that between 50% and 70% of cases they dealt with as court welfare officers included domestic abuse. The statistics are very similar now with Cafcass. I can certainly give the Committee the sources for that if you’d like, but there is a high proportion.

Claire Perry: That would be helpful.

Nicola Harwin: We know that in 2009 53,000 orders were made by the family courts, but less than 1% were refused outright; that is 310 cases. That hasn’t substantially changed since 2002. Something less than 1% of contact orders are actually refused in the family courts. Given that we know that between 50% and 70% of those orders involve domestic abuse, there’s a very high dislocation between the incidence of abuse and the numbers of orders actually refused. I could give a lot more evidence of how some of those orders are granted in quite dangerous situations.

Q5 Claire Perry: The only thing that concerns me about this-and I’m basing this on my constituency experiences-is that the domestic violence assertion is a minefield of proof. It seems to me that one of the things people do when they’re in these very adversarial court situations is to think of things, often unproven, to say. My concern is that, if we haven’t got tangible evidence of domestic violence, it is something now that is quite easy to introduce into the court proceedings without a back-up of evidence. That may just be my constituency postbag: it may not be the national view. Again, I think tangible evidence is what we really need to prove this point.

Nicola Harwin: I agree, but in the research 29 Homicides we reviewed 29 cases in which children had been killed in the context of contact. That was subsequently reviewed by Lord Justice Wall to look at whether there was merit in our review. In a number of areas he did concur that there were problems. One of the areas he particularly highlighted was the fact that parents were often pressured to agree to mediation or to agree to contact, and pressure sometimes even came from the solicitors representing the respondent where she had evidence of domestic abuse. In some of those cases, children were killed. I think there is quite a lot of evidence to show that not all of the risks that there are and the evidence that there is from other bodies, and in some cases this is-

Q6 Chair: It doesn’t follow from the fact there are cases in which children are killed-dreadful cases-that you can draw conclusions about the general ramifications in which domestic violence is alleged.

Nicola Harwin: True, sure, but I think it’s important to note that we also hear from our helpline of many women who don’t end up in the justice system but who are experiencing domestic violence.

Chair: That could also be true, but it doesn’t answer the question whether there is a significant number of the cases such as feature in the research which are unproven cases or whether the research, for example, is limited to proven cases.

Q7 Claire Perry: Would the other witnesses like to comment on this point?

Craig Pickering: Can I make a general point about the 10% because it’s applicable to the whole of this inquiry. The 10% that get to court are the tip of the iceberg. If you go to a solicitor and ask for advice about your case, about seeing your child, you’ll often be advised, "If you push this too hard, you will get a worse result than if you try to reach some sort of agreement without going to court." So we shouldn’t imagine that only 10% of divorces and separations involving children are in some way affected by all this. There are far more than that.

On this specific point about abuse and domestic violence, our view of it is that these accusations always need to be taken seriously. They always need to be investigated. Of course, by the very nature of our membership and the people who come to Nicola’s members, we’re going to get far more who say, "There have been false accusations laid against us." We’re not taking a position on whether they’re false or true. We are saying that these all need to be investigated. Cafcass is neither resourced nor trained to do that entirely and properly. There ought to be a kind of screening mechanism, and in the false ones, that should be the advice given to the judge. In the ones that are genuine, they need to refer these cases on to the appropriate agencies so that action is taken.

Q8 Chair: Quite a lot of members actually want to come in on this. I’m now slightly worried that we may get stuck at this point and not do a number of other related issues, but we may be able to come back to some aspects of this point a little bit later. I just wanted to clarify, though, that The Grandparents’ Association feels that Family Group Conferences should be used in all public law cases. These are public law cases, not private law disputes between parents over who has access to children. Can you just say a little more about that?

Lynn Chesterman: I think they could be used in public and private law cases. I think in public law we are having more and more grandparents raising a number of their grandchildren, but then subsequent siblings of those grandchildren are adopted because there comes a point when the grandparents say, "I’ve taken on three. You’ve now had five children. I can’t take on the others." So, around that, there are issues of contact with those children who have been adopted. With Family Group Conferences it would keep children more out of the care system by placing them within the family, perhaps with other family members providing some support; but I think anything that keeps the child within their family and within their heritage has got to be worth trying first rather than have them adopted out.

In private law there are bits about mediation, which I am sure you will come on to later.

Chair: We are going to deal with mediation.

Lynn Chesterman: When it is the extended family there is often so much; it is something small that means that the grandparents aren’t in contact with their grandchildren. It is not always divorce and separation. In our experience, about 50% isn’t through divorce and separation. It is often through family feud, but they still end up in the court system. To be honest, often, the spark is quite small, but it gets worse and worse the longer it goes on. We believe that if there was a Family Group Conference there could be a way of the family sorting out the problem, particularly when there’s this no-go area. We get it a lot-"She won’t let me see them because she says I will talk about her." We believe that if the family agreed that there was a safe place where they could meet and make sure that nobody upset the birth parent or anyone else, that’s the best way of keeping them out of court and that the family could provide the support that was needed for contact issues.

Q9 Chair: There is an interesting contrast here. Obviously, resources are required to organise Family Group Conferences, but if I take a different proposition, which is the Women’s Aid proposition, that there should be independent advocacy for children in all cases-for which I can see the theoretical merit-the cost implications of that in the present situation are enormous, aren’t they? Can we really contemplate that in the situation that was unveiled yesterday, for example, with very considerable pressure on the entire legal aid system?

Nicola Harwin: I think it’s a difficult question because, in all the evidence that we have from talking to children and the surveys that we’ve done with children-we run an online message board for children and young people, for example-they are very clear that they don’t feel their wishes and feelings are heard. There has to be some way in which not only are their wishes and feelings heard but they have an opportunity to disclose their experience of abuse.

Q10 Chair: But I thought that had been done by either Cafcass-we are going to come on to Cafcass in a little more detail later-or the judge, or the mediator simply listening to what children have got to say.

Nicola Harwin: I’m not sure about the mediator because I think the mediator’s role is normally mediating between adults, and I’m not sure how many of them are trained in child protection issues and so on. Certainly, that could be something that judges or Cafcass do, but the reality is that we know from the Cafcass inspections that they don’t. That’s why, in a sense, our argument is that that needs to be done. I think, yes, there will be some percentage of cases where there don’t appear to be any concerns about abuse. However, I think sometimes what happens is that it doesn’t come to light until the first hearing or things start to proceed. Maybe at that point there needs to be some recognition that children need a chance for their voices to be heard.

Chair: I want to turn to mediation itself now, and I am going to ask Chris Evans to open the questioning. I’m sorry, Helen Grant wants to ask something.

Q11 Mrs Grant: If I could just come in on that last session, I would like to ask Nicola Harwin a question on DV and clarify a couple of issues. Before doing so, I declare an interest both as a family lawyer and as a recipient of legal aid, still. My question to Nicola is really a clarification issue in relation to a point that was made by Claire Perry about the adequacy of evidence. Certainly in my experience as a family lawyer doing a lot of DV work for 23 years, there often was plenty of evidence: physical evidence, crime reference numbers, police reports-

Chair: Sorry, are you asking a question of the witness?

Mrs Grant: Yes; I am going to ask for clarification so it is on the record, if I may, if I get it. The evidence is often there-witnesses and often admissions, in my experience. Nicola, is that your finding from the many, many women that you’re dealing with-that actually often the evidence is there?

Nicola Harwin: Yes, and I apologise for not making that clear enough earlier. There is plenty of evidence. I think one of our great concerns is that often there are proceedings happening in the criminal jurisdiction in which the police are involved, but that information is not getting into the family courts. I hope it wouldn’t be the same nowadays, but I do remember in one case being told by a court welfare officer-it was a few years ago and I know this sort of thing is still happening-that they were there in the family court, an application for contact had been made and it was only because she happened to know that the father had recently been in the criminal courts and been given an order to stay away that the application did not succeed. Effectively, sometimes you get the courts playing against each other, so you might get an application for contact cutting through protection orders and so on. From my point of view, it would be much better if more information was being taken up in the family courts because certainly there is plenty of evidence there.

Chair: We will go back to Mr Evans.

Q12 Chris Evans: Mr Pickering, your organisation says that court is often the worst place to decide who will care for children and when. You talk quite glowingly about mediation, although you didn’t go as far as giving your thoughts on whether it should be made compulsory. Do you think it should be made compulsory, and, after your comments, I would also throw it to the other two members of the panel?

Craig Pickering: I think just about everybody in the family policy sector at the moment, and of course the Ministry of Justice, is saying that there should be much greater emphasis on mediation than on using the court system. At the heart of it, that’s because, of course, although mediation takes many forms, the central idea is that you’re trying to reach agreement in the best interests of the child, whereas the court system is much more adversarial and it’s much more of a battle in which one party or the other will win. It’s just the wrong way of looking at family cases. It is wrong to treat them as though they were criminal ones.

We’ve thought about this. We’ve come down on the side of saying that mediation ought to be compulsory for those people who are travelling into the court system. At the moment, of course, that is their choice. They can stay out of it, but once they’re going into the court system it’s not that they’re free to do what they like: it’s that they’re involved in a system that will treat them in a certain way. It will often be bad for them, and often bad for the child. There is evidence from abroad. In Florida, for example, they use a compulsory system. It’s a way of getting people on the path, not towards the courts but first of all on to educating them and saying, "Have you thought seriously, when you’re embarking on separation, what this is going to do to the children? Do you really understand the process that you’re entering?", and, if they do that and decide, yes, they want to continue and separate, getting them to focus all the time on reaching an agreement that’s appropriate in their circumstances and, most of all, the circumstances of the child.

Q13 Chris Evans: What about if there was domestic violence in that relationship? Would mediation be appropriate then, or do you think the court would be the best way to go? I am thinking of the imbalance in power in this case.

Craig Pickering: I don’t think they’re the only two alternatives. There are certainly cases involving domestic violence in which, as it were, ordinary mediation will not be appropriate. You just can’t get people into the same room or even in the same corridor; it’s unrealistic and it may well be unsafe. But there are, for instance, therapeutic techniques. We were talking about about this kind of approach at the Tavistock Centre yesterday, where you’re saying, "One or both of you has a real problem of some sort", which is not necessarily domestic violence. It can be alcohol, drugs or mental problems of various sorts. Such cases need a different method of handling, and I am not at all convinced that getting them into a court is the best one.

Q14 Chris Evans: What are your thoughts, Mrs Harwin, on that? I am very interested in this idea of mediation if there has been domestic violence.

Nicola Harwin: I think, obviously, mediation can be a very effective dispute resolution, but I’m afraid to say that I don’t think it is suitable in cases where there is domestic violence, and particularly where domestic violence has been proved. I think it’s actually actively dangerous.

We have thought long and hard about this. We have basically said that there may be cases in which a victim of abuse might hope and think that mediation might be helpful. She should be able to pursue that if she thinks it should be voluntary in that sense, but actually there need to be suitable safeguards in place. I think there has to be proper risk assessment and risk management. If, for example, there are reprisals or if mediation makes the situation worse, there has to be an opportunity to withdraw, for safety’s sake.

I think the whole principle of mediation is about trying to create a fair and open space for people to work towards a helpful solution. I think that’s very difficult to do if you’re terrified of the person sitting across the table from you. I really don’t think it’s possible to have compulsory mediation where someone is terrified of someone else. You are not going to get truthful answers; you are not going to get solutions that work in the long term; it’s not going to be effective; and it’s going to be a waste of money. But, that said, if someone felt that that was a route for them and the right safeguards were in place, then that would be their choice.

Q15 Chair: But what can the court do that mediation can’t do? The court faces the same problem. It spends a lot of money, but it can’t necessarily achieve the objectives which a sensible person might want to get in that situation. What can the court do that mediation can’t do?

Nicola Harwin: I know these are very intractable problems because the research that was done by Professor Marianne Hester in 1996 showed that in many cases women who were victims of abuse did want their children to have contact with their fathers, but what happened was the contact broke down because the abuse continued. In that situation, I’m not sure the court can do very much because if one person is refusing to change their behaviour, what do you do? I’m not saying there is a perfect solution to it-there isn’t-but we do have a responsibility and a duty to protect those people at risk and those people whose safety is at risk, particularly children.

Q16 Chris Evans: Are there any alternatives to mediation, to the courts, that you can envisage in the situation of domestic violence? Mr Pickering talked about therapeutic mediation.

Nicola Harwin: I don’t think that would be particularly helpful, to be perfectly honest. I think the essential problem is that there are women-our clientele is mainly women but we do provide services for some men as well-there are people who would be willing to try mediation if they thought it might result also in the violence stopping too; in the harassment stopping. If you are in that situation, you want it to end. I can see that there might be some people who would want to give that a go, but I think it’s really important that there aren’t the kinds of sanctions that say, "If you don’t do that, something terrible will happen to you", or, "Your child will be taken away from you." If you’ve had someone make threats to you throughout your relationship, saying, "If you tell anybody else, they’ll take your children away"-these are threats that thousands and thousands of victims of domestic abuse have said they’ve had in the past-I think we have to recognise that it’s not going to be a simple solution. As I’ve said, I think it’s dangerous to push people into mediation if there’s going to be a risk of safety.

Q17 Chris Evans: Mrs Chesterman, The Grandparents’ Association has said that you want grandparents to get involved in mediation. I am thinking of that example in which there is domestic violence and the grandparents are saying, "It’s not my boy; she’s telling lies." How does the grandparent then get involved in mediation? How would you envisage them getting involved?

Lynn Chesterman: I think we would actually say, "Stay out of it", if it is domestic violence.

Chair: Sorry, could you say that again?

Lynn Chesterman: I think we would actually say, "Do not mediate," if there is any accusation of domestic violence. I would like to put it on record that we do have grandparents whose sons have been victims of domestic violence as well. I know it is more women, but I think sometimes we do get caught up in a gender issue. When we say "domestic violence", it is both sides.

I think we would say that grandparents should get involved in mediation when there is no abuse and it is just two parents who will not agree. We should say, "You ought not to take sides", because I think it’s somehow training the extended family to be there for the child. We’ve always said someone’s got to have the voice of the child. It’s very difficult as a parent not to come down on your own child’s side, but sometimes you have to stop that to be there for their child.

Q18 Chris Evans: I am interested in what you have said about distance. I was quite lucky when I grew up. I grew up in a South Wales valley. It was very close-knit and my grandparents lived a couple of hundred yards away from us. You were saying about the distance, and I think that’s very important. How do you envisage grandparents getting involved if they live miles and miles away-if they’ve got grandchildren in London and they live in Scotland, for example? How do you overcome that barrier?

Lynn Chesterman: I think there are a lot of grandparents, and I have to own up to this, who have "boomerang" kids who actually end up coming back home again. You end up as the ones who facilitate the contacts. But you cannot do that if you come down on the side of the parent who has moved back home with you. It is about doing some training around family relationships and facilitating that contact. Quite often we know that dads in particular, or the absent parent-non-resident parent-are quite likely to lose contact totally after about three years. I think grandparents can be the ones who facilitate that contact continuing. So even if your own children then move back out into the world again, you can make sure that contact with the grandchildren keeps going. As I say, I think if there is any evidence or any accusation of any form of abuse or domestic violence, then the case has be dealt with professionally.

Q19 Chris Evans: What is your members’ experience of mediation and do they have confidence in the system? That question is for the three of you. Would you like to start, Mrs Chesterman?

Chair: Can we have quite short answers?

Lynn Chesterman: Yes, certainly. We have very few grandparents who go to mediation, mainly because there is no duty on anyone to attend. We’ve found that we’ve had far better results when we’ve supported grandparents to write what we call "no-fault letters" rather than actually turn up somewhere and talk it through. The cost of mediation often upsets people as well.

Craig Pickering: Our members have had mixed experiences: some very good, some less good. I would just like to make two points. They are of course doing this in a system in which there is always the option of moving into the "winner-takes-all" system in the courts. Secondly, the delays inherent in our family justice system mean that very often people don’t go anywhere near mediation until it’s far too late and animosity has risen to a level at which probably neither side is in the right frame of mind for it. You need to get people into mediation early, we believe, to have any chance of a high success rate.

Q20 Chair: I take it, Mrs Harwin, that the people you’re mainly concerned with weren’t involved in mediation?

Nicola Harwin: Ironically, though, I have to say that a high proportion of women who use our services will have tried at one point to get their partner or husband, whatever, to someone, whether it is to Relate or to have some kind of discussion or counselling, to move forward. But that’s something that’s probably happened quite a long time in the past in the relationship and they’ve reached the point where they’ve had to leave or they aren’t able to stay any longer because of the abuse. It’s not something that’s never tried; it’s just that at the point where you get to court it’s far too late.

Chair: I want to move to Cafcass. Linda Riordan.

Q21 Mrs Riordan: Since the interim guidance came in, do you feel that Cafcass is now coping with its increased workload and is now making the right recommendations?

Lynn Chesterman: Where we know Cafcass to be involved, I do think it is working very hard with children where there are welfare issues. I think that is its strength. I think even the recent Public Accounts Committee report acknowledged that its workload has increased because the standard of social worker reports is often quite poor and Cafcass is having to go in and do extra assessments. I think there is a real issue, about the level of social work reporting. I think that is adding to Cafcass’s problems and workload. That probably needs to be raised. I think Cafcass is stretched, but where it is working in welfare cases it is doing well.

Craig Pickering: The vast majority of the cases we encounter are in private law, so we don’t say very much about the public law ones. Our overall impression is that performance varies radically around the country. If you talk to the centre, what they say is marvellous. If you get down to individual case officer level, again you are getting into a lottery. Some are great; some will take into account the views of the child; they will treat parents fairly; at the other end there are officers who just apply the template. The other thing, as Lynn says, is resources. If you look at their evidence to the Norgrove Panel, they know themselves that they are not resourced at the moment to fulfil their true remit. Of course, once the Comprehensive Spending Review cuts come in in full, they will be in an even worse position. Their public law caseload has risen so much since Baby P that they really can’t handle the private law cases.

Our solution for that is that they need to concentrate on the cases where there are accusations of abuse and remove themselves-I think they agree with this-from the cases where there aren’t and where nothing is picked up in initial screening to suggest that there might be a risk of abuse. That will not only make their workload more realistic, but it will help the child the number of cases where the child is kept apart from one of their parents, which should fall significantly.

Q22 Chair: Mrs Harwin, do you want to add to that?

Nicola Harwin: I would endorse quite a lot of what Craig has said. There is very mixed practice. Some centres are excellent; some are not. We have carried out telephone consultations with our members over the last two years, linking into various inspections of Cafcass. I think one of the key problems is that there doesn’t seem to be enough training and awareness, particularly in difficult relationships, of the dynamics of those relationships, particularly if they are abusive. There still isn’t enough listening to children, and children themselves are saying that. So you get either excellent responses, and we’ve had lots of testimonials of excellent responses from Cafcass officers, alongside ones recommending unsupervised contact even if the father has a conviction for assault. You get very, very mixed practice.

Q23 Mrs James: That was the point that I wanted to come in on, actually-the training of staff. The coldest words that I ever heard were a Cafcass officer saying, "He’s a nice man." It is the training and making sure that everybody is at the same level. Do you think that training is adequate? You’ve said no. How could it be improved?

Nicola Harwin: I know that following the concerns we raised several years ago, Cafcass has actually embarked on a programme of training, but I have to say that we are still getting the same feedback, so clearly that is not embedded enough for it to be making a difference.

Q24 Mrs James: We are all human and we make very subjective decisions. Often in these cases, it is very difficult to divorce ourselves from our personal experiences. We don’t want to turn people into automatons, but obviously we need to make sure.

Nicola Harwin: I suppose there is always a problem with training. If you were going to do good training on domestic abuse you would have to spend at least one day. We are running courses for people that are several months. Obviously that’s a problem. An hour isn’t enough, so it depends how much it is.

Q25 Mr Buckland: Just amplifying the question of training more generally, I wonder if you could help me with this. My understanding of the situation was that, prior to the setting up of Cafcass, children’s guardians, or guardians ad litem as we used to call them, were required to have quite a number of years of post-qualification experience before they started producing reports. It was something like five to seven years. That was dropped down to five. We are now finding cases involving agency workers and others with perhaps only a year’s post-qualification experience. Would you agree with that and, if so, do you have any particular points to make or any particular cases to highlight of where lack of experience has resulted in inconclusive and poor report-making?

Lynn Chesterman: I think I’d go further than that with the training issue, particularly in public law, because there is no requirement for local authority officers to be trained either. So it starts from there. Adoption and fostering panels receive no proper training on a lot of the issues. We would say there are bits around the extended family; there are definitely bits about all sorts of abuse, including domestic violence. People are appointed to such panels. So there needs to be more training right from the very beginning, right from where the panel sits- local authorities need to have far more experience-through to Cafcass.

Craig Pickering: I agree with what Nicola has said. Yes, they say they’ve put a lot more emphasis on training in the last couple of years and it isn’t showing up in the stories we get. I had a case last year in which an officer said that shared care just didn’t work. It was not in this particular case, but generally he had been told on a course that there was a paper that proved this. I followed up the citation. It was based on a survey of 21 children and young people, all "predominantly white and middle-class", in the words of the authors. This is not somebody who has been trained seriously to think about where shared care is and is not appropriate. On the quality of report writing, we’ve seen quite a lot of reports over the years and, again, they vary enormously. Some of them are excellent. Some of them just repeat slabs of what they have been told by one parent or the other entirely uncritically. This, again, can’t be somebody who has been trained to do the job properly.

Q26 Chair: Mrs Harwin, do you want to add anything at all?

Nicola Harwin: I don’t think I’ve got a great deal to add.

Chair: Fine; don’t feel obliged.

Q27 Mrs Grant: Could I ask the whole panel if they think that people are finding the family court service manageable? Do they know their way around, what to do, where to go? Are there any particular improvements that need to be made? Could I ask Mrs Chesterman first, please?

Lynn Chesterman: I would say no. I think the first thought is absolute terror. Our members are going there because they are terrified their grandchildren will go into the care system, and they feel as if they themselves are on trial. Again, a lot of the fear is because of stereotyping. They feel as if they have to get over that first before they are considered. We have had grandfathers in particular of 50 being told, "We don’t know whether the child can come to you; you’re too old to play football." Well, I am sorry, if that’s the level at which you count whether a child should be staying with the grandparents, then we really are at a very poor end. That was a social worker report that came up with that.

Right from the word go, I think grandparents feel as if they’re fighting two battles: one, because we’re called grandparents, and the other one is that if there is a problem within the family somehow they always feel that the family courts blame them for it. If the family is not very good, well, obviously the parents were brought up in a family that was not very good either. None of us can be responsible for the life choices that our adult children make. Not all birth parents are the victim of their own parenting. I think that’s another one that you have to get over.

When it comes to contact, again I think the courts are so adversarial that it’s very difficult. It’s almost being traumatised, I think, going to court. People don’t know the way round it. It’s feeling as if somebody is making a decision: are you a good person or are you a bad person? They get very little information and support.

Craig Pickering: Yes, the whole experience is intimidating for most people. There is the language: "residence" and "contact". Our members like to say that contact is something you have with aliens. They want to be involved in their child’s life. All of that is a barrier. There is the court setting very often. There’s a noble exception up in Wells Street, which I can strongly recommend-you have probably been there-where you do feel that you are in a room with people who are trying to sort something out. But very often, as Lynn says, you are made to feel as though you are on trial yourself.

The Courts Service, I have to say, is not great at communicating what is going to happen to you. If you look at their website, it is not what I would call user-friendly. A lot of courts around the country refuse to put up our posters saying, "Come along to one of our self-help sessions. You can talk to people who have gone through similar experiences. We might even be able to ensure you don’t have to come back to this court." They just won’t let us put up the poster, which seems very strange. They really need to get their act together on humanising all of this, to make people feel that, although they’re doing something that is never going to be particularly pleasant, at least they are in a climate and atmosphere in which they can help their children and help themselves.

Nicola Harwin: I have very similar thoughts. I think many of our service users feel very intimidated by the process of going to court and they don’t really understand what’s going on. They often feel very isolated. As I’ve said before, people feel that there’s a pressure to agree. Indeed Lord Justice Wall said, as one of his conclusions from looking at the 29 Homicides report, that it was very important that people were able to give their consent freely and without pressure. I don’t think it’s very easy to do that. There’s also the particular problem of having separate waiting rooms. Despite there being recommendations about this a number of years ago, there are still many courts where there aren’t separate waiting spaces so that, if you are going to a hearing and are frightened of someone who is the applicant or the respondent, you are put in a position that’s even more intimidating.

Q28 Mrs Grant: We have specialist domestic violence courts now, as you are well aware, in the magistrates’ courts with separate entrances, waiting areas, fast-tracking, and so on. If some of those special measures that have been developed because of the predicament of domestic violence victims were applied in the family courts, do you think they might make a difference to the experience that a domestic violence victim goes through when she’s obtaining injunction orders and so on?

Nicola Harwin: I am sure it would. I’m sure it would make a great deal of difference. I have to say that I am a great fan of the American system where, indeed, you have judges with tickets for both criminal and family and civil, and you might be dealing with everything in a much more holistic way. Certainly, special measures would be a good idea if they were at all possible.

Q29 Mrs Grant: I have one final question. I know my colleagues have some issues on this point too. What is the panel’s view of a unified family court? I believe this was mooted by Government about 34 years ago, but no real progress has been made since. Do you think that could be helpful: a separate building with just family judges who deal only with family matters? Could that lead to improvements?

Lynn Chesterman: Yes, I think it could. If it’s a family court, people would know that it’s the family that was the most important thing. Perhaps it would keep things in perspective and give the feeling that you are here because you’re a family trying to work together, rather than being judged.

Craig Pickering: I have a deeper point. I would like to see the President of the Family Court as the CEO of the Family Division and cases should be properly managed so you would cut down the number of times you’d see different judges; you’d get more consistency in judicial decisions. Wells Street, certainly a couple of years ago, was the only example of what you are talking about. As I say, it is excellent and marvellous, particularly because of the judges there. I can see Nicola’s point about being holistic. I don’t think we should let the abuse cases drive the whole system. Cases where there isn’t abuse sadly still end up in court under the present system, and I think it would help to have people who are much more familiar with family cases and work on them full time, yes.

Q30 Chair: Are you at all worried that the announcement yesterday that access to legal aid might only be granted where there is domestic abuse could create an incentive to allege domestic abuse?

Craig Pickering: No, we are not worried. We recommended something along those lines to the Family Justice Review Panel. We will have to look at the fine print, but we do want legal aid in some sense capped. I haven’t got a model of how to do this yet, but it is sadly abused sometimes. People just spin out the case in order to keep the other parent away from the child. It’s obviously very tricky to marry that to saying, well, people have a right to access to the justice system, regardless of their financial circumstances. From a quick read of what the Minister of Justice said yesterday, it’s a bit more nuanced than what the press is saying. We will have to see exactly what he has in mind but, yes, we would like to see legal aid focused mainly on the abuse cases.

Chair: Siân James, do you want to come in on this?

Q31 Mrs James: Yes. You’ve touched a little bit on signposting and how successful that has been. Do you think the courts could do more to signpost people to outside sources of help?

Lynn Chesterman: Definitely. I think the best support-but I would say this, wouldn’t I?-is independent support, normally run by the voluntary sector because I think we’re there for the issues. We don’t get too caught up in the system. I think, yes, they should be signposted more. I’m really concerned at what Craig said about courts not putting up posters. We’re quite concerned that some of our grandparents have spent £20,000 seeking contact. That is not unusual, it is quite sad to say, whereas perhaps if they had come to an organisation first they wouldn’t have gone down that road. I think there should be a role of signposting out first before you go back in, if that makes sense, so that extended family or anyone can get support and perhaps have somebody work with them before they make the decision, "Yes, we’re going through the court process." We still get, we call it, the "Monday morning phone call", which is where there’s been an argument within the family over the weekend and on Monday they’re ringing up to say, "We want to go to court. What are my rights?" I think that’s where there needs to be a breath before we have people running off to the court to lodge a case for contact. There could be some work done there.

Q32 Mrs James: Louise Casey, the victims’ champion, actually stated last week in evidence that she gave on another inquiry that a lot of the support for victims and people going into the court system was a "maybe" service-maybe they would be given information, maybe they would know what was happening. You said in your evidence that there was a need for an advocacy service to help people through the process.

Lynn Chesterman: We have had an unbelievable increase in the number of people-another one just yesterday-saying, "Have you got somebody who can come to court with us?" Peer support, whether it’s in support groups or whether it’s accompanying people to the courts, just seems to be the one that works best-someone who’s been there, seen it, done it, perhaps has learnt a lot. Quite often, those people are more supportive than your lawyer, who sometimes can make it quite difficult. We’ve heard lawyers saying, "We’re going to win this time". It’s back to what we were saying about terminology. Everyone loses in the courts. What we want to do is make sure that the child is the one that’s at the centre. I think peer support is useful and, yes, let’s get the information there and that could help.

Craig Pickering: I think it’s worth putting the point that you are tapping into volunteers very often. The people who run our branch meetings, the people who run our helpline every evening, are volunteers. They are not being paid a penny, so it’s part of the answer to the scarcity of resources currently. It’s by no means just us; it’s a variety of bodies in the family policy and voluntary sector. There certainly isn’t enough signposting. There is not enough effort put into saying that there are other kinds of help other than simply going to a solicitor and entering the system. I think there is a role for Government there, which isn’t necessarily terribly costly, but would help people find other ways to solve their problems.

Nicola Harwin: I think advocacy is very important. There is currently a range of advocacy available. Certainly if you are a victim of domestic violence, a range of agencies currently can help you, both nationally and locally. It’s not clear how long some of those services are going to be in existence. I think that some of them may well be at risk over the coming years. If you are someone who has had to leave home because of abuse, you are living in temporary accommodation, you’ve had to move your children into different schools and your financial situation may have changed, there are a lot of things that you need help with as well as negotiating and helping with making long-term arrangements for your children to have contact or whatever. With all of these things, you need someone who can help you through it in the most effective way. I agree that sometimes that can be through peer support, but very often it does need to be someone who actually understands what the law is or can at least signpost to you to get the right sort of information and advice, to go across all those areas.

Q33 Mr Llwyd: Before I put some questions about confidentiality and openness in the family courts, I should declare an interest. For 30 years, I practised family law, both private and publicly funded. Mr Pickering, you said that it can be very daunting to be in the courts and obviously that’s true. You referred to the terminology. I’m of the vintage that used to use words like "access" and "custody" before "contact" and "residence" came in. What words would you prefer?

Craig Pickering: We are thinking about this at the moment. The Norgrove panel has asked us to come up with a list and we are surveying our members at the moment. I think it would be around the theme of shared parenting-that you are both parenting the child. It is that kind of language. What I wouldn’t want to do is invent a new jargon because of course the language of "residence" and "contact" has acquired pretty much the same resonance as "custody" and so had before 1989. We need to use words that people use in everyday life. It’s a hard trick for the law to pull off, but that’s what we’re looking to our members to provide.

Q34 Mr Llwyd: But, with respect, "contact" isn’t an unusual word to use in everyday life, and "residence" is not an unusual word either.

Craig Pickering: "Residence" in the sense used in the Children Act, our members often find quite difficult to understand. I think "contact" sounds like a rather cold word, and it doesn’t really reflect the way a parent who loves their child feels at all about it. It conjures up these images, which, of course, are often reflected in reality, of being somewhat distanced metaphorically as well as sometimes geographically from your child.

Q35 Mr Llwyd: Does anybody else have a view on this?

Chair: I wonder if you could stay with the question of language because I really want to make sure that we cover this issue of openness before we bring the next group of witnesses in.

Mr Llwyd: Yes. We do know from various pieces of research that greater openness in the courts has been, and is, a matter of concern to children. According to research by Dr Julia Brophy on behalf of the Children’s Commissioner, almost all the children and young people whom she interviewed-79% in the public law sample and 91% in the private law group-were opposed to the decision to admit reporters into the family courts. There is also the question that it could be a breach of Article 12 and Article 8 of the European Convention on Human Rights. What is your take on this issue? Do you think it in any way-I won’t put words in your mouth-inhibits the way in which children behave in court?

Nicola Harwin: We totally endorse the research that was done by the Office of the Children’s Commissioner to which you are referring. We don’t think it’s appropriate that the media should be within the family courts. If children themselves feel uncomfortable about it, if they feel humiliated about it, if they feel that painful, embarrassing matters pertaining to their lives shouldn’t be the subject of public scrutiny in the media or open to the general public, then I think that’s what’s important.

Q36 Mr Llwyd: There is an additional point, isn’t there, that medical evidence could well be subject to publication, and children will be aware of that? That’s a highly personal and private matter, it seems to me. I am sorry; I haven’t heard a view from Mr Pickering and Mrs Chesterman on this.

Craig Pickering: I don’t know of anybody who argues that the details of an individual child or parent in the family courts need to be published. We are certainly absolutely clear that that shouldn’t be the case. What we do want to be transparent is the nature of the decisions that are made. I’ve touched on issues about judicial continuity and the inconsistency of Cafcass advice around the country, and we want that out in the open, and media scrutiny is part of that.

I think, yes, clearly with some children this will have to be handled sensitively. It will have to be made clear to them that there is no question that anything they’re saying or being asked about is going to appear in the media. In principle, I think, yes, that would be quite difficult to organise, but there is a benefit that we think is worth looking at. We don’t think the last Government quite got this right, and this is something we would like to see looked at again in the family law review.

Q37 Chair: Just for the record, do you think that Part 2 of the Children, Schools and Families Act 2010 should be implemented or should not be implemented until it’s been looked at again?

Craig Pickering: We would like them to go back to the drawing board and think again about how to do that.

Q38 Mr Llwyd: So in effect what we need is a balance between openness and accountability, but also protecting children from publicity in these court proceedings?

Craig Pickering: Exactly right, yes.

Q39 Mr Llwyd: Mrs Chesterman, do you have a view on it?

Lynn Chesterman: I think, to be honest, that as grandparents we haven’t had enough evidence to be able to comment properly on that.

Nicola Harwin: We were involved in the original consultation about transparency in the family courts. A number of proposals were put forward by different members of the judiciary at that point. As to what Craig is suggesting, summarised information could be made available without actually having the media in the courts and without putting children in a position of distress. I agree; I think we should go back and look at how that can be done.

Q40 Mr Llwyd: Would you agree that greater use of anonymised judgments and transcripts would assist in this regard?

Nicola Harwin: Yes.

Chair: Can I thank our witnesses very much indeed. We have more witnesses to talk to. I am very grateful to you. When you look back over the transcript, where you realise that you have cited research, could you confirm the details to us so that we can make sure we get those references right? Thank you very much indeed; we are very grateful.

Examination of Witnesses

Witnesses: Dr Julia Brophy, Oxford University, and Dr Lynne Harne, Bristol University, gave evidence.

Chair: Dr Julia Brophy from Oxford University and Dr Lynne Harne from Bristol University, thank you very much for joining us today. One of you has already been cited in evidence in the previous part of the session. We are very grateful for your help. I think Mr Buckland is starting.

Q41 Mr Buckland: Yes, thank you very much indeed. I want to start off by talking about the safe minimum service guidelines that were issued by the President of the Family Division and for a view as to their impact. Before doing that, can I give you a very brief example of a case that’s been brought to my attention? It was a case that originally started back in 2008. Cafcass was unable to allocate it in time. It was then given to an independent social worker. Because of the new guidance, that social worker, having done a lot of work, was prohibited from actually doing the report. It went back to Cafcass, which, first, failed to allocate the report timeously, and secondly only saw the children concerned at the hearing. That is a particularly acute example of where things are going wrong. I would be grateful to hear from both of you your view of the implications for families as to the "safe minimum service" measures that Cafcass currently uses.

Dr Lynne Harne: My view is that they are too minimum at the moment. There’s not necessarily a safeguarding of children in either public or private law cases. My main expertise in terms of research is in private law cases. As you’ve seen in my submission about my research, Cafcass was improving in that area by introducing certain safeguarding measures such as screening checks and so on. It was compulsory that Cafcass did those with the police and children’s services, and undertook risk identification. That research was done prior to them introducing these minimum safeguarding measures, if you like. Even at that time, the Cafcass officers who were actually doing the work were saying, "We often don’t have enough time to do this properly." I think that the minimum safeguarding measures must be having an impact on cases both in public and private law. You know more about public law, Julia.

Dr Julia Brophy: I think the first thing to say about the "safe minimum standard" is, first, that we don’t have a definition of it, so we don’t know how it’s practised within and across court circuits. Secondly, I think it’s clearly not what Parliament envisaged in the Children Act. The statutory duty is the best interests of the child as determined by the court, but if the court doesn’t have a guardian ,it loses that inquisitorial arm, which is crucial to the effective working of family courts, particularly in child protection. I think that the movement to this emergency footing is problematic. It is problematic for children, but it is increasingly problematic for the courts, which are charged with protecting children and moving forward as quickly and cost-effectively as they can.

I think that the Committee has the evidence from the Interdisciplinary Alliance for Children. They have argued that actually this "safe minimum standard" does not protect children and it does not support the work of the court. The family justice system, as we all know, is currently under enormous pressure, but doesn’t have the resources without a guardian to move forward in the way in which it clearly does want to but cannot do. The "safe minimum standard" is problematic because of a lack of definition. It doesn’t allow the guardian to use their professional judgment in a way in which the Children Act initially envisaged. It is not beneficial to courts and it is certainly not beneficial to families. There is some evidence that families are beginning to be dissatisfied with the service that they’re getting.

Q42 Mr Buckland: One report came to me that an independent social worker was told that she was providing a gold-plated service, whereas what they needed was a stainless steel service. Would that be a fair summation of where we are with the minimum standard?

Dr Julia Brophy: Gold-plated as opposed to stainless steel? Go back to the legislation. What does the legislation say? What was Parliament’s intention in Part III and Part IV of the Children Act? The statutory obligations and the guidance for the role of the guardian is clear and simple. That’s where we start. That was the intention of Parliament, and I think we have to accept that what we are dealing with now are two problems. One is the organisation of Cafcass and the way in which that has moved. The other issue is, of course, that some of these issues are Treasury-driven. They are to do with resources.

Q43 Mr Buckland: There is much talk about interdepartmental responsibilities and who is responsible for whom. Rather than talking about musical chairs, I wonder whether you agree with the view of His Honour Judge Bellamy, the designated family judge for Warwickshire and Coventry, who in his submission says that what matters is not which department is responsible for which agency but that there is interdepartmental co-operation that is strategic, coherent and efficient. Is that a fair summary of what is needed here, or do you think it is more complex than that?

Dr Lynne Harne: Yes, but that has been said for years. Interdepartmental efficiency and relating to each other in terms of actual strategy is key. I don’t think it does matter in which department Cafcass is located. Cafcass should be regarded primarily as a safeguarding agency now. It’s moved away from its role on agreement-seeking, and certainly in terms of private family law it should be regarded as a safeguarding agency and not in terms of mediation or anything else. That’s my view. Its key role is in safeguarding children, whether in private or public law. That’s what it should have the expertise to do. So where it is located needs to be where it can be most effective in safeguarding children. It needs to be focused on the best interests of the child and not the parents.

A lot of the stuff about mediation and so on is focused on the needs of the parents, not the child. Children must be safeguarded from risk of domestic violence and abuse, and from parents who are alcohol and drug abusers and parents who have severe mental health problems. Those are the main issues in both public and private law. Cafcass needs to identify those risks and do appropriate risk assessment and so on to weed those cases out. If the proposal is to go down the mediation route, all those cases need to be weeded out and properly decided on.

Q44 Mr Buckland: Accepting your point about boiling Cafcass down to its essentials and letting it get on with welfare issues, which is what the Children Act was all about-we must not lose sight of that-what about those cases where mediation would be appropriate, where you haven’t got that danger, that risk element? What would be the independent input then? There would still need to be some independent input, wouldn’t there?

Dr Lynne Harne: Cafcass should also have skills in seeking children’s views. At the moment, as we’ve already heard before, children’s views are in most cases not sought. Only when there is a court welfare report are their views sought. They are sought in public law, supposedly, but in private law children’s views are not sought, and that is actually in breach of the UN Convention on the Rights of the Child. In terms of what the UK Government have actually signed up to, we have been in breach of that for years and years-not getting children’s views in any proceedings that affect them. That is another role that Cafcass could have.

Q45 Chair: But are we not then asking an agency which can’t even cope with its existing workload to do something which the court and the mediation process should do themselves?

Dr Lynne Harne: I don’t think that Cafcass should be involved in mediation. They are social workers. They are now child protection officers, and they should be doing the screening of all cases. In private law they should be doing that screening and risk assessment, which is what they are supposed to do at the moment. This is happening at the moment.

Q46 Chair: The question I am asking is, if they have got all that to do, why use them as the agency to ascertain children’s views when you could do that in some more direct form?

Dr Lynne Harne: Because you need people who are trained in interviewing children. They supposedly should already have those skills as social workers. They should be trained in interviewing children. Mediators, for example, are not trained in interviewing children and their focus is usually not on the interests of the child but on getting the parents to agree.

Chair: Claire Perry, do you have a quick question?

Claire Perry: I will save it for later, thank you, Chair.

Q47 Mr Llwyd: I am interested in what you say about breaching the law in not hearing the children’s voice. It’s also a breach, I believe, of the 1996 Family Law Act because I tabled an amendment to that Act to provide for it, actually. There we are.

Dr Lynne Harne: Yes.

Q48 Mr Llwyd: Having blown my own trumpet for a minute, can I take you back to the issue that I questioned the other witnesses about-that is to say, confidentiality and openness in the family courts. It is clear to me, in any event, that there appear to be flaws in the proposed scheme for media access under the Children, Schools and Families Act. How do you believe we can balance the need for openness and accountability with the need to protect children from what could well be adverse publicity?

Dr Lynne Harne: Supposedly by what we have now-anonymised reporting of cases. We have that in the legal journals and so on to some extent, but often only cases which are interesting legally, if you like. I believe that the research is clearly showing that it’s not something that children want and it’s not something that is beneficial to them. Therefore, the research clearly shows that that really cannot be followed. I don’t know if Julia has any other suggestions about how cases are reported, but obviously there must be anonymisation in all reporting.

Dr Julia Brophy: I think you need to start off by thinking about what we mean by accountability, because the notion that family courts are unaccountable needs to be addressed directly. It’s different from giving the public an understanding of how family courts work, how they address difficult decisions and how competing interests are dealt with. There is a lot of evidence from Australia and New Zealand, both of which now have open courts.

The issue of accountability is partly dealt with through the appeal system and, as Lynne said, through information in the law reports. The issue about finding out how very difficult decisions are made will not come, I feel, through the media for a variety of reasons, but foremost they actually don’t have the time or the access to be able to do that. I don’t think the issue of public education is going to be served by media access and reporting. It has to come by another mechanism. One of those mechanisms is the pilot scheme for anonymised judgments. That can be improved enormously, I think.

For example, in Australia online judgments enable people to look things up. If you wanted to look at something around domestic violence, there is an index that will allow you to look at cases where that has been dealt with. If you wanted to look up issues around whether fathers were suffering bias or discrimination, they are categorised in that way. So the pilot scheme could be tailored to look at contemporary issues and problems in a way which would help the public directly rather than through the media. The media will only ever be able to talk about one case at a time. What we’re looking at is the trend of family courts and how the public can feel confident about the way in which they operate. A one-off reporting of one case, where a journalist talks to a disgruntled litigant, will not help the reputation of the family courts. What you want is fair, accurate, balanced reporting.

Chair: We can all say that.

Q49 Mr Llwyd: I presume, therefore, that if there were extended use of a proper system of producing anonymised judgments, that would probably increase public confidence in the family court system?

Dr Julia Brophy: It is making the information available directly to the public. I think there is one other thing that the family justice system could do. It has been started in Wells Street. That is to have family court open days-to make local courts locally available and locally accountable, in the sense that people can come in, see what is going on, talk to judges, and have mock trials. I think Wells Street had one last year. Over 1,000 people came through that door and it was a very well attended and very well reported day. It happens in Australia. They have gone beyond media access. They take the court into rural communities. Judges go to rural communities and talk to people in different minority ethnic groups, and talk about how the family justice system works. In a sense, courts have to go beyond the media to get the message over and they have to go direct to their public. That way, I think they can establish that things are fair.

Q50 Mr Llwyd: I believe that you are both well qualified to answer this question. Would you agree that the prospect of introducing publicity into the family courts will inhibit children in giving evidence and the way in which they conduct themselves?

Dr Julia Brophy: I think there’s no doubt about it. The really serious issue is that the legislation, and indeed the change of rules in April 2009, did not really look at the consequences of that for children. Children start talking to experts-clinicians, social workers, guardians-right at the beginning of the case. It’s at that point they will have to be told that the media will have access to the court. There is no option not to tell them. Medical ethics, the GMC ethics, about trust, honesty, and openness when they are dealing with consent with young people are clear. Equally, the advocate for the child and the guardian has to tell the child, and at that point, early on in the case, if the child votes with its feet and says nothing, you are then presented with a case where a judge is going to have to make very serious decisions about the future care of a child without direct information from the child. It’s not surprising that children will vote with their feet if they are told. My concern at the moment is that they are probably, for the most part, not being told, and that is a breach of their Article 12 rights.

Q51 Mr Llwyd: Yes; you referred to that earlier. The real truth is that possibly this Act has brought in unintended consequences which we need to be looking at now.

Dr Julia Brophy: It’s not only unintended consequences, if I could say so. The consequences were there. The President of the Royal College of Paediatrics and Child Health and myself, and the President of the Family Division, gave evidence at the Bill Committee stage about those issues. The implications were there and the research was being done, so it’s not as though it was a great surprise but it wasn’t properly consulted upon. There wasn’t proper public consultation within the terms of the Government’s own Cabinet rules. I think we do have to start again.

Q52 Chair: Do you recognise-and I give Dr Harne the opportunity to reply-that there was a concern that wholly secret justice is seriously limited?

Dr Lynne Harne: Yes. I think there is a concern about that and the way judges actually reach decisions. Going back to one of the issues that was asked earlier about whether the courts are making the right decisions, you could say that, if part of their role is to safeguard children, in some cases they are making the right decisions and in some cases they’re not; they’re disregarding issues which they should be regarding. Children themselves are already reluctant to tell Cafcass officers what they really feel because they know it will go in a Cafcass report, which one of their parents will see. If they are saying, "I’m really afraid of my dad and I don’t want to see him because I’m really frightened of him", that is already hard for them to do because they know that their dad will see that report. The further additional fear that the case would be heard in open court with reporters taking down what they say is even worse for them.

Chair: I will turn to Siân James to go on to another subject.

Q53 Mrs James: I want to go to the role of Cafcass in private law proceedings. Compulsory safeguarding measures have been in force since 2008. In their evidence Families Need Fathers say they are causing unnecessary delay.

Dr Lynne Harne: I wouldn’t say they’re causing unnecessary delay at all. I would say that they’re absolutely essential. Part of the problem is that some of the safeguarding checks take time to come back. All services now have been cut back, so you can expect even further delays. For example, safeguarding checks with the police take time to come back. From my own research, there are cases of fathers who had sexually abused children and had committed child sex offences, who were coming out of prison. That would have shown up in the screening information but decisions in court were being taken on child contact before those screening checks were received. These were really, really serious cases in which courts were saying, "Right, we’re just going to allow interim contact to go ahead". These screening checks are absolutely essential.

Over and above that is the risk identification. Those checks will only pick up cases where there may have been convictions or enhanced checking may pick up reports of domestic violence. Risk identification will allow an abused parent who has not reported to the police for various reasons, or who may be in a refuge and so on, to say what has happened to her and what the risk to the child is in that. So I would totally disagree with Families Need Fathers on this. My concern is that because of these minimum safety measures this screening, safeguarding and risk identification has become really, really limited. From the inspection follow-up reports there was some level of improvement in Cafcass’s safeguarding in 2009, but since the implementation of these minimum measures we don’t know what is happening with these essential safeguarding checks that are being done, the risk identification that is being done and whether that is all going out the window really.

Q54 Mrs James: What about emergency provision; where we have a situation that is an emergency?

Dr Lynne Harne: In private law?

Mrs James: In private law.

Dr Lynne Harne: What do you mean by "an emergency"? What? Where?

Mrs James: Looking at a case possibly that would come to court very suddenly, very quickly. Things would have to happen quickly and decisions made quickly. Obviously, if these processes are going through-

Dr Lynne Harne: Well, they can’t. The child must be safeguarded and so there can be no contact, for example, with a parent who may be an abuser. Those situations must be clear in private law proceedings.

Dr Julia Brophy: I think we’ve got to focus on the child. I think delay is the new mantra. Nobody dare do anything or think about anything that might have an impact on delay. The important thing is the safe outcome for the child and, indeed, the woman involved if there is a woman involved in domestic violence. Any kind of assessment will slow things down, but the important thing is the right decision and the right information to enable the court to make the right decision, and that takes time.

Dr Lynne Harne: With regard to delay, in cases that I have been looking at in my own research, where there had to be a welfare report some of them didn’t come to court for a year. These were all cases of abuse. We have to recognise now that it is an abuse of the child to witness domestic violence and to live with a domestically violent parent. That is now the law in the 2002 Act. That child was being protected. Where there had been adequate risk assessment, in cases where it was clear that the child was going to be at risk, then there were more recommendations by Cafcass for no direct contact. That was safeguarding the child.

Q55 Chair: But cumulative delay can bring you to a point where the contact with the father, assuming the father is the person against whom the allegations are originally made, is judged not on its merits but on the fact that by this time the child’s interests have moved because there has been no contact with the father over such a long period. So the delay itself may prevent an objective judgment being made, because if it had been made earlier it would be different.

Dr Lynne Harne: No, no, because that assessment should now be being done. In the team that I evaluated, which included a small county, the assessment that is being done and the recommendations that are being made in the welfare report are about whether that parent is a safe parent. In a lot of cases where the parent is domestically violent, they are also abusive towards the children. They are not concerned with protecting the children’s interests. They are not safe parents. So the assessment has to be done of the capacity of the parent to parent and to be safe.

Q56 Chair: So you seem to be excluding the possibility that the assessment might conclude that the danger wasn’t there?

Dr Lynne Harne: No, no. The assessment is obviously done on evidence from what the children say, from what the abused parent and the abusive parent is saying, and any other evidence that there is available. There is often police evidence. There is often evidence of convictions, but not always. In domestic violence cases women are often very frightened to report it to the police, which is why we can’t just go on convictions. We must look at wider evidence such as evidence from GPs, evidence from refuges, injunctions and so on. Of course, where there is domestic abuse, yesterday we had an announcement, unless it’s not going to apply to those cases, which will make it even more difficult for parents and their children who are experiencing domestic abuse to get injunctions. It all ties up within the system as well.

Q57 Mrs James: Public law cases are usually very big, they are very time-consuming and there are some serious issues that are being dealt with. Do you think that they take resources away from private law cases?

Dr Julia Brophy: I think one of the problems is that the private law sphere was badly funded in the first place. I think it’s not a very fair way to represent what’s going on because the resource question underscores both of them. I think, following on from what Lynne said, if you look at the evidence in public law proceedings, there is a high degree of domestic violence and it is actually a high degree of male violence because in the last big study we did we were able to differentiate. The evidence in that study came from evidence on file-not simply what the mother, for example, said but evidence from social workers, from GPs and from the police. Over 50% of cases included aspects of male violence. So there are similarities between the two, and equally important issues.

Q58 Claire Perry: I wanted to ask one final question on this extremely tricky issue that I commend both of you for investigating to such great depth, and then move on to the topic of mediation. I think where we are going with this is that many of us are concerned about a necessary process step being applied at great cost to the taxpayer, and also about Sir Alan’s point on significant delays that could have an impact on final decisions, where in fact it doesn’t result in anything other than just a delay. Are you aware of any percentage of the 45,000-odd private law cases that Cafcass received that actually resulted in a finding that there was abuse and therefore that there should be some significant change in the court’s direction as to where children should be given contact or residence? Is it 5%, 10% or 50%? What would be your assessment of that?

Dr Lynne Harne: I would say it is much higher than that. I would say it’s about 60%.

Q59 Claire Perry: And do you have the evidence? So 60% of those 45,000 cases?

Dr Lynne Harne: Yes, and research has been done. That research was originally done by NAPO in 2002. More recent research into where domestic violence has actually been reported has been done by Trinder in 2006. That was looking at in-court dispute resolution: i.e. in-court mediation schemes. In 40% of those cases, domestic violence was reported.

Q60 Claire Perry: What was the sample size for that analysis, if you recall?

Dr Lynne Harne: I am just trying to remember. I think it was about-

Q61 Claire Perry: Perhaps you could let the Committee know.

Dr Lynne Harne: Yes, I could let the Committee know the exact sample.

Q62 Chair: As with our previous witnesses, we would be grateful if, where you have made references like that, you could let us know-perhaps when you get the transcript-what the details of that research were, or what the references are.

Dr Lynne Harne: It depends what you describe as "evidence", you see. This is part of the problem that came up in my research. What the courts were accepting as evidence was evidence of being in a refuge; evidence of domestic violence having been reported to the police on several occasions; evidence from GPs in some cases; and evidence of convictions.

Q63 Claire Perry: All of those would be very valid evidence, but what I am concerned about is hearsay. Certainly based on my constituency postbag, hearsay is a problem in deciding these things. Any hard evidence that is found through those mechanisms is, I think, extremely important and very valid.

Dr Lynne Harne: There is a myth of false allegations of domestic violence, and I really do think it is a myth-

Q64 Chair: So nobody ever makes any false allegations?

Dr Lynne Harne: The evidence is about 3%. The evidence of false allegations of domestic violence is about 3%. It hasn’t actually been researched in this country, but in other jurisdictions like Australia and the US it’s about 3% of cases that come to court.

Q65 Chris Evans: What do you gauge as domestic violence then? What would you say was a domestic violence situation? Isn’t it different levels and people have different perceptions of what violence is domestically?

Dr Lynne Harne: Exactly, and I think this is a real problem. One of the things that has been pushed for before, particularly in 2004 with the Domestic Violence, Crime and Victims Act, for example, was that there should be a legal definition of what domestic violence is and there isn’t. There is just a Government-adopted definition.

In the Australian jurisdiction, they just have recommendations because they have a system where they follow compulsory mediation for ordinary cases but not for abuse cases. They are just proposing that they need to have a legal definition of domestic violence which includes a pattern of abuse and control. Control is very important-control of the other partner. It’s not just physical violence, sexual violence or emotional violence. It’s about control of the partner, and they are proposing that that is included in a definition of domestic violence. We do need a definition because domestic violence is often just seen as being hit.

Chair: I want to move on to get your views on mediation.

Q66 Claire Perry: Of course, the issue of violence and abuse is a very thorny one around the problem of compulsory or voluntary mediation, so thank you for your views on that. I think the concern is, rather than applying a draconian requirement for compulsory mediation for exactly the points you’ve been raising, should an assessment for mediation be compulsory? Is there a sense that this is actually a helpful thing and if there was a compulsory assessment, taking into account these family circumstances, that would be beneficial?

Dr Lynne Harne: I think there should be a safeguarding assessment, yes. I think that is an absolute priority-that there must be a safeguarding assessment.

Q67 Chair: Sorry, I don’t think that was the question. I think the question was whether people should be required to go through an assessment to consider undertaking mediation.

Dr Lynne Harne: Right. Prior to that there should be a safeguarding assessment.

Chair: I think we’ve got that.

Dr Lynne Harne; Then after that, yes, but you are talking about investing a huge amount of resources. My view is that you put the resources into safeguarding, whereas assessing people who are suitable for mediation would involve a huge amount of resources.

Chair: But the court is a huge amount of resources, because if they aren’t going to mediation they’re going to court.

Q68 Claire Perry: They are diverting from the court system. I think there is evidence that often this is a better way to resolve conflict than putting people through the very expensive court system with unsatisfactory solutions.

Dr Lynne Harne: Yes, except for cases where there is a risk of abuse, in which case they should go through the court system because that is the only means by which people can gain protection.

Q69 Claire Perry: Professor Brophy, do you have a point of view on assessment for mediation?

Dr Julia Brophy: I don’t have the research experience in this field that Lynne has, but I think compulsion and mediation sit very uncomfortably together. When you introduce domestic violence then they are, I think, incompatible. I’m very uncomfortable with the use of compulsion. I also have grave doubts about the voice of the child being heard in these circumstances. For Article 12 of the Convention on the Rights of the Child to be considered in any forum, judicial or administrative, where their care is being considered, you need the voice of the child. What about representation of children in these circumstances? In our research, when we were asking young people whether they thought parents should be allowed to talk to the press, for example, the majority of them said no. They don’t want parents to talk to the press until they have consulted with the children. The point about this is that the interests of children and the interests of adults don’t coincide. In the normal state of affairs, they don’t coincide.

Chair: I think Claire Perry wants to ask you a question.

Q70 Claire Perry: I am sorry for interrupting you. It’s a very important point. Does that then imply there should be separate representation for children in mediation?

Dr Julia Brophy: Yes.

Q71 Claire Perry: Who would be the right person in this cast of characters to do that, in your view-the right entity?

Dr Julia Brophy: It would have to be somebody with safeguarding experience and training. My concern is that in the mediation field there is a whole range of activities that might be called mediation, and we don’t really know what people’s training or qualifications are. I have grave doubts about how many people are actually trained to interview and safeguard children.

Q72 Chair: So, in the case of mediation, you’re saying you put in a process which you don’t have in a court case where there’s no domestic abuse allegation, and you have to have a safeguarding trained person representing the child?

Dr Julia Brophy: If you start with the child and look at the rights of the child and the position of the child, and develop your system of protection from there, then you begin to develop safeguards that we don’t currently have. There is research evidence on what are called 9.5 appointments for children at the high end of conflicting divorce proceedings. The research of the National Youth Advocacy Service-which I am sure the Committee has looked at-shows that there are some very serious cases in which it is important that the voice of the child is heard. At the moment we don’t give that statutory obligation.

Q73 Mrs Grant: The Australian Family Relationship Centres have been heralded as a great success in keeping many family disputes out of the courts in Australia. There, they do have a system very much of compulsory mediation, with obvious exceptions in cases of domestic violence and where there are imbalances of power. What is your view of those centres? Do you think they are successful? Could they work over here?

Dr Lynne Harne: I’ve just been looking at the evaluations of the research on this system. What they say, particularly on screening and safeguarding issues, is that the system is not working effectively in some cases and that alternative dispute resolution is being promoted in these Family Relationship Centres for some of those cases. I have only had a chance to analyse it briefly, but the Australian Government is having to introduce further legislation on alternative dispute resolution to increase the safeguarding. These centres themselves report very positive outcomes, but they differ from the lawyers. The lawyers are saying that there are a lot of problems in the system, of families being pushed into alternative dispute resolution and shared parenting relationships, which is problematic for the children as well as the parents.

You have to recognise that, apart from abuse and safeguarding issues, there are other issues around the welfare of the child such as, whether the child is happy to live in one parent’s house for half the week and in the other parent’s house for the other half of the week? In a lot of the cases in research that’s been done in this country, particularly for older children, they are not. The type of arrangements that are being pushed in the Australian system of equal shared parenting are not necessarily in the best interests of children.

Q74 Mrs Grant: I am aware that they are having to look at that aspect again, but I believe it is about a 25% or 26% reduction in applications to the courts since the legislation came in, combined with the arrival of all of these Family Relationship Centres, which is very interesting indeed. Obviously, as you well know, if people go to court the parties become polarised and that’s what we’re not wanting. Do you think that they have potential?

Dr Lynne Harne: I think in some aspects they have potential for those parents that are willing to accept mediation, where the children’s views are taken on board. In terms of parenting arrangements as well, I think they have potential, and where there are not abuse or safeguarding issues.

Q75 Chair: Dr Brophy, do you want to add anything?

Dr Julia Brophy: I think if you’re looking at allocating the lion’s share of available resources to adult dispute resolution, with no consideration of the voice of the child, then trying to unpack the figures that you’ve mentioned in relation to Australia is going to be difficult. Until you find out the views of children about the arrangements, you don’t know whether you’ve made a real saving. A real saving has to include the health, happiness, welfare and safety of children.

Q76 Chair: Of course, in many cases the child’s view is that the separation should not be taking place at all?

Dr Julia Brophy: That is one view, but there are of course children who are relieved that their parents have separated, and with separation comes some stability in their lives.

Chair: Thank you very much for giving evidence to us today. We look forward to receiving references for some of the research that you’ve cited. Thank you.