Examination of Witnesses (Question Numbers
120-127)
Witnesses: Rt. Hon
Sir Nicholas Wall, President, Family Division, and Head of
Family Justice, and Sir Mark Hedley, High Court Judge (Family
Division) gave evidence.
Tuesday 12 October 2010
Q120 Chair: Do you accept
what Cafcass said to us that the growth in public law cases, or
the growth in the business to them, which is both public and private,
comes entirely from Baby P?
Sir Mark Hedley:
I would hesitate with the word "entirely". What is
different this time is that, after each of these public inquiries,
there has then been a dramatic increase in litigation. What has
not happened here is that it has not spiked; it appears it might
be plateauing. We have had a huge rise. I am not a social worker,
but my guess is that the whole threshold of intervention has been
driven down. There is now a much greater requirement to intervene
than there perhaps was before.
Q121 Matthew Hancock: You
say that the quality has not changed, and also you played down
the idea of delays. You said that you're better targeting some
of the work by specific focus on specific questions, but there
must be increased pressure in the system, because of the massive
increase. Where is that feeding through?
Sir Mark Hedley:
Some of it is feeding through into delays, which are undoubtedly
becoming longer, certainly in London. We are performing less
well in terms of throughput of work. Well, the same amount of
cases is going through; it is just that the number of outstanding
cases is rising. It will work there. The other area it may work
in, for example, is that Cafcass officers may be required to adopt
a more restricted role in cases. I think I have seen signs of
that. How that will work in practice it is far too early to say.
I just don't know at the moment.
Q122 Matthew Hancock: On
that point, is there a risk it works out in the magistrates' court
as opposed to the High Court? You mentioned earlier that High
Court judges are happy with the quality. Is it the experience
of magistrates that they are also happy with the quality?
Sir Mark Hedley:
There is no doubt we are spoiled in the High Court in the sense
that any practitioner appearing will treat that as a big priority.
You cannot extrapolate from High Court experience and say it
applies everywhere. At county court level, which is what I was
talking about principally, the degree of satisfaction is as we
stated: there are problems. In the family proceedings courts,
London is a bit atypical because we have quite a lot of professional
judges as well as a unified lay bench. I am not aware--and I
can only put it like this--of serious disquiet about the quality
of public law work delivered by Cafcass, other than problems with
allocation, delay and the like, which undoubtedly are around.
Q123 Stephen Barclay: The
magistrates I spoke to before the previous hearing were telling
me of instances of advice over the telephone, of deskbased
reviews that are subsequently looked at.
Sir Mark Hedley:
This was the emergency guardian problem. I think Anthony Douglas
certainly recognised to me in discussion that that is unacceptable;
you cannot run a system like that. There appear to have been
serious attempts to address it, but at what price elsewhere in
the system?
Q124 Stephen Barclay: This
flows from that question. What I am trying to understand
is from where the squeeze is coming. If the quality is maintained,
if timeliness is not being unduly affected, but there is a pressure
on resources, an issue of high staff retirees coming up and a
high sickness rate, logic would suggest that, as much as bright
minds are looking at more focused reports and smarter ways of
working, is that really picking up the full slack of the problems
that we have addressed? That seems quite a leap. Are there other
areas, perhaps in the magistrates' court or somewhere else, where
the squeeze is being felt?
Sir Nicholas Wall:
I have regular meetings with the Association of Magistrates' Courts
and the family benches, and they have not raised the question
of quality of work with me. If you have specific examples, I
will address them. I agree with Mark that the real villain of
the piece is delay because if, with increased volume in the system,
no additional resources are made available, particularly in the
judiciary or courts, and the likelihood of cuts in sitting days,
cases are going to take longer and they are going to be delayed.
That is where the real danger comes. I entirely agree with the
observation that came out of this Committee last time that delays
are deleterious to children. It is in Section 1(2) of the Children
Act. It's in the statute that delay is to be avoided if humanly
possible. Ultimately, this is where we come back to the divide
between us, because this is a matter for Government. If the Government
want to avoid delay, they must make resources available to ensure
that delay does not occur.
Q125 Austin Mitchell: Amen
to that. Sir Nicholas, you say in your letter that efficient
and effective case management by the judiciary remains the key
to the operation of a fair childbased care system. Are
you satisfied that that efficient and effective case management
is uniformly provided? If it is, why did the judiciary, as the
customer, allow Cafcass get into the mess described in our interim
report?
Sir Nicholas Wall:
I think you must understand that case management is a relatively
novel concept for a number of judges. The traditional role of
the English judge is the arbiter. He or she sits back; the case
is brought to him and her; he or she decides; gives a judgment,
goes away and doesn't see the case again. The Family Justice
System has, generally speaking, been bolted on to the common law,
which means that we have the adversarial system and we have judges
deciding cases. In family work, the premise since the Children
Act came in, has been that judges must become case managers.
They cannot sit back and wait for people to do things; they must
ensure they happen. My latest exordium to my judges is that you
all must become case managers now. That is a message that the
younger generation, of whom I would think myself, take on board
much more easily, but it is not a message that is universally
popular. They think, "Here one comes into the vexed area
of judicial independence. Am I compromising the independence
of the guardian if I tell the guardian what to do? Am I compromising
my own independence if I come off the bench and tell the social
worker what I want?" and so on and so forth. I am afraid
the jury is still out on that. You will have to ask me that question
in six months' time, when we have the revised PLO in operation.
The Family Justice Review will no doubt tell us whether it takes
the view that judges are effective case managers. If they are
not, it seems to me there is no one else who is going to do the
job.
Q126 Nick Smith: When
talking about delay on this Committee, we have looked at the
typical Public Accounts Committee terrain of processes, systems,
staffing and so on. Listening to you today, we gain another impression
of a system caught up in greater demands and complexity, in what
Nicholas described as "dynamic" relationships between
parents fighting their divorce, but in a different place here.
If you talk about where the state should put its resources, it
seems to me--and this is quite a discursive discussion today,
rather than the pointed stuff we sometimes have--that the state
ought to invest more in mediation, perhaps, to take some of the
cases you are talking about out of this complex legal sausage
machine, which you are doing a good job trying to manage.
Sir Nicholas Wall:
In private law cases, that is undoubtedly true. Yes, I agree
with that entirely. I think firstly the Government are a strong
advocate of mediation; and secondly, the Private Law Programme,
which I have sent you,[2]
makes the first appointment--as I indicated when I spoke about
it a minute ago--a conciliation appointment, where we try to take
cases out of the system. I have been saying for years that the
adversarial system is not the way to resolve private law disputes.
When it comes to public law, you are talking about the state
intervening in the life of a family and potentially taking a child
away from his or her family, and giving that child to strangers
or an institution. That is a different ball game altogether.
You cannot mediate in those circumstances. You can have family
group conferences, as local authorities are encouraged to do,
to bring the family together and solve the problem within the
family. They have been remarkably successful in cases where they
have been operated, where the whole family has come together and
solved the problem. Ultimately, someone has to decide whether
the child has suffered significant harm, whether they are likely
to and whether the child should be taken away from his or her
parents. You cannot mediate that. It is very difficult to conciliate
that. You need a system that deals with it. At the moment, we
have a judicial system under the Children Act. The Family Justice
Review will investigate that and tell us whether or not it is
working. That is the system we have, and we cannot mediate that
system.
Q127 Chair: Cafcass was
created through the merger of a number of organisations and it
seems to me that it has shifted from crisis to crisis. There
has been critical report upon critical report, with a little gap
in between, but basically crisis to crisis. One of the questions
we are asking ourselves is whether it is fit for purpose, in that
sense, for you as a customer, providing a service to the courts.
This merger does not appear to have worked. Is there a better
way of organising a service that would then serve children and
families better, through the work that you do in the courts?
Sir Mark Hedley:
Both of us and many others will have grown up with the old system.
Almost everyone who grew up with the old system was a fervent
supporter of the concept of creating Cafcass. When it was born,
it was born with considerable support from those within the family
justice system. There has been a persistent argument, which you
will know much better than I, about whether it was adequately
funded and launched, and which obviously I have no views about,
because I do not know. It was launched with a huge amount of
good will, because we had learnt to value the guardian system.
There were problems with the old guardian system about Article
6, independence, because they were funded by the local authorities,
whose work they were doing. There were problems there.
From a trial judge's point of view, which is where
I can speak from, I consider myself to have been quite well served
over the years, notwithstanding all the problems that I know have
gone on in the background. I personally consider myself to have
been quite well served. I could count on the fingers of one hand
the public law cases where the guardian has completely lost it.
There have been other cases where I have disagreed with them,
but that is another matter altogether. There has been a tiny
number where the guardian has simply been overwhelmed by the case.
The service that is actually delivered on the ground for most
of us is certainly fit for purpose. Whether the organisation
is, I would not be in a position to make any comments, because
we obviously see it through the lens of what is delivered to us
in the courtroom.
Chair: Thank you very much indeed. I
am hugely grateful to both of you for having given your time to
give this evidence. I think it will add to the quality of our
final deliberations, so many thanks indeed.
2 Note by witness: This was NOT sent in advance to
the Committee. It is, however a public document Back
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