Operation of the Family Courts - Justice Committee Contents

Examination of Witnesses (Question Numbers 162-195)

Rt Hon Sir Nicholas Wall, The Hon Mrs Justice Pauffley and The Hon Mr Justice Ryder

1 March 2011

Chair: Welcome to the Justice Committee's third evidence session on the Operation of the Family Courts. May I ask you, not that it is necessary of course, briefly to introduce yourselves for the stenographer?

Sir Nicholas Wall: I am Nicholas Wall, the President of the Family Division. I have deliberately brought with me today, on my left, Mrs Justice Pauffley, who is one of my Liaison Judges for the South East and about to take over London, and, on my right, Mr Justice Ryder, who is the Presiding Judge of the Northern Circuit, which takes in Manchester, Liverpool, Carlisle and Preston.

Chair: At this point I should explain why I am in the Chair. The esteemed Chair, the Rt Honourable Sir Alan Beith, has a debate at the moment and is therefore unable to chair. That is why I have taken over temporarily.

  Before we proceed I will ask my colleagues to declare any interests that they have.

Claire Perry: I have no interests.

Mrs Grant: I should like to declare an interest, having been a legal aid family lawyer for the last 23 years.

Chair: I should also declare an interest, having been a legal aid family lawyer both as a solicitor and a member of the Bar but currently non-practising.

Q162   Claire Perry: Thank you very much for joining us today. I wanted to focus on the issue of delay to cases, which has come up repeatedly in the evidence sessions we have taken on the operation of the family courts. Indeed, Sir Nicholas, you alluded to some of these pressures when you gave evidence before in the Access to Justice inquiry. What do you think is the fundamental cause of delay in the family courts? Is it possible to isolate one or is it just a confluence of multiple factors? That is the first part of the question. The second is, what is the judiciary currently doing to tackle those causes of delay?

Sir Nicholas Wall: The answer to the first part of your question is that it is multifactorial. One has to draw a distinction between public and private law when one is considering the question of delay. In private law, what we are trying to do, as I have given evidence before, is to take as many cases as we can out of the system by conciliation and mediation. We have a first hearing dispute resolution appointment. In public law, one of the difficulties is that one has a multiplicity of agencies dealing with different aspects of the case. One of the factors that has caused delay is the fact that we are dependent on others for the work that they do—for example, local authorities—and in some parts of the country, where a local authority does not produce, for example, a proper assessment, the judge feels obliged to have the work done again by someone else. That, of course, causes delay. Perhaps Mrs Justice Pauffley might like to add from her personal experience on this point.

Mrs Justice Pauffley: None of us want delay in children cases. The statute, as I am sure you will know, says that we must avoid delay wherever possible. There are relatively few judges dealing with an increasing number of cases. There is sometimes an insufficient focus on issues so that cases are given too long a time estimate. It is the judge's job to case-manage proactively right from the off and to try to ensure that the case is dealt with in the most expedient way possible.

  The wait for reports that Sir Nicholas has spoken of sometimes causes more delay than any of us would want, but then it is for the judge, I would say, to reject an expert's time frame that is outside the child's time frame. The case has to be brought within something that is acceptable from the perspective of everyone. Sometimes cases are listed with a fact-finding that is perhaps unnecessary, so it is for the robust judge to case-manage that litigation so that the fact-finding is dispensed with and you get on with the process of deciding the child's future. That is what I would say.

Q163   Claire Perry: Mr Justice Ryder, would you add anything to that?

Mr Justice Ryder: I would summarise it in four ways. There is an increased number of proceedings, both in public and private law, and there is no great evidence that that increase is tailing off. We have fixed resources, both of the judiciary and courts available for us to use, and indeed the sitting days to use those courts. The second would be a fairly well demonstrated increase in complexity, for example, caused by international cases, multiple interpretation being required and new problems. Children in asylum circumstances present assessors and courts with quite interesting and diverse problems. The third aspect would be the delay caused by sometimes too many experts, but certainly lack of expert availability, and also the lack of appropriate assessments at the time when we need them. They take too long and they are not always of the quality that one would want the first time round. That causes a delay. The fourth—and it has to be added in—is poor issue analysis, to which Mrs Justice Pauffley has alluded. You need both the advocates and the judge to get together with one mindset, which is to problem-solve a case, not to allow it to become over-sophisticated and, for example, to have inappropriate split hearings that by and large always lengthen cases. There are four aspects in my experience.

Q164   Claire Perry: From the evidence given, it sounds that there is almost a lack of accountability in the system. There are multiple players, but it is nobody's sole responsibility to get the case through in the minimal amount of time required to do an appropriate job. Would that be a fair assertion?

Mrs Justice Pauffley: No. It is the judge's responsibility from the off to ensure that the case is case-managed appropriately and strongly so as to get to an early resolution.

Sir Nicholas Wall: One of the difficulties I think we have had, and which I hope will be addressed by the Family Justice Review under David Norgrove, is that judges must be given the freedom to case-manage and the freedom to enjoy judicial continuity. What tends to happen, particularly amongst the circuit judiciary, is that they sit in crime, civil and family, and often the case has to wait for a judge rather than the judge going to do the case when the case is ready. One of the things we are very keen to address is judicial continuity and management of cases, which means that the judge can hear the case when the case is ready to be heard rather than the case having to wait for the judge.

Q165   Claire Perry: What is being done to improve that case management, which clearly is a way of reducing delay?

Sir Nicholas Wall: Mr Justice Ryder had better answer this, because he wrote the Public Law Outline, but in public law cases I am very strongly encouraging my judges to case-manage. You have to remember that, historically, the English judge has seen him or herself as the arbiter who sits back and waits, decides the issue and then goes away. In family law that has completely changed. We are now case managers and we are in charge. We have a quasi-investigative inquisitorial role. I certainly hope that, post-Norgrove, we will be case- managing vigorously in the way that Mrs Justice Pauffley has described. That seems to me to be the way forward.

Q166   Chair: Some of us who are of the pre-1989 vintage remember that it was fairly haphazard in family courts, and it has improved greatly over the years. Of course, judges do take charge of the timing, but when they are faced, for example, with delays in the reports from Cafcass, insufficient high-calibre people putting themselves forward as guardians ad litem and so on, despite the best efforts of the judiciary, sometimes these cases slip, don't they?

Sir Nicholas Wall: Yes, they do. I think it varies. One of the difficulties is that there is a huge regional variation. In some places where you have a very proactive designated family judge, for example, you will find that cases go through speedily. In other cases, as you rightly say, because of the number of players in the system and the need to fulfil article 6—which is an important factor in the equation—cases do slip. Ernest, would you like to add to that?

Mr Justice Ryder: The point is that you need a local understanding which is very strong, with local leadership of the family justice system which is strong. Your designated family judge, your Family Division liaison judge, is key to making this work. You have to have, and should have, business committees with each of the agencies represented on them where they discuss just the problems that you are identifying.

Rather more so recently, we have had local performance implementation groups and a national performance body as well, with the object of saying, "Look, is listing working in your area? Is local authority assessment process working in your area? Have we a shortage of guardians? Are they taking too long? Are we using too many experts? Are the police co-operating?" You put together each of the agencies in an interdisciplinary environment. It has to be a public, transparent environment where people can actually hear what the arguments are for and against improvements.

  In court centres where we have those working very well, with good leadership, then, yes, you will see, for example, the Public Law Outline being complied with and, indeed, improvements in performance despite improvements in volume of work. But in areas where you do not have that interdisciplinary co-operation, which can be for all sorts of local strategic reasons—quite often funding but not necessarily so; it may be lack of leadership in one or more of those organisations—the designated judge and the liaison judge will find difficulty trying to get the improvement that you will see elsewhere. That should not stop them trying. We think over the last three years in particular that this sort of initiative—business committees, implementation groups, emphasis on performance and emphasis on PLO compliance—has fundamentally changed the landscape because we are talking about a problem-solving culture under the PLO which was not the level playing field, the judge referee system, that we case-managed cases with before.

Q167   Mrs Grant: I can see the difficult balance that you all have to reach and I am sure it is hard, but can you think of any place where you might be able to refocus the resources that you have at your disposal as judges in public and private law children cases to get better outcomes for children?

Sir Nicholas Wall: I think in public law the key is judicial continuity. There is nothing more time-consuming or wasting of time and resources than several judges looking at the same set of papers and possibly reaching inconsistent conclusions in relation to a particular set of facts. It is very important that in the future we not only operate the PLO but operate it in a way that enables the judge to be entirely in charge. You have to remember that this is a change of culture for a lot of judges. Judges were not brought up to be case managers and we are having to teach them and persuade them to do so, but it is absolutely crucial that they are. Post-Norgrove, I think we will find that the modern generation of judge will be brought up to be a case manager. They will take a case, and should take a case, be solely responsible, be docketed for that particular case and do it from beginning to end as quickly as possible.

Q168   Chair: I was involved in a private law contact and residence case, fully contested. It came to a hearing in August and went part-heard after three days until February. That happened in North Wales. It was not because of anything to do with the judiciary. The judge concerned was one of the main family judges in North Wales, but unfortunately his diary was so full that, despite his and his clerk's best efforts, he could not find anything sooner than February. That is unacceptable, isn't it?

Sir Nicholas Wall: It is.

Mrs Justice Pauffley: It is totally unacceptable.

Sir Nicholas Wall: It is completely unacceptable.

Mrs Justice Pauffley: If he was, for instance, committed to go off to the Crown court, as he may have been, then in my view he should have said, "I can't fulfil my Crown court responsibility because this case has to take priority. I owe it to this child and this family to come to an earlier decision than February."

Mr Justice Ryder: I strongly endorse that. If you are looking at this from the perspective of leadership judges, as a presiding judge, I will, and do, regularly change judges' patterns to take them back into family from crime or civil, which may be their majority other specialism.

You have to look at this on a case-by-case basis. We open courts up in order to provide for a particular case which otherwise would not get heard within a reasonable time scale. We accept that money is not going to increase; it is going to reduce, but, where we have no more money, we have re-patterned judges within the justice system so that family, to take the North as an example, has had about a 25% increase in judicial cover over the last two to three years purely by using internally the resources we have and sitting down as a group of judges and saying, "We have to change this."

Sir Nicholas Wall: Part of the guidance which I have recently issued is the emphasis on judicial continuity and listing effectively being a judicial rather than administrative function. Many judges are brought up effectively to do what they are told. We go and sit in X for Y weeks and we sit in Z for so many weeks and so on. That is going to have to change. Increasingly, the judge, with the co-operation of the listing officer and colleagues, is going to have to do exactly as Ernest suggests and say, "I must hear this case. This child's case can't wait. This must have priority and it must be heard."

Q169   Chair: In that particular case, and obviously it would be improper for me to name anybody, the judge did make every possible effort but his diary was so full of other contested family matters and I don't think he sat in the Crown court in the ensuing eight months anyway.

Sir Nicholas Wall: There is a resource issue there as well.

Q170   Chair: Since then, I can say that certainly a family district judge has been appointed. That has taken some of the pressure off.

Mrs Justice Pauffley: Most of us have a very good grasp of what we are going to be doing in the months ahead. We know which cases are likely to resolve themselves within the time frame: go short, in other words. I believe that it is vital for us all to work collaboratively with listing officers so that we can slot in these important cases that need to be finished within, as I say, an acceptable time frame. Your example was unacceptable.

Q171   Mrs Grant: I have one final point on that. Do you think practitioners—solicitors and barristers—can do more in helping you to manage and deal with these unacceptable delays?

Sir Nicholas Wall: I think the answer is yes. In the guidance I have issued, I have said this is a message for everybody. If a judge says a report must be filed in three weeks, it must be filed in three weeks. If a statement has to be filed within X days, it must be filed within X days. There is a resource issue here and the Bar and solicitors are under the same degree of financial pressure as the courts are. None the less, if everyone adheres to the timetable which the judge sets, that is the best we can do.

Mrs Justice Pauffley: There is a general willingness to do that. I would say 99% of practitioners readily fall in with our time frames, recognising that from their clients' perspective there is nothing that would be better than an early decision.

Q172   Mrs Grant: That is very reassuring to hear. Is Cafcass still operating the "safe minimum standard" that you referred to in your guidance?

Sir Nicholas Wall: Again, this is very difficult because it is so mixed regionally. There are places where the local co-operation on the ground between the Cafcass manager, the DFJ and the relevant authorities is working extremely well. The object of the Guidance which I introduced was to eliminate duty guardians and to give the judge a much more proactive role. The answer has to be that there are places where—and Cafcass would be the first to acknowledge—the position is unacceptable and other places where it is working reasonably well. I am slightly out of touch because I have spent the last few years in the Court of Appeal. My colleagues will be in a better position to deal with that on the ground.

Mrs Justice Pauffley: There is a regional variation of worrying proportions, in my experience. In some areas Cafcass is demoralised. Its numbers are depleted. Guidance is being given that they must work proportionately, which in some instances has meant that Cafcass officers have not been able to attend final hearings and they have been limited in the amount of work that they do. It is also a major anxiety that the self-employed guardians, generally the more mature and more experienced guardians, are viewed by some areas as being too expensive. In the judges' experience, those are precisely the individuals who are best able to help in private and public law cases, for that matter. There is a very big problem. It is an embarrassment when, at a first appointment, a district judge is told, "I am sorry, although this application was launched six weeks ago, no one from Cafcass is available to begin the work that is needed." There is a grave problem in some areas. In other places, happily, there are good working relationships between judges and managers at Cafcass and things are operating quite smoothly.

Mr Justice Ryder: The President's interim guidance, when it was first issued, and of course it has been reissued twice since then, had, as one of its aims, imposing better standards of practice, so improving good practice while trying to reflect the resource shortfalls that had then been identified and the inconsistencies that we have all talked about. For example, we strove long and hard, and are still doing so, to get Cafcass reporters and judges to understand that an issue-identified report rather than a general welfare report may be much more suitable to the facts of the case and a much better use of a scarce resource. So far as achieving a timetable for the child within the proceedings, it is more likely to get you to that final hearing on time without an adjournment and delay. If you look at those documents, you will see that the overall intention was not just to provide a safety net for Cafcass—though it was by providing a minimum quality of service that had to be provided nationally—but also to pursue or encourage good practice that might make it easier to get more cases through the system in a more timely manner.

Q173   Mrs Grant: Why do you think Cafcass kept failing Ofsted inspections, and why are they doing much better now?

Sir Nicholas Wall: I think that is a question you are going to have to put to Cafcass. We need a welfare service; there is no doubt about that. We have to cope with what we are given. We have done our best to co-operate with Cafcass in the last 18 months or two years. I have been surprised that ordinary Cafcass guardians, when I have met them up and down the country, have welcomed judicial involvement. Historically, the guardian was always perceived as being the independent voice of the child, not to be the subject of any pressure from the judge. They were given very wide powers under section 42 of the Children Act and so on. But in fact Cafcass officers welcome the judge sometimes saying to them, "I think this case is about X. Will you please investigate X? Of course investigate anything else you like, but do investigate X for me." That has been helpful. As far as Ofsted and Cafcass are concerned, I am afraid you will have to ask them.

Q174   Chair: Can we move to the Public Law Outline? We touched upon it earlier on. My understanding is that your agreement with Cafcass emphasised that "it is of the utmost importance that the Public Law Outline is fully and effectively implemented by all judges, magistrates, legal advisers and guardians." How effectively is the PLO currently being implemented, and do you think something can be done to improve compliance, if indeed it is necessary?

Sir Nicholas Wall: Can I answer that in a general way, and then I will hand over to Ernest, who will deal with the detail? We are about to get some research from Professor Masson, which I hope will also be made available to this Committee, which will show that judges are having too many hearings and not case-managing in the way that they should be. I am very hopeful that post-Norgrove we will be told that the number of hearings is unacceptable, that judges must case-manage and there must be judicial continuity. That is a message which I will promulgate very strongly. The answer again, I am afraid, is patchy. There are places in the country where the PLO is properly and effectively operated and efficient, and other places where it is not. But I am in no doubt at all myself that the PLO is the way forward. We must case-manage and we must case-manage according to the PLO.

Q175   Chair: I am sure that is right. We get the impression that there is good practice and less good practice here and there, but surely one of the drivers must be resources? If a judge is working all hours God sends and the Cafcass people are running around day in, day out, it is very difficult to allocate time to be able to sit down and say, "Look, this is the procedure we should adopt. This is the way we should integrate or at least be moving in the same direction." It is partly a resource issue, isn't it?

Sir Nicholas Wall: It is indeed, but I am a great believer—and I am sure Ernest will amplify this—that in the first appointment, if the judge is allocated to the case, reads the case, knows what the case is about and has a good grasp of the issues, the judge can drive the case in the way the judge thinks appropriate in the best interests of the child. I think that is the way forward myself.

Mr Justice Ryder: There is no doubt that this was intended to be a huge culture change. The idea that the advocates could isolate the issues themselves and that the court would just go along with that—that they could have whatever formal style of hearing, split or otherwise, that they wanted and take as much time as they wanted—had to become something of the past. We brought in four specific imperatives that we have trained every family judge in, although I am the first to acknowledge that, if we had more resources to train more, that would achieve some benefits quite quickly, both with advocates and judges.

  The first point was procedural front-loading. As Nicholas has said, you want to get the thing read by one judge at the beginning, but you also want the parents to be told what is going on and why it is going on, preferably before they get into the court environment. We brought in a degree of advanced disclosure and preparation. For my part I would like to see more, but at least it was a start point on an almost clean sheet of paper where that was simply not the norm beforehand.

  The second thing which is particularly important, in my view, is the timetable for the child. If you are going to try and avoid the example that you, Sir, brought out from Wales, you do it by having a timetable which is fixed. Yes, of course you can amend it as you go along, but all social care and legal steps are timetabled from the first appointment, through the case management conference, which is the second stage when you identify the issues. You keep looking at that at every stage and don't ever forget the fact that it is the child that usually suffers from the change in the timetable.

  The third issue is not to allow the parties to identify the issues but for the judge to do that. That implies adequate preparation time and therefore good listing guidelines to give you that time. Then there is the issue resolution in the way the court sees it is appropriate. One of the keys there is that, where you have a great shortage of court time, if you are not listing every case for final hearing at the beginning, which then fills the diary for eight months plus, but you are only listing them for final hearing at the point where you get to the third stage—the issues resolution hearing—you are then able to use the scarce resource of the court much more quickly for the appropriate case.

  I have been out of some of the detail of these cases for a year, sitting in crime, so if I am slightly wrong on my statistics, forgive me. We were still having the position a year ago where 60% of the county court cases in public law were settling at the door of the court of a contested hearing. That does not necessarily bespeak of good case management or indeed good management of the cases by advocates. It may be the way in which people behave; they come to decisions about risk at the door of a court. Nevertheless, if we can advance that forward to the issues resolution hearing and have a neutral evaluation of the evidence there, you don't need four to 10-day cases listed in a long diary into the future. You can use your time much more productively.

  That was a huge culture change because it meant judges having to say at an issues resolution hearing, "What is your best case?" They neutrally evaluate the evidence on paper. "If you win everything, including credibility, in the evidential challenge in front of me, what are you going to succeed in, what are you going to fail in, and what is your worst case?" Teaching judges to do that—which is not the referee on the playing field; it is a very proactive case management system—we had to develop in a Practice Direction. We then had to teach it. We then have to build on the experience of getting judges to do it. I absolutely agree that we are not there yet by some way. We are very much hoping that the David Norgrove review will help us to build on that.

Q176   Chair: Hopefully, we won't be seeing—I won't say pointless, but unnecessary—finding of fact hearings.

Sir Nicholas Wall: Yes. I have issued guidance about that, which I think has had a reasonably good effect.

Mr Justice Ryder: Yes.

Mrs Justice Pauffley: Yes.

Q177   Chair: How is the compliance with the PLO monitored? Are there difficulties with the number of bodies involved? How would you like to see the thing monitored?

Sir Nicholas Wall: Again, I will defer to Ernest on this. One of the most welcome recent developments is the local performance group. This involves another culture change. Historically, people have been very deferential towards the judiciary and if a judge is falling down on time scales the judge has not been told. For years and years and years, we have been calling for proper statistics and a proper system of enforcement. My own view is that, now we do have the local performance groups, on which the judiciary will be represented, there will be a much freer and franker exchange of views between the various disciplinary bodies engaged. They will tell the judge and the judge will be part of that process. If the judge is not case-managing a case effectively, he or she will be so told. I hope that will happen. I shall certainly do my best to ensure it happens. That is one of the things we can do.

Mr Justice Ryder: I think there are three aspects to monitoring that compliance and to try and build on the successes as well as to counter the failures. One has been the research projects. You will have had Dr Brophy's evidence. You will have read and may be hearing from Professor Masson. Frankly, we would welcome more because those projects and those pieces of research are hugely useful to us as well as to yourselves. The second aspect is the business committees and the performance implementation groups, because they have to talk about why it is not working in a particular area or how we could improve on it in a particular area. The third is that we change the statistical method of collection. Although family statistics through the computer system FamilyMan are notoriously fragile—not my words, but I could go a lot further in describing how poor they are—nevertheless, if you are tracking whether a court is hearing a case management conference within a reasonable period of time from the issue, if you are tracking whether the issues resolution hearing has likewise been listed at the time the judge said it should be so that listing is working and the timetable is being complied with, then you can get some indication that it is beginning to show results in terms of not breaking the timetable you set at the beginning.

Q178   Chair: What implications are there for the effective appliance of the PLO in light of diminishing resources?

Mr Justice Ryder: It is going to become more important. I make no bones about the fact that when we introduced the concepts in the PLO there were a significant number of detractors. There always are when you are bringing in changes of this kind. Some of those detractors would have been individual judges who simply said, "I don't do things this way." We have gone beyond that now and people have realised that the shortage of resources will mean no more judges. We may change the composition of the existing benches. We may use people for more things than they were used for before, but there is going to be no more money in that system. There are going to be no more courts. The court building programme has stopped and the court closure programme has been implemented. It is down to us to make sure that our case management is better with the resources that we have. If that means that for once we are actually achieving timetables that we have set, then you have an answer to delay in there as well. It may be an odd silver lining to a cloud, but there is a very significant benefit to be had from this culture change.

Mrs Justice Pauffley: Judges talk to one another as well, which I regard as a particular strength. In any court centre there will be a leadership judge—the designated family judge—who will be ensuring that his district judges and the other circuit judges are case-managing appropriately. They will discuss problems together over lunch and hopefully resolve them. The leadership judge will then ensure compliance, so far as he or she is able.

Q179   Chair: I am sure that is right and most welcome, but it does disturb me to hear Mr Justice Ryder reminding us that 60% of these fully contested cases settle on the morning of the court. It is not a good use of judges' time or anybody else's.

Mrs Justice Pauffley: He was saying at the issues resolution hearing.

Mr Justice Ryder: Yes; the historic statistic was at full hearing. My understanding is that we have now moved that back to the issues resolution hearing.

Q180   Chair: That is before the new regime, as it were, with regard to identifying the issues early on.

Mr Justice Ryder: Yes. I would agree with your general proposition that, if we were unable to effect late settlement in that way, that would be unacceptable.

Q181   Chair: I move on to the rather fraught topic of litigants in person. Sir Nicholas, you told us previously that "there is not an adequate appreciation of the pressure that the family justice system is under at the present moment." Where do these pressures come from, and what would be the impact of a significant increase in litigants in person?

Sir Nicholas Wall: The answer to the first part of the question is a pure resource issue. The second part of the question is that I do genuinely think—and my colleagues will no doubt give you more hands-on experience—that my experience of people who are not represented by lawyers is that they come in all shapes and sizes. Obviously some of them are very good; some of them are very nervous; some of them are very upset; and some of them are disturbed. But they do undoubtedly slow the system down. The person who is not represented will take most points, good, bad and indifferent. They will not understand the rules; they will have to be explained. Although there is a consultation on public funding, at present all the indications are that public funding is effectively going to be removed from private law work. We are going to have a very substantial increase in the number of people who are representing themselves in the process.

The result of that will be, in my view, very substantial delays. We are not increasing the number of judges, courts or sitting days. We are going to give priority, as far as we can, to children's cases, but we will undoubtedly be slower, longer and there will be a great deal of frustration. That is my experience of dealing with litigants who are not legally represented. I think it is probably the same with my colleagues.

Mrs Justice Pauffley: It is absolutely the same. It is extraordinarily difficult to manage a litigant in person. We all have a duty to listen to the arguments that they present. It would be rude and offensive, and, frankly, one might say, a denial of justice, to say, "I'm not interested in this; move on." There is only a limited amount of that in our armoury. In most cases a litigant in person will add enormously to the length of time a case will take, not least because most of them will want to litigate every last little issue.

Q182   Chair: Sir Nicholas has said previously that, if public funding is removed, then obviously a parent who is anxious about either contact or residence is not going to give up simply because he or she is unrepresented, are they?

Mrs Justice Pauffley: Absolutely not.

Sir Nicholas Wall: Absolutely not. As I mentioned earlier, what we have done in the private law programme is to have a first issues resolution appointment, a dispute resolution appointment, where the Cafcass officer says to the parents in front of him to go off on an educational programme or what is the issue and can we resolve it? Unlike other areas of the law, people will not give up simply because they do not have public funding. There are other areas of the law such as immigration and so on where, no doubt, swathes of work may be cut out because there is no public funding. But, in family work, there is no doubt at all that you are right and there will not be a diminution; there will be an increase, if anything, in the people who litigate.

Mr Justice Ryder: I don't think it is necessarily appreciated that at this first appointment in private law about 70% of all cases—it varies across the country—are conciliated by the district judge or, in those areas where the family proceedings court does this, by the legal adviser with or without the magistrates. That is an extraordinary percentage of cases that don't fight in a traditional way through the courts. If we are then going to remove legal aid from those cases that need some legal assistance, the inevitable effect is going to be significant upon the judges.

We have noticed, in the five years since Professor Moorhead's research that was quoted to you, quite a significant change in the composition of litigants in person. They are now more obsessive. They are now more obdurate—I make no bones about it—and there are far more of them than there used to be. That is in the High Court, the county court and indeed in the family proceedings courts.

Q183   Mrs Grant: In addition to those categories, does it worry you as judges that there are going to be a very large number of people coming before you who just cannot manage? They cannot navigate their way through the court system. Many lawyers find it difficult. Many of these people are emotionally connected to the case. They may have some learning difficulties or mental health problems. What are you going to do with them?

Mrs Justice Pauffley: It is a massive problem.

Q184   Mrs Grant: Where are you going to send them?

Mrs Justice Pauffley: We all have our routes of possible assistance. We send them off to the Bar pro bono unit, for instance. If a stepfather is accused by his adolescent step-children of having sexually abused them very seriously and over a number of years, you cannot have a man in that category cross-examining those young witnesses himself. It would be a denial of justice, and it would be emotionally the most upsetting of spectacles for any court to encounter. So you send them off to the Bar pro bono unit. You ring up chambers with whom you have perhaps a slight connection and you say, "Could you possibly send somebody along to represent this poor unfortunate?" But it is calling in favours, which is really outrageous in a civilised society.

Q185   Chair: The Minister with responsibility for legal aid told us that cases with litigants in person are quicker than those with represented parties by up to 50%. I suspect I know what your answer will be. I am just wondering whether you have any comment to make on that.

Sir Nicholas Wall: I think he ought to come and sit with one of my colleagues or myself for a day with a litigant in person and then he might not give that evidence.

Chair: He may well accept that invitation in due course.

Mr Justice Ryder: I cannot think of a single case where that would be correct in the time that I have been sitting. I do note, in fairness to the Minister, that this research was in 2005 and related to the period before then. Case management changes have been the most significant in the five years that have followed. But even if one reads that research carefully—and I would suggest it is read carefully—what in fact the Professor said was that there are more orders, more contested hearings and more activity, as in "You need more time for the unrepresented party in litigant in person cases." That is a rather selective quote, if I may so with respect to the Minister, when one looks at the research overall.

Q186   Chair: The Lord Chancellor told the Committee that "I think in some of the family courts it is most helpful for the judge to listen to the actual parents." Could more litigants in person be helpful in some cases? How can appropriate cases be identified?

Mrs Justice Pauffley: We do listen to parents; that is our role. Sometimes they are represented and they are focused by their representative on to particular issues. If they are unrepresented, then it is open season. Therefore, a great deal of time can be wasted. I can't quite understand how the Lord Chancellor believed that we weren't listening to parents if they were represented, because we most certainly do.

Q187   Chair: I merely quoted a view expressed by the Lord Chancellor. I am very concerned about the response I have heard from you regarding the sexual abuse allegation type case—the Rule 9.5 type case. This is a major issue, is it not?

Mrs Justice Pauffley: It is.

Q188   Chair: From my own experience it is not unusual for these allegations to be made in the heat of battle, as it were.

Mrs Justice Pauffley: Particularly in private law proceedings. In public law proceedings it would be different, because as matters stand at the moment, that parent would be entitled to legal aid as of right, but in private law, no.

Sir Nicholas Wall: It is a real difficulty because in the criminal sphere there is a statutory intervention. It is not possible for the situation which Mrs Justice Pauffley indicates to take place. A potential abuser cannot cross-examine a victim. In family law there is no such provision. It is enormously difficult.

Mrs Justice Pauffley: The only other way I have seen it managed is for the guardian or the child's representative to shoulder the burden of cross-examining the young person with a list of questions provided by the accused, but that is less than satisfactory.

Mr Justice Ryder: There is no provision or funding for special advocates to be appointed in the family arena. They are very, very rare indeed and wholly in the discretion of the Treasury Solicitor.

Q189   Claire Perry: Carrying on a little bit with this theme of the balance between confidentiality and openness, and with the changes in the proceedings as a result of the Children, Schools and Families Act last year—there was an increase in media access—what are the flaws, as you see it, in those proposals which have just been implemented? If we need to do better, how can we balance this desire for openness and accountability with the concept of child protection and confidentiality?

Sir Nicholas Wall: There are several answers to this. The first is that the Act is not popular, I am afraid, either with the press, the judiciary or indeed the general public—the litigant. I myself don't think that legislation is the way to deal with this particular issue. If the Act is implemented, we will spend a huge amount of time, and incidentally a lot of money, arguing about what can and cannot be reported. In my view, that is not a profitable use of judicial time or litigants' time. It will delay cases very substantially. It is an issue which we have to address. At the moment there are discussions going on which I have instituted with the press to try, first of all, to establish where we are and what the law currently is—because the law is very complex at the moment—and then to move on to try and see whether we can't reform. Those discussions at the moment are at a confidential stage and I can't go any further than I have gone already.

  The second point I want to make is that the press themselves respect confidentiality, particularly in relation to children, and have no desire to publish. What tends to happen, and this is a matter which we do have to address—and Mrs Justice Pauffley, I know, has suffered from this in particular—is that one side will give a tendentious view of a case to the press. The press will then publish that case as though it was the gospel truth, and the judgment which may be given will not be corrected in the press because by then the story will be old. Indeed, one of the defects of the Bill is that there is nothing to stop a journalist on day one listening to a case being opened and not reporting anything else other than what the one side has said on day one. What we are aiming to achieve is fair, balanced reporting.

  There is a real difficulty. I go up and down the country and I see hard-working, dedicated, professional people doing their best, often with inadequate resources, to represent children. Yet in the press I read that there is a system whereby judges rubber-stamp care orders and children are removed by wicked local authorities from right-thinking members of society. That is a credibility gap which we are going to have to address; there is no doubt about that. The question is how best we do it. My own view is that legislation is not the way to do it. What needs to be done is protocol.

Q190   Claire Perry: Would anybody else like to comment?

Mrs Justice Pauffley: I agree with that entirely. The worst thing from our perspective is that the family justice system is painted as secret, wicked, reliant on Cafcass officers who are unaccountable, reliant on experts who are likewise unaccountable, and judges simply do what these professionals tell them to do and children are wrongly lost to the care system. There is nothing I would want more than to redress that shocking imbalance of public perception.

Anyone who comes to sit in a family court would very quickly realise that every judge there is straining beyond everything else to ensure that children are only ever removed from their natural families where there is no other course available and where their welfare needs strongly point towards removal. We are not intent, as we are painted, on endeavouring to fulfil some sort of crazy statistical system for taking children into care needlessly. The reverse is the case. We struggle wherever possible to reunite children with their natural families because we all recognise that the best place for a child is with his or her natural parents.

Q191   Claire Perry: Both Sir Nicholas and Mrs Justice Pauffley have basically said that there is not public confidence in the current system. If we don't rely on legislation—if we are relying on protocol—how could that look? How could we try and restore public confidence that the courts are in fact doing as you say?

Mrs Justice Pauffley: I believe that by some means or another we must enable there to be fair, accurate and balanced reporting of what we do. Until we have achieved that, there will continue to be a stream of terrible stories of perceived injustice, which, if you look at the court file, you would rapidly realise were nothing of the kind, because there was another side to a very interesting human story, and there were very good reasons why a particular course was taken. By some means or another we have to have some opening.

Sir Nicholas Wall: One of the difficulties is that we sit in private, and we sit in private at the behest of Parliament in order to protect the confidentiality of children. Of course, that is very easily translated in the minds of the press to secret justice. I am doing my best to encourage judges, whenever possible, to put their judgments into the public domain, suitably anonymised. If you look at the website BAILII, you will find a number of High Court judgments in the public domain. There has recently been a pilot to try and do the same for the county court because it is the circuit bench who, up and down the country, are doing the bulk of this work. They are the workhorses of the family justice system. I would very much like to see many more judgments in the public domain suitably anonymised so that children are protected and the public would have a perception of what we are doing. There is a huge credibility gap and we are addressing it.

Mr Justice Ryder: I am an exponent of having an open family justice system and perhaps would go further than some of my colleagues, but you are not going to have confidence without the degree of openness that a Committee like this would understand, or people in the media generally will obtain through local government and other agency deliberations.

The scheme in the 2010 Act is far too complicated and does not, on its face, seem to reflect the essential confidentiality necessary for the child. Having been a child advocate for 20-plus years before I got on the Bench, I can see the force of the quite strong complaint that there has been from that advocacy lobby about the effect upon the individual child. What is much more important is the reporting of the overall process but maintaining the anonymity of the child and sufficient of the circumstances necessary to enable that child to carry on living without the public perception and the press at the front door.

Q192   Chair: Before I ask Mrs Grant to put a question, can I put my personal hobby-horse to you? In the early days when I was elected, full of vigour and youth—all sadly gone by now—I amended the Family Law Act 1996 to provide for separate representation of children in special cases when it was necessary, having a view of article 43 of the Convention on the Rights of the Child, and so on. I am very disappointed that, to date, no regulations have been placed before Parliament and that has not been activated since 1996. Do any of you have a view on that at all?

Sir Nicholas Wall: In public law cases, of course, the child is separately represented. In private law cases, generally speaking, representation is not deemed to be necessary except in cases of difficulty, and there are guidelines. I am very strongly of the view that, in a difficult case, it is important that the child's voice should be heard through separate representation. The difficulty again is funding. I do not know whether my colleagues have had the same experience, but I have had the very frustrating experience at first instance when I have ordered separate representation and been told by the Legal Services Commission that there is not the funding to produce it.

Mr Justice Ryder: I agree; this is a funding issue. Any civilised process would want, were there funding to be available, to provide for representation of children within the private law arena as much as one would want it in the public law arena. Like a number of other facets of that Act that weren't brought into being, it is a sadness that we do not have the benefit of that. We do redress it on a regular basis, for example, by getting the specialist unit such as the High Court unit of Cafcass in London to see children at the beginning and for them to get a very, very accurate picture, usually in the form of a wishes and feelings report, as to what the child feels about the application that is being made, not least because adversarial parents regularly, perhaps frequently, fail to see the child's perspective in the argument. Having that at the beginning, which you can get through the first appointment system that we have under the private law programme, means that you can often bring up the adversarial parties quite short when they realise the impact they are having on the child, even about a minor thing. They often forget that football is on a Saturday afternoon. They often forget that the dancing lesson is on a Wednesday night or that there is homework to be done. Their own issues completely overwhelm the child, and to hear what the child says can sometimes be very cathartic indeed. In fact, there are some judges among us who quite often listen to what children say directly in relation to wishes and feelings.

Q193   Mrs Grant: Domestic violence is prevalent in the family courts. I wondered what action you thought might be taken to improve the process of going to court for the victim, both whilst waiting outside court where, as I am sure you know, often there are families and eyeballing and trouble, but also inside court when the victim—and we touched on it a little while ago in a slightly different context—might have to be cross-examined by a perpetrator.

Sir Nicholas Wall: I will deal with this generally first and then defer to my colleagues.

One of the problems with the family justice system is that it has been built on the adversarial common law system. Therefore, if, for example, you accuse your partner of domestic abuse, you have to prove it. That means giving evidence and being cross-examined, particularly in the criminal context. My own answer to your question has to be that there are limits to what we can do. We can have separate waiting rooms; statements; sometimes perhaps forbidding or not permitting cross-examination on sensitive areas is one result. The difficulty is that under the Government's proposal in the Green Paper, when public funding will be available for victims of domestic violence, there is in my view—and I think this is the view of the family Bar as well—a perverse incentive for a litigant who may have been subject to domestic abuse but not necessarily to violence, first, to allege violence. Secondly, he or she will have to go to court and get an order in order to qualify for public funding. To my mind, that may either deter a number of victims or, alternatively, will provide a perverse incentive for a number of victims to make allegations which otherwise would not be made.

Mrs Justice Pauffley: In serious cases of domestic violence I would not shrink from setting up video-conferencing facilities to protect the victim from being in the same courtroom as the alleged abuser. There are other ways too, as Sir Nicholas says, such as limiting cross-examination and ensuring that the well-being of the witness is at the forefront throughout. It is a difficulty, but we are aware of it and we do what we can to protect.

Q194   Chair: Special measures, in effect, applied in crime could be applied to family, could they not?

Mrs Justice Pauffley: Exactly.

Mr Justice Ryder: I think you will find in the bigger family centres the use of vulnerable witness measures in exactly the same way you would use them in the Crown court. Though not a statutory formulation, they will be used in exactly the same way.

Mrs Justice Pauffley: So they don't even have to come into the same building. They can come to somewhere local and give evidence over the video link.

Q195   Mrs Grant: The Domestic Violence, Crime and Victims Act made breach of a non-molestation order a criminal offence. Is the Act working? I don't know whether you are able to answer this, but you might sense the impact on your courts. Are they prosecuting people for breach, or do you feel, perhaps, that maybe there has been too much criminalisation and too many cases being put into criminal courts, possibly at the expense of victim choice and victim protection? There are two or three issues in there, but I would be very interested to hear your comments on all of those points.

Mr Justice Ryder: I see this directly in the criminal courts. I will start from that perspective first and then come back to the victims, if I may. The criminal courts were perhaps not the most used to dealing with domestic violence cases. Unfortunately, the history, of course, is that the majority of domestic violence disputes did not find their way into a criminal charge. It has taken time for the criminal justice agencies, for the police and for the CPS to get to grips with the intention of that Act and to get the cases into the criminal courts.

The inevitable effect of using the criminal courts for enforcement purposes is another delay. First of all you have to get through the hurdle of the CPS bringing these cases and having confidence in them being successful, because the imperative is perhaps not so much protection of the victim here but making sure that the criminal justice system is operating effectively. Without being too cynical about it, what does one's criminal justice statistics look like? You could wait nine months for a significant ABH or GBH to be tried in a criminal court under the guise of this legislation and as a direct consequence of it, whereas we were putting victims and perpetrators before the civil courts in 24 or 48 hours under the old scheme.

Although I can see the statutory rationale for criminalising, I am not so sure the end product has been as effective as people wanted it to be. I am sure in terms of protection, if you are asking a victim six to nine months on to give evidence against a perpetrator with whom she or he may have managed to re-form a relationship, for example, for the benefit of their children, let alone the usual ups and downs of domestic violence relationships, you are not likely to get a very successful criminal case in any event. I have significant hesitance about the beneficial impact of that legislation.

Mrs Justice Pauffley: I agree with that.

Claire Perry: Thank you. I will leave it there on domestic abuse.

Chair: All I need to do is to thank the three of you very much. You have been very, very helpful. We know the pressures on your time, and we have appreciated what you have said to us today. We hope to reflect many of the points that you have raised in our report ultimately to Government. Thank you very much indeed.

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