Examination of Witnesses (Question Numbers
374-398)
Dr Maggie Atkinson and Jenny Clifton
10 May 2011
Chair: Dr Atkinson, welcome
back to the Committee, and welcome, Ms Clifton. We have a series
of things we would like to ask you about in the context of our
work on family justice. I am going to ask Yasmin Qureshi to begin.
Q374 Yasmin Qureshi: Thank
you. The Family Justice Review is focused on the needs of the
child. Do you think that some of their suggestions will improve
children's experience of the court system and improve the long-term
outcomes of children's cases?
Dr Atkinson: We
feel a great deal of what the Review team has concluded will do
exactly those things. You will know that my remit is about the
voice of the child and the system hearing, or failing to hear,
what children are saying. As a signatory of the United Nations
Convention, it is very important that we start to understand that
it is an international treaty and therefore binding. The United
Nations Convention says you do everything that you do for a child
in that child's best interests and, where you can, you find out
about those best interests from the child.
We were very heartened by David Norgrove's interim
report. There are still consultation processes in train and the
final report won't come out until the autumn, but we consider
that he has set out some very firm foundations for a proper debate
about how even the very youngest child has to have their voice
heard, has to have advocacy that enables them, for example, to
access solicitors, guidance and social workers in their own right
and on their own behalf, without necessarily being over-influenced
by an adult in a case who could try and mould their responses
or mould what they are saying to the social worker or the court.
It is very important that the child, as soon as they are able
to express an opinion, which is what article 12 says, has the
right to have that opinion heard in every decision that is made
about their lives. They are therefore an equal partner. Their
voice is not smaller than that of the adults concerned.
Q375 Yasmin Qureshi:
In light of the "best interest of the child" test, are
you comfortable with the suggestion by the Family Justice Review
that a "statement should be inserted into legislation to
reinforce the importance of the child continuing to have a meaningful
relationship with both parents"? Do you see any inconsistencies
or any problems with that statement being inserted?
Dr Atkinson: I
think we need a bit of an exploration of what is actually meant.
The 1989 Act makes it very clear that the right to contact is
not the parents' right: it is the child's right. Article 9 of
the United Nations Convention says that, if your parents separate
and you can't live with either one of them, and/or you end up
in care and you can't live with anybody in your family, your right
to contact should be maintained so long as it is in your best
interests. I would refer you to some of the comments from your
prior witness. Sometimes it is not in the best interests of the
child to be in contact with parents who have abused, neglected,
damaged or hurt them. Sometimes that is both parents and sometimes
it is one.
The paramountcy of what is in the 1989 Act and
the "best interest of the child" in the United Nations
Convention should be guiding what we do. I would also echo what
Rae said to you. Again it is in the Convention. Shared responsibility
does not drift away from you if you don't live with your child.
Your shared parenting responsibility remains. Divvying up a child's
time 50/50, 30/70, 35/65 between this warring parent and that
warring parent is therefore not the issue here.
Children have told us that they feel like parcels
being passed between warring parties and that they actually feel
like a piece on a board in a game that is being played by adults
who are not considering the rights of the child. Your shared responsibility
remains whether or not you live with them. The interests of that
child may well be served by spending time with this parent on
this weekend and that parent on the next, or half weeks, and it
may not. We feel it is one of the parts of the Review that needs
further conversation and further discussion.
Q376 Yasmin Qureshi:
The report also suggests that the courts should not focus on the
details of children's care plans. Do you agree with that or do
you have any concerns about this particular aspect of not focusing
on the details of the children's care plans?
Dr Atkinson: In
principle, we do agree because there are times when it has become
custom and practice—it has become a habit for the court—to
start the process all over again and to call for further detail
and documentation when actually what is in front of them is pretty
good. However, I would say it is not as simple as stopping and
making it the responsibility of the other professionals involved
in that child's life on a particular date, where you flick a switch
and the court is no longer involved and now it is this person's
responsibility.
As a former Director of Children's Services,
I know that the people who took cases to court on my behalf had
been incredibly well prepared and the practice was excellent.
It isn't like that universally. Sometimes a case will come before
a judge and there are holes in it and gaps in the evidence, things
haven't been completed and things aren't ready. If the change
is going to happen, it needs properly preparing and training for.
For the workers who take on those responsibilities, stepping in
to become the parent of a child, as the State is and as the report
recognises, is an onerous and in some cases draconian thing to
do. It should not be done lightly. Where the judge stepping back
eases delay—because how long it is going to take is one
of the things that children talk to us about incessantly—and
makes a case go through as it ought, fine, but the back-up material
that is presented by other professionals involved in that child's
life and the practice that has gone on to get things to the pre-court
and then the court stage in the first place have to be universally
excellent, otherwise judges will continue to intervene.
Q377 Yasmin Qureshi:
The Family Justice Review Panel published their initial findings
in an interim report. People have until 23 June to
respond to it. Are there any other changes you would like to see
which are not in the report?
Dr Atkinson: Deputy
Commissioner Sue Berelowitz raised a question at the launch event
for this report which has my full backing. I am glad she raised
it and it is this. Because my remit covers everything to do with
childhood and children right across the piece, we go in and out
of both the family and the criminal courts. We go in and out of
the family justice system and the criminal justice system and
meet and talk with children, young people and families in both
of those systems.
It is almost always the case when you sit in
a youth criminal court that what you are looking at, whatever
the crime they have committed and they can be heinous, is a child
who is known to social care, education exclusion services, integrated
youth support workers and intensive youth support workers. What
you are almost always looking at is a child who, like the two
Edlington boys who committed that horrendous crime on two of their
peers, had been ill-parented, badly looked after, abused and neglected
as well as being young criminals.
We consider, and many barristers feel the same,
including criminal barristers, that there should be the possibility
of referring from the youth criminal court into the family court.
We do not consider that it ought to be possible to refer back
the other way. It is not always the case that the family court
will then deal with that child in a way in which the criminal
court can't then intervene, but we sit and watch case after pathetic
case in youth criminal courts of youngsters whose lives are fractured
and broken. They have committed crime for whatever reason, but
a great deal of it is because of their backgrounds. The family
courts in the Scottish system have a panel where there is an inquisitorial
way of dealing with things. They still might end up incarcerated
and with a criminal record, but a family court way of dealing
with these matters could reduce our numbers in the youth justice
system and set them on a track that is about healing their lives.
We raised that and we will raise it in our consultation response.
Q378 Mrs Grant:
As a quick supplementary to that one, presumably the type of case
that you think might be appropriate for such a transfer would
be where the criminal allegation was fairly minor, like petty
theft or maybe something like that?
Dr Atkinson: And
they very often are. It is a very good point. You sit at the back
of a criminal court and the child who is on Ritalin for ADHD and
whose dad died five days ago has lashed out at a police officer,
sworn at the two people who came to try and arrest him and then
kicked the sides of the van in. The root of his issue is not that
he has committed a public order offence. The root of his issue
is that he is in grief and what is going on in his life is atrocious.
Q379 Chair: You
have focused quite a lot, Dr Atkinson, in your submission to the
Family Justice Review on the role of the Independent Reviewing
Officer. There seems to be some conflicting opinion about whether
that is a role that should stay with local authorities or whether
the IRO should be part of an independent family justice mechanism,
perhaps of the kind that Norgrove is recommending. What made you
place emphasis on it and what do you think?
Dr Atkinson: With
your permission, Chair, I am going to pass to Jenny because she
used to lead a team of IROs and she is my principal policy adviser
on matters of safeguarding. I think she has the detail if the
Committee is prepared to hear her.
Chair: Yes: Ms Clifton?
Jenny Clifton:
Thank you. We focused on the role of the Independent Reviewing
Officer because they are a crucial professional social worker
whose job is to make sure that children's voices are heard throughout
the care planning process, not just in the court context, and
because they have a key role in ensuring the quality of care plans
for all children in care. It is of concern to us as the Office
of the Children's Commissioner that that role is effective. As
you will no doubt know, originally that role was set up so that
the court, instead of continuing to have a brief to ensure that
the child's care plan post-court was carried through, created
this post so that there would be some scrutiny of the local authority's
ability to carry forward the plans for the child.
The IROs have come under some criticism for
not referring cases to Cafcass for resolution where the child's
human rights may have been breached, as they have the facility
to do. It is my view that the IROs have had good impact on practice
in local authorities. Children have said this to the Children's
Rights Director and foster carers have reported on that. There
is certainly a case to say that they have made a difference to
the quality of care planning. However, they may not have been
so effective in ensuring that children's care plans are adhered
to.
We looked at the issue of independence and how
a person who is a professional but employed by the local authority
can also challenge that local authority's decisions and the quality
of what they do. I think that that question is still to be discussed.
What are the kinds of safeguards that enable the IRO to do that
effectively for children? Should that mean that they are inside
or outside the local authority? It was our view that that needed
discussion and consideration, and, indeed, it has been the subject,
as you say, of many different submissions.
The second point is that their role in terms
of the child's voice links very closely to that of the guardian.
The other issue that we wanted to have under discussion was not
just their effectiveness in the role that they do now, but how
they could be effective in liaison with the child's guardian through
the court process. We largely attended to that because, when the
IROs were set up, and indeed in the recent handbook that strengthened
their role, it was not—and in my view still is not—clear
how they relate to the court process and how the court can effectively
hear the IRO.
Q380 Chair: It
is a complex structure with slightly overlapping responsibilities
between the Independent Reviewing Officer and the guardian, is
it not?
Jenny Clifton:
Yes.
Q381 Chair: Do
you think this discussion is going to continue through to the
next stage of Norgrove as well?
Jenny Clifton:
We have had some subsequent discussions after our initial submission
with people who have an interest in this: the National Association
of Guardians Ad Litem and Reporting Officers and guardians themselves,
and the National Association of IROs. We will be making another
submission. There will be other people making submissions about
this. We are not absolutely saying that they must be amalgamated
in terms of roles. We are saying that they must work very closely
together and that there is a point in having a look at different
perspectives as to how they could be made more effective.
Dr Atkinson: Chair,
can I come in at that point? One of the things that the Norgrove
Report, and indeed our work with children and young people going
through the system, tells us consistently is that the point you
have just made is magnified if you are a child going through this
process. "I don't know who any of these people are. I don't
know what their roles are in regard to me. I don't know who I
should trust because I don't know who is going to keep what I
say confidential"—the right to privacy—"and
who is going to put it into a report that is then heard by an
awful lot of other people." They certainly don't know the
difference between an IRO and a guardian very often. They are
already daunted and frightened. However friendly family courts
try and make themselves, they find family courts and the processes
leading up to them intimidating places and very difficult places.
They blame themselves. They want to defend their parents and their
families.
In Professor Munro's review report launched this
morning, which I got to see at midnight I am pleased to say, there
is a case study of a young woman who was taken into care at 4
years old and who, in her first six months in care, saw 46 different
people. Well, hello. We need to rationalise and make it simple.
What the Norgrove Report is calling for is a single point of entry
with really clear explanations and a model that takes us back
to first principles. The first principle for all of us should
be the child.
Q382 Chair: Could
you envisage a system in which the two roles were amalgamated?
Dr Atkinson: I
know some of the evidence-givers to Norgrove said that they wanted
the system to look at amalgamating those two roles. I know the
Norgrove first set of recommendations is about bringing the guardian
service, certainly, into the new national family justice service.
The debate needs to continue. David Norgrove was very wise to
publish on an interim basis and to launch the next stage of much
more focused discussion around his recommendations so that in
the autumn, when he reports, we will hopefully be drawing a clearer
map for people.
Q383 Chris Evans:
I want to focus on Cafcass. We had, shall we say, a very uncomfortable
session a couple of weeks ago about Cafcass. It does seem to me
that there are a huge amount of problems there. They had a large
number of delays. They had a number of organisations calling for
them to be abolished. I was wondering what your views are. Has
Cafcass now come to the end of the road and should we be looking
at some sort of reform there?
Dr Atkinson: You
will forgive me for picking up your accent and therefore knowing,
from talking to my Commissioner colleague in Wales, that the Welsh
branch of Cafcass, which is a devolved system, is actually serving
children and young people very well. We have got to a place in
England where it seems to have helped to lessen delays in some
places, but guardians themselves will tell you that they don't
get to spend enough time—and enough quality time and consistent
time—with the child concerned.
For me it is less important what we call it.
It is much, much more important that we recognise that children
who are in difficult, vulnerable and emotionally fraught situations
need an objective, independent guardian. However the system reforms
itself, that is what I would be pushing for for every child in
these circumstances. They need an advocate. They need somebody
who sits outside of the family, the circumstance and the estate
where they live or wherever, and can speak completely objectively
and on behalf of the child if the child cannot speak for themselves
or if the language concerned is technical and needs real legal
explanation.
If we deconstruct Cafcass, we will have to put
in place some form of "serve the child" and put the
child first. Whether it is called Cafcass, whether it is a branch
of the new family justice service or whatever is much less important
to me as Commissioner than that children have adults who will
make sure their voices can be heard.
Q384 Chris Evans:
I take your point about Wales and I think that things are very
well devolved. When we had Baroness Howarth in front of us, the
impression that I was left with was that Cafcass England was a
tired organisation, the staff were demoralised and they couldn't
go through any more changes because they were sick and tired of
change. It seemed to me that the whole idea of a worker spending
more time with a child was lost. I don't know what your experience
of that is. How can they spend more time with a child when there
seems to be this complete lack of enthusiasm there for making
this system work because they are just tired of change?
Dr Atkinson: My
experience of meeting guardians, not in this job but in my previous
one, was that they were passionate about wanting to spend as much
time as possible with the children who were on their caseload.
If we need to reform anything—and this is the song of Moira
Gibb's Social Work Taskforce and Reform Board and of Eileen Munro's
report released this morning—we need to get to the stage
where, yes, there have to be systems and, yes, there have to be
reporting mechanisms and so on, but the need to work with and
for the child is the first principle that people work on. That
means harnessing their energies. Usually, when your morale is
low and you are feeling a bit despondent about something, if somebody
involves you in trying to improve it, your morale improves because
what you are doing is reshaping. There are some very, very good
people who work as guardians for Cafcass. What we need is a system
that enables them to help us to reshape what happens, with the
child at the centre of our concerns.
Q385 Chris Evans:
A major problem that was identified was that foster carers were
just not being asked. They are reliant on workers who have spent
half an hour with the child in the last three months. They have
not been asked about what the future for the child would be. How
can a system be developed where the foster carer is at the centre
and is part of that process rather than just some worker who has
met the child for half an hour and hasn't really got a flavour
of them? Perhaps they are having an off day or they are having
a pretty good day. It is difficult to form an opinion of anybody
within half an hour, I think.
Dr Atkinson: It
is. Like no doubt yourselves, and your constituency work outside,
you have met some fantastic foster carers, who very certainly
have a close emotional contact and connection to the child concerned
and could and should be part of the group of adults who speak
about their experience of the child and how they are doing. They
are not the sole arbiter, however. They sometimes don't have that
child on a long-term basis. They may not be the absolutely stellar
foster carers that you and I dream about, because not all foster
carers are brilliant. They are as flawed as any parent. They make
mistakes just like any mum and dad would make, but they are very
important and we have to hear them.
One of the things that Norgrove talks about is cutting
a clearer path for those people who are closely involved and engaged
with the child and have an emotional connection with them because
they have taken them on as foster children, having a voice, having
a place at the panel, in the court or whatever. Jenny, I don't
know whether you have things you would want to add from your practice
experience.
Jenny Clifton:
There are a couple of things. If the care planning process is
working well—and this goes back to the role of the Independent
Reviewing Officer—then the foster carer should really be
heard in the reviews that that child is having during the court
process and outside of the court process. Good practice would
ensure that the foster carer was consulted and involved and that
they knew about the plan for the child and had an opportunity
to gain the child's view. It is very important that the foster
carers see themselves as someone who can help the child to express
what they need, but they aren't separate enough from the process
to take the place of an independent guardian.
Q386 Chris Evans:
If you were given a blank sheet and I said, "In a perfect
world, what would you like to see?", you had infinite resources
and you could do whatever you wanted, how would you envisage the
future role and work of Cafcass in the family courts? How would
you reform it? I am giving you the chance to say what you would
reform.
Dr Atkinson: You
would go all the way back to first principles and you would make
absolutely certain that somebody who has the right disciplinary
training—so they are likely to have been a social worker
in child protection or in care—would train to be a guardian
or advocate. We would probably stand down all sorts of names and
pick up new ones and go forward. They would have access to the
other parts of the new family justice service. They would be schooled
and trained in court processes, in pre-court processes, in how
the family operates and what the child actually needs. They would
have contact with the child's social worker and the team that
is around that child. They would be freed from as much bureaucracy
as possible so that they can and will then spend time with that
child.
Once they have taken on a case, one of the things
that children say to us is, "We don't just want somebody
who understands us, who likes us, is funny and will talk to us.
We want somebody who is going to be there more than three meetings
on the trot." It is the notion of stickability and the notion
of people who really want to step from pure social work and into
the legal processes that attach to making sure children stay safe,
with a close allegiance to the family justice service, but, as
Jenny said earlier about IROs, capable of standing up for the
child no matter what else is coming in their direction. They are
a very special breed of people and there are many of them who
work for Cafcass.
Chair: Yasmin Qureshi
has a point on this.
Q387 Yasmin Qureshi:
I just wanted to look at this issue of the Independent Reviewing
Officer and Cafcass. I think you touched on it at one time that
they should be somebody who represents the child's interest. I
agree with you because before the election I was dealing with
a family law case. We had a fact-finding hearing. There were issues
about this. Everyone was there: the children's guardian; the local
authority representative; and the parents' representatives. I
represented one of the parents and they were trying to explain
things. They were meeting their children in contact centres. They
were saying that the children were asking for certain things and
the children wanted to go back with the parents or with the family
members.
I kept asking the
children's guardian and the local authority lawyers, "Can
somebody go and speak to these children? Can you find out if what
the parents are saying is correct? Is what the children are saying
is correct or are the parents making it up?" I found I was
almost knocking my head against a brick wall. I just felt all
the institutions and all the institutional groups closed rank.
They didn't really seem to be interested in talking to the children
at all. I am not sure if my experience is unusual, but would you
say that is another reason why we need to have somebody who is
in discussion with the child on a regular basis to find out what
the child wants?
Dr Atkinson: There
are two things to say there. The first is a very simple yes. Somebody
does need to be capable of being on their wavelength, even the
very, very youngest, and to pick up on the nuances of what is
going on in that child's life. There is an absolute yes, so let's
tick that box and get that over with.
There is a nuance that sits alongside the best interest
of the child because children, however balanced or unbalanced
their lives have been, do not always know what is best. You also
therefore need professionals who are not just going to go wading
into a situation and say, "The child says they want this
and therefore that is what the child should have." Children,
particularly from abusive backgrounds, become extremely adept
at pleasing mum or pleasing dad and/or pleasing the guardian or
the social worker if they step into their lives. It is part of
disrupted attachment that they will do that. Therefore, I would
say there is every need that staff who are trained to do that
know as much as possible about child development and attachment
and what happens when attachment is disrupted and children have
got used to playing games to please adults. Sometimes you need
to get under what a child is saying they want to work out what
they really need and what is best for them. Sometimes acting in
their interests is different from just doing what they want. That
is really important.
Q388 Yasmin Qureshi:
Maybe I expressed myself in the wrong way. I am not saying whatever
the child wants should be done, because, as you say, they are
perhaps not able to make the best decision. What I felt was that
there were just no efforts to talk to them at all.
Dr Atkinson: That
is poor practice. From studies through the University of East
Anglia and others, also the work of the Children's Rights Director—currently
based at Ofsted and about to be amalgamated, following our review,
into a bigger office of the Children's Commissioner for England
when legislation can be laid—our evidence shows that what
they say to him, to us and to our researchers is consistent. "You
need to make the time and the space to come into where I am and
listen to what I have to say to you because I know about my life."
If people are not following through on that, then that is poor
practice.
Q389 Mrs Grant:
Do courts give correct weight to the wishes and feelings of children?
Do children feel their voices are heard? I know you touched on
it earlier, but could you say a little bit more now?
Dr Atkinson: We
have some work ongoing at the moment which is so draft that it
is blowing about in the wind. When it is more ready, we would
be delighted to send it to members of this Committee for your
further consideration or to come back and talk to you again. It
is about exactly this issue.
Courts are daunting places. There are models
of family courts. They are currently the family drug and alcohol
courts, which Norgrove picks up on and Eileen Munro talks about
as well, which are much more a room that is set up a little bit
like this where it is in the judge's chambers and it is a conversation
around a table. It is inquisitorial rather than adversarial.
What children find difficult—and this
goes for both the criminal and the family courts actually—is
the adversarial model of British justice where what you have is
warring parties rather than an attempt to find out what is going
on. In circumstances where they get the opportunity to talk to
the judge, very often children do appreciate that opportunity.
Our view is that they ought to be given the option as to whether
they do or they don't want to talk to somebody who is in such
a position of authority.
It is very important that, if they are going
to be listened to in court, circumstances are such that they are
not overwhelmed by the experience. You walk the corridors of this
building all the time. For those of us who only come in every
now and again, walking through Westminster Hall, up the steps
and coming through the Central Lobby is a daunting prospect for
somebody who is in her mid-50s and has been around a bit. If I
were 11 years old and this was a court, I would find it very difficult
to come into a room like this and talk to a group of people like
yourselves because you are outside my experience, aren't you?
No, they don't give true weight to children's
views, but that is probably because of the way the system is set
up. Judges, barristers and solicitors are not trained to do it.
Their social workers and their guardians are, but, if we are really
going to make an effort on this, then everybody in the system
would have to have the right training to do the listening, to
take account and to be able to say to children, particularly if
you are a judge, "I am going to listen to everything you
have to say and everybody in this room will listen and give you
the chance to answer the questions. I may not do what you think
you want me to do at the end of it. I will make a decision and
I will explain why." Some judges are brilliant at it; some
judges are fantastic at it; and some judges find it really hard
to come down to the level of a little child. It isn't easy.
Q390 Mrs Grant:
I know. On a slight tangent but still relevant, rape and sexual
assault victims in criminal cases have the right not to be cross-examined
by the alleged attacker or perpetrator. That same right does not
exist in family cases.
Dr Atkinson: No,
it doesn't.
Q391 Mrs Grant:
Should it?
Dr Atkinson: Yes,
it should. Jenny has been talking to a number of researchers and
indeed has had feedback from barristers on this. Your Committee
Clerk tipped us off that you might want to ask this question,
so like good researchers we went away and asked some questions.
Chair, if you are okay, I will hand over to Jenny. She has some
responses on this.
Jenny Clifton:
Yes; it is quite a difficult one. You will know about the recent
case of Re W which raised this issue quite seriously. I am not
a lawyer so I won't try to comment as a lawyer, but there has
been concern that children have this different level of protection
between criminal and civil cases.
However, the view of many people whom I respect
is that the judges in care proceedings would be extremely unlikely
to permit such cross examination and would certainly not force
them to give evidence against the child's will. The upshot of
that case, which went, as you will know, to the High Court and
to the last appeal, was that the question should come back to
the court to make a judgment, but not a presumption about whether
a child should give evidence or not, on the basis of the welfare
issues as well as the need to get at the truth.
That is what I am hearing from the experts.
It is not a simple matter perhaps of going for a right for a child
not to give evidence in the same way. However, we have not formulated
a view. We have just sought some views from people. Our concern
would be that there would be the utmost protection for a child
so that they didn't have to give evidence, certainly not against
someone who they had alleged had abused them[1].
It must be the case that they have adequate protection from that
happening.
Q392 Chair: You
mentioned some research. When do you think that is going to become
available?
Dr Atkinson: The
research on children's voices and whether or not they are heard
in the courts?
Chair: Yes.
Jenny Clifton:
We have a slight extension from the deadline for the responses
to the Family Justice Review report. It will be in July. That
is partly to do with children's availability to be consulted during
May and June because of exams and so on. We have a slightly longer
period of time but it will certainly be mid-July.
Q393 Mr Llwyd: On that
subject, can I commend to you the parts of the 1996 Act which
would in fact allow for separate representation of children? You
mentioned it earlier on. I would say that because I moved the
amendments. It has never been put in place but it could be very
easily. It is on the statute book. We have heard lots of evidence
that people are very keen on broadening and widening the use of
mediation. However, there are concerns that all mediators aren't
quite up to scratch just now, especially in privately funded cases.
Do you have a view on that?
Dr Atkinson: I
do. Mediation, if it avoids coming into what I referred to earlier
as daunting places that are quite scary for people, and if it
actually creates a settled outcome for the child concerned, is
all to the good. Mediators should be properly trained and registered,
in my view. More to the point for me as Commissioner—and
I come back to my old song—at the moment mediation is a
very adult process. The two sides of the adult war use mediation.
I am not quite sure how many mediators ever find the time or have
the training to listen to the children.
When children talk to us, particularly in a
separating family where there have been some of the issues that
Rae referred to earlier of violence, power-brokering and all sort
of things going on, they say, "I'm scared it is my fault."
Really good mediation that could help them to work their way through,
in the same way as mediation aims to help adults through the difficulties,
would be another string to the bow of the family justice system.
It isn't at the moment. But they do need to be registered and
regulated. They need to be held to account for what they do. You
can't just put your name on a card you've had printed at a motorway
service station and call yourself a mediator.
Q394 Mr Llwyd:
What you have just said chimes with what Gingerbread said recently.
Getting couples to agree and stick to contact agreements, for
example, does not necessarily achieve better outcomes for the
children involved. Would you be in favour of what the NSPCC have
suggested, which is that mediators in certain circumstances could
appoint a representative for the child?
Dr Atkinson: It
feels like something that could add further complexity and delay
if it is not extremely well done and very well managed. If it
is very well done and very well managed, and what it does is expedite
things and makes things more solid and reassuring for the child,
it is something that could be explored, but I would need to know
far more about what the NSPCC are suggesting before I could give
you a solid answer.
Q395 Mr Llwyd:
What is your overall view on the whole issue of mediation? Do
you think it will be helpful?
Dr Atkinson: I
think in very, very many cases it already is and, therefore, there
is nothing that suggests that it won't be as it becomes a more
solid part of the system. For us, it is about whether or not it
remains such an adult-focused way of doing things.
Q396 Mr Llwyd:
The Government have introduced a range of measures to increase
the use of mediation, which no doubt you would accept. At the
same time the Family Justice Review is suggesting that Cafcass's
safeguarding checks should only be undertaken if cases reach court.
Would this not leave enough safeguards for children in mediation?
Dr Atkinson: I
am just looking across at a diagram that Jenny has open from the
Family Justice Review. I am going to suggest that because she
has the page open, and I would have to rifle through, you hear
from Jenny.
Mr Llwyd: That is fine.
Jenny Clifton:
The fundamental question for me is that, if there are going to
be more and more cases which are kept out of court through other
dispute resolutions, through mediation and so on, the safeguards
for the children are very well attended to. We have heard from
your previous witness that there are various points at which there
is a high level of concern about violence and abuse in cases which
come on contested contact arrangements. We have to be sure that
people who are involved in earlier stages of the process are really
attentive to the safety issues for children and are experienced,
qualified and trained enough to recognise that and pick those
up at a very much earlier stage. I can't be confident about that
as yet. That is in addition to the fact that Maggie has just mentioned
about their need to attend to children's views and listen to children,
which I don't think is common practice, although it may be happening
somewhere. The safety issues are foremost for me.
Q397 Chair: You
were in the room earlier when we heard confirmation that open
proceedings, but with very strict reporting restrictions, are
the practice in Australia and seemed to be the settled and accepted
practice. I don't know whether you have looked yourself at Australia
in this respect, but I am interested to know why you think there
is such a difference in the way it is viewed in Australia and
the way it is viewed by at least some people here.
Dr Atkinson: I
listened with great interest to what Rae had to say about the
cultural acceptance of this in Australia. The Committee will probably
know that within weeks of my arrival—and therefore it started
under my predecessor—we published research that had been
done for us by Julia Brophy from Oxford university. She had done
an international comparison of what happens in court systems where
media access is more openly granted than it is here. Julia's findings
were that, if you went into this particularly through the understanding
of the child, there was the fear of salaciousness and gratuitous
gossip suddenly finding its way, not necessarily on to the front
page of the national press, but on to the front page of your local
paper.
Like you, I know North Northumberland very well.
If I take you to Embleton and there is a family with three children
and it is the only family in the village with three children,
you can call them A, B and C all you like, but the minute it gets
on to the front of the Northumberland Gazette or the Hexham
Courant you know that the children at the school that those
children attend will know who A, B and C are. You can claim they
are anonymous all you like. The children who spoke to us were
very clear indeed.
Julia spoke to about 55 children in great depth
and detail in both private and public law who said, "It's
my private stuff and no paper has the right to publish my private
stuff. You wouldn't come with me into the doctor's, would you,
so why should you come with me into court?"
Q398 Chair: And
of course they would not have the right to identify it as being
the private material of any individual.
Dr Atkinson: Exactly.
They talked about their cases from the point of view of everybody
trying to keep it quite quiet and secret that they were in court
in the first place, but their concerns of turning up at school
and, somehow, somebody knowing that they had been to court and
it wasn't even in the press.
We believe there are other ways of making people
aware of how the family courts work. The South London circuit
and Croydon have run hugely successful open days, where mock trials
of mock cases—made-up and fabricated, but very close to
reality—have been played out in front of members of the
public, who have gone away with a far better understanding. We
seriously do not believe that the clauses in the Act which have
not been enacted—we are with the Family Division on this—should
be enacted. We think there are more dangers than safeties built
into them. This is the really big one for me. Children tell us,
and they told our researcher, that they would not tell their story
to their social worker or anybody else pre-court if they knew
that when it got to court it would potentially, even anonymously,
be reported. That makes them less rather than more safe. There
are points at which the public right to know has to stop. When
you are talking about children, for me that is where it has to
stop. You would expect me to say that, Chair.
Chair: Thank you very
much indeed. We are very grateful to both of you. We much appreciate
your help this morning.
1 Note from the witness: For clarification and
so that the meaning is fully clear, please note that this comment
should have included after 'so that they didn't have to give evidence',
the phrase 'or be cross examined - certainly not by someone who
they had alleged had abused them.' Back
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