Operation of the Family Courts - Justice Committee Contents

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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