Operation of the Family Courts - Justice Committee Contents

Written evidence from His Honour Judge Clifford Bellamy, Designated Family Judge for Warwickshire and Coventry (FC 05)


In this submission I argue that:

  • (a)  The failings of Cafcass are such that it is no longer the appropriate agency to support the courts in dealing with private law Children Act disputes.
  • (b)  As a result of the significant increase in the volume of public law Children Act cases, Cafcass is now significantly under-resourced and will soon be unable to honour its commitment to provide minimum safe working.
  • (c)  So far as Government is concerned, what matters is not which department is responsible for Cafcass but that as between those departments with responsibility for agencies involved in the Family Justice system there is co-operation that is strategic, coherent and efficient.
  • (d)  There is a need for a strong, experienced and specialist body of solicitors and barristers available to deal with family law work and that recent and impending changes to legal aid will significantly diminish the pool of appropriately experienced practitioners, to the detriment of parents and children.
  • (e)  Whilst mediation and in-court conciliation have an important role to play in resolving private law disputes there are some cases in which mediation is inappropriate (eg where there has been significant domestic violence) and other cases (high conflict disputes) which require skilled forensic investigation and judicial determination.
  • (f)  Although there is a need for greater openness in the family courts, if the media is to be used as the conduit for this greater openness then it is important that the public can have confidence that the media will act responsibly. As matters stand at the moment, there is evidence that the British press is the least-trusted press in Western Europe and that children do not trust the press to report family cases responsibly and truthfully.

1.  I have been working in the family justice system for more than thirty years. Until 1995 I was a solicitor in private practice and head of my firm's Family Law Department. In 1995 I was appointed a District Judge at the Leeds Combined Court Centre. Family law work was a significant part of my work as a District Judge. In October 2004 I was promoted to the Circuit Bench as a specialist in family law work. In October 2006 I was appointed Designated Family Judge for Warwickshire and Coventry.

The effect of Cafcass's operations on court proceedings, and the impact on the courts of sponsorship of Cafcass by the Department of Education

2.  The comments which follow arise from my experience of Cafcass in Warwickshire and Coventry ("Coventry Cafcass"). I consider separately Cafcass's role in private and public law proceedings.

Private law cases

3.  In January 2007 Coventry Cafcass introduced a Dispute Resolution Scheme. The primary objective of the scheme was to engage more intensively with families at the outset of the court process with a view to enabling them to resolve their disputes without the need for a full investigation by the court. This scheme led to a significant reduction in the number of section 7 reports[1] ordered by the court. The scheme was extremely resource (staff)-intensive. The longer it continued the more apparent it became that Cafcass was unable to sustain it. In June 2009 the Dispute Resolution Scheme was discontinued.

4.  The President's Interim Guidance[2] came into force on 1 October 2009. This required Cafcass to file full (ie multi-issue) section 7 reports within 12 weeks. In the year to 31 March 2009 Coventry Cafcass had been taking, on average, 22 weeks to file such reports. The requirement to file reports within 12 weeks was always likely to prove challenging. Within a short time it was apparent that Coventry Cafcass was unable to deliver. Coventry Cafcass is currently taking a minimum of 20 weeks to produce section 7 reports and frequently seeks an extension. This invariably leads to hearings being adjourned at short notice thus wasting court time and causing frustration for parents.

5.  The delay in preparing section 7 reports is bad for children and bad for parents. It puts the court in a position where it is powerless to pay more than lip service to the general principle enshrined in section 1(2) Children Act 1989 that any delay in determining an application is likely to prejudice the welfare of the child.

6.  The inability of Cafcass to provide an adequate service in private law cases has been going on for so long that I now have real doubts about whether Cafcass is the appropriate agency to support the court in dealing with private law disputes. It is time to consider alternatives.

Public law

7.  Cafcass has addressed the backlog of unallocated public law cases by distributing unallocated cases to officers who already had full workloads. This has had the consequence of reducing the headline figure of unallocated cases but at the expense of adding to the burden on individual officers.

8.  In January 2010 Coventry Cafcass introduced a duty rota scheme under which two officers a week act as "duty officers" and pick up and retain all new public law cases to come before the court that week. This has the advantage that every case has a Children's Guardian allocated to it from the outset. The downside, as already noted, is that officers now carry a significantly higher workload than was the case two years ago.[3] I am profoundly grateful to the officers in my area for their dedication and commitment. However, the volume of public law cases continues to rise. It is difficult to see how the present officers can continue to absorb the ever-increasing workload. In my opinion Cafcass's commitment to minimum safe working will soon become an unachievable objective unless further resources are made available.

9.  As for the fact that Cafcass is now sponsored by the Department of Education, I am not aware that this has had any particular impact on the courts in my area. The Family Justice system is interdisciplinary. Cafcass is just one part of the system. So far as Government is concerned, responsibility for the various agencies which have key roles to play within the Family Justice system (eg Cafcass, police, health, social services) is spread across a number of different departments. In my opinion, what matters is not which department has responsibility for which agency but that there is inter-departmental co-operation that is strategic, coherent and efficient. It is the responsibility of the Parliamentary Undersecretary of State for Children and Families to ensure that this happens.

The impact on court proceedings and access to justice of recent and proposed changes to legal aid

10.  Some of the recent changes to legal aid have prompted and continue to prompt experienced family lawyers to cease dealing with publicly funded children and family work. Other changes, soon to be implemented by the Legal Services Commission ("LSC"), exclude some experienced and very able solicitors from being able to undertake such work. The increase in the volume of Children Act work has been particularly acute in public law cases in the wake of the publicity concerning the Baby Peter case. The combined effect of increase in volume and decrease in specialist representation is, in my opinion, certain to increase delay in a Family Justice system that is already plagued by the seemingly intractable problem of delay.

11.  In 2009-10 Warwickshire County Council issued 85 new care cases compared with 46 cases in 2008-09, an increase of 85%. Faced with that increase in workload, I am deeply concerned about the likely impact of the LSC's recent tendering exercise and other changes due to come into effect in October 2010. I understand that in Coventry eight firms have been granted new contracts by the LSC and four firms have been unsuccessful. In Warwickshire seven firms have been successful and three have been unsuccessful. Amongst those firms that have been unsuccessful there are some highly experienced and very competent children's solicitors. Judging by the outcome of the tendering exercise it would appear that the LSC has ranked competence, skill and experience very low in the list of criteria by which applications have been judged.

12.  I understand that some firms opted to tender for "Public Law Children Act" only contracts. From October 2010 these firms will be unable to assist clients in respect of any matters that fall outside the scope of the firm's contract. Thus if, for example, a parent involved in care proceedings (covered by her solicitor's Public Law Children Act contract) also needs to apply for a domestic violence injunction (not covered by the firm's contract) she will be obliged to go to a different firm of solicitors for assistance in applying for the injunction.

13.  I am told that in Warwickshire there are no firms in Rugby able to offer public funding in family law work and that in Bedworth only one firm has been successful in obtaining a contract. This means that litigants from Rugby and Bedworth will need to travel some distance to find a solicitor franchised to undertake publicly funded family law work. In Coventry there are currently six solicitors on the Law Society's Children Panel who are franchised to undertake publicly funded work on behalf of children and parents. From October this will reduce to four, two of whom are with the same firm. This will inevitably create difficulties for parents who, though entitled to free legal aid, may find it a challenging task to locate a solicitor able to represent them.

14.  Another feature of the proposed changes is the extension of fixed fees. In future, travel is to be included in the fixed fee. One solicitor has said to me that she is unhappy about the prospect of travelling from her office in Coventry to the Family Proceedings Court in Nuneaton (a return journey of around an hour) for no recompense. Equally, and significantly in light of the point made in my last paragraph, solicitors from outlying towns may be unwilling to travel to Coventry.

15.  I am also concerned about the LSC's practice of limiting the amount of work firms are able to undertake by allocating a fixed number of "new matter starts" for each firm. As I understand it, when a firm has used up all of its "new matter starts" for that financial year it is then unable to accept any more new clients until the start of the next financial year. I understand that some local firms have run our of "new matter starts" well before the end of the financial year. The consequence of this is that any client needing urgent assistance must not only find a firm that is franchised by the LSC to undertake such work but also one that still has sufficient "new matter starts" available to enable them to accept instructions.

16.  This last point is of particular significance in public law Children Act cases. Local authorities are required, in most cases, to serve upon a parent a "Letter Before Proceedings". This will lead to a meeting between the parents and the local authority at which the parents are entitled to publicly-funded legal representation. For the solicitor, this will be a "new matter start". If the parent is unable to find a franchised solicitor with a surplus of "new matter starts" then that parent may have to attend meetings without legal representation. That parent is then immediately disadvantaged.

17.  In 2009 I dealt with a case in which a two month old baby was admitted to hospital with what were believed to be multiple non-accidental injuries including two skull fractures. At the end of a seven day finding of fact hearing I concluded that apart from the skull fractures none of the other alleged injuries were non-accidental injuries. I found that the parents were not responsible for the skull fractures. This little boy and his older brother were immediately returned to the care of their parents. At the end of my judgment I said this:

"In this hearing I have been greatly assisted by counsel. It is appropriate that I should single out for particular mention counsel for the parents… This has been a difficult case in which the level of medical complexity has been high. There can be no doubt that the outcome of this hearing has been to a very large extent influenced by the high level of competence, skill, care and industry which [counsel for the parents] have demonstrated. It is not an exaggeration to say that these parents owe them an enormous debt of gratitude. But for the high quality, specialist representation from which these parents have benefited, the outcome of this hearing may well have been very different indeed. This case eloquently demonstrates the essential need for a specialist Family Bar and for the availability of public funding to enable those who need it to have access to the services which the Family Bar provides".

The same point applies equally to specialist family law solicitors.

18.  If, as a society, we genuinely value the Art 6 and Art 8[4] rights of those children and parents caught up in family proceedings then we have to acknowledge that the protection of those rights requires that children and parents should have access to experienced, specialist legal representation. The alternative will be more litigants in person, greater delay and a greater risk of injustice.

The role, operation and resourcing of mediation and other methods in resolving matters before they reach court

19.  This is a much discussed topic. In considering where we are today it is interesting to consider what has happened over the last few years. In July 2004 the last Government published its Green Paper "Parental Separation: Children's Needs and Parents' Responsibilities"[5] in which it said that it proposed

"actively to promote the extension of in-court conciliation services so that they are routinely used for all families in dispute before a formal court hearing, except in cases involving allegations of harm. We propose to roll this out nationwide, on a progressive area by area basis, as rapidly as possible".

20.  In March 2005 the House of Commons Constitutional Affairs Committee published its report "Family Justice: the operation of the family courts".[6] The report noted the evidence received from the Chief Executive Officer of Cafcass, Mr Anthony Douglas, who said that:

"what has been happening is that the assumption of competence on behalf of both parents in private law cases, in other words, they could be mediated relatively easily with a good mediator, is just not borne out".

Based on my own experience, I agree with that point.

21.  Although I share the concerns of the Constitutional Affairs Committee that "the adversarial nature of court proceedings [is] not the best way to get a helpful resolution of contact disputes and related issues", it does not follow that mediation is the solution. Mediation is not a panacea. In some cases it can be highly effective. In other cases it is of no effect at all. It is not easy to identify in advance those cases that are likely to respond positively to mediation. However, two points can be made with confidence. Firstly, in any case in which there is a significant allegation of domestic violence it is unlikely to be appropriate to attempt mediation. Secondly, there will always be a hard core of cases—sometimes referred to as "intractable" cases but more appropriately described as "high conflict cases"[7]—where mediation is unlikely to be of any benefit.

22.  There remains an issue about whether mediation should be compulsory in all cases before parents are permitted to embark upon the court process. Currently litigants who are dependent upon public funding are obliged to attend for mediation before being permitted to move forward with court proceedings. In contrast, there is no such constraint upon those who are either ineligible for public funding or who choose to litigate in person. As Baroness Walmsley has observed[8] "it seems there is one law for the rich, who can afford the cost of their own litigation and another for the poor who have to apply for legal aid and have no access to justice without it". Whilst the case for equal treatment of all litigants is, as it seems to me, unarguable, that should not detract from the points I have already made concerning the limits to the usefulness of mediation.

23.  In 2006 the DCA published a research paper called "Making contact happen or making contact work? The process and outcomes of in-court conciliation".[9] The research looked at three different schemes at courts in Essex, Suffolk/Cambridgeshire and the PRFD. One point arising from that research is relevant to the present inquiry. The report concluded that although, compared to out of court mediation, in-court schemes do tend to produce higher numbers of agreements, this is indicative of greater pressure. In consequence, there is evidence of lower levels of parental satisfaction with both the agreements reached and the process by which they are reached. The report notes that there have been recurrent concerns about the potentially coercive nature of the conciliation process.

24.  So far as I am aware there is no statistical evidence available to indicate the number of cases which settle at court as a result of mediation but which subsequently return to court because the settlement has broken down. To be of value, mediation needs not simply to lead to a settlement of the particular dispute but to lead to a lasting resolution that is in the best interests not only of parents (the ones normally involved in the mediation process) but, more importantly, of children (who are invariably not parties to the mediation process).

25.  In short, mediation prior to the issue of proceedings and in-court conciliation post-issue of proceedings both have an important part to play in resolving private law cases. Perhaps, if better funded and normally compulsory for all litigants, settlement rates may be higher. However, there will always be cases that require skilled forensic investigation and judicial determination.

Confidentiality and openness in family courts, including the impact of the recent changes in the Children, Schools and Families Act 2010

26.  Part 2 of the Children, Schools and Families Act 2010 is not yet in force and no date has been set to bring that part of the Act into force. To discuss the likely impact of those changes at this stage is, therefore, to engage in speculation. The shortcomings of this legislation have already been the subject of academic[10] and judicial[11] comment. Given the uncertainty about whether these legislative changes will ever be brought into force, I do not propose to add to the comments that have already been well-made by others.

27.  Although I am in favour of greater openness in family courts, recent experience of the conduct of the media leaves me with some concerns. On 4 January 2010 I made an order transferring residence of an 11 year old boy from his mother to his father.[12] The mother appealed. On 21 January my decision was upheld by the Court of Appeal. The hearing before me was in private. The hearing in the Court of Appeal was in public. After leaving court on 21 January the father returned home to find a journalist from a national newspaper waiting for him outside his home. The father refused to speak to him. Next day the father was granted a Reporting Restrictions Order. That order was served upon the media through the usual channels.

28.  On Sunday 24 January the Mail on Sunday ran a story under the headline "Judge orders boy, 11, to live with father he hates and hasn't seen for four years". The article was written by the journalist who had attended the father's home. The case came back into my court on 26 January. That morning the mother was admitted to hospital. She was unable to attend the hearing. That afternoon, and notwithstanding the Reporting Restrictions Order, a journalist from another national newspaper visited the mother's home. She was still in hospital. He left his business card.

29.  The arguments in favour of greater openness in the family courts have been set out clearly in a number of judgments by the senior judiciary. The case was also strongly made by the House of Commons Constitutional Affairs Committee's report "Family Justice: The Operation of the Family Courts".[13] However, if the media is to be the conduit for this greater openness then it is important that the public can have confidence in the media - confidence that the media will report cases fairly and accurately without sensationalising them; confidence that the media will not door-step or otherwise seek to intrude into the lives of the families whose cases they report; in short, confidence that the media will act responsibly.

30.  Reference to "the media" attending family court hearings is likely, in most cases, to mean "the press".[14] Therein lies a real difficulty. Firstly there is the problem that today's press does not have the capacity routinely to attend family court hearings. Temple has made the point that "there is a concern that there is an over-reliance on…agency copy".[15] This may be one reason why there is such variable quality in what is published.

31.  Secondly, and more importantly, there is the problem of whether the press can be trusted. It has been said that Britain has the least-trusted press in Western Europe.[16] That point finds an echo in the outcome of recent research undertaken by Dr Julia Brophy in which she records that:

"Children and young people said the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will 'cherry pick' bits of information. They are mostly doubtful that the press will print a truthful story and are doubtful—some cynical—about an educational function".[17]

32.  One other issue should not be lost sight of. The reporting of the case to which I referred earlier has included not only reports in the national printed press but also on their websites, from where the story was picked up and reported in newspapers in other parts of the world. It is clear that in making the legislative changes introduced in the Children, Schools and Families Act 2010 one of the expectations of the last Government was that the media's reporting of family cases will educate the British public about and increase confidence in the workings of the family courts. We should not lose sight of the fact that reporting of cases heard in the family courts will not necessarily be confined to local or even national media but, depending upon the facts of the case, may extend to international media too. That possibility adds to the importance of being confident that the media will use its power responsibly.

September 2010

1   In private law cases Section 7 Children Act 1989 permits the court to ask Cafcass or a local authority to report to the court on matters relating to the welfare of the child. Back

2   The President's Interim Guidance for England, 30 July 2009. Back

3   The recent report "Cafcass's response to increased demand for its services" published by the Comptroller and Auditor General on 28 July 2010 (HC 289 Session 2010-11) notes that "The number of public law cases allocated for action to each family court adviser has increased by more than one third since October 2008." The report also shows that officers in Coventry Cafcass have the fourth highest average caseloads in the country. Back

4   Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms recognises a right to a fair trial and Article recognises a right to respect for private and family life. Back

5   "Parental Separation: Children's Needs and Parents' Responsibilities", Department for Constitutional Affairs, 07/04, July 2004, Cm 6273, HMSO. Back

6   "Family Justice: the Operation of the Family Courts", House of Commons Constitutional Affairs Committee, Fourth Report of Session 2004-05, Volume 1, HC116-1, March 2005. Back

7   See my article "Representation and Participation of Children and Young People in High Conflict Contact Cases' in Seen and Heard" [2009] Vol 19, Issue 2 p 24. Back

8   House of Lords' debate on the Children and Adoption Bill, Hansard, 29 November 2005, Col 188. Back

9   "Making contact happen or making contact work? The process and outcomes of in-court conciliation", Trinder, Connolly, Kellet, Notley and Swift, DCA Research Series 3/06, March 2006. Back

10   "Publication of Information: Children, Schools and Families Act 2010", Lucy Reed, [2010] Fam Law 708. Back

11   "Lost Opportunities: Law Reform and Transparency in the Family Courts", Lord Justice Munby, The Hershman-Levy Memorial Lecture 2010. Back

12   Re S (Transfer of Residence) [2010] 1 Family Law Reports p 1785. Back

13   See footnote 5 above. See especially paragraph 144. Back

14   In the DCA publication "Confidence and confidentiality: improving transparency and privacy in family courts" Consultation Paper CP11/06 there is no consistency in the use of the expressions "the media" and "the press", the latter being used as if were interchangeable with the former. Back

15   Mick Temple, "The British Press" 2008, McGraw Hill, p 210. Back

16   Eurobarometer survey, 2002, referred to by Curran J and Seaton J in "Power Without Responsibility: Press, broadcasting and the internet in Britain", 7th Edition, 2010, Routledge, p 98. A similar point has been made by Mick Temple in "The British Press", (footnote 15 above) in which he says that "There are reporters who fabricate, newspapers which sometimes mislead, individuals and organisations who give journalists a bad name - but there always has been. What is undeniable is that journalism has to rebuild public trust." (pp 214-215). Back

17   The Children's Commissioner for England's report on The views of children and young people regarding media access to family courts, March 2010. Back

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