Written evidence from His Honour Judge
Clifford Bellamy, Designated Family Judge for Warwickshire and
Coventry (FC 05)
EXECUTIVE SUMMARY
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 casessometimes 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 doubtfulsome cynicalabout 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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