House of COMMONS
MINUTES OF EVIDENCE
CONSTITUTIONAL AFFAIRS COMMITTEE
Tuesday 9 November 2004
RT HON DAME ELIZABETH BUTLER-SLOSS DBE, RT HON LORD JUSTICE WALL and HON MR JUSTICE MUNBY
USE OF THE TRANSCRIPT
Taken before the Constitutional Affairs Committee
on Tuesday 9 November 2004
Mr A J Beith, in the Chair
Mr James Clappison
Mr Hilton Dawson
Mr Clive Soley
Dr Alan Whitehead
Examination of Witnesses
Witnesses: Rt Hon Dame Elizabeth Butler-Sloss DBE, President of the Family Division, Rt Hon Lord Justice Wall and Hon Mr Justice Munby, examined.
Chairman: Good morning, Dame Elizabeth, and welcome back, in your case, and we are particularly glad to have you back. May I just first make sure that we declare any relevant interests around the table.
Mr Clappison: I am a non-practising barrister.
Ross Cranston: I am a barrister and recorder.
Peter Bottomley: My wife implemented the Children Act.
Keith Vaz: I am a non-practising barrister.
Q1 Chairman: You will know that the scope of both our current work and of the Committee itself is focused primarily on the responsibilities of the Department of Constitutional Affairs for the courts, but also the Department's involvement as a shared policy department with the Department for Education and Skills and the Children's Minister in this area. When we were considering CAFCASS and produced a very critical report about the limitations and failings of that organisation, which we now hope is on a much better course, I think we became aware of some of the problems in the courts and the problems faced by the courts and thought we would like to look at them further. Needless to say, Members of Parliament generally become particularly aware of some of the points of greatest difficulty through their own constituency work and the people who approach them. Perhaps a helpful starting point would be to put to you that the levels of recorded dissatisfaction amongst court users are much higher in relation to family courts in disputed contact cases than they are generally, and although there are certain obvious explanations for this and it is also the case that in almost any action somebody might have cause to be dissatisfied, why is there this higher level of dissatisfaction?
Dame Elizabeth Butler-Sloss: Well, I think there are a number of reasons. We are dealing with very fraught emotional situations with the breakdown of relationships and in the old days in divorce cases, which were fought, everybody fought out their emotional anxieties in the breakdown in the divorce. Nowadays, we notice in money cases after divorce and in children cases, a great many families continue to fight the fact that they have not resolved the conflicts of that breakdown. Of course an obvious one is that one party sees himself or herself as winning and the other is losing, which is inevitable. We do not, I think, engage yet enough in catching people before they ever get to court which I think is perhaps the most important thing. Secondly, we need to catch them at every stage in the court procedure to make them settle and we have not yet got sufficient resources or sufficient arrangements for that. I think we may be to some extent guilty of concentrating on the public law cases to the detriment of giving perhaps sufficient attention to private law. This has all really come to a head in the last perhaps four years. We have created, thanks particularly to James Munby and two other of my High Court judges, a very efficient protocol for judicial case management in public law cases. We have now begun to put forward a similar, rather simpler framework for private law cases and I think a real, genuine criticism of the system, which was highlighted of course in the case that James Munby gave which got a lot of publicity, was that there was not sufficient judicial continuity. We have not been able to enforce orders because we do not have the powers to do it. We do not always have sufficient judges for continuity and we have of course given a preference to continuity on the public law work and when you are looking at the judiciary, who are the people available to do it, they are the same people largely doing the same sort of work, but the majority of private law family work is actually being done by the district judges, two of whom of course are going to give evidence to you shortly, and it is, I think, very important that they provide the backbone of the judicial continuity. I am wondering whether either Nicholas or James might like to add to that.
Lord Justice Wall: I think I would add to that that you must remember where we start from. The overwhelming majority of parents are able to resolve their differences before they come to court and we get the 20% or so who cannot and the disputes are often very difficult, very intractable and very high emotions are involved. People come into contact in particular with all the baggage of the relationship with them and very frequently, I am afraid, a contact application is a means of continuing the power struggle that existed within the family and the child becomes the ammunition. We are at the forefront of recognising that the court structure is not the best place to deal with that process and it is much better dealt with by mediation or by conciliation or by out-of-court settlement.
Mr Justice Munby: I would only add this: that public perceptions are very much driven by the highly vocal views of the comparatively limited number of people in a situation where public perceptions are hindered by the fact that we sit in private and that proceedings are not open to the public, there are stringent reporting restrictions and the media has no access to the family courts. In fact the only people who do have access to the family courts, apart from the professionals, are the litigants and one of the consequences of that is that those litigants who choose in public to express themselves in a particular way are able to do so without fear of being gainsaid because there is nobody who is, as it were, able to set the picture right.
Q2 Chairman: We would like to come back to that particular issue later, along with a couple of others that were raised, but I wonder if I could just clarify at this stage perhaps, partly arising out of something Dame Elizabeth said about catching people earlier, whether you think it would be better if mediation occurred before couples appointed solicitors?
Dame Elizabeth Butler-Sloss: Yes, if we could catch them. The difficulty is that you do not necessarily know out there where they are, but if we could, yes. The Family Law Act of 1996, which had a considerable number of deficiencies, had extremely good proposals for requirements for mediation and information in relation to any couple who divorced. That would deal with a section of the population, but of course a very large number of people do not marry, but have children, so we have to be sure that we are dealing with the separation of partners rather than the separation of divorced people.
Q3 Chairman: So you are saying there is a gap in the law in that there is some provision within the system for mediation to be compulsory?
Dame Elizabeth Butler-Sloss: Well, no, you see, because that part of the Family Law Act never came into force and for a number of very practical reasons it did not come into force, much to the sorrow of many people, but what was in it in relation to mediation was good stuff. We have got of course the early resolution pilots, which I know only a little about, and I had hoped that Mrs Justice Bracewell would be here because she is on the committee, but unfortunately she has had to go to have some medical advice today which is urgent so she could not be here, but District Judge Crichton is on the steering group of that, and if that worked, then you would catch the people before they ever got to court at all, and that is an admirable scheme.
Chairman: We shall ask you about that later.
Q4 Mr Soley: I think this brings out an issue that I have struggled with for years actually, that it seems to me that the current adversarial system actually aggravates the problem and I wonder if, in giving your views on that, you could also tell me whether you think the fault-based divorce laws that we have mean that it is too late by the time we get to dealing with the children and the custody issue, in other words, rather touching on what you said before, the intervention needs to be at a much earlier stage and perhaps the adversarial system actually makes it more difficult to do that?
Dame Elizabeth Butler-Sloss: Well, we are to some extent inquisitorial as judges. I think our problem is that the parties make it adversarial and whatever the system, unless we went into the French system where everybody is examined, but under any form of the English system, the parties and their lawyers come very often in entrenched positions determined to fight. The other part is of course that if the judge descends into the arena, one side or the other tends to think, and some judges do descend into the arena, that they are not getting a fair trial. I think there is a deeply held deception on this. I do not think the fault-based divorce actually matters very much. At any stage of the dispute between parents who are married and then divorced, what they are divorced for is almost irrelevant. Nowadays, there is one in about I cannot remember how many thousand cases which is actually fought. It all goes through on paper now.
Q5 Mr Soley: But when you say that, in the legal representatives are people coming with a preset view which they have already discussed with their clients, have they not?
Dame Elizabeth Butler-Sloss: Not in relation to divorce because in either children cases or particularly in ancillary relief, money cases, for parents or particularly the parties fighting money, conduct is irrelevant.
Lord Justice Wall: I think the emphasis on all our work nowadays is on pre-court intervention and information is given to parents so that they can realise what is happening, how do they tell their children, how are things explained to the children and so on. If all that fails and parents have to come to court, there are inevitably cases where issues have to be decided. For example, if there is an allegation of domestic violence, that has to be resolved by the court and there is no other method of doing that. You cannot put a child into a situation of risk by ordering contact when there is an unresolved issue of domestic violence, so there are some situations where the litigation has to be adversarial. I absolutely agree with Dame Elizabeth that judges, magistrates and district judges up and down the country conduct these cases in a quasi-inquisitorial way, trying all the time to steer people away from aggravation, but, as we said, CASC, in our report, the adversarial system does tend to polarise attitudes, and that is why we are so strong on pre-court intervention and taking these cases out of the court system wherever we possibly can.
Q6 Chairman: But, worse than that, it tends to be destructive in a situation where emotions are running fairly high and one side is trying to undermine the other.
Lord Justice Wall: Yes, indeed, I agree with that entirely, but sometimes if it is an issue of fact which has to be resolved, our system decrees that that is not done by the judge reading the papers and making a decision, but by oral evidence and cross-examination.
Q7 Mr Soley: I am struggling to understand your answer a little, if I may say so, Dame Elizabeth.
Dame Elizabeth Butler-Sloss: I am sorry.
Q8 Mr Soley: Well, what I am struggling with is that you are almost saying, I think, that the adversarial system is not a problem because it is not practised.
Dame Elizabeth Butler-Sloss: No, no, I did not say that at all.
Q9 Mr Soley: Well, it is perhaps what I want to get clear because I do tend to see it as the adversarial system versus a conciliation system. That might be too simplistic.
Dame Elizabeth Butler-Sloss: Yes. I think we have to have both.
Q10 Mr Soley: What are you actually saying?
Dame Elizabeth Butler-Sloss: Well, the ideal in a far from ideal world of dealing with these sometimes damaged personalities, and everybody is damaged by separation in acrimonious circumstances, so we start with that, we are always dealing with people whose lives have been adversely affected by their domestic disputes and we never deal with people who do not have it because they would not be coming to court and thank goodness that 80 or 90% of people do not come to court, but if they do, if we can stop them at the earliest possible stage, the private law framework, which is now just about to be rolled out across the country and is already happening in a lot of places, is intended to stop any adversarial element at all. It is to get them to settle, to agree, to produce a consent order because an order is sometimes quite useful, everyone can see where they stand and they never come back. However, if they are fighting their corner, they will be alleging things which may be true or may be untrue. Now, domestic violence is a very hot topic and it is said by wives that husbands beat them or intimidate them, and it is said by husbands that they do not. Well, we have to, we do not have any choice but to, resolve it, which is what Nicholas is saying. If you are going to resolve it, you have got to hear both sides and decide who wins. If that is not adversarial, I do not know what is. There is no way round it. Again if sexual abuse allegations are made, we have to resolve them. Did the father attack his daughter?
Q11 Mr Soley: So if I can just clarify, you are saying actually that the conciliation system is a preferred one, but inevitably you are pulled into the adversarial system because of the nature of cases and some of the people you are dealing with?
Dame Elizabeth Butler-Sloss: Yes.
Q12 Mr Soley: That is the sum of your answer and can I ask if your two colleagues agree with that?
Mr Justice Munby: I agree with that, yes.
Lord Justice Wall: Yes. I would just make one point before James comes in, that the new research for the Family Law Act showed that 80% of people's first port of call in a separation situation was to a solicitor. I think you are going to be hearing evidence from the solicitors in due course. My experience is that specialist solicitors nowadays do not immediately go into litigation. They are as keen as everyone else to refer their clients to conciliation or mediation or to have a mechanism which they can take their clients to which will not take them to court.
Dame Elizabeth Butler-Sloss: Some of them are mediators.
Lord Justice Wall: Yes, some of them are mediators.
Dame Elizabeth Butler-Sloss: Quite a lot of solicitors have now become mediators. It is an admirable development of the specialist solicitors.
Mr Justice Munby: In an ideal world, one would hope that parents could reach agreement on these matters without outside assistance. We do not live in an ideal world. If outside assistance is required, then mediation is infinitely preferable to the court process. There will be an irreducible number of cases which have to come to court. Inevitably, given the emotional background to these disputes, whether the system is theoretically investigatory, inquisitorial or adversarial, the process will actually become adversarial, and that is simply a reflection of human nature. It is at that point, I think, that the court process at present tends to exacerbate matters and tends to make matters, which are already difficult and potentially adversarial, even more adversarial and it does so in two ways. First of all, the mere fact of delay means that people become more and more entrenched and the longer proceedings go on, the more entrenched attitudes become and the higher the stakes get. The other aspect, which is fundamental, is that the court process involves people putting out their case on paper. Now, the moment at which the father starts setting out his case on paper, complaining about the mother in relation to contact, then, human nature being what it is, the allegations are going to be put in their highest form. They are then met and the other party puts in a statement which meets all of those allegations and, human nature being what it is, tends to put the best possible spin on that and then meets those allegations and there is another raft of cross-allegations. The moment that process starts, the moment you get in the court context to the case being reduced to paper, of its very nature, matters tend to become more adversarial and if you then exacerbate that by delay, the matter gets worse and worse and worse because one of the inevitable products of delay is that you have to update the evidence, and updating the evidence simply means taking a rather weary, if not cynical, view of it. You are giving the parties another opportunity to return to the fray and make matters worse. In a funny sort of way, and this is counterintuitive, I find it is often easier dealing with cases if the parties are appearing as litigants in person because what you are actually getting is the facts of the case as they see it without the assistance, and some people might put that word in inverted commas, of lawyers. My view, I have to say, and on the first part of this I do not think I say anything different from Dame Elizabeth or Sir Nicholas, is that we want, if at all possible, to get these cases out of the court system altogether. Mediation is obviously infinitely preferable to the court process, but in relation to that irreducible number of cases which have got to go through the court process, I think we need to take a much more rigorous view both in relation to delay which generates difficulty, but also in relation to the actual process itself.
Q13 Chairman: We will come on to delay in a moment, but do you want to clarify just a little further what you could do to the court process to reduce its adversarial impact in those cases?
Mr Justice Munby: Well, I think we need to take a much more sceptical view as to what we need evidence about. We have all grown up in the legal system, and it does not matter whether it is criminal, civil or family, where one side puts its case on paper, the other side puts its case on paper, the first side responds, you then get expert reports, and, typically in these cases, before the court actually adjudicates on the case, either the rules or the process or the court's own directions have generated a vast amount of paper without very much control by the court as to what topics are dealt with. If you simply, as we tend to do, say, "Father to file evidence in 28 days. Mother to respond 28 days thereafter. Father to respond, if so advised, 14 days thereafter" without any control as to what goes in, human nature being what it is, the emotional background being what it is, you will find wide-ranging evidence raising all sorts of allegations, many of which are, whether true or false, either irrelevant or exceedingly peripheral and marginal to the real issues in dispute. If there was a much more controlled use of evidence, if we had a much tougher system, saying in effect that you cannot put it in evidence unless the court says you can, and a much more rigorous control of the subject of the evidence and the topics which can be dealt with, in other words, the court is saying, "You can put in evidence, but in relation to the following matters only", if we took a tougher line, and some judges do this in some contexts, saying that the evidence is not to exceed five pages or ten pages of A4, things of that sort might help. They will not solve them, but they might help to reduce the temperature and to keep the thing manageable.
Q14 Mr Dawson: How easy is it to hear the voices of children in some of these very intractable and hotly disputed cases and is there a case for extending separate representation in private law and providing better advocacy services for children?
Dame Elizabeth Butler-Sloss: Yes, is the answer to that. There is a resource implication here which is very considerable. In again our so-called ideal world, which cannot be ideal because here are children whose parents are in dispute, if the parents are locked into an intractable dispute, I think the children should get a better voice than they are getting at the moment. The trouble is, and I have just produced a practice direction, Rule 9.5 which gives separate representation of children in these difficult cases. Now, to appoint a guardian, which is what we are talking about, takes up CAFCASS's time and there is a considerable pressure on the judiciary, I have to say, not to appoint guardians unless it is absolutely necessary. I think we are probably having to err on the side of not putting guardians in place when perhaps we would like to do it partly because my practice direction is deliberately restrictive. I do not think it is seen as restrictive, but it is intended to be because of the resource implications of CAFCASS, and I would like to see some more children represented in these really very difficult cases. At the end of the day, I have to say, there are cases which are unresolvable. We have a small number which we know, for personality problems of one or both parents, we just cannot, as courts, manage, they are unmanageable and some of those, I have to tell you, are the vocal people that you are hearing.
Lord Justice Wall: May I just add that this is a point about which I feel very strongly. In the public law system there is the automatic representation of the child and of course the philosophy behind that is that potentially the State is taking the child away, therefore, the child has to be a party to the proceedings and must be represented, but the tandem system of representation in public law cases works extremely well, in my experience. The child has the benefit of a social worker/guardian who is able to investigate the matter thoroughly and give sensible advice and a solicitor who can present the case in court. I have found when I was sitting at first instance and I have used 9.5 to achieve dual representation that it has often had remarkably satisfactory effects. The dangers of it are that it can cause delay, unless one is proactive about how one manages the case, but the advantage of it is that because the guardian is actually representing the child, the guardian can often be a bridge between the parents. I have had several cases where the guardian and the solicitor representing the child have in fact brokered agreements and resolved issues which I do not think we would have resolved in court. I think one has to keep it for a minority of cases for the financial reasons that Dame Elizabeth has indicated, but as a mechanism it is very useful and I think it should be increasingly used early in these cases. If one can see that a case is going to be difficult and intractable, that is the time, at an earlier stage than when it is in court, to get in the guardian and separate representation.
Q15 Ross Cranston: Could I ask some questions about case management and first of all about the guidance which you, Dame Elizabeth, are going to issue or have issued and which will take effect before the end of 2004 and whether that is on track, but could I ask you to step back and explain whether the sort of case management that operates in other parts of the civil justice system as a result of the Woolf reforms already operate in the Family Division or were cases regarded as different and, therefore, not subject to those sort of techniques?
Dame Elizabeth Butler-Sloss: First of all, so far as the guidance, which is in the private law framework, is concerned, I have just drafted a letter yesterday which is going out to the judiciary generally to reinforce the advice I gave in July and, yes, I am hoping that we are on track already on various parts of this private law framework. I would like, if I may, Chairman, to have an opportunity just to explain it at some stage, convenient obviously to the Select Committee, because I think it may answer some of the problems which I totally agree with James Munby exist in the private law. We of course are not part of the civil procedure rules, save insofar as our family proceedings rules are deficient. The new Family Proceedings Rule Committee has its first meeting on Thursday and we will be creating rules, and, as I say, I am a member of that committee, which will particularly enhance in the family proceedings rules the overriding objectives of the CPR, and it is very important we do. However, in fact in the public law sector, thanks to James Munby, Paul Coleridge, Ernest Ryder and the Department for Constitutional Affairs' committee, there is an extremely tightly based case management in relation to children who may be taken from their parents. We have not yet achieved that in the private law sector. I hope that my framework guidance will be a broad guide. I am not sure that it is appropriate to give quite such tight case management in private law cases. The whole point about a public law case is that it has got to go through, you basically cannot settle it because if the local authority wants to take the children from the parents, the parents naturally are not going to consent and you have to decide if the facts, which the local authority thought would make it necessary to remove the children, actually exist. Until we reach what we call the 'threshold' which permits us to make a decision as to where the child goes, if, for instance, there are allegations of physical violence against the child and the local authority says that the child is at risk and must be removed, we have to decide if those risks exist. Was the child a subject of physical violence or was it an accident? It is not until we have decided that that we have any right to deal with what happens to the child. In private law cases it is a dispute between the parents and at every stage we want to make the parents settle, so we do not want to go through a pattern of 40 weeks as to how the case is going to be tried, but we want it finished on day one.
Q16 Ross Cranston: There is a great deal of argument of course around case management where the proponents say that case management goes hand in hand with settlement, you grab hold of the case and you encourage settlement. In your submission, you said that one of the causes of delay was the lack of judges. Now, what sort of estimate would you make of the need for additional judge power and where would that be? Is that in the Family Division or at other levels?
Dame Elizabeth Butler-Sloss: I have discussed this with the Lord Chancellor not very long ago and we do need both additional judges at, I think, all levels if we are to create a situation in which there are not delays for children. We need it at the High Court and the county court, both circuit judges and district judges. We are always at the county court level in with circuit judges and there is a tension between the criminal and the family work. Until relatively recently I think it would be fair to say that the criminal work has always taken priority for very obvious reasons. A great many people are in detention on remand, awaiting trial, so there must be a real need to get their trials heard as quickly as possible, but I think that in the past the administration of family justice has suffered because many of the same judges are trying both sorts of cases. The district judges have only fairly recently had the private law jurisdiction, only in the last two or three years. Very much I requested this and it took some time to achieve it, but we now have district judges and if we can get continuity of district judges in private law cases, which are not the most difficult, I think they ought around the country to crack that. District Judge Walker, who is the Secretary of the Association of District Judges, is one of the people who is going to give evidence to you, and they are, I think, the backbone of this private law work. If they can get the cases back really quickly, and what I am looking for is that if you cannot settle, you just find out what the issue is, whether it is to stay in contact, and the CAFCASS officer should only write a report on that issue instead of the whole general picture, if that is genuinely the only one, it should get before probably a district judge within a very short time, and I am talking about not more than three months and preferably much less. Then the district judge makes an order, but the CAFCASS officer should monitor the order, ring up on the Monday after the contact and say, "Did it work?", and if it did not, it should be back before that same district judge within a fortnight. In the more difficult cases that do require to go before the circuit judges, and the few that come to us, and all of us have experience of intractable disputes which we have tried to manage, we need proper enforcement. Again Nicholas wrote, as Chairman of a sub-committee of CASC, a marvellous report three years ago on how enforcement was needed. What we need is community service, parenting plans, requiring people to go and get information to teach them how to be good parents and why the other parent matters because we want children to have both parents
Q17 Chairman: What about the cases in which delay is being used as a tactic by one of the parties in the belief that if the case is kept going longer, perhaps by new accusations being thrown up, the stage will be reached when the court sees the enforcement of contact as no longer relevant?
Dame Elizabeth Butler-Sloss: Well, that is why we have got to catch them. We have not put sufficient energy, in my view, into the private law side to require the cases to come back at very short notice and if we can knock them back into the court on a fortnightly basis, if necessary, I would hope that the mother, because it is very often the mother, will get tired of coming back and will actually begin to comply, or she might listen to the need. Michigan has the most marvellous video of children explaining how they wanted to see both parents and how they were upset, angry, guilty that they were responsible for not seeing the father and so on, and this sort of video is what I would like to see as part of the information pack. At the moment they are doing a video, I believe, DCA or DfES, which is going to be shown to parents to teach them that the non-residential parent is very important to the child.
Lord Justice Wall: Proactive judicial management is absolutely crucial. In the old days, the judges were reactive. The parties made an application, they came to the judge and they then made another application and came to the judge, but that has changed in family work. We were in fact case-managing well before Woolf and what is crucial is proactive case management where the judge calls the case back and that is one crucial point, but of course that has to go hand in hand with judicial continuity. Dame Elizabeth's point I had recently just before I went to the Court of Appeal in a case where I arranged contact on the Friday, the social worker said that she would make sure it happened on the Saturday and on the Monday the case was in court because in fact there had been difficulties. The social worker was able to contact me by e-mail and I knew all about it because of the report which she e-mailed to me, so that is the sort of modern case management we require, but it does require judicial continuity and that is of course one of the messages that Dame Elizabeth has been giving.
Mr Justice Munby: I entirely agree. That is the problem where the inadequate number of judges comes in. The fact is that on the family side we do not have enough judges at all levels. The result is that we have to try to prioritise. We have to put children before money and on children, partly because of the public law protocol where it is imperative to decide cases within 40 weeks, we have to put the public law cases ahead of the private law cases.
Q18 Ross Cranston: If I could just interrupt, will the tighter case management not reduce the need for additional judge power?
Dame Elizabeth Butler-Sloss: Well, we hope so.
Q19 Ross Cranston: Well, that is the conventional wisdom of all the literature.
Mr Justice Munby: It will reduce the number of additional judges which are required, but it does not remove the need for additional judges. The simple fact is at present that we are struggling to maintain the 40-week period in public law cases and we are not meeting it. Because that is the imperative, the private law cases are being pushed back. Now, the kind of proactive judicial case management involving judicial continuity, which Sir Nicholas has just referred to, the idea that you get the case back on Monday if there are problems, there simply are not enough hours in the day and we are only managing to do this, for example, in the private law cases by sitting outside normal court hours. I can only actively case-manage private law cases by fitting them around my normal timetable and I sit repeatedly at nine-thirty in the morning so that I can fit the cases in around the normal list and that is simply a reflection of the fact that there are not enough judges.
Q20 Ross Cranston: In the DCA White Paper, the statement is made that cases currently take 36 weeks to complete, on average. What is a reasonable target if 36 weeks is not acceptable?
Dame Elizabeth Butler-Sloss: You cannot treat a private law case like a public law case. A public law case has to go through to its conclusion if the evidence shows that the child is seriously at risk. In the private law cases, I do not think there should be a target because I think we should be trying to stop them coming back at every single moment, so it is really impossible. I do not know where the DCA got those figures from, they certainly did not get them from the judges. I do not think that we ought to be looking at targets because if the case is easy, it is resolvable quickly and if it is difficult, it would take possibly years. What is happening is that because, as James Munby says, we are having to concentrate at each level, and this is the important thing, that the circuit judges and the High Court judges with different degrees of difficulty are doing the same work, we are having to concentrate in getting the public law cases out which means that we cannot always or cannot generally get the private law cases back in quickly enough.
Q21 Ross Cranston: There is a lot of talk about the effect of legal aid and one line of criticism is that legally aided parties spin the cases out. Now, I am not sure that is supported by the empirical evidence. Lord Justice Wall referred to Professor Regalow's(?) study which did not actually support that, but what is your view of this?
Dame Elizabeth Butler-Sloss: I do not think that is true. So long as you have the specialist Bar and the specialist solicitors, and I am talking about the Solicitors Family Law Association, the Family Law Committee of the Law Society and those who support it, they have that protocol as to how to behave and they, by and large, obey it. The Family Law Bar Association also has very much at the forefront the welfare of the children and the needs of the parties to settle. We do get of course people in who do not belong to those associations, but if there is the slightest view by the judiciary that this is someone trying to spin it out, then if you are any good as a judge you are going to stop it, and I do hope most of us are competent to do it. The three of us are deeply into proactive case management. What we have got to be sure of is that at every level people realise that they must avoid unnecessary information. If someone wants to tell me about the fact that the wife committed adultery five years before they got married, I will not listen to it. It was said to me not so long ago, "Well, I'll appeal you", and I said, "Great, but see what the Court of Appeal says about that sort of allegation". We are not going to listen to it.
Q22 Mr Dawson: We have already heard a lot of information about CAFCASS and about the way that their role could be developed in relation to separate representation and to supporting contact, and the Government wanted them to do more in terms of mediation and in terms of developing the role of family assistance orders. Presuming that the judges would want CAFCASS to develop their role, but plainly you are aware of their very limited resources, is there more that you could do to ensure that CAFCASS produced tighter, more focused, fewer reports, and is there something that CAFCASS could do to amend their practices as well?
Dame Elizabeth Butler-Sloss: The answer is yes and yes. Yes to the first one, that we must be requiring particularly the district judge at the first appointment. If the case is not settled at the first appointment with the help of CAFCASS, then I am hoping right across the country in every area where there are applications for contact and residence, the CAFCASS officer will be present at the court and the district judge will send the case to the CAFCASS officer. If the CAFCASS officer cannot settle it, the district judge will do a very carefully crafted order which includes setting out what the issues are. This is happening in a large number of places in the country and it has got to happen everywhere. The district judge will then say that the CAFCASS officer must deal with stay in contact, and that is the only real issue between them. The CAFCASS officer will then be expected to produce within a much shorter period, anything from 12 to 20 or 30 weeks, which is one of the problems that it is sometimes six months before they can provide a report, and not their fault, but a lack of people, they must produce a report quickly of five pages, not 20 or 50, on the issue that matters. It is up to the judges to require CAFCASS to write focused reports and short ones and why not e-mail? Why does everything have to be done on a sort of template and handed in on hard copy? E-mail everybody and save time. Secondly, the CAFCASS officers must accept that this is the right sort of report because there are a lot of CAFCASS officers who think it is their duty to set the whole case out in detail. All of us are guilty of writing things that are too long, but we do want to encourage CAFCASS to save time, and it may not be necessary to have guardians in every case. If CAFCASS can have a support service in relation to families, it may meet a large number of cases without using guardians at all.
Lord Justice Wall: May I add to that that I regard CAFCASS as absolutely critical to the successful operation of the family justice system, and in the report we received enthusiastic support from CAFCASS for that. Historically, CAFCASS, the old court welfare service, was largely used for report-writing and clearly what is required is that CAFCASS is going to be part of the information-providing stage at the very outset, it is going to have to be part of the conciliation stage, it is going of course to go on writing reports, but we want CAFCASS officers to have more time to work with the children, to work with the family in the way the President has just indicated and if they can take that proactive role in assisting us, that, we think, would be absolutely essential to a successful outcome, but it does mean that CAFCASS has to expand and to meet the various roles we would like.
Q23 Keith Vaz: Dame Elizabeth, there is a perception that the family court system is biased against fathers. What is your view on that?
Dame Elizabeth Butler-Sloss: Well, it is untrue for a number of reasons. First of all, the Children Act requires us to treat spouses equally and parents equally, and my experience is that we do. I must have found, like both my brethren, for fathers on many, many occasions, but the situation is basically that when parents separate, the vast majority of children stay with mother and for the minority who stay with father, at the end of the day probably what we call the status quo is the situation which occurs because the child is settled there, and in cases where father is caring for the children, that is where the children are likely to stay. I have not come across in recent years, certainly in the Court of Appeal when I was there or now as President sitting both in the Court of Appeal and the High Court, cases where I have come across any bias in favour of mother or prejudice against father. I think one of the problems is that the public do not know what we are saying and I feel quite strongly, and what I had to say was endorsed and repeated by James Munby in the judgment that hit the headlines, that we ought to be giving our judgments to a far greater extent in public, and I think if we did that, whether we would dispel the perceptions, I do not know, but at least those who wanted to read them would know what was actually going on, but it is not true.
Q24 Keith Vaz: Nevertheless, when I practised family law 20 years ago, I cannot remember a circumstance and a time when so much direct action was being taken by a particular group. We have had items being thrown at the Prime Minister, Batman going into Buckingham Palace, Spiderman at the top of the London Eye -----
Dame Elizabeth Butler-Sloss: And a lot at me too, I have to tell you!
Q25 Keith Vaz: I was just coming to that! Do you not think there is anything in it, that these are just people who are upset about individual cases rather than the principle? Is there absolutely nothing in this?
Dame Elizabeth Butler-Sloss: So far as the principle is concerned, there is nothing in it at all. There is absolutely nothing in the law that leaves the courts to choose one parent rather than another. We look at the cases on the basis of which is the better parent because the welfare of the child is paramount, but all judges are human. It may be that some judges will, I do not know, I have not come across it, but it is possible.
Q26 Keith Vaz: The Solicitors Family Law Association has suggested that one way of dealing with this perception is if we have a presumption that there should be post-separation contact for both parents. Would that presumption help deal with the situation?
Dame Elizabeth Butler-Sloss: No, and I will tell you why: because we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which takes precedence? As you know, if I may say so, Mr Vaz, as a lawyer, the word "presumption" is different in the law than perhaps it is for the public. If you have a legal presumption, you have to apply it, except in exceptional circumstances. The legal presumption is the welfare of the child. I can see a case for something slightly less, such as that the court should have regard to the importance of a relationship between the children and a non-residential parent.
Q27 Keith Vaz: So there is scope?
Dame Elizabeth Butler-Sloss: I think there is scope.
Q28 Keith Vaz: We can have Section 1 of the Children's Act -----
Dame Elizabeth Butler-Sloss: Section 1(3) could have something to that effect. I have not consulted James Munby, and I did consult actually Nicholas Wall yesterday and I think you would agree that that would recognise what we see as the situation anyway.
Lord Justice Wall: Yes. The danger is that the more you define, the more you are open to argument and that is the problem. If you then put in something along the lines the President just suggested, no doubt the women's movements quite reasonably would say, "Well, what about domestic violence? What about the safety? If you are adding in this proviso, what about X, Y and Z?", and that is the danger of it, I think. I think the point I principally agree with the President about, and I think this is something shared by all three of us, is that the perception exists largely because most of our work is done in private. It so happens that of the last three cases I tried at first instance, in two of them I took children away from their mother and gave them to their father because their mother was obstructing contact, and in a third a father withdrew his application and the reason he withdrew it, I found, was because his conduct had made it impossible to have contact with his child. All these cases are different. I went out of my way in that case in public to say that there is no presumption, and it is in the paper which I submitted to this Committee, I said in terms that there is no gender bias and we decide each case under Section 1 of the Children Act, and I think we have to keep the focus on Section 1. I am quite happy to see an expansion of it, but we must be very careful in our drafting because it could be seized on.
Q29 Keith Vaz: I have had people come to my surgery and I think they have also written to this committee, as we see in the evidence which is produced to this committee, fathers complaining bitterly about the fact that they cannot get access. Do you think that if we had an interim order being made right at the start of the proceedings so that the contact issue was taken out of the game and everyone was very clear that contact would not be used by one party or the other as opposed to the residency issue, that would help resolve the situation, that both parents would get contact on an interim basis and then you would proceed with the rest of the case?
Dame Elizabeth Butler-Sloss: The trouble is that if the mother says that the father has been guilty of domestic violence or is not suitable to care for the child, you have got to deal with it and, therefore, you cannot make an interim order until you have dealt with it. On the whole, I think that the problems of contact are greater than the problems of residence because residence does on the whole resolve itself, subject to the question as to whether it should be joint residence or shared residence, about which I know fathers' organisations feel very strongly, but subject to that, yes, I would want the parties to agree the contact before they ever come to court, which means they would not come.
Q30 Keith Vaz: Do you think what we have got, at the moment, is a situation where the courts are being unfairly blamed for the failure of politicians Government to be very clear as to what they think parental responsibility should be and that if the Government came out and Parliament came out with a clear statement it would be much easier for you to interpret that statement? At the moment it is all being thrown back on the poor old judges.
Dame Elizabeth Butler-Sloss: Yes, judges are being unfairly blamed, there is no doubt about that. We are bearing quite an interesting burden of blame, which I have never come across. I have been on the bench now since 1970, in one capacity or another, and I have never known a period when the judges have been, in our part, so much blamed. I do not, for a moment, think it is the fault of politicians. I think the relationship breakdown paper is excellent. However, politicians cannot make the parties be sensible.
Q31 Keith Vaz: True.
Dame Elizabeth Butler-Sloss: The law seems to me, on the whole, since the Children Act, to be reasonably good. I think we need to improve the management by judges; we need to have enough judges - and enough courts. When I was out of London recently I found district judges did not have courts to try cases. District judges cannot be expected to sit in rooms because we have violence from time to time by parents where their fraught emotions just completely overwhelm. There was a grandmother who was not going to see her grandchild again; she absolutely went berserk in a district judge's court in London and she wrecked the court. Fortunately, that district judge was sitting in a proper court; if it had been in a room - it is just not safe.. So we have a lack of courtrooms, too.
Q32 Keith Vaz: Lord Justice Ormrod has said that there are some cases that are insoluble - as you have said today - and even the greatest judge in the world is never going to be able to solve those cases. What do we do about those cases?
Dame Elizabeth Butler-Sloss: The personality problems are sometimes of both parents. Fathers complain that they have come to court a hundred times but they do not explain why they have come to court a hundred times. I think we have to try. We have put in a number of decisions at the Court of Appeal of the High Court judges. Unfortunately, at the level below the High Court very seldom are judgments recorded. I did try to get some so you have a broader flavour, but I could not find them, just to give you a feel of the intractability of some of the cases and how we try to approach them. Yes, I think we have to try as far as we can go and then we occasionally give up. I remember a case in the Court of Appeal, when I was quite a junior Court of Appeal judge, where the then Master of the Rolls, Lord Donaldson, was very shocked to find that the circuit judge had given up in Bristol - a very experienced circuit judge - but the mother went to court on every occasion with her suitcase packed. Why? Because she expected to go to prison; she was quite prepared to go to prison; she was not going to let the child see the father. The child had never seen the father, so, in fact, the child could not go to the father as the alternative parent. We have no hesitation in moving children from unreasonable mothers to reasonable fathers (or the other way round) but if the child has never met the father, what do you do? How long do you put them inside for? Two years is the maximum for contempt.
Q33 Keith Vaz: I realise that this not Kramer v Kramer and there is not the kind of emotional background that would enable us to solve this on a sentimental basis, but have you or your colleagues met with the Fathers4Justice campaign or any of these other, campaigning organisations that are seeking to put forward in a sensible way, as opposed to the rather dramatic and unacceptable way ----
Dame Elizabeth Butler-Sloss: May I say, I think we all have. Fathers Direct I have had quite a lot of contact with. I was chairing a conference which was disrupted by Fathers4Justice at the very moment that the Chairman of Families Need Fathers was giving a paper in which he was putting forward extremely well the father's point of view.
Q34 Keith Vaz: So there is a schism within the fathers' movement?
Dame Elizabeth Butler-Sloss: Fathers4Justice chose to disrupt this and put a flare into the conference room so the smoke detectors went off, we could not see, and we had the father actually giving a very good paper. Eventually we got back and he continued his paper.
Q35 Chairman: That is why we had to make arrangements today different from the ones the Committee normally has because we did want to hear from you and from other witnesses in conditions in which you could express yourselves freely.
Dame Elizabeth Butler-Sloss: We are enormously grateful to you, Chairman, for the care you have taken for us, because we have no problem in meeting fathers or mothers. We have to bear in mind that the mothers' groups have a point as well as fathers' groups, and it is the fathers' groups which are being heard at the moment. Yes, of course we meet them and you meet them.
Lord Justice Wall: A few years ago I went to address the annual general meeting of Families Need Fathers and I was actually very impressed by the strength of their feelings and their emotions. The message I gave them - and I was not the only one doing it - was that the way to succeed, the way to get into the system, is not to sloganise but actually to get on the committees, get in with government where there is lots going on and people want to consult you, and respond to Making Contact Work. We had an excellent response from Families Need Fathers, part of which we incorporated, and I think Families Need Fathers has become a key player in the debate about on-going contact and joint residence. We make progress with rational argument; we do not make progress by sloganising.
Dame Elizabeth Butler-Sloss: I cannot meet Fathers4Justice because they are not being sensible. As long as they throw condoms with purple powder and send a double-decker bus with a loudspeaker outside my private house in the West Country there is no point in talking to them; they are not going to talk, they are going to tell me.
Q36 Dr Whitehead: One of the arguments that has certainly been put to me sometimes in my constituency surgery about the issue relates to what is seen by some people as the impotence of enforcement and the issue, for example, as has been mentioned this morning, of imprisonment. Indeed, Sir Nicholas, I think, in your recent paper you described imprisonment as an extraordinarily crude weapon. I think you also cast some concerns about fining mothers who already were on benefit. You have identified, Sir Nicholas, a number of alternative routes of enforcement. Do you think those would actually, as it were, make for open water, as far as enforcement is concerned?
Lord Justice Wall: Yes, I do, and I am very pleased to see that in the Green Paper the Government has adopted most of the proposals we put forward in Making Contact Work. May I just say that I do not see this as simply an enforcement or punishment issue. If a contact order is not working what I want to have is a mechanism which will help it work. Contempt of Court is designed to be partly punishment for disobeying the Court order and partly deterrence not to do it again. In the very sensitive family field I have not found, in contact and residence disputes, putting people in prison operates. Indeed, in the case of Re D, in which James gave judgment, I think imprisonment had taken place and it still did not work. So what I want and what the Government seems to have accepted, and what we put forward in Making Contact Work, is a raft of proposals which would, in the first instance, be facilitative; so if an order is not working you want to send someone off - whichever parent it is - to a resource which can address that particular issue (whether it is a parenting class or a programme or what-have-you). It is only if that does not work that you then move into the punitive, and the punitive could include community sentences and so on. However, the idea behind our thinking is that if we are trying to make an order work we need a range of facilities and, ultimately, maybe, in a particular case, imprisonment is a method which will work. I am very sceptical about it but it can do. So we call it enforcement, but I would prefer to see it as a wider form of facilitation.
Q37 Dr Whitehead: I notice you have suggested, and the Government has placed it in its Green Paper, awarding financial compensation where, say, a holiday has been frustrated. Have you looked at or thought about the idea of compensatory contact where, perhaps, a non-resident parent might be given additional contact where contact had previously been frustrated?
Lord Justice Wall: That, as a matter of practice, happens. That is a regular order that would be made. Yes, absolutely. If contact is frustrated on a particular occasion the court will almost invariably seek to make it up in some way or another.
Dame Elizabeth Butler-Sloss: I will tell you where the problem arises. Mother brings a child late to contact by half-an-hour; father then requires an extra half-hour the next week. This is getting silly. If, in fact, the father does not see the child at all, of course he should see the child on another occasion, but there are fathers who actually add up the minutes and produce it and say "Now I should have so much more contact because I lost five minutes last week and ten minutes the week before". It is difficult to deal with that sort of thing. I will tell you one area about which I am very concerned: if we should be sending to mediation, or anger management, or counselling - or whatever it may be - at every stage, including the so-called enforcement stage - the trouble with mediation is it is means-tested, so if you are on Legal Aid you get it free but if the other parent is not legally aided, and quite often father is not, he is going to have to pay several hundred pounds to go to mediation, and if he is not very keen it is not really an encouragement for him to do it. We live in a resource-restricted world, but if we are to make mediation work, at whichever stage, to have a money barrier to getting people to save money in the courts may not be the best use of money.
Q38 Chairman: I get a bit worried at this point, where compensatory time is discussed, about the position of the child. Surely that becomes extremely relevant at this point because the child may have quite strong views about which group of friends in which place it wants to play with that weekend, or which organisations - whether it is the ballet class or the football team - it wants to be with on Saturday. If it becomes a time negotiation the child is omitted from this process.
Dame Elizabeth Butler-Sloss: Last week I was sitting in Nottingham and I had three contact cases, as it happened. In each of them I found out what the child did at the weekend and I said to the father - because the child was having football classes - "You must take him to football. Don't expect contact instead of football; you go there, you watch him play, you take him away and give him a meal and send him home."
Lord Justice Wall: I think the Chairman has identified a genuine tension because the order of the court has to be an order and it has to be devised. So you tend to say "10 to 4" in the court order, whereas the best form of contact is that which is entirely flexible. If the child is thoroughly enjoying him/herself the child can come back at half-past five, six o'clock or seven o'clock - what-have-you - but that is not the way it works in the context of a court order, unless the parents are flexible - and if they are prepared to be flexible they do not need an order. So you go round in a circle.
Q39 Mr Soley: I understand in some other countries they do make a financial contribution to the other party if they do not keep the arrangement. I wonder if you have any thoughts about that, and, also, whether, if you were to go down that road, you could not make the financial contribution to the child in terms of a held fund of some sort. It actually does indicate then that it is the child that is losing out.
Dame Elizabeth Butler-Sloss: I would be delighted, but we live in a world where almost everybody does not have any money and the woman who is looking after the child may be having a problem in managing, and to fine her, in effect ----
Q40 Mr Soley: Other countries do it and they are poorer than us.
Dame Elizabeth Butler-Sloss: I do not know. One of the problems is the payment is through the child support service, and a lot of mothers equate - and you cannot be entirely surprised - how far they are prepared to be friendly about contact with the extent to which the father is paying. It is not always the fault of father, because sometimes there is a hold-up on the child support payments ----
Q41 Chairman: And incorrect assessments.
Dame Elizabeth Butler-Sloss: ---- and incorrect assessments and so on, and money and child contact do go together. They should not, but of course they do. If the woman is not being paid she is not going to let the father see the child, in quite a lot of cases.
Q42 Mr Dawson: Children are murdered during contact visits in this country and children are abused during contact as well. I think the last year for which we have figures is 2002 and at a time when CAFCASS were saying that 23% of contact cases involved domestic violence in only 0.8% of cases was contact actually refused. Is this not evidence that rather than actually not acceding to the wishes of fathers judges are going the other way and not taking domestic violence seriously enough?
Lord Justice Wall: This was the theme of our first report, which is on contact where there is domestic violence. We had a choice of how we addressed it: we could either go down the New Zealand road, which would be legislation with a presumption there is no contact where there has been domestic violence, or we could try and address it, in the way that we did, by guidelines. The direct answer to your question is that no judge will make an order for contact where there is a risk to the child, unless that risk can be properly catered for and the contact is in the interests of the child. So the guidelines, which we laid down, which were supported by the President and are currently in place, are that in every case where domestic violence is alleged the court must be acutely aware of it, investigate it and decide whether or not it has taken place. One of the difficulties, of course, is that one often is not told about domestic violence; women are often very ashamed of having been treated badly in the course of a relationship. Indeed, one of the most sensitive cases I tried, where a father was on the point of murdering his children during the course of contact, was not because there was a court order for contact but because the mother was willingly allowing the father to have contact, quite unknown to her that he was making this particularly terrible plot. I think the answer to your question is that there will always be tragedy but the courts must be increasingly acutely aware of the risk of domestic violence, and if there is any risk to the child during the course of contact from violence then the judge would have to decide whether or not contact should take place. Probably it will not if there is a risk, unless that risk can be totally covered and the contact remains in the interest of the child. It is a question of awareness, I think.
Dame Elizabeth Butler-Sloss: The Court of Appeal did give guidance in a cased called L v V and others, (Lord Justice Thorpe and I gave the main judgments on it) in which we gave guidance. Whether it is read or not, I do not know. We did give guidance on how courts should deal with this problem.
Mr Justice Munby: One of the problems is that we do not have enough fact-finding hearings resolving these issues. Intractable contact disputes and contact disputes which are on the way to becoming intractable are always fraught with large numbers of allegations and cross-allegations. What happens too frequently - sometimes it is lack of judge time, sometimes there is not enough time in court for the hearing - is that one tends to put it off; the father, if the allegation is of violence, will give some undertaking and the issue, in a sense, is swept under the carpet. Then you discover, three years down the line, that these allegations have festered away and have never been judicially investigated. It seems to me that where we do have cases in the court system where there are factual allegations being raised, we need right at the outset to take a firm view: are these allegations which, of their nature, require to be resolved or are they simply irrelevant or peripheral? If it is domestic violence plainly they need to be resolved. The crucial thing is to have fact-finding hearings at a very early stage; get to the bottom of it, make findings of fact and, thereafter, plan the child's future and plan the future of the case on the basis of findings of fact. One of the great defects of the system in practice at present, in my experience, is that too often allegations which ought to be investigated are either never investigated at all or are investigated far too late.
Dame Elizabeth Butler-Sloss: I wonder if you could let me add just two things. One is that the form is going to be changed, I think, as from January and there will be a box to be ticked by a mother - or sometimes a father - that there is an allegation. Yes, fathers suffer from domestic violence as well as mothers. I have come across a number of cases before me where fathers have been very badly injured by mothers, but the majority, of course, are mothers. There is going to be a form which will be ticked on any application in relation to children as to whether or not domestic violence is an issue. You see, it is the parties that, very often, sweep it under the carpet. In our L v V and others cases on domestic violence we said very firmly that this is an issue that must be sorted at a very early stage, and we told the judges to do it. However, of course, if they are not asked to they do not do it. Of course, the parties do not necessarily want it tried.
Lord Justice Wall: One of the most interesting things about Re L was that there was a report from two very distinguished child psychiatrists spelling out very clearly the effects of domestic violence on victims and on children. I think that brought home to the judiciary - certainly it brought home to me - very clearly the learning on this particular subject and that, perhaps, in the past we had not addressed it sufficiently.
Q43 Mr Dawson: The Green Paper talks about the application of the CASC guidelines being patchy, and clearly we have also got the implementation next year of Section 120 of the Adoption of Children Act and significant harm in relation to domestic violence. We receive allegations from bodies such as the NSPCC and Women's Aid that judges continue to allow unsupervised contact - and indeed residence - to Schedule One offenders, which seems absolutely extraordinary.
Dame Elizabeth Butler-Sloss: We do not always know they are Schedule One offenders at that time. If the local authority comes in and tells us they are a Schedule One offender then, of course, we will take steps. It is always a question of what has been told to the court at the moment the contact order has been made.
Lord Justice Wall: May I just add to that that I have, obviously, been to Women's Aid conferences and discussed this issue with them, and one of the things that will be very helpful, at some point, is if this evidence could be investigated by a senior judge. One frequently has allegations, for example, that a woman in a refuge is required to make her children see the person whom she is fleeing. I would be interested to look at the file on that case, to look at the evidence put before the judge and to look at the judgment. What was the judge doing? Did he make an order like that? If so, why? If that sort of order is being made it is totally unacceptable, it is dangerous to children and it should not happen. I think this needs to be slightly more than just anecdotal, I think it needs to be investigated properly.
Dame Elizabeth Butler-Sloss: If I found it and I found a judge, in those circumstances, was actually allowing unsupervised contact where the father was dangerous, I would consider whether I would take his Family Law ticket away. I do not get told about these. We have a lot of anecdotal evidence, even from the NSPCC, for whom I have an enormous regard, which I think is not necessarily based on fact, or on facts which did not come to the court, which I think is really the problem here.
Chairman: That brings us to the point which you made earlier, which I will ask Mr Cranston to deal with, which is about the openness of court proceedings. You have just referred to how useful it would be to know about various things which, in the nature of things, we do not.
Q44 Ross Cranston: I do not want to embarrass him but Joshua Rozenberg said that the courts ought to be more open.
Dame Elizabeth Butler-Sloss: Yes. He is here.
Q45 Ross Cranston: Absolutely, and he is very distinguished as well.
Dame Elizabeth Butler-Sloss: I agree, Mr Cranston.
Q46 Ross Cranston: Comparable jurisdictions, like Australia and Canada, as we understand it are more open. Is it possible to be more open while, of course, keeping secret the names of the parties involved?
Dame Elizabeth Butler-Sloss: I think there is a distinction between the giving of the judgment, which I believe ought to be open (at least, the press should be able to come in, which makes it open), possibly the submissions of counsel, but in very fraught family cases I have my doubts as to whether the public should pour in and listen to people exposing their real concerns. I have had fathers in the witness box huddled up in tears; I have had mothers who are distraught; I am not sure that having the public in would not make it even worse for them. So my gut feeling is that a distinction be drawn between the evidence of the parties. I think in some cases that have medical evidence I would not object to that part being given. I try a lot of vulnerable adult cases and almost all of them, if we are dealing with medical cases, are open, particularly on permanent vegetative state, where the people are likely to die. The whole of that evidence is given in public because the person about whom we are dealing is not giving evidence. I think parents need protection.
Mr Justice Munby: I think this is a topic on which views differ and I personally would take a rather more open view. The fact is, and I believe it is a fact, that the family justice system is under criticism today because it is perceived as being a secret justice system, and in that sense we are crippling public debate. As the President has indicated, a lot of the criticisms, whether they come from Fathers4Justice or the NSPCC, are necessarily anecdotal and nobody is able to see the relevant material. I think it is doing us serious harm, and I do not think that the existing system, the existing rules, are necessary. That is not to say we simply open the doors to everything but I think we could do more to open up the system. One thing - it is only an idea - is I think I am right in saying that in the Juvenile Court (the Youth Court) the press is able to attend but is subject to a reporting restriction. I think there might well be attractions in considering whether the press, the media, other interested bodies, should have a right to be in court, subject to judicial discretion to say not in a particular case, but subject to reporting restrictions. At present the rule is nobody can be there, nobody can report anything unless a judge says so. I think, perhaps, a more flexible system is required. I also believe that there are more judgments which could be given in open court. Traditionally, we have tended to give judgments in open court only if we think there is some legal point of interest to the law reporters, but the consequence of that is that the public judgments tend to be skewed away from the ordinary run-of-the-mill case to the legally complicated case, and the consequence is that the public has very little insight into or access to the routine work we are doing. I think many more judgments should be given in public.
Dame Elizabeth Butler-Sloss: Could I just make two points? One is that this was discussed in a paper which came from the LCD about 10 or 12 years ago, and there was quite considerable consultation on whether the Family Court should be open, and then it died a death. It is quite an interesting paper and I think it would be worth, actually, looking at that. Secondly, I would not disagree with having the same system in the magistrates' court and right the way through the county court and the high court of allowing the press in under certain restrictions. We have always done it, of course, with divorces and annulment where the public are permitted and we go into open court. The trouble is I would not want us to get robed on those occasions, because I think there has to be a degree of informality. How you play that, I am not sure. What James Munby says is well worth considering.
Q47 Peter Bottomley: It may be possible for you to consider whether you could do us a note on what inhibits the changes being made. Is it law or is it custom and practice? If it is possible for you to make changes it would be worthwhile.
Dame Elizabeth Butler-Sloss: I am sorry. Do you mean the change in going public?
Q48 Peter Bottomley: As a minimum, to have judgments issued so they can be reported, in the same way that appeal judgments ----
Dame Elizabeth Butler-Sloss: It is a matter for a judge. Everything is heard in private, save where a judge says it should be heard in public. So it could be heard in public all the time.
Q49 Peter Bottomley: The suggestion I was making was for you to consider rather than directly answer. My request is for you to consider this rather than commit yourself to an answer now: whether you can look back at what was said ten years ago and say whether, by practice direction or convention, we can meet what the journalist has suggested, at least the openness and perhaps the judgments. Clearly, at the moment, Fathers for Publicity, (?) the more extreme wing of fathers, are pandering to an ignorance in the public that the press have not been able to do their job at making available to all what is known to a few. Those of us who have had a chance of listening to the Re O judgment actually know a great deal more than most who just read the tabloid newspapers from the protesters. Also, if more parents knew the vast majority of cases were resolved without going to court and of those in court many of them were resolved because people were willing to recognise there was going to be a decision and it is far better to take part in the decision than be subject to the decision, I think there would be greater understanding as well. Can I make one final point for you to consider? Why in judgments that are given are experts' names or initials changed but the children's are not? It seems to me obscure reasoning that says that the person whose personality is supposed to be protected gets less protection than a professional who is there because they are an expert.
Dame Elizabeth Butler-Sloss: We usually do initials.
Chairman: But the initials are actual initials.
Q50 Peter Bottomley: For the children.
Lord Justice Wall: Not always. I have often called children X or A, B and C and so on.
Peter Bottomley: I leave the point.
Q51 Mr Dawson: Given the difficulties that we have heard of victims coming forward to allege domestic violence, and given the problems of hearing the voices of children involved in difficult private law proceedings, is there any reason to suppose that opening up that court process to further publicity and the presence of journalists would actually aid those people in coming forward, or would it make it less likely that the court would hear information that it needs to hear?
Dame Elizabeth Butler-Sloss: I have no idea.
Chairman: That is one of the most honest answers the Comittee has had for some time!
Q52 Peter Bottomley: Again, it might be something you want to consider and give us some notes about, but are there any circumstances in which a person involved in a private law case cannot consult their Member of Parliament about their concerns and worries?
Dame Elizabeth Butler-Sloss: As you appreciate, I am sure, the DCA is now looking at this and I understand that in the Children's Bill there is a clause that is going to deal with the problem of rule 4.23 of the family procedure rules. This has been the subject of a considerable amount of discussion. It was exposed, actually, by Lord Justice Thorpe and myself in a case in the Court of Appeal and we had not appreciated it, but of course it must be cleared. However, if I might respectfully say so, not just for MPs.
Q53 Peter Bottomley: So the answer is no; there are no circumstances in which that restriction should be maintained?
Dame Elizabeth Butler-Sloss: I do not think it should be maintained, no, of course not. We did not even know it existed until it was brought to our attention. You obviously did not know it existed.
Q54 Chairman: Thank you very much, Dame Elizabeth, Sir Nicholas and Sir James. You have been very helpful this morning. Clearly, we might want to contact you at a later stage, but we are looking forward now to hearing from your colleagues who are at the sharp end, so to speak.
Dame Elizabeth Butler-Sloss: I take it from what Mr Bottomley said that you would like a short paper from me on the points that he raised?
Q55 Chairman: He asked you to consider whether you would like to submit one and it is entirely up to you.
Dame Elizabeth Butler-Sloss: Certainly I shall.
Chairman: Thank you.
Examination of Witnesses
Witnesses: His Honour Judge Meston QC, District Judge Michael Walker and District Judge Nicholas Crichton, examined.
Q56 Chairman: Judge Meston, Judge Crichton and Judge Walker, welcome, we are very glad to have you with us. As I said earlier, I think you are at the sharp end of dealing with the quantity of cases, many of which do not reach the higher courts. What practical steps do you think the courts can take to reduce the average length of cases, an issue which we raised in the earlier session?
Judge Meston: I think we would all agree pro-active case management is critical. We already work very hard at it. Cases which will require some form of court hearing are timetabled at an early stage through to a final hearing, with such interim orders as are necessary being made at the same time. You cannot monitor a case all the way through to ensure that the timetable is met but we try hard to ensure that a timetable is set and is adhered to to ensure that the parties provide the evidence which the court requires and to ensure that CAFCASS provide the vital report, focused, if possible, on the essential issues within the time constraints which they have. In the area where I work we are working to 16 weeks for CAFCASS reports, which I think is not as good as some but better than many.
Q57 Chairman: Can you achieve the judicial continuity which was seen in our earlier discussion as being very helpful without getting very complex listing arrangements and, perhaps, disruption of the listing arrangements that you are using to try to get the cases dealt with quickly?
Judge Meston: I can only speak as a circuit judge. Once the case reaches the right level of judiciary - in other words, once a decision is made that it is either going to stay with a district judge or move up to the circuit judge - then it is plainly desirable, and we all recognise that it is desirable, that it should have the same judge throughout. It is much easier for the judge, let alone for the parties. It is not always achievable but we simply try, and certainly the typical circuit judge has other demands on his time. As the President was saying, the really superior demands for the family judiciary are the public law cases where judicial continuity is at a premium, but we also have criminal work to do and, some of us, civil work to do, which is booked up ahead so it is not always easy to fit a case into the timetable and you have, therefore, to make a decision as to what gives. I do not know about the district judge.
Judge Walker: The President mentioned earlier that sometimes there is an estate problem of the judge just not having the right room. However, on the whole, that is not a problem; district judges are sitting 100% of the time in the county court and we know what our lists are. If I want to adjourn a case from today to four weeks' time I know what I am doing and when I am doing it and it is easy to slot the case in, on the whole. It really should not be a problem and if it is a problem it needs to be sorted out. It is even better for Judge Crichton because he has a one-off situation.
Judge Crichton: I sit in a family proceedings court, which is a magistrates' court, and we have three courts daily run by lay magistrates and three by district judges. The other two district judges come in on a rota basis from the criminal courts, they have got their Family Law tickets and they give me about eight weeks a year - one or two weeks at a time - but I am there the whole time. That gives me the possibility of keeping certain cases to myself and reviewing them on a regular basis. Like James Munby, who talked about this, I frequently take two or three cases before court business starts at 10.30 just to keep tabs on them and see how they are going. I also take cases at 4.30 in the afternoon, at the end of the normal day, fitting it round whatever suits the parents best. It works. If you can pick up where you left off last time, particularly if you have got a mother who is very anxious about staying contact. I had a mother recently who had agreed with a degree of reluctance to visiting contact and that had gone quite well, and the child was six or seven, and father was now saying "I would like to have him for the weekend; I would like to have him overnight on Saturday". Mother was saying, "Absolutely not". I was saying "Why not?" She said, "He's too young." I said, "When do you think he will be old enough to spend a night with his father?" "Not till he is 13 or 14." I said, "It is going to happen this weekend" and she became quite frantic. I said, "And at 9.30 on Monday morning you are going to come back and tell me if it did not work." She came back on Monday morning quite sheepish; it had gone very well and the child had had a good time. To be able to do that is a tremendous advantage.
Q58 Chairman: Do you experience delay being used as a tactic in the hope of putting off the day when a relationship can be either fostered or even begun? Is it something that you experience and, if it is something you see, you are able to prevent?
Judge Crichton: I do not think so. The quality of legal representation at my court in the Inner London Family Proceedings Court is extremely high. The solicitors and the barristers are very much committed to what we all perceive to be in the best interests of the children, and work very hard to persuade their clients. I do not think I see that sort of tactical delay.
Judge Meston: I have to say I agree with that. I heard the earlier questioning and I just do not think that happens. If it is thought to be happening it is picked up very quickly. Our court structure is such that you simply do not allow to happen. If an interim order has to be made to get things moving you make an interim order, even if it means using a contact centre or something of that sort, or using grandparents to help contact, just to keep it going, so that the court process in itself is not an excuse for not allowing contact to resume on a proper basis.
Q59 Chairman: Do you see grandparents very often in proceedings? They are often very aggrieved.
Judge Meston: Yes. Sometimes they are the saviours. They facilitate contact, they provide finance which is not otherwise available. At the other extreme, sometimes they make a bad situation worse. You cannot generalise, but, yes, I have just done a case where the saviours of the case were the grandparents emerging, as it were, from the woodwork at the last moment, to resolve what was otherwise going to be a very difficult case to resolve.
Judge Walker: If I may say so, before there was talk of domestic violence and very often providing for contact at the grandparents' address is the answer to what sometimes can be a very difficult situation, and you know you have responsible grandparents keeping an eye on the situation.
Q60 Ross Cranston: We were told that there was an early intervention project which had started off in 2003 and which had strong judicial support. We were told that because of CAFCASS' involvement somehow that has been supplanted by another project, and the initials, I think, are the Family Resolutions Project, which does not have that judicial support. Can you clarify it for us?
Judge Crichton: I certainly can. There has been a lot of mis-information about this. I chaired the ad hoc working group which was developing an idea that was brought to us by Dr Hamish Cameron, who is a very well-known child and adolescent psychiatrist. It was based on some work that is being done in Florida and indeed in Scandinavia where under the title of "Early Intervention" parents are directed out of the court system and into a more educative programme, if that is the right word. We reported to Government in October of last year, Government set up a steering group, which has Mrs Justice Bracewell on it, and a design group which I am on, and we have spent the last year working on it. The Department for Education and Skills changed the name of the project to ----
Q61 Ross Cranston: Family Resolutions.
Judge Crichton: Family Resolutions from Early Interventions, because they felt it might be an early intervention within the context of court proceedings but in the context of the family's history it was quite late. Now, they changed it without consultation, and gave the wrong impression, but the project that we have developed is exactly the project we intended to produce when I submitted the paper from the ad hoc working group last October.
Q62 Ross Cranston: So it still has judicial support?
Judge Crichton: It still has judicial support. It has started and, in my court, we are identifying the cases to go into the project, but the facilitation groups, which are an integral part of the project, will not start for two or three weeks to enable us to build up enough cases to put into the project. So we are just beginning to walk.
Q63 Ross Cranston: Is there anything inconsistent with that early intervention with the facilitation and what the President was telling us about - the new framework? Are they consistent?
Judge Crichton: Yes.
Q64 Keith Vaz: Do you think there is a bias in the family court system against fathers, or a perception of bias?
Judge Crichton: I am as insistent as the President that there is not.
Q65 Keith Vaz: You have heard these comments being made; you know the concerns of fathers' groups. Where do you think this comes from? Have they made it all up?
Judge Walker: You have to remember that there are 160,000 divorces a year, there are goodness knows how many thousands of parents who are not married who separate, there are 100,000 divorces a year involving children under 16 and, inevitably, in that situation there are a few people who are going to feel aggrieved. I would agree with everything that everyone has said today; there is no bias in the system. There is a perception of bias and it does not exist in reality.
Judge Meston: There are women's groups who say the courts do not take sufficient steps to protect them. This is the problem. We are obliged to be even-handed, with the focus on the welfare of the child and the protection of the child.
Q66 Keith Vaz: Sure, but do you think there is that presumption that the best place for young children, in particular, is with the mother?
Judge Meston: It is not a presumption in the legal sense; it is what happens in practice in the vast majority of families. We all know that, and the courts have to work around that. The court's task is to produce workable solutions and arrangements for, sometimes, only the immediate future but we try and produce arrangements which will last a little longer term, so the parties do not have to come back to court. However, it does not always work and those are the cases we have to tackle.
Judge Crichton: One point is this whole issue of enforcement of court orders. I think once the court has made an order that contact should take place then if a mother flouts that order father has some justification in saying "Why don't you enforce your orders? What are you going to do to enforce your order?" I think eight or nine out of ten of the orders we made are not flouted and do proceed, and we can work with them. It is difficult to criticise the father who has got his order and cannot persuade a judge to enforce it, but if the judge continues to act in the best interests of the child are you really going to send mother to prison because, when she comes out of prison, she will forever-and-a-day thereafter be saying "That father of yours got me sent to prison", which cannot be healthy for the child.
Q67 Keith Vaz: If we dealt with the issue of contact right at the start by way of an interim order in which the contact issue was put to one side, do you think it might be easier for the case then to develop in a much more fair way because nobody would be disputing contact?
Judge Meston: It depends what else is in issue. Very often contact is the issue. Obviously, in your scenario, residence of the child may also be, ultimately and probably, the main issue, but of course in any case where you are timetabling it through to a final hearing you want to know what the interim arrangements will be. CAFCASS will want some interim arrangement for contact because they will want to assess the ability of the parents to co-operate and to work to arrangements which are set out for contact, and they will want to assess the attachment of the child to each parent. So there has to be a regime, even if it is a temporary or interim regime, for contact and we are keen to ensure there is one. In extreme cases it has to be through a contact centre.
Q68 Keith Vaz: Judge Meston has just mentioned grandparents. I had a case only two weeks ago where a police officer had come to see me who was not being given contact with his child and it was the grandmother who came and was also saying she could not have that contact. What is the situation that can bring in the whole of the family?
Judge Meston: There is a mechanism. If grandparents, as in the case I was referring to earlier, emerge and say either they want contact or they are prepared to do something in terms of actually taking over the care of the child, they have to apply to intervene and they have to apply for leave to make an application, but that is readily done and they become parties to the existing proceedings.
Q69 Keith Vaz: You are quite clear, in answer to the Chairman's question, that none of the legal representatives who appear before you, at any rate, use the system to delay?
Judge Meston: I have to say I have not come across it. In the old days - and I am talking 20 to 25 years ago - people used to, I think, play the system in that way, such that the mother, typically, could say "Well, he hasn't seen the child for six months, therefore I don't think he should see the child again until he is 12, 13 or 14." That just simply does not happen, or is not allowed to happen.
Q70 Keith Vaz: In terms of the quality of legal representation, do you think there is enough training about mediation and about conciliation?
Judge Meston: I can only speak about the advocates who appear in front of me, and the whole ethos of the Family Law Bar Association and the Solicitors' Association is for mediation, for conciliation, for settlement, for a non-adversarial approach. Referring to the questions earlier about the process being adversarial, it is very often the case that the process is much less adversarial than the parties want it to be.
Keith Vaz: You deal with CAFCASS on a regular basis. Do you think the changes since the resignation of the CAFCASS Board have improved the operation of CAFCASS? I cannot remember which one of you gave evidence during our CAFCASS inquiry and which one of you said it was okay. Was it Judge Crichton?
Chairman: I do not think anybody said it was okay, just that it was better in some areas than others.
Q71 Keith Vaz: Has it got better?
Judge Crichton: It is too early to say. I think all the signs are very hopeful. There is a much keener awareness when one is speaking to people from CAFCASS about their responsibilities and an enormous determination to put things right, but past experience, I think, makes us want to wait and see the product rather than listen to the hopes and wishes. I am quite optimistic.
Judge Walker: The President has mentioned the private law framework before. I think that will make a big difference to the resources that CAFCASS will be able to devote to cases. The fact that reports will be shorter and quicker will make a real difference.
Q72 Keith Vaz: One quick final question: more judges at your level?
Judge Crichton: Absolutely.
Judge Meston: Yes.
Q73 Mr Dawson: Some of us think that a lot of problems brought by fathers' groups and brought by fathers to our advice surgeries will begin to be resolved when men learn to relate much better to their children than they actually do. But certainly one chap who came to see me on Friday was very strong in his opinion, and certainly managed to convince me, that the problem he was facing was his wife's solicitor who was behaving in what seemed to be an extraordinarily aggressive manner towards him. I an also reading the evidence that Judge Crichton has prepared for us, which is tremendously honest, where you say that some judges are not suited to the work and plainly do not want to be doing the work. This is clearly a very specialised area of work, it requires the greatest sensitivity and attention to the most delicate of issues. How can the legal profession put itself in order? How can it assure itself that solicitors and barristers are working in the best interests of children? How can it ensure that it only gets the most conscientious and able and committed judges?
Judge Crichton: I am not sure that I can speak for the profession as it is 18 years since I was a practising solicitor and, again, I can only repeat what I said: the standard of advocacy and the commitment of solicitors and barristers who appear in my court in central London, almost without exception, have no fault and they are tremendously committed to trying to help parents achieve what is best for their children. One has a hearing when they come in at ten o'clock and they say, "Look, could you give us an hour because we are talking and it is constructive?" so you go back to your room and get on with some paperwork and an hour later you are told: "Another half an hour should do it." What is happening is that the real work in the court building is being done in the court corridor and being done by very committed, professional lawyers, and at the end of the day to have a solution which they have been able to resolve outside the courtroom (often with the help of CAFCASS officers) is a solution that is much more likely to succeed than one imposed upon them by the court.
Judge Meston: I do not know what your story was saying about the judge but the fact is that most judges who do family cases will have been drawn from the specialist branches of the profession and, indeed, almost all of us will have done family law if not exclusively then as a large part of our practice and belong to the appropriate professional bodies. Moreover, we, as the President mentioned, are ticketed; we have to be approved to do that type of work and we have to be trained by the Judicial Studies Board and attend refresher courses to ensure that we are up to speed.
Q74 Mr Dawson: But Judge Crichton - and sorry to put you on the spot - is telling us about judges who have been pressured by court managers into obtaining a family ticket. That clearly is not acceptable.
Judge Crichton: I meet that when I go out of London. It is definitely a problem.
Judge Walker: If I may say so, on the civil side, though, with the judges I represent I do not think there are any district judges with a civil and family arrangement who are doing family work who do not want to do it. There is enough work around that if someone really has a propensity for doing civil work or housing work or whatever, they can focus on that. Those who are doing family work are those that want to do family work.
Judge Crichton: The cases that I allude to are in smaller courts out of London where there is a pressure to get through all sorts of work, and I believe it needs to be addressed.
Q75 Chairman: Can I just clarify a point I asked about earlier on family proceedings courts where you have got lay magistrates dealing with these matters. There has been a great fall off in the amount of work in this area which they are doing. Is that a necessary consequence of the difficulty of judicial continuity that we mentioned earlier or could that be provided for because obviously you are only using certain lay magistrates who have had special training for the purpose? Could you deal with the problem of continuity and ease some of your other problems by raising the amount of work which the lay magistrates do in this field in the family proceedings courts?
Judge Meston: I can only speak for the semi‑rural area where I operate. Continuity is a problem and, you are right, there is a fall-off of private law work before the magistrates' court and family proceedings court. Indeed, I think they do very little of it in reality. They have to deal with the public law cases because they are the first point of reference for every public law application. The other problem they have is that none of them have any form of in‑court conciliation machinery that I am aware of, certainly in my area, and I suspect that reflects what happens throughout the country. They just do not have the facilities for it, the CAFCASS officials available to man it, so I suspect they have their limitations.
Judge Walker: If I may say so as well, there is a legal aid problem. Solicitors with a legal aid certificate will get paid more if they pursue their case through a county court than if they take it through the magistrates' court.
Q76 Chairman: That is a false incentive in the system?
Judge Walker: Yes, it is a problem with the system which is well‑known. The President is in consultation with the Legal Services Commission to try and address it.
Q77 Chairman: Is it worth doing something about that or are there other reasons, which Judge Meston gave, sufficient to feel that we cannot get this area of work back into court?
Judge Walker: It needs to be tackled. Apart from anything else, the private law framework will not work unless the problem is tackled and everyone is aware of it, but there are instances where because of the way it has all worked if a solicitor has a case in front of the proceedings court and then instructs counsel to do the advocacy, the solicitor ends up receiving nothing and all the fees actually go to counsel. It needs sorting out and I am sure it will be sorted out.
Q78 Mr Clappison: Where magistrates do deal with these private law cases, forgive me for asking, are they specialist benches of magistrates or are they drawn from the general bench of magistrates? What is the position? What training do they receive?
Judge Crichton: They have been trained as lay magistrates and then they apply to come on to specialist panels and some go on to the youth panel and some come on to the family panel. One of their problems is that under the present regulations they are still required to sit so many days a year in crime and there are many of them who would like to do all their sittings in family and they are not permitted to do so. I have sat on two working groups that have made recommendations that lay magistrates ought to be allowed to specialise after having sat for a significant period of time, maybe three years, in the criminal courts in order to develop their court skills, witness evaluation, and the like, and we are losing magistrates from the family panel in London because they no longer want to sit in crime, they want to sit in family and they are not being allowed to sit in family full time. If I can come back to the earlier question in London we have no shortage of work for lay magistrates. There is plenty of work, sadly, but judicial continuity will always be a problem.
Q79 Mr Soley: Could mediation be used in a greater proportion of court cases; in fact instead of the court system?
Judge Crichton: That is what the Family Resolutions pilot projection is all about. I do not know if it is helpful for me to outline very swiftly what the project is doing. In our court we have a team of 13 qualified lawyers. We used to call them justices' clerks, they are now called legal advisers, and magistrates courts have to have them, and we are very lucky to have them because they are very experienced and they do a lot of the time‑tabling and directions hearings. When a contact application comes in they will screen it for any allegation of potential harm and if there is no such an allegation they will put it straight into the project. The parents will then receive an information pack very quickly explaining what we believe to be the emotional needs of their children in terms of knowing both parents and knowing that they are loved by both parents. Then they will be invited to go to two facilitation groups but they will not go together, but they will go to separate facilitation groups. At the first group they will be shown the video that we have heard about and they will be spoken to by an experienced facilitator from Relate or from the Parenting Education and Support Forum about the issue of the needs of their children, and trying to focus on the needs of their children, and being seen by their children to be co‑operating in trying to meet the children's needs, and trying to keep their children out of the conflict which is going on between them. They will go away for a couple of weeks and then they will attend another facilitation group run by the same people but again not going together where they will be working with, hopefully, a dozen other parents in a similar situation and they will start talking about developing the skills of communicating with the partner with whom they are in such conflict, for the benefit of their children, and they will work round those sorts of issues. Having done that, two to three weeks later they will meet together with a CAFCASS officer and start talking about how they might come to an arrangement that will work within that family. The ad hoc working group that produced this scheme hoped very much that we might be able to change the culture in which these issues are dealt with. It is difficult to talk about a normal family because every family is different, but, all other things being equal, it would be good for these children to see father perhaps for 50 per cent of their quality free time, which might equate to alternate weekends (and it would be nice if it could be Friday night to Monday morning and dad as well as giving the kids a treat would have to do the laundry and get the children ready for school on Monday morning) and possibly one evening an week for an hour or two to help with homework, to have that sort of input into the children's lives, half of the school holidays, half of half-terms. Many families would not be able to make that work because of the geographical situation, working arrangements, whatever, but if we started thinking like that and then adjust it to meet the needs of a particular family it would be healthy, we felt.
Q80 Chairman: This is not a presumption, these are frameworks offered in the mediation process?
Judge Crichton: Exactly so.
Q81 Mr Soley: I know it is difficult to prejudge it as it is a pilot project but is your gut feeling that that system is better than the court system?
Judge Crichton: Yes. If it can be made to work it has to be better.
Q82 Mr Soley: The problem is whether or not it can be made to work or encouraged to work, to use that phrase.
Judge Crichton: Yes, there are issues about whether families will go into the process willingly and how far courts can direct people into the process. They do it in America but the Americans, I think, are more biddable. It remains to be seen. I hope that people will do it wholeheartedly.
Q83 Mr Soley: From what you know of it so far and also from your general experience, do you think it could be done better prior to people seeing solicitors or is it a situation which is more likely to work if the court, rather on the basis you described with this pilot, makes an assessment and then refers them back to the mediation process?
Judge Crichton: I do not know how we find the families unless they come to us through solicitors. Somebody has to make an application to court. We do get unrepresented parties coming to court and when they fill in the forms they are helped by the court staff to do that, but the vast majority of cases that come to us still come through solicitors' offices. What we need to be doing ‑ and the Legal Services Commission have taken this on board - is making sure that from the solicitor's point of view it should not be a prerequisite that they engage in correspondence to try to see if they can resolve the issue because that correspondence frequently makes things worse.
Judge Meston: I was going to say I think you are looking really for the trigger for mediation and there is, I think, a case for re‑visiting the Family Law Act 1986 which never got off the ground which, if I remember rightly, made an attempt at mediation between married couples ‑ because it only applied in divorce cases ‑ a pre‑condition to public funding, and I think it is unfortunate that perhaps that has been lost sight of.
Q84 Mr Soley: But it focused more on marriage, did it not, rather than children?
Judge Meston: It was entirely to do with revising our divorce laws, but it tried to do a lot else and that probably was the source of its failure.
Judge Walker: May I also remind you that 90 per cent of these cases never actually come to court at all. The courts deal with ten per cent of contact cases, 90 per cent are resolved by the parties or, to be honest, very often (and one should not forget it) by negotiation that is being spearheaded by solicitors. I was a matrimonial solicitor myself for 15 years before I took my appointment and so were a lot of my colleagues and an enormous amount of work is done in private practice between solicitors finding out what the problems are and very often very quickly and very amicably resolving them. We ought not to forget that. We deal with the minority of cases, not the majority.
Q85 Mr Soley: I recognise you are dealing with the most intractable cases by definition.
Judge Crichton: It is a part of the Family Resolutions pilot that if at any time down the road the parents say, "We have understood the message, we want to come out of the system," we let them out because that is what we want to achieve for all parents anyway, that is what we would like to see happen. If, on the other hand, they want to reach the end of the pilot and say, "We understand, we have got an agreement but we would very much like to have the judge's stamp on it," we will happily give the judge's stamp if that makes them feel more confident with the arrangement that they have arrived at.
Q86 Mr Soley: Is it to early to say how you think this pilot is going?
Judge Crichton: I am ever the optimist. You do not do this work unless you are an optimist.
Q87 Mr Soley: That is a slightly different answer to the question.
Judge Crichton: I am optimistic.
Q88 Dr Whitehead: I am interested to get a feeling for the proportion of cases that come before you where somebody, either before the case or during the case, makes an accusation of domestic violence against the other person? What proportion would you say that happens in?
Judge Walker: I do not know. I have never, to be honest, bothered to keep a tally in the ten years I have been doing it, but it is the minority. If I said 25 per cent I would certainly be over‑pitching it. The problem, though, is not so much the cases where normally the mother will say, "There has been violence and I am concerned about the risk the children will be put to"; the real problem cases are those where it is not said to you at all and one is left realising during the course of whatever discussion or hearing one is having that actually there is a domestic violence problem which is going unsaid. Very often it is unspoken.
Q89 Dr Whitehead: Would you actively seek to bring that out? Would you refer cases to the police?
Judge Walker: No, I would not refer it to the police but obviously if it is there one brings it out into the open because one has got to. It is where I find CAFCASS are very helpful indeed. They can pick it up and if necessary they will go off and have a one‑to‑one with the mother or the father and come back and tell you that there is a serious problem that is going unsaid.
Judge Meston: I suspect I deal with a higher proportion because they are sent up to the circuit judge to deal with. It is necessary to deal with allegations and to make the necessary findings if at all possible because it sets the agenda for the future for the child, and it is much better to deal with the allegations when they emerge rather than try and suppress them and brush them under the carpet, only for them to fester and emerge several years down the track which, as I am afraid does sometimes happen, and leaves the court in a very difficult position of having to adjudicate upon what are by then historical allegations. If I could be anecdotal for a moment, mention was made earlier of the value of guardians. I had one of these very difficult cases in which the guardian was appointed in what appeared to be a case in which violence was alleged and the value of the guardian in that case was that she was able to get access to social services' records for other places where this particular father had lived and, unknown to the mother, unearthed a very considerable range of previous allegations which had been made against him by other women in other domestic settings, which put a very different complexion on the whole case and enabled the court, albeit many years after these allegations, to form a much better-informed view of this man.
Q90 Chairman: How did you say this came to light?
Judge Meston: Through the guardian being introduced into an already difficult private law family dispute involving a child.
Judge Walker: May I pick up something that was said before. There was criticism of the fact that it was believed the average case takes 36 weeks to resolve. What sometimes happens and what gives rise to those sorts of figures is that you might have a situation where there is domestic violence and the father is quite prepared to concede that it has happened. He might have a different explanation for it but it is there and it is conceded. One might at a very early stage, and we are dealing with these cases sometimes four to six weeks after they have been issued, be somewhat reluctant to have the normal unrestricted contact taking place and therefore for instance seeing whether there is a grandparent or if there could be contact at a contact centre, something of that sort, for a period of time, and a typical order may be for contact at the contact centre once a fortnight for six/eight/ten weeks and then one might say, "Fine, I want the case back in ten weeks" or whatever, we will then look at it and we will see if we can alter the order to a more common sort of contact arrangement. That is adding to the period of time it is taking ultimately to resolve the case but in reality the contact is taking place and it is resolved a lot quicker than 36 weeks.
Q91 Chairman: In truth, this is not a case to be resolved within a period of time, the court is engaged in a continuous monitoring role of something which is happening and perhaps improving.
Judge Walker: There is a limit obviously to the number of times one wants to have a case coming back but it is not uncommon to see a case come back three or four times.
Q92 Dr Whitehead: Some fathers, though, have in the past claimed that this is effectively the nuclear bomb of the proceedings, that a mother may claim domestic violence knowing that that then, as it were, stops the contact or could stop the contact. What facilities do you have during cases to check the veracity of claims so that that may or may not happen?
Judge Meston: If there are no admissions or there have not been separate injunction proceedings in which domestic violence allegations have already been tested and adjudicated upon, all the court can do, if issues are raised in a children case, is to set a timetable, to set sometimes a separate hearing to have the allegations set out in a manageable form and adjudicate upon them, to hear the parties, and to have the fact-finding hearing as soon as possible. The problem is when the allegations emerge late in the day because either the mother has been reluctant to articulate them or because they have emerged through some other source, CAFCASS, or they have emerged much later on in the sort of circumstances I described earlier. You are having to deal with allegations which may by then be quite stale but come to have an importance, and all the court can do is to say we will have a hearing to adjudicate upon these allegations as soon as possible so that the whole basis upon which the case proceeds and arrangements for contact proceed is clear to everybody. CAFCASS are very reluctant to make firm recommendations if there are untested allegations hanging around. They want the court to get on and adjudicate, which the court tries to do.
Judge Crichton: I think there is a problem here with the new forms that are coming out on 1 January and there is a fear that some mothers, a small minority of course, may wish to play the domestic violence card. I read a psychiatric report last week which did not refer to it as domestic violence, it referred to it as "intimate partner aggression". I hope it does not catch on!
Judge Meston: Inter‑actional dysfunction!
Judge Crichton: But there is an issue here because the guidelines that were handed down following the Court of Appeal decision in L v V and others which we have heard about this morning, make it clear that the court has to make an early decision about the relevance of the allegations of domestic violence to the issue of contact. In the Court of Appeal and the High Court, of course, they are getting the worst cases but there is a much wider spectrum than that and we get the other end of the spectrum in the family proceedings courts. I would not want anything I am about to say to be thought to mean that I do not take any allegation of domestic violence seriously because it is always serious, but there is the other end of the scale and it may have been two months of unpleasantness which may have involved pushing and shoving, may have involved slapping, but happened at the time the relationship was breaking down and we are now six/eight/12 months on from there and we are dealing with the interests of the children and the relevance of that difficult time may not be that great in considering the issue of contact, particularly if the children did not witness it. We do sometimes get a CAFCASS report for which we have waited weeks which says, "I have spoken to the parents. There is an allegation of violence. I am going no further until the court has held a fact‑finding hearing." By the time that gets back to us and we find a couple of days in our list to hear those allegations and make a decision we are losing time all the way along the line. I cannot resist saying that two months is one per cent of a child's childhood and we are losing it all the time.
Q93 Dr Whitehead: How would you respond to the contrary claim that courts effectively allow contact in a way that puts children's safety at risk because of domestic violence?
Judge Crichton: I would hope that we would never do that but that is part of assessing the relevance of the allegation to the issue of contact. If it is a threat to the child physically or emotionally then I hope that we would identify that threat and not permit in contact.
Judge Meston: The statutory framework requires us to have regard to the risk. The whole business of what we are about is very often assessing risk, measuring risk, and deciding how to manage risk, and inevitably, but I hope rarely, things go wrong.
Judge Walker: If I may say so, we are all human - judges too. 19 children have been killed during contact since 1999 and no judge wants one of those 19 cases to be a case where he made a contact order. One is instinctively trying to do one's best to protect the children.
Q94 Mr Dawson: Just to make the point that domestic violence still goes widely unreported, I think that is generally accepted, and again it is generally accepted that the moment of separation or the time shortly after separation is also a very, very dangerous time for victims of domestic violence. Domestic violence does not end at the moment of separation. You clearly have a very difficult job to do in these circumstances.
Judge Crichton: Could I say a word about the issue of secrecy of courts. We have been approached by many responsible television companies who want to do programmes ‑ this is an issue that is now in the public domain ‑ to demonstrate the difficulties that courts face in making decisions both in public and in private law, but of course as soon as we tell them that they cannot film in our courts and they cannot do anything that would identify the family or particularly the children that we are dealing with, I am not going to say they lose interest but they begin to find how difficult it is if they lose the human angle on it. To come to the issue of the press, it is a little known fact but section 69, I think it is, of the Magistrates' Courts Act 1980 includes a list of people who may be in the family proceedings court, and it includes the press. I had a reporter in my court last week. He asked if he could come and I said did he want to sit in the back of the court. He said, "I did not know I could." And I said, "You can but subject to my control of my own court and I will only allow you in my court if the parties are all comfortable with it." I had two private law cases, which is what interested him most, but the parents were in extreme distress and they said, "Please, no." I said, "He is not going to be reporting on the case. He is just trying to feel the flavour, trying to feel the atmosphere of the family proceedings court," and they said, "Still not, please, no," and he very kindly withdraw, but it is a fact that they are permitted to be there, subject to the judge's discretion, as they are in the youth court.
Q95 Peter Bottomley: Changing the subject, we know the importance of continuity. We also know that most of the cases are at the lower courts. We also know that most district judges sitting in magistrates' court spend a lot of their time on criminal work. Who has the power to say they want to have more people to work better, or to have more district judges in magistrates' courts who will specialise in these family proceedings?
Judge Crichton: I would think the Lord Chancellor. It is something that I have been discussing with my immediate boss but he has control of district judge magistrates' courts all over the country and I am just one and I am the only one who deals with family proceedings. I am begging him to give me a deputy and he is saying he cannot do it because nobody amongst my colleagues wants to do the work full time. I think we need to be going to the specialist practitioners and advertising these jobs for these people to come in and bring their expertise in at FPC level, but we have got the Unified Courts Administration coming up next year and I think really we have got to wait for that to happen before we start discussing these issues in more detail, but I intend to.
Q96 Peter Bottomley: What you do is up to you. I suspect we could then expect to question the Lord Chancellor or his representatives and say are there any real inhibitions on getting the kinds of minor changes which would allow reasonably specialist qualified people to give nearly all their time to these sorts of issues where continuity matters.
Judge Crichton: Yes please.
Ross Cranston: Some judges might want variety. They might want to spend 50 per cent of their time in family and 50 per cent in crime.
Peter Bottomley: But the cost is continuity.
Ross Cranston: Not necessarily.
Chairman: We are having a debate between members of the Committee at the moment. If you want to add anything, please do!
Q97 Mr Dawson: Can I just ask would that help with public law cases as well?
Judge Crichton: Absolutely.
Chairman: Thank you very much indeed for your help this morning and for the evidence you have given to us beforehand. We appreciate it very much.