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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 116-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE Constitutional Affairs Committee
Family Justice: the operation of the family courts
Tuesday 14 December 2004 HILARY SAUNDERS, RUTH AITKEN, PHILLIP NOYES and BARBARA ESAM MAVIS MACLEAN CBE and JOHN EEKELAAR ANTHONY DOUGLAS and BARONESS PITKEATHLEY OBE Evidence heard in Public Questions 187 - 274
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 14 December 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mr James Clappison Ross Cranston Mrs Ann Cryer Mr Hilton Dawson Mr Clive Soley Keith Vaz Dr Alan Whitehead ________________ Witnesses: Hilary Saunders, Policy Officer, Women's Aid; Ruth Aitken, Policy Adviser, Refuge; and Phillip Noyes, Director, and Barbara Esam, Lawyer, Public Policy Division, NSPCC; examined.
Chairman: This morning I am very glad to welcome Hilary Saunders from Women's Aid, Ruth Aitken from Refuge, who has come in at short notice, for which we are very grateful, and Phillip Noyes and Barbara Esam from NSPCC. Thank you for agreeing to give evidence to us. We look forward to what you have to say, which I think will help us a great deal in our work. We have some interests to declare in this particular inquiry. Ross Cranston: I am a barrister and recorder. Keith Vaz: I am a non-practising barrister and my wife holds a part-time judicial post. Mr Dawson: I am a parent and I think that is fairly common round here. Q187 Mr Soley: In your view, do you think the family courts take sufficient account of violence, and I am using the word 'violence' in the widest sense, as it covers various types of abuse, as you know, when they are hearing contact and residence applications? Hilary Saunders: I think the answer has to be no because we are frequently seeing cases where contact orders are granted where really it is unsafe to do so. We have seen cases where contact orders have been granted even when there is evidence of domestic violence, even when there are convictions for violence and sometimes even to Schedule 1 offenders. What is absolutely extraordinary is that increasingly we are being told of cases where unsupervised contact is being granted to Schedule 1 offenders. That was one of the findings of our 'Failure to Protect' report last year. Certainly, I think, if you want to have some idea of the scale of the problem, if you look at the judicial statistics they will show that last year more than 67,000 contact orders were granted and contact was refused in only 601 cases, less than 1%. The most exact, well, almost exact, figure that we have for the number of domestic violence cases that go through the family court system where there are court welfare reports ordered was ACOP's Response to the Consultation Paper on Contact between Children and Violent Parents, where they said that domestic violence existed in almost 50% of the cases where court welfare reports were ordered. They quoted a figure of 16,000 cases a year, and I presume that will have increased simply because the number of contact applications has increased. I think, if you set that figure of 16,000 against 601 refusals, you can see that domestic violence is not considered to be a very serious problem in thousands of cases. Q188 Mr Soley: Really your evidence is to say that they do not take sufficient account of violence, your evidence is that there are enough people coming forward where either there are convictions or other evidence of domestic violence who are still getting access. Does not that imply that any evidence at all would mean no access? Hilary Saunders: That is not what Women's Aid is asking for. We are frequently misrepresented on this. We are not saying there should be no contact in cases of domestic violence because we know that a lot of children actually want to remain in contact with violent parents. What we are asking for is that contact should be safe and I think that is not an unreasonable request. Q189 Mr Soley: We know of the evidence of the violence of men against women but what about the cases of women against men? Hilary Saunders: As far as we are concerned, the same principle should apply to each. We do not condone violence by women, not for one minute. Q190 Mr Soley: Do you think it is a significant problem, or not? Hilary Saunders: I think all the statistics show that domestic violence is a very gendered issue and in the vast majority of cases it is men committing violence against women, but that does not excuse women on occasion committing violence against men. The problem does exist. Q191 Mr Soley: You do not see the other side of the problem, do you, of women against men? Hilary Saunders: Only insofar as women sometimes are violent in self-defence. Q192 Mr Soley: That is different. Can I ask the other two what they think about the gender issue? Phillip Noyes: From our own research and that of others, we believe that domestic violence, by and large, is perpetrated by men against women. We share the concern of Women's Aid that the safety of children must be paramount and the research that we have conducted, which also is being widely misrepresented on various websites now, makes very clear the very strong association between domestic violence and the maltreatment of children, to an extent that the authors of the research, who are not playing to the public gallery, identify that in cases where there is domestic violence it should be regarded as a predictor of abuse, even though there may not be evidence of risk to the child. That feels to us to be a very high coinage recommendation and a very thorough and sober report. Q193 Chairman: Does not that make it necessary to ask of you what Mr Soley asked Ms Saunders, whether the presence of domestic violence in cases is an absolute barrier against contact with the children? Barbara Esam: Definitely not. It would not be an absolute barrier at all. What we think is important and absolutely essential is that investigations are carried out to make sure that the child is safe. If the court can be assured that the child is safe and everyone else can be assured that the child is safe then contact can go ahead. Our big concern is that children do not have any opportunity in private proceedings to have their views represented. I think it is widely recognised that domestic violence does not always come to light. Even within court proceedings families do not always talk about it. Mothers might feel frightened and do not tell everybody about it. Children do not get an opportunity in general to say what their views are and that is in sharp contrast to what happens in public proceedings where children are represented. We think that is a real problem. In terms of representation, it is not just about domestic violence or violence against children or parents, children's views should be represented in any case, they have a right to be heard and that right is being denied them in our present set‑up. Chairman: We will come back to that point a little later. Just for the moment we will stay in this area. Q194 Ross Cranston: Can I ask you some practical questions about mechanisms, the existing mechanisms for uncovering domestic violence, and what you think of the Government's proposals. First of all, there are going to be these new forms, and the Law Society, when they gave evidence, thought that was a good idea. Also there is going to be the piloting of an integrated domestic violence court. Could I get your reaction to the deficiencies in these proposals, as to whether they will address what in your view are the deficiencies? Ruth Aitken: I think there are large problems with the way in which domestic violence is investigated across the board really, not just in private proceedings but in all aspects of the law. What we have been calling for at Refuge and Women's Aid and other groups is an accurate definition of 'domestic violence' to underpin any formal investigation, so whether that is in terms of establishing the veracity of claims or whether that is in terms of an assessment which is necessary to look at the impact that the violence may have had, once it is established that it has happened, also looking at the risk for future victims. I have not seen the gateway forms but I do understand that they are an opportunity - and if anybody has seen them they can correct me if I am wrong - for somebody just to flag up the fact that domestic violence has occurred within a relationship at the beginning of any kind of investigations or proceedings. In our view, firstly, it is not enough and, secondly, it could be dangerous. One of the reasons why I say that is because domestic violence victims sometimes do not even recognise themselves as domestic violence victims. You might think that is a strange thing to say, but in my experience of working with women within a refuge over a number of years I met people who had fled from their home, with their children, had come to stay in a refuge and they would say, "Well, actually, I'm not one of those abused women, I'm just here for a bit of a break. He needs to calm down. We're just having a few problems." They would not have been able to see the systematic pattern and nature of abuse of power and control that was occurring within that relationship, because one of the by-products of abuse is that it is minimised and denied by the perpetrator. Q195 Ross Cranston: As a practical matter, we are concerned about the machinery of Government and how the courts ought to operate, how are you going to address this issue? I think Barbara Esam was hinting that there should be separate representations, but is that going to be in all cases? How do we actually address the issue; that is what I am asking you to consider? Ruth Aitken: We need to have more detailed assessment. We need to have interviews with parents and children and we need to gather information from other sources: what does the school know, what do hospitals know, are there any police reports, are there any other proceedings in other courts going on? We need to be looking at it in a broader sense. Q196 Ross Cranston: Who is going to do that, as a practical matter? Hilary Saunders: Initially, obviously, it would be the CAFCASS officer, if the court had requested a welfare report in response to a tick in the domestic violence box. Essentially, what we really want to see is a differential approach, instead of this one size fits all assumption that contact is almost always in the interests of the child. With our written evidence we submitted a table drawn up by Peter Jaffe, who is renowned for his research on domestic violence. What he points out is that the judgments that you make and the information that you have to collect and assess should be focused on safety, in cases where there are allegations of abuse, whereas in other cases what you are looking to do is reduce hostilities and do everything you can to promote contact. Essentially, that is the first thing we want to see, a recognition that when you have got allegations of abuse you have to address the issue of safety, and we are not satisfied that is being done properly at present. After that, obviously, having a proper definition of domestic violence is fundamental, so that people recognise that what we are normally dealing with is a wide range of abusive behaviour, and instead of looking for just one incident and saying, "Oh, well, we can prove one incident of domestic violence," then a lot of the courts will say, "Well, it was only one incident and he was terribly upset because they were separating." They will not look, and because there has not been that holistic assessment they will miss it. Q197 Ross Cranston: You are saying CAFCASS, to inquire, now what about an early hearing by the court, are you also saying that is the implication, so that they can make a fact finding about this? Is that a corollary? Barbara Esam: I think that we would really welcome the approach of having an early look by the court when domestic violence is flagged up, that the court has a look at that as early as possible and comes to findings of fact. I think that has to be a good thing. That is a practical approach and that is a very positive way forward. We have not seen these forms either, but we think that it is certainly a move in the right direction. Q198 Ross Cranston: At the present time an injunction might often be issued but without any sort of inquiry, there is no inquiry into the violence, there are no admissions. Is that a practice that you support, in terms of courts issuing injunctions in that way? You are saying that they have to inquire, are you, in each case? Barbara Esam: If you mean emergency injunctions, I think that is an absolutely essential part of the system. Q199 Ross Cranston: Not necessarily emergency injunctions. If there is an injunction against a person on the basis of behaviour but without any admissions of past violence, the court would just issue the injunction. You want an inquiry in each case, do you? Phillip Noyes: It will be better to look into each case and decide on its own merits. We are very much also in support of an approach that is not a one size fits all. The limitations on the form are that you can put too much reliance on ticking boxes, and certainly we want to see a process in which children are talked to as early as possible, with two evidence-based things in mind. The first is that when you have a talk to them about what might have happened in the past they might not have told anybody that they had been abused in the past, because a lot of children do not. Secondly, evidence from our maltreatment study, the NSPCC maltreatment study that I have quoted already is that children tend to minimise what has happened to them and make the best of it. We think it is very important that every case is looked into and judged on its merits, and not in terms of dogma or general principles but one child at a time, even within families. Q200 Chairman: There are a couple of dangers in the answers you have given. We have had two answers, one in relation to mothers and one in relation to children, in which the implication is almost of a criticism of mothers and children for not recording or admitting to more violence having taken place. That suggests leading witnesses, does it not? Ruth Aitken: Can I just say, it is not a criticism, it is just an understanding of the way in which abuse affects victims. Q201 Chairman: Once you make that assumption you are in danger of leading a witness, are you not? Ruth Aitken: We are not making that assumption, we are just raising it as a possibility. Some people do not say that they have been abused, because of fear, because of shame, others do not identify themselves as being abused, and because denial, minimisation and distortion of reality are part of the abusive process that is the effect that it can have on victims. I think that the courts need to be aware of that. Chairman: Have you ever come across instances where abuse is alleged by all the parties without foundation as a weapon in the on-going argument? Q202 Ross Cranston: Have you come across malicious allegations of abuse? Hilary Saunders: I am sure it will happen on occasions, but that is not what we see in refuges. With regard to false allegations, I think probably the best comment on all that is in Peter Jaffe's book, 'Child Custody and Domestic Violence'. This is a man who has had 25 years working in the family court clinic in London, Ontario, and who is well respected for his work on domestic violence. He says here: "Women who raise concerns about a violent partner in family court proceedings are unlikely to be believed because lawyers and judges tend to overemphasise the possibility that false allegations are being used to further custody claims." Q203 Chairman: My question was whether any of you had come across examples, and Mr Cranston following, of malicious allegations? Phillip Noyes: Yes, but also we have got examples of situations where the referrer has been malicious about the adult and in fact the allegations have been true. So a golden rule for the NSPCC staff taking the calls, including calls about domestic violence, is trying to separate out what sounds like malice between adults from what needs to be investigated in relation to the safety of the child. Q204 Mrs Cryer: Ross Cranston was asking about injunctions, that a woman could make allegations and gain an injunction against her husband to exclude him entirely from the family. Am I right in assuming that husband normally would appear before that judge, perhaps a week later, and put his side of the case, therefore appealing against that injunction? I just want to clarify it in my own mind. That is still the case, is it not, that the excluded husband would have a right of appeal? Hilary Saunders: Yes. Q205 Mrs Cryer: An application for the injunction would be heard without his presence but then he would be invited to come into the court, say, a week or so later, to put his side of the argument? Hilary Saunders: Certainly that is my understanding. Mrs Cryer: I just wanted to make sure that was right. Q206 Mr Clappison: Just going back to the point about finding out when women have been victims of violence, is it within your experience, when you say that sometimes you have had women who, perhaps through sheer embarrassment, have not said anything about violence, that later on you have uncovered cases where there has been actual, serious, physical violence? Ruth Aitken: Yes, absolutely. Another common theme is that women may say, "He abused me but he was okay with the kids. I don't think the kids have seen anything, we always tried to keep it quiet." Before I was Policy Officer, my job was working as a psychologist directly with women and children in a refuge, in fact for a number of years, and I would be working in parallel with the woman and with the child so I would hear both sides, confidentially, of course. I have had a little five year old say to me "My dad used to strangle my mummy. She used to say it was a joke but I know it wasn't a joke, but I don't tell her because she gets upset." So there is silence and secrecy between the parties. Q207 Mr Clappison: I understand that you are dealing with complex situations in which people sometimes do not want to admit things. On the question of the definition, which you did strive to highlight, would you accept that there is some danger if you pitch the definition too wide on this, in perhaps the vast majority of cases, given that there is always going to be disagreement, rancour, between the parties, reasons why people want to separate from each other? Do you accept that there could be a difficulty in having a definition which was too wide and it would include nearly every case? Ruth Aitken: I do not think so, because our understanding of domestic violence, and the understanding that comes out of the New Zealand legislation definition, is that it is ongoing, systematic, purposeful, the purposeful abuse of power and control within a relationship. We need to find ways, I agree, of differentiating that from problems around relationship breakdown, problems around arguments, problems around conflict, but if we have a clear definition and people are trained I cannot really see that there is a problem with that. Q208 Mr Clappison: The definition should spell out a clear difference between the two? Ruth Aitken: Then couple it with training, rolling it out, implementing it, I think that would help. Q209 Mrs Cryer: Can I put a question to the NSPCC. This Committee has received submissions which suggest that in cases which involve the neglect and physical or sexual abuse of children the children were more likely to be living with their natural mother alone. Have you any evidence to support this? Phillip Noyes: It is very difficult that way round. In terms of who perpetrates abuse, the NSPCC's prevalence study, which looked at a sample of about 3,000 18-24 year olds talking about what had happened to them when they were younger, suggested that more women than men physically abused children and neglected them, and more men than women sexually abused them. Because of the limitations of the data collection, that did not take into account the incidence of children living with their natural mothers on their own. Previous research that we had done, which was on incidence that was based on child protection registers, suggested that when you controlled for the domestic arrangements of children then men were probably round about twice as likely to be afflicting physical abuse on children than women. Q210 Mrs Cryer: This is to Women's Aid. You have suggested that non-resident parents should be banned from applying for contact for several years in high risk cases. What do you consider to be high risk cases? In order for such an order to be made, should the non-resident parent have been convicted of an offence in a criminal court? Hilary Saunders: No, because the level of criminal convictions is very, very low. The central problem with all of this is that we are talking about abuse that is committed usually within the home, behind closed doors, and so what the court is presented with is a he said, she said, situation. If you do not have that broad understanding of what constitutes domestic violence, you can get narrowed down to talking about just one event. It is extremely difficult to prove. One of the things that we would really like to see, and we argued for this in our latest report which was launched yesterday about 29 child homicides, these were children who were killed as a result of contact or residence arrangements in England and Wales over the last ten years, ten in the last two years, we talk about the need for front-line staff in statutory agencies to recognise significant risk indicators and for research to establish what significant risk indicators are with regard to children affected by domestic violence and involved in family proceedings. We are close to it in South Wales because the Cardiff Women's Safety Unit has worked with the South Wales Police and also with the NSPCC to draw up significant risk indicators with regard to women, and if you applied them to the 29 child deaths that we looked at in that report you could see that there was a high correlation. What we want is for front-line staff to have good risk assessment tools and an awareness of where the risks are, because if you do not understand the dynamics of domestic violence you can make very dangerous assumptions. Q211 Mrs Cryer: You would say that no‑one would be banned from applying for contact for several years unless there was some strong body of evidence? Hilary Saunders: Absolutely; yes. Q212 Mrs Cryer: It is just that there are some very high profile pressure groups operating on this and this is not always made clear? Hilary Saunders: I think when contact is refused in less than 1% of cases there has to be a good reason for those refusals. Q213 Mrs Cryer: Again to Women's Aid. You have complained that the standard of proof has been raised higher than the balance of probabilities in serious cases involving sexual abuse. In fact, the civil standard of proof which is applied by the courts always means more likely than not. If non-resident parents were to be denied contact for several years in high risk circumstances, how could their rights be safeguarded against malicious accusations? Also, if the consequences of an accusation of domestic violence are to escalate so that a non-resident parent were to be denied contact with the children until findings of fact were made, should the standard of proof also be raised? Hilary Saunders: I appreciate the concern about a loving parent being denied contact with their children. I think that is very unlikely to happen. What I would be much more concerned about is what happens to children when the courts demand what they call a higher standard of proof, a higher balance of probabilities, because the worst cases that we see are cases involving child sexual abuse. When a woman says that a child has just disclosed child sexual abuse, we know that woman is going to have a terrible time in the family courts, because very often we are talking about children who are under the age of five and that child is too young to give evidence. So even if you have got a social worker and a police officer agreeing that, yes, they think this is sexual abuse, you have to prove that he did it, it is not enough just to prove that the child has been sexually abused, you have to be able to show that it was that particular person. It is incredibly difficult. Q214 Chairman: You have to show that he was party, in some way, to the abuse? Hilary Saunders: Yes. Q215 Chairman: Not that he carried it out but that in some way he was party to it? Hilary Saunders: Yes, and because that is so difficult we come across really bizarre situations. That was highlighted in the anchor survey in 1999. This was a study of 130 abused parents talking about what had happened to their children in family court proceedings. They found that direct contact was slightly more likely to be granted in cases where there were allegations of physical or sexual abuse of a child than in cases where there were simply allegations of abuse to the mother. If you think about that, it is quite extraordinary, in fact it is utterly perverse, and we think that is a direct result of the Re H & R judgment. I know that Lord Hoffman has made a statement, quite an amusing statement, which aims to clarify the position, but we are still seeing cases where, frankly, very dangerous decisions are being made, particularly in cases involving child sexual abuse. Q216 Keith Vaz: Do you think there is a bias against fathers in the family justice system? Hilary Saunders: I do not think there is a bias against fathers. I do not think there is a bias against mothers. I think the one real problem that we have got is that there is such an overwhelming presumption of contact, that has made the family courts a profoundly hostile environment for abused women and children. Q217 Keith Vaz: What about the NSPCC, do you think there is a bias? Phillip Noyes: I agree. We have got no evidence that there is bias. I guess it is underpinning what we are saying that we are concerned about bias against children and that the discourse around men versus women will somehow blind us even more to the fact that children, one at a time, need to be properly safeguarded when they get contact with their parents. Q218 Keith Vaz: Let us look at the bias against children then and the issue of contact arrangements. Do you think that the views of the children are being taken into consideration adequately when these arrangements are being made? Barbara Esam: I started to refer to that earlier, as you know, and certainly we do not think that these children are being adequately looked into and that is a failing of the system in private proceedings at present. There seems to be a sometimes dangerous presumption that if you consult both parents the welfare of the child is automatically then going to be safeguarded, and we think that is a real concern and is not giving children the right that they deserve to have their views properly taken into account. They need to receive information as well about what is happening, and of course all of that needs to be with the proviso that there has to be the recognition that children have to be of a certain age and understanding so that they are not overburdened with this. Q219 Keith Vaz: Let us look at the age situation. Obviously, the younger children, their views will carry less weight than if the child is, say, ten or 11. Do you think that there is a difference, in terms of priorities, in the views of the children, depending on the age of the child? Barbara Esam: I do not think their views should carry less weight, necessarily, depending on their age. It is more difficult to get information from children the younger they are, but there should be sensitive procedures to provide age-appropriate means of getting information from children, giving them an opportunity to have their views listened to. Q220 Keith Vaz: Who should be doing this? Should it be CAFCASS, should it be the judge? Who should be involved in this process of listening to the views of the children and moving this whole issue forward? Barbara Esam: I think CAFCASS is the most likely source, although of course I recognise that resources are a huge issue and already in the Government's Green Paper CAFCASS is being asked to do an enormous amount more than it is doing now. I do not think that we would say therefore the Green Paper is not worth looking at, or therefore we do not agree with the proposals there. There are resource issues and we are very concerned about them, but I do not think that we can just close our eyes to the fact that these children at the moment are not getting their voices heard in something that is absolutely crucial to their lives. Q221 Keith Vaz: The results would be different, do you think, in many of these cases, or some of these cases, if the children's views were heard? Barbara Esam: I suppose we do not know. They might well be different, or they might not, but it would have a positive benefit for children in any case to have been listened to. Keith Vaz: What about the target times for key hearing stages? Q222 Chairman: Just before you do that, when you say hear children's views, is there a problem about putting children into the actual court process? Is this something you would rather see achieved by the intermediary, CAFCASS, or something else, or is there a real problem once you put children into the hostile environment that the family court can be sometimes? Barbara Esam: I think it depends on the child and I think it depends on the way that it is dealt with. I think it is conceivable that it could be dealt with sensitively. Certainly we know from our experiences of young witnesses in criminal proceedings that, despite all the special measures that are there to help children give evidence in those proceedings, it is a complete nightmare. I think there is perhaps greater potential in civil proceedings to help children give their views directly to the court, but it would have to be dealt with very sensitively. Q223 Peter Bottomley: Roughly how many times would a child have had to tell their story before they could tell it in court, to a caring parent, possibly to a police officer, to a social worker probably, to the solicitor for the family? How many times, roughly, would a child have to tell a story? Barbara Esam: I think we would want to minimise that, obviously. It would be best, would it not, to have that dealt with by only - - - Q224 Peter Bottomley: Is it likely to be fewer than ten times? Barbara Esam: Yes. Q225 Keith Vaz: But more than four times? That was the point I know Mr Bottomley was making. They have to keep repeating it again and again and again. There must be a better way, but as yet we do not know what that way is, in which the child can put its views forward without having to repeat the story so many times. That is the damaging part, is it not, reliving the memories of what was going on? Barbara Esam: Yes, and if you were involving a children's guardian earlier on that would deal with some of it. Q226 Keith Vaz: The delays in the system are serious, are they not? What do you think the optimum time for an average case should be? I know it is very difficult because it depends on the complexity of these cases, but at the moment they do tend to drag on. Is there some kind of average time that you think would be appropriate or acceptable? Barbara Esam: I think it is important to remember that from a child's point of view the delay starts from the time they are not seeing the non-resident parent and that is a crucial recognition which needs to be made. From our review of legislation relating to children in family proceedings, it was stated very strongly, almost unanimously, that the delays were caused by a shortage of judges and a shortage of children's guardians who were qualified and experienced. I think it is very difficult to say this is the right amount of time. What you want to happen, of course, is for it to be done absolutely as quickly as possible. I think there is a lot in the Green Paper that moves us in that direction. Q227 Keith Vaz: Do you agree with the presumption that there should be contact with both parents, a presumption, all things being equal? Barbara Esam: As long as the safety of the child can be guaranteed, absolutely, there should be contact with both parents. Q228 Keith Vaz: The legal process itself, the court proceedings, the delays, the inquiries, Mr Bottomley referred to the number of times a child has to tell his, or her, story, do you think that is damaging for children? Barbara Esam: Definitely. The delays are very definitely damaging for children. If they are not seeing one of their parents, and they would be safe seeing one of their parents, that is a real injustice being done to children. Q229 Keith Vaz: Is there a system somewhere else in the world that you have looked at, that NSPCC has researched, which you think can provide us with a better answer to these agonisingly difficult problems? Barbara Esam: I do not have an awareness of another system that is working better, no. Chairman: Thank you very much indeed. I am sure there is a lot more you can tell us, and there is a lot more you have told us in your written evidence, which we will make good use of. Thank you very much for your help. Witnesses: Mavis Maclean CBE, Senior Research Fellow, Department of Social Policy and Social Work, and John Eekelaar, Reader in Law, Oxford University, examined.
Chairman: Mr Eekelaar and Ms Maclean, thank you very much for giving us of your time this morning. You both have expertise in this area and there are a number of quite specific points with which I think you might be able to help us. Certainly, on the basis of what you have written, we are quite anxious to hear from you. Q230 Dr Whitehead: Do you think that if Section 1 of the Children Act were expanded to emphasise the importance, precisely, "the court should have regard to the importance of a relationship between the children and a non-residential parent," that would be of benefit to separating parents and their children? John Eekelaar: I am going to start off with the present position. As has already been said, the courts operate on the basis that they view contact as a good thing. There is no doubt that you cannot look at that area without appreciating that is the view. The question is whether any statutory amendment would make any difference and perhaps it would make things slightly worse. As I see it, I think the debate has been between writing in special presumptions or some other form of statutory change. I think presumptions are problematical, people are concerned about them, because they could be a distraction. It is always difficult to frame a presumption in a way that would be satisfactory, say, a presumption that there should be contact, you might want to say there is a presumption there should be contact unless it would be dangerous, or something. Then you would have possibilities perhaps of counter presumptions, and this could be a distraction and an argument. That is why I feel that one has got to be very cautious about that. There are other possibilities. I am not sure it would make any difference, but if it was felt that there should be some sort of public endorsement, or parliamentary endorsement, of this, something which included an addition to Section 1(3), which lays out the matters to be taken into account, could be considered. I will say just a word about that. When you look at those factors in Section 1(3), they are all matters of fact, the age of the child, the sex of the child, the background of the child, the needs of a child, and so on, they are all facts. What sort of fact do you put in about contact, what is the fact going to be? I think there could be a fact and something which could be agreed as a fact, I think, without much controversy, and that is simply the interest that a child has in maintaining beneficial relationships, especially with its parents. That seems to me to be a kind of fact and interest which a child has. I quite like that wording because it talks about maintaining beneficial relationships especially with the parents but not solely. I think sometimes there is a tendency to forget that there are other relationships, siblings, grandparents, and so on, which are beneficial and tend to be a bit marginalised here. If that is simply put there as something that courts should consider, I do not think that would lead to the kinds of problems which presumptions might do. There is another possibility. You could amend some other part of the Act, or Section 10, which gives a court power to make Section 8 orders. You could put in something there that the court should make the order, recognising the interests of a child, as I have just said, it could be put in somewhere else in that sort of way, just recognising that the child has interests, the court may make an order. These are ways, which are not for me to decide, which could be considered if you wanted to put in some statutory form. Q231 Dr Whitehead: Are you suggesting that the nature of facts, as opposed to presumptions, and how one might, as it were, address a presumption as a fact, to some extent, may need clarifying, in terms of the approach that the person who is coming to the court thinks the court might then adopt? That is perhaps the tendency, to regard the presumption as a right or a fact, whereas, in fact, that must be heavily qualified by subsequent examination. Is that something you would regard as an operational problem for presumption, or a disqualification of the presumption as a starting-point in the process? John Eekelaar: If I have understood, yes, I think a worry would be that somebody would come believing they had got, as you say, a right, so there is a preferred outcome which is not necessarily based upon a true assessment of the child's interest. Just because it is contact, as it were, that is what should happen, irrespective of whether this would be in the interest of the child, and as we know it is not always in the interest of the child, and quite often against the interest of the child, therefore you would immediately have to qualify it. That is where they could get into trouble, if it was something which was pointing to an outcome. Whereas, if you simply stated an integral fact that a child has an interest in maintaining beneficial relations, which I do not think anybody would deny, you could prevent it. Q232 Dr Whitehead: In terms of facts, the submission that you have made to us, Mavis Maclean, concentrates very much initially on a number of clear facts from research, and so on. In your view, what evidence is there that where parents engage with the courts that subsequently agree a settlement they are more content with what has happened, and perhaps that settlement is more durable than for those people who have a court settlement imposed upon them? Mavis Maclean: That is an interesting and important question. I think there is a lot of confusion about the impact on parents of going to court. Often it seems to be being said that it is courts that make people angry, whereas I think it is pretty clear that you do not go anywhere near a court unless you have tried everything else and you are very angry when you get there. Research in progress at the University of East Anglia, commissioned by DCA, is making it very clear that even when people first arrive at court they are very conflictive, very unable to communicate with each other, they have exhausted all their other resources and very often they have a number of other problems too. Very often they have problems with debt, unemployment, health and housing. These families are in a lot of difficulty when they arrive at court. I think the Green Paper is very wise. There is a sentence in it about these families' disputes being ongoing, continuing disputes. They are not something which is going to be resolved on one day by one piece of paper issued by a court, or signed up to a mediation or a conciliation meeting, these are ongoing problems which, in my view, need ongoing support and advice. To get back to your question, I think that people who have a court adjudication are a tiny, tiny population. Some of them go back to court for a variation, but very often this is because circumstances have changed. It is something like a sixth of the people who have an order who feel that they have to go back, that the matter is not resolved. Of those who have an in-court conciliation appointment, again, from research in progress, which I think the DCA will publish shortly so I cannot give you precise numbers, it is not in the public domain, but from having read those reports, my understanding is that a majority of people manage to agree after one of these in-court conciliation appointments, and more contact does happen. Again, a large number of these agreements are not kept to in full, they may be kept to in part but they do not get set in stone and follow automatically. I think what worries me most about them is there is no indication that there is any change in the level of conflict between the parents. Although these parents seem to sort of break the court habit, when they have a problem they do not immediately rush back to court, and I think that may well be a positive step, there is still anxiety about children experiencing contact in a situation where the parents go on being so highly conflictive. I do not think anyone would dispute the fact that to lose contact with a parent who is loved, or with any carer with whom a child has bonded, is bad for a child. To be involved in a parental conflict, to be a sort of pawn in the game, similarly is bad for children. The difficulty for policy-makers arises where you have these two conflicting aims. You want to maintain a relationship with a parent but you do not want to expose the child to ongoing difficulty while experiencing that contact. I think this is a bit of a gap in the research knowledge. We do not know yet how to balance the short-term stresses of changeovers and being used as a pawn in the game, or being asked not to refer to a new partner, any of those problems which children in research have told us about, how we would balance that against the long-term benefits of an ongoing relationship with a non-resident parent. There are still lots of unanswered questions. Q233 Dr Whitehead: Essentially, you are encouraging the idea that engagement through either mediation or other forms of settlement subsequent to a brush with the courts and that outcome not being simply the end of an imposed settlement is desirable. At the very end, we have got the idea that where it is necessary to protect a child from clear harm a court order may then be necessary, but only then necessary. This is a question to John Eekelaar. Does not that give a licence to whichever parent is in a more powerful position to abuse that position, when the end of the road has been reached simply to say, "Well, I'm sorry, I'm not going to co‑operate any further and there's nothing you can do to me because the criterion of harm to the child is something I can hide behind"? John Eekelaar: If I could explain the reasoning behind the suggestion which I made, the first point is in terms of enforcement, and in a way enforcement is the really crucial thing and this is where people get really very frustrated. They have got an order and it is not complied with, and you try and it is not complied with and nothing seems to happen. Perhaps it is more important with the first things we were talking about, so how can we improve it? The first thing, I think, looking at the case, is that the courts are all over the place on this, they do not really know what to do. On the one hand, they will say, "Look, we just must enforce this, because otherwise we're flouting the power of the court." On the other hand, they say sometimes, "Well, it's a bit bad for the child, we can't do it." It is very difficult. I think we need clarity here, which we lack, and how can we make it clearer but also just and also protect the child? It seemed to me that if you had a criterion that a court should take enforcement, and we are talking about enforcement, we are not talking about the initial orders, we are not talking about persuasion or other things, or even a parenting order maybe, or education order, we are talking about real coercion, say, that the courts before they will do it must be satisfied that this is necessary to protect the child from clear harm, if that is the basis for the order and a finding has been made, it does seem to me that it is more likely that the courts will carry it through, because, here you are, you have got clear harm found to the child. I will give you a parallel from another part of family law. In the case of occupation orders, and these are orders which courts can make, indeed must make, to kick somebody out of the house, it can cause significant harm for the applicant or a child. There is a test there which says that the courts actually must make such an order, unless they consider that equal or greater harm will be caused to the applicant or the child by making the order. Here we have got a statutory provision which actually accepts that in some cases making an order, in this case expelling a person from the home, might make things worse, even if significant harm is being caused. Q234 Chairman: Can I ask a question the other way around. A person who says, "Well I know perfectly well the court won't do any enforcement of any kind unless there's the threat of harm to the child, and there's no way that he's going to be able to convince the court that it's harmful to the child for me to deny contact, in other words, enforcement measures will not come in unless I, the resident parent, am able to allege harm against the non-resident parent, it won't work the other way round, so frankly I cannot make the child available for the agreed and ordered contact"? John Eekelaar: Where a parent is denying contact where that contact is a beneficial and valuable thing for the child, I think that child could be held to be suffering harm. Q235 Chairman: Have the courts so held in many cases? John Eekelaar: Certainly the presumption of contact suggests that they see it that way. In fact, I think they see it rather more broadly, in a sense. I would suggest that any form of denial of contact could be seen to be harming. It does seem to me that, if there is a case, obviously it depends on the facts and what is happening. Q236 Chairman: There is a fundamental difference here. If the possibility of harm is the non-resident parent taking the child away, out of control and causing it harm, the court is quite likely to take that very seriously indeed. If it was the other way round and the resident parent were to say, "No way. The court can say what they like. I don't agree with this contact. I'm not going to allow it," the likelihood that the court will say the child is suffering serious harm from this denial of contact is much less the other way round? John Eekelaar: I just do not know. If a parent alleges that the non-resident parent might take the child away, the court is going to have to decide on the reasonableness or the plausibility of that claim, and it seems to me that if a court thinks that this is just a ruse, that there is no reasonableness in this and the result - - - Q237 Chairman: I am comparing two situations. The likelihood that harm from non-contact will lead to the court taking enforcement action of a real and effective kind is argued by many people to be very low indeed. The likelihood that the court will inflict some measurable punishment or deterrent upon the resident parent in those circumstances would seem to be very low indeed. Can you give me an example of what the court might do, given that prison is thought generally to be a pretty useless thing to do to a non-resident parent? John Eekelaar: Yes, that is my point, that the court would have to make a decision. Does their denial of contact cause greater harm than taking enforcement action? There may be cases where it would be. It is possible, it seems to me, that a court could say that a child who has had an excellent, splendid relationship with the absent parent and that has been denied, for no good reason whatsoever, is being caused harm, which will be greater than the harm which might be caused by taking enforcement action. I do think that is a question that has got to be faced. It may be a difficult one but it has got to be faced. I accept also the possibility that the court might go the other way and say that it would cause greater harm to take enforcement action by allowing the contact, which is a problem. Is there a problem of imbalance there? The answer is that of course there is, of course there is, and we have got to be honest about that. The world is not equal here, the position between men and women, and so on. A mother may well have had the greater control, or does have a greater control, of the child. The issue is then, and we have got to face it, that the father of course has interests and rights, they are protected by human rights law, but what does human rights law say? Human rights law says that the state must do everything in its power, its utmost, to try to protect those, it has to do that, short of causing damage and harm to the child, and that is a crucial thing. If the only way in which the father's interests here can be protected is by a measure which the court has expressly found, and that is why I want to highlight this, has expressly found, will cause greater harm to the child by making it more real than the present situation of the child, that it will cause greater harm to take those steps, we have just got to make a decision, which person's interests are right, the child's, protection against harm to the child or the father's interest, and you have got a straight choice. I cannot solve that dilemma, it is just part of the dilemma. Q238 Dr Whitehead: If we return to the notion I put a while ago, about Section 1 of the Children Act and what you might call an enhanced presumption, would that not therefore change the basis upon which that decision subsequently might be taken by a court? That is, if there is an enhanced presumption of the importance of the relationship between the child and the non-residential parent, the notion of harm therefore is influenced by that presumption. One of the problems at the moment I think that some people perceive is that, as our Chairman said, if the powerful parent simply holds to their position and there are no other circumstances where one can say that the powerful parent is harming the child, or indeed the contact itself would harm the child, they would simply deny that the contact itself is perceived by the non-resident parent as simply saying, "Well, I appear to have got this far, in terms of the rights of contact, now I'm simply going to have to give up because there is no other remedy"? John Eekelaar: First of all, I was not really arguing for an enhanced presumption. I think the Section 1 thing is just simply stating in a way a rather bland, obvious point, but in a specific case I do not think it would make much difference to a person. I do think a court has to make a judgment, that is what courts are for, and it has to make a judgment, "Is the denial in this case of contact causing this child more harm than would be caused to the child if we put the mother in gaol, or if we did that?", and so on. Q239 Chairman: Or to find another form of redress or deterrent or punishment? John Eekelaar: Yes, any form of coercion. The evidence seems to be, and I think it is really clear, that, coercive measures, once you get into coercion and you try to make a mother carry out instructions about contact, as it were, under coercion then this is likely to cause harm to the child, and a judgment has to be made whether that is worth it, whether that is desirable, given the harm that otherwise would be caused by not allowing contact. I just want to heighten that as being what the choice is. Q240 Mr Clappison: We have been helpfully supplied with the headnotes of the case, which I am sure you are familiar with, V & V, in front of Mr Justice Bracewell. It is a very recent case, this year, a case which was dealing with a mother who showed implacable hostility towards the father having a right of contact, and in the end the judge made a residence order in favour of the father, after going through all the issues and finding that the mother had been unreasonable and shown hostility. It is a fairly robust case, but is there anything wrong with that case, in your view? John Eekelaar: I cannot remember the details of that. Maybe I am mixing it up with another one where I think a care order was made. Mr Clappison: This was a case in which the mother was found to have shown implacable hostility, and the headnote takes us through all the things which the mother had said, which turned out to be wrong, and at the end of the day the judge robustly gave a residence order in favour of the father. Have you seen this? It was Mr Justice Bracewell. Q241 Chairman: This is speaking to an individual case, but Mr Clappison mentioned another step the court can take in carrying out this judgment? John Eekelaar: Exactly, so transferring the residence is certainly an action. I would say again that the test for that should be is the present harm the child is suffering by what the mother was doing in not allowing the contact greater than whatever harm might be caused by forcibly taking the child away from the mother and giving it to the father? The judge came to a clear conclusion and thought that the present harm to the child was greater than any disruption, etc., caused by the removal and came to his decision. That is what the judge is there to do and probably I would agree. Q242 Mr Dawson: Just a few questions on the Family Resolutions Pilot Project, which people are very interested in, we were discussing it on the floor of the House only last night. Mavis, why was it not possible to make the Family Resolutions Pilot Project mandatory, and do you think that it would work differently if that element of compulsion was involved? Mavis Maclean: To make it mandatory would have required primary legislation. This was a small pilot scheme and it simply was not appropriate to delay introducing the scheme in order to consider primary legislation. If the scheme is a resounding success and national roll-out is on the cards then of course that could be revisited. I think myself that it would make a very minor difference, in that this is a scheme to which parents are referred by the court, they come to court, somebody is asking for a contact order, they are then directed by the court, very firmly, towards this scheme and I think it would take a lot of resolution to resist this direction. Also, I am sure that advisers would intimate to parents that if they went on directly into court, by‑passing the scheme, the court would not be too pleased with their choice. I think a lot has been made of this issue, but I think actually, in practice, it is a very minor point. Q243 Mr Dawson: Are you seeing any resistance to the project at the moment? Mavis Maclean: It is very early days, but certainly the courts are very enthusiastic, the judiciary are very enthusiastic, it has had a lot of support from local solicitors, so I do not envisage difficulties so far. Q244 Chairman: Surely you cannot test how a compulsory scheme with parenting plans would work by piloting a voluntary scheme. You may learn something from a voluntary scheme, it might work out to be very good indeed, but you are not testing the same thing, are you? Mavis Maclean: I do not understand the question. Q245 Chairman: The essence of the scheme that was not proceeded with, because it would have required primary legislation, was compulsion. You are not piloting compulsion. You cannot draw conclusions about whether a system with those features would work better when it is not being piloted? Mavis Maclean: If everybody goes into it, in effect, you are - - - Q246 Chairman: Surely the whole character of the scheme is different, if it is voluntary from the start and every aspect of it is voluntary? Are there not two different things here, each of which may have merit but they are not the same? Mavis Maclean: Indeed, but the Florida scheme, which has been much discussed, was compulsory, simply because judges in Florida have different powers. If a scheme is offered and everybody who is eligible takes it up then the mandatory nature is there. Q247 Chairman: It is not just signing up to it, it is the obligations you undertake when you become part of it? Mavis Maclean: The primary reason for not making the scheme mandatory was the legal position, but I think there is also a very positive aspect of not being mandatory, in that it is widely accepted that decisions which people take part in, make for themselves, sign up to, have a higher level of acceptance and sustainability than those which are imposed. I think there are two strands to this issue. Chairman: Thank you very much indeed and thank you both for your help this morning. Witnesses: Anthony Douglas, Chief Executive, and Baroness Pitkeathley OBE, a Member of the House of Lords, Chair, CAFCASS, examined. Q248 Chairman: Baroness Pitkeathley, Mr Douglas, welcome. Welcome to your first session with this Committee. It may be the first of many perhaps on subjects for which you are responsible. We are rather sorry that we have lost oversight of CAFCASS, having taken a very close interest in it earlier, and that means that it has forced another committee to review in general the progress that has been made since you took over, and indeed appointed a new Chief Executive, Mr Douglas. From the point of view of this inquiry, we are very interested in the specific role of CAFCASS and how the work you have been doing to improve its performance will help. How long, on average, will it take a CAFCASS officer to produce a report in the sorts of cases that we have been talking about? Baroness Pitkeathley: I think it is very difficult, Chairman, to give an average. Certainly we can do that but I think, as we have been hearing this morning, and as our officers are very well aware, many of these cases are exceedingly complex. We do have targets at the moment, which is ten to 12 weeks for the completion of the cases. We would hope obviously to improve on that, but some of them are already done much more quickly than that, others are done more slowly, that is certainly an average. I will emphasise to the Committee again that, as you know, on the whole they are extremely complex cases where the parents are already in quite a conflicting situation before they come to the court. Q249 Chairman: Do you accept that the delay in embarking on the production of reports and in completing them is a major contributor to the harmful delay that we have been talking about this morning? Baroness Pitkeathley: I think it is, although I think we should also bear in mind that sometimes delays can be helpful, depending in what situation the family finds itself, because it may enable them to come to some kind of resolve. Certainly we are very conscious of delays, both in private and public law, and, particularly since Mr Douglas has been appointed, three months ago, it is something on which we have been making very major progress. Q250 Chairman: Given the difficulties you face in reaching targets, can you really envisage enhancing your role either in order that the children's guardians should do more work on establishing whether domestic violence is taking place, which seemed to emerge from some of our witnesses this morning, or indeed to enhance the child's ability to inject his, or her, views into the situation? Can you envisage expanding the role without adding further to the delays? Baroness Pitkeathley: We are very up for expanding the role as set out in the Green Paper. Of course there are issues of resources but we have a lot of ideas and indeed are making some progress about how to shift some of our resources, and I am sure Mr Douglas will want to expand on that. Q251 Chairman: Mr Douglas, do you want to comment? Anthony Douglas: Yes. I think the parallel with public law is a good one, because in the last ten years, since the Children Act, the time taken on cases has quadrupled and so it is a common problem. I think really that does relate to going into cases into more depth. I think these cases split off. The court sample is very different from the community sample. We think roughly 20% of cases perhaps could be diverted to mediation, in whatever form it takes, earlier intervention with accredited solicitors who mediate positively, and our staff do that sometimes. There are some parents who would benefit from the Family Resolutions Pilot, from that approach. In the vast majority of our work, and I had been a social services director for ten years before taking up this job and I was struck by the similarities, 70% of our work in private law was public law cases. I have visited 70 of our teams now and reviewed over 500 cases in the last three months and I think what has been happening is that the assumption of competence on behalf of both parents in private law cases, in other words, they could be mediated relatively easily with a good mediator, is just not borne out. What is there often in a case is one or both parents perhaps with a serious mental health difficulty, with an anger management or violence problem, man or woman, with very poor circumstances, socially and economically, with considerable deprivation, with a child who has already had poor parenting before the separation. These cases mean that often you are looking at the least detrimental alternative and trying to protect a child's long-term psychological well-being. These cases take a considerable time to resolve because what our staff have to look at is really the consequences of the decision for the rest of the child's, certainly, childhood but then later life. That is why, I think, delay, if you complete a case in 20 weeks or 30 weeks, if it is handled well, otherwise it would have resulted in becoming entrapped for several years, will never be resolved and that is 20 weeks of productive work. I would make a distinction between 20% to 25% of our cases where I do believe some form of mandatory mediation, some form of expectation on parents, with something of a shared presumption even, is absolutely right, but that is not the right framework for the bulk of our cases. I do think they are better placed probably within the 'Every Child Matters' agenda, using local resources, perhaps extended schools to carry on family support work with parents for extended periods of time, so that cases can be kept under regular review. Children's welfare, even if it is sorted in the short term, is vulnerable in the longer term and that is a better framework for our work, not to look at it as 'mediation might solve everything', or equally that all children need a particular focus, like tandem representation. I think we are in danger, as previous speakers have said, of adopting a one size fits all approach to very, very different cohorts. Q252 Keith Vaz: Mr Douglas, those who come to my surgery about these matters still complain bitterly about CAFCASS and the delays that are inherent in the system but are being produced by your organisation. Do you not recognise that there are still serious complaints about the way in which you are conducting your affairs? Anthony Douglas: Indeed. I am not defending delay. Delay is not acceptable, particularly for children. Q253 Keith Vaz: It sounded like it? Anthony Douglas: No. I was trying to explain the very different cases we have and that delay for one child and one family is different from another. What we are moving towards doing is better forms of triage so that we assess which cases need to be handled quickly and which will take a longer period of time. Q254 Keith Vaz: Would you accept that there are still criticisms about your organisation which need to be addressed and they feed into the delay in the family justice system, because so much depends on your reports? Anthony Douglas: You are absolutely right, but there has been a wider realisation over the last six months that there are problems in listings, there are problems throughout the family justice system. Q255 Keith Vaz: I am talking about yourselves, we know about the others. I am talking about CAFCASS? Anthony Douglas: Our own delays are non-existent in some parts of the country and serious in others. We have to target our hot spots, which are often because of staff shortages, sickness, retirements and difficulty in recruiting staff, we have to target those areas. We have got lots of measures in place to do so and you will see improvements over the next six to 12 months. Q256 Keith Vaz: The other complaint that I have, and indeed last week a serving police officer came to me with a very sad and disturbing story about what he regarded, and others regard, as bias by CAFCASS officers against fathers. Do you think that exists? Anthony Douglas: We are part of a system where non-resident parents, usually fathers, lose contact, so there is institutional bias in that sense. Mothers think we are biased against them. Fathers think we are biased against them. Our focus has to be on reducing that level of perception of what we do. What I see our staff do, and certainly across the 500 cases I have reviewed, is try to do the best for the child and try to complete cases, which often are intractable, as quickly as they can. I have not met people who are walking into situations with in‑built bias. Q257 Keith Vaz: You have heard the perception, and indeed you have recognised it? Anthony Douglas: That is the perception. Baroness Pitkeathley: I think that is the perception, but I think the focus of our very skilled and experienced staff is always about putting the child first and ensuring that the voice of the child is heard. That is something that our workers and our Board take extremely seriously. Q258 Keith Vaz: Obviously there is best practice which has been identified. We have talked about the delays and the problems but also you are witnessing best practice in different parts of the country. How are you identifying that best practice and ensuring that is adopted in those parts which perhaps are not as good as the others? Anthony Douglas: I will give two to three examples. In Cambridge, through particularly judges and CAFCASS practitioners working together, only 4.9% of cases go to the report stage. In other words, they conciliate and mediate the vast majority. That is true in Hertford and in many parts of the country. We are going to roll out those best practice methods, we have given a commitment to do so by April 2006, to roll out an agreed model. I was in Bradford yesterday, looking at the intake of cases over the last two weeks, and 18 out of the 20 are for very, very young children, often with two parents who are in very brief relationships, sometimes not in a relationship at all, some forced marriages, and to work out those cases, they are in the larger group I have talked about, 18 out of 20 in the current intake. We do face, I think, a position where we have to roll out the very fast model you are talking about across the country which deals with the 20%, 30% of cases where we can move things through very quickly. Q259 Keith Vaz: Are you making recommendations, guidelines for your staff which can be adopted in all parts of the country? Anthony Douglas: Yes. We have got an agreed practice model through the President of the Family Division involving the Court Service, so it is agreed with the justices, with judges and with our own Service, the principles of that, to accelerate cases, and there are some terrific examples. You were talking about domestic violence earlier where an early finding of fact hearing does produce something very hard and quick as against an extended report-writing process, and that is often done through very experienced judges, justices and CAFCASS practitioners working together as a team, as you would find in a typical public law system. I think the teamwork in the system is very strong in some parts of the country and not so strong in others, and that is what we have got to tighten up. Baroness Pitkeathley: Our aim is to increase the benefits people get from that teamwork. Perhaps we should add here that we are in the middle of very much a refocusing process with CAFCASS to put more resources into the regions, into the front-line teams who are delivering the services. Q260 Keith Vaz: You said you are up for everything in the Green Paper, but you did raise, very politely, the resources issue. You need a pretty determined increase in funding, do you not, in order to achieve what you want to achieve? Baroness Pitkeathley: We have negotiated some increase in funding from the DfES, I am happy to say. Naturally, we would say it is not enough, and certainly it is not enough for some of the things that we will have to do. The refocusing of CAFCASS work is very much dependent on changes in demands by the court, changes in demands by the judges, and the President has been very helpful to us in sending out those messages too. Certainly, in the long term, if we are to develop this role then more resources will be needed. Q261 Keith Vaz: What is morale like at the coal-face? After all, the last Chairman and Chief Executive to appear before our Committee were not there six months later, the Board has changed. Is morale improving? Baroness Pitkeathley: I have to tell you, and I think it is more appropriate for me to say this than the Chief Executive, that morale in the organisation is very high. Lots of people are saying to me, "This is what we've been waiting for for a long time." Within the organisation, morale is high and getting higher. There are some bits of anxiety, naturally, because we do face a period of major change. The other thing I would like to say here is that we are having huge support from outside CAFCASS too, from the judiciary, from all the people involved in the system from the voluntary children's organisations, so the Board and the Chief Executive and the staff are feeling good about the prospects for CAFCASS at present. Q262 Chairman: Just going back to findings of fact for a moment, you stressed findings of fact hearings at an early stage as being helpful. Are they not actually also quite important to avoid the perception which sometimes arises that the CAFCASS officer writing a report has accepted as fact allegations which remain contested, and indeed are crucial to the argument? Certainly my experience, and probably also that of some of my colleagues, is that the argument against CAFCASS is sometimes not only about delay but that the aggrieved parties say the CAFCASS officer simply accepted what the other party told them? Baroness Pitkeathley: That is why the focus on the child is absolutely important, and I think it is very important to point out how good many of our practitioners are at having that child‑focused approach. Most of our officers have got proper interview rooms with play facilities, for example, for children so that they can be engaged in that kind of way. Q263 Chairman: At the end of the day, people are more likely to be satisfied if the court has sought to establish the facts than if the CAFCASS report is being relied on for controversial factual evidence? Anthony Douglas: I would say we have more social workers than any other organisation in the country. They are trained to come down on one side or another and I want them to make clear recommendations. What I was saying is that the combination of a strong judge, a strongly experienced judge, a strongly experienced CAFCASS practitioner and a good justices' clerk can get somewhere with a very difficult case, so that it has been through a proper risk assessment, a proper screening process, to a quicker determination than perhaps if the whole system is muddled, a bit chaotic and indecisive, and that sometimes is when things can go on for a long time. What we have to do in terms of quality assurance is build in practice models which do emphasise completion of cases quickly, in a timely way, to a very high standard, without sacrificing risks to a child, a woman or a father. That is a particular style of work which really you have to do in teams, and teamwork in private law is not as strong as in some other disciplines. It is my firm belief that if we build that up at the local level and also make better use of other local resources, extended schools, Sure Start programmes, which some of our teams are doing to give some back-up, some follow-on support, particularly for parents under stress, then we will have higher success rates. Q264 Mrs Cryer: Thank you, Mr Douglas, for mentioning problems emanating from forced marriages in Bradford. I was beginning to think I was the only person in the world who talked about such things, so thank you very much, it is very gratifying to me. To take further what Keith Vaz was talking about in discovering what is best practice for CAFCASS, when we examined the workings of CAFCASS last year we identified a significant gap in knowledge about what works in family proceedings-related work which CAFCASS needs to fill. Therefore, bring us up to date. What steps have been taken by CAFCASS to develop a research-friendly culture, as previously recommended by this Committee? Just to remind you, one of the things we said was: "The development of a research-friendly culture, which welcomes external analysis and can work in partnership with the research community, will be central to the achievement of this goal." The goal being improvements in best practice in CAFCASS. Mr Douglas: I think our interventions are difficult to evaluate, especially as the outcome is over a long period of time. We have had only one post of research officer. In our current restructuring we are increasing that to three national posts and we are looking to do particularly some action research locally and regionally. Our regional managers are developing an audit tool about the effectiveness of some of the interventions, some of which have been used over the years through probation teams before CAFCASS, or other predecessor organisations. We have got a wonderful array of models but they do need to be evaluated and tightened up within what was talked about as the roll‑out, approved model. We are looking at accrediting particular models as being up-to-date, research-proofed and as effective as we can tell, and also exploring the systems like the judiciary have, ticketing systems, so that our practitioners can be accredited for expertise in either private law or public law or adoption work over a period of time. I think we are realising that the extent of what people have to know these days, the Bradford example is one of many, is that the work is highly specialist, even within private law, you cannot have just a general training will help. We are putting in 200 days of mediation training for our private law converged staff next year, which will be a plus three-day training, because many have studied informally but have not had formal training. All this will help and really we do need to increase the quality assurance, research, training and development functions over the next three to five years to be at an excellent standard in everything we do. Baroness Pitkeathley: I think that applies within CAFCASS but also with our links with the wider research community, with other agencies which provide training, and so on, and we have been very focused, Mr Douglas and I, and indeed my individual Board members, on increasing and extending our links with those other communities. Q265 Mr Soley: As the Government indicated, if you adopt a more accurate problem-solving approach you might have to spend less time on writing court reports. Do you think that is right and do you think that is necessary? Mr Douglas: In about 20% of cases, yes. I think, to deal with cases that are contested orally in court, through submissions, would be right. Some of our reports duplicate information that in a fine analysis is not relevant to what happens now and in the future. Q266 Mr Soley: Are courts asking for reports inappropriately, or what? Mr Douglas: It is custom and practice, but also some situations are so complex a court would be unwise not to have all the details set out so they can be properly appraised. I would emphasise, I have found only, I would say, 10% of cases I have studied that did not need to be set out in some shape or form, but, as I say, if we diverted 20% of our case-load to mediation much earlier on, 10% from reports, that is already beginning to release some resources for some of the aspirations that we all have. I do not think there is an instant quick-fix, to suddenly dispensing with setting out the complexity of lots of cases where children are very vulnerable. Q267 Mr Soley: Do you think you have a way in which you could identify the sorts of cases where you were asked to do a court report, which you could do without, without putting at risk the child's interests and having their view expressed to the court? Mr Douglas: Certainly, in all of our cases, our practitioners talk to children; that is one of their statutory duties, to consider the wishes and feelings of children. Certainly some earlier paper screening triage of cases could reduce, I think, the amount of time taken on some cases, but again we have a statutory duty at least always to consider what is going on for a child in a situation, we would be outside the framework if we did not. Q268 Mr Soley: Is it more appropriate for you or for the court to say, "Well, we probably don't need a court report in this case. It might be better if the time was spent on more active involvement in some way"? Mr Douglas: Probably it is best to do that jointly. We are not an administrative body, in the sense of reaching our own solutions, and the important part of that is to have early directions jointly with judges and justices who do make those decisions quickly, and that does happen in many parts of the country already. Q269 Mr Dawson: The use of Family Assistance Orders has been neglected since the 1989 Act. I suppose you could speculate that has been about resources, to some extent. Given your embrace of the possibilities of Family Assistance Orders, what additional facilities and funding will be required to make them work? Baroness Pitkeathley: I think the Accounting Officer had better deal with that one. Mr Douglas: We operate about 700 a year, so far. I think the only way of doing that is, we have guesstimated that the implementation of - we have had a rise in 9.5s, children represented separately, this year, as the Committee will know, and we think that represents a significant continuing cost, potentially. If we implement the support arrangements, that is a significant cost as well. We think that is done best within the framework of 'Every Child Matters'. These are mostly children in need. The resources that have gone into children in need are questioned, but that is where most are, with some of the developmental schemes locally and, as I have said, through extended schools, contracts for voluntary sector groups, Home Start and the support agencies. We are relatively isolated structurally, which I think reflects the fact that the family justice system is not integrated into the mainstream of children's services, and neither is the youth justice system. I think, if we are to deal with support properly we have to be in the mainstream of children's services and classify many of our children as children in need, who are able to take advantage of local provision which other children in need in the community do. Q270 Mr Dawson: That is music to my ears, but can you say that Family Assistance Orders actually are of benefit to children and families? Mr Douglas: They have been in some cases. I think that some reinforcement used selectively is of benefit in some cases. All these disposals have some application to some children and some families, but neither of them are a solution in their own right. Baroness Pitkeathley: I think the relative isolation in which CAFCASS operated in its early years did not help this, so that is why we have been very much at pains to develop the links with the rest of the voluntary sector, with local authorities, with social services, and so on, and we will continue to do that, of course. Q271 Mr Dawson: The Committee has received evidence from the Solicitor's Family Law Association and the Family Law Bar Association to the effect that it is not satisfactory for children to be brought to the courts for conciliation meetings. Does CAFCASS agree with that view? Baroness Pitkeathley: I think they need to be where it is most appropriate for the child and that is why many of our offices have better facilities where such meetings can take place. Mr Douglas: It is important to ask each child, where they are in a position to be asked, and some very much want to come and put their point of view. I spoke to an eight year old last week who was very strong, and I think represented most children in that age group, "I just want my parents to stop arguing." It reminds me, when I was a social worker, of children who said "I just want whoever is abusing me to stop. I don't want to leave home, I don't even want them thrown out, I just want it to stop." What children are going to say is an important statement and their voice needs to be heard, in some shape or form, or introduced. How we achieve for them what they nearly all want is the $64 million question. Q272 Mr Dawson: There are lots of alternative ways of hearing children's voices and that is a different venue rather than bringing them directly to court? Mr Douglas: Yes, and we have some models, like the Principal Registry, where children do attend; others where the facilities are just grossly unsuitable and it would not be right for them to be there, there is nowhere decent. At other times we can talk to them and represent their views, and solicitors can, or we can introduce what they are saying on video. It does not matter really as long as we do introduce their voice into the proceedings. Q273 Mr Dawson: We have seen and talked to the President of the Family Division about the new Private Law Framework and I have got a couple of questions about whether you have got the resources to meet the needs of a practice direction. Also, given that she is asking you to do more work face to face with children and a number of new tasks, doing a lot more conciliation work, for instance, will not that detract from the role of CAFCASS in ensuring that there is separate representation or tandem representation for children in private law? Will not that undermine the move to implement Section (122 ?) in September next year when it comes in? Baroness Pitkeathley: Not necessarily, I would have thought. It depends on how we deploy our resources. I think the President has been very supportive in understanding that it requires a change in the behaviour of the judiciary as well as a change in the response of CAFCASS for this to work satisfactorily. Some of the things that we are already putting in place do seem to me to address those issues, leaving aside the problem that our shortage of resources is always going to be there. Q274 Mr Dawson: Clearly you are making enormous strides to address the issues that this Committee and others identified in a previous incarnation, but really you are being asked to take on huge extra areas of work and develop skills in particular areas of work? Baroness Pitkeathley: It was always envisaged that CAFCASS would take this on. The second S in CAFCASS is exactly what this is about, so I do not know that we are having a change of direction, merely fulfilling what we were set up to do in the first place perhaps. Mr Douglas: We have had a significant increase in resources. It is never enough. Obviously, if many children are separately represented and if these cases take enormous amounts of time and consume additional resources then three into two does not go. That is why I think we can only do it over a period of years through collaborative working that is very different, so that the service in two to three years' time looks different, and that will be our focus. We are much more settled now than a year or two ago. You mentioned training. There was hardly any training for the first two years of CAFCASS. I would approach that with some optimism because we are in the same position as any front-line agency, trying to manage more and more functions on fewer and fewer relative resources. We have got to do more about support, because it is already taking a long time when cases come back repeatedly with repeated applications and cases where they are intractable and consume huge amounts of time. I would just say that the report writing is a phase in the work. There has often been lots of direct work, lots of attempts to mediate within that, it is not just someone, the practitioners, sitting back and writing a report, that is the end of a process, but we are very grateful that you have raised it because it is of continuing concern. Chairman: Thank you very much for your evidence this morning. You can be sure that we will continue to take an interest in CAFCASS, so long as we have some power to do so, because, of course, the report that we finished about CAFCASS was one of the first that this Committee produced, it was one of the most hard-hitting we have ever had occasion to produce and perhaps the most dramatic in its consequences. Indeed, your presence here, both of you, is a direct result of that report. Therefore, we do want to express our wish that your attempts to get the organisation meeting its targets and improving the service it provides will prove very successful, because it is very important to the lives of very many children. Thank you. |