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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
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Taken before the Justice Committee
on Tuesday 1 March 2011
Sir Alan Beith (Chair)
Mrs Helen Grant
Mr Elfyn Llwyd
In the absence of the Chair, Mr Elfyn Llwyd was called to the Chair.
Examination of Witnesses
Witnesses: Rt Hon Sir Nicholas Wall, President of the Family Division, The Hon Mrs Justice Pauffley and The Hon Mr Justice Ryder, gave evidence.
Chair: Welcome to the Justice Committee’s third evidence session on the Operation of the Family Courts. May I ask you, not that it is necessary of course, briefly to introduce yourselves for the stenographer?
Sir Nicholas Wall: I am Nicholas Wall, the President of the Family Division. I have deliberately brought with me today, on my left, Mrs Justice Pauffley, who is one of my Liaison Judges for the South East and about to take over London, and, on my right, Mr Justice Ryder, who is the Presiding Judge of the Northern Circuit, which takes in Manchester, Liverpool, Carlisle and Preston.
Chair: At this point I should explain why I am in the Chair. The esteemed Chair, the Rt Honourable Sir Alan Beith, has a debate at the moment and is therefore unable to chair. That is why I have taken over temporarily.
Before we proceed I will ask my colleagues to declare any interests that they have.
Claire Perry: I have no interests.
Mrs Grant: I should like to declare an interest, having been a legal aid family lawyer for the last 23 years.
Chair: I should also declare an interest, having been a legal aid family lawyer both as a solicitor and a member of the Bar but currently non-practising.
Q163 Claire Perry: Thank you very much for joining us today. I wanted to focus on the issue of delay to cases, which has come up repeatedly in the evidence sessions we have taken on the operation of the family courts. Indeed, Sir Nicholas, you alluded to some of these pressures when you gave evidence before in the Access to Justice inquiry. What do you think is the fundamental cause of delay in the family courts? Is it possible to isolate one or is it just a confluence of multiple factors? That is the first part of the question. The second is, what is the judiciary currently doing to tackle those causes of delay?
Sir Nicholas Wall: The answer to the first part of your question is that it is multifactorial. One has to draw a distinction between public and private law when one is considering the question of delay. In private law, what we are trying to do, as I have given evidence before, is to take as many cases as we can out of the system by conciliation and mediation. We have a first hearing dispute resolution appointment. In public law, one of the difficulties is that one has a multiplicity of agencies dealing with different aspects of the case. One of the factors that has caused delay is the fact that we are dependent on others for the work that they do-for example, local authorities-and in some parts of the country, where a local authority does not produce, for example, a proper assessment, the judge feels obliged to have the work done again by someone else. That, of course, causes delay. Perhaps Mrs Justice Pauffley might like to add from her personal experience on this point.
Mrs Justice Pauffley: None of us want delay in children cases. The statute, as I am sure you will know, says that we must avoid delay wherever possible. There are relatively few judges dealing with an increasing number of cases. There is sometimes an insufficient focus on issues so that cases are given too long a time estimate. It is the judge’s job to case-manage proactively right from the off and to try to ensure that the case is dealt with in the most expedient way possible.
The wait for reports that Sir Nicholas has spoken of sometimes causes more delay than any of us would want, but then it is for the judge, I would say, to reject an expert’s time frame that is outside the child’s time frame. The case has to be brought within something that is acceptable from the perspective of everyone. Sometimes cases are listed with a fact-finding that is perhaps unnecessary, so it is for the robust judge to case-manage that litigation so that the fact-finding is dispensed with and you get on with the process of deciding the child’s future. That is what I would say.
Q164 Claire Perry: Mr Justice Ryder, would you add anything to that?
Mr Justice Ryder: I would summarise it in four ways. There is an increased number of proceedings, both in public and private law, and there is no great evidence that that increase is tailing off. We have fixed resources, both of the judiciary and courts available for us to use, and indeed the sitting days to use those courts. The second would be a fairly well demonstrated increase in complexity, for example, caused by international cases, multiple interpretation being required and new problems. Children in asylum circumstances present assessors and courts with quite interesting and diverse problems. The third aspect would be the delay caused by sometimes too many experts, but certainly lack of expert availability, and also the lack of appropriate assessments at the time when we need them. They take too long and they are not always of the quality that one would want the first time round. That causes a delay. The fourth-and it has to be added in-is poor issue analysis, to which Mrs Justice Pauffley has alluded. You need both the advocates and the judge to get together with one mindset, which is to problem-solve a case, not to allow it to become over-sophisticated and, for example, to have inappropriate split hearings that by and large always lengthen cases. There are four aspects in my experience.
Q165 Claire Perry: From the evidence given, it sounds that there is almost a lack of accountability in the system. There are multiple players, but it is nobody’s sole responsibility to get the case through in the minimal amount of time required to do an appropriate job. Would that be a fair assertion?
Mrs Justice Pauffley: No. It is the judge’s responsibility from the off to ensure that the case is case-managed appropriately and strongly so as to get to an early resolution.
Sir Nicholas Wall: One of the difficulties I think we have had, and which I hope will be addressed by the Family Justice Review under David Norgrove, is that judges must be given the freedom to case-manage and the freedom to enjoy judicial continuity. What tends to happen, particularly amongst the circuit judiciary, is that they sit in crime, civil and family, and often the case has to wait for a judge rather than the judge going to do the case when the case is ready. One of the things we are very keen to address is judicial continuity and management of cases, which means that the judge can hear the case when the case is ready to be heard rather than the case having to wait for the judge.
Q166 Claire Perry: What is being done to improve that case management, which clearly is a way of reducing delay?
Sir Nicholas Wall: Mr Justice Ryder had better answer this, because he wrote the Public Law Outline, but in public law cases I am very strongly encouraging my judges to case-manage. You have to remember that, historically, the English judge has seen him or herself as the arbiter who sits back and waits, decides the issue and then goes away. In family law that has completely changed. We are now case managers and we are in charge. We have a quasi-investigative inquisitorial role. I certainly hope that, post-Norgrove, we will be case- managing vigorously in the way that Mrs Justice Pauffley has described. That seems to me to be the way forward.
Q167 Chair: Some of us who are of the pre-1989 vintage remember that it was fairly haphazard in family courts, and it has improved greatly over the years. Of course, judges do take charge of the timing, but when they are faced, for example, with delays in the reports from Cafcass, insufficient high-calibre people putting themselves forward as guardians ad litem and so on, despite the best efforts of the judiciary, sometimes these cases slip, don’t they?
Sir Nicholas Wall: Yes, they do. I think it varies. One of the difficulties is that there is a huge regional variation. In some places where you have a very proactive designated family judge, for example, you will find that cases go through speedily. In other cases, as you rightly say, because of the number of players in the system and the need to fulfil article 6-which is an important factor in the equation-cases do slip. Ernest, would you like to add to that?
Mr Justice Ryder: The point is that you need a local understanding which is very strong, with local leadership of the family justice system which is strong. Your designated family judge, your Family Division liaison judge, is key to making this work. You have to have, and should have, business committees with each of the agencies represented on them where they discuss just the problems that you are identifying.
Rather more so recently, we have had local performance implementation groups and a national performance body as well, with the object of saying, "Look, is listing working in your area? Is local authority assessment process working in your area? Have we a shortage of guardians? Are they taking too long? Are we using too many experts? Are the police co-operating?" You put together each of the agencies in an interdisciplinary environment. It has to be a public, transparent environment where people can actually hear what the arguments are for and against improvements.
In court centres where we have those working very well, with good leadership, then, yes, you will see, for example, the Public Law Outline being complied with and, indeed, improvements in performance despite improvements in volume of work. But in areas where you do not have that interdisciplinary co-operation, which can be for all sorts of local strategic reasons-quite often funding but not necessarily so; it may be lack of leadership in one or more of those organisations-the designated judge and the liaison judge will find difficulty trying to get the improvement that you will see elsewhere. That should not stop them trying. We think over the last three years in particular that this sort of initiative-business committees, implementation groups, emphasis on performance and emphasis on PLO compliance-has fundamentally changed the landscape because we are talking about a problem-solving culture under the PLO which was not the level playing field, the judge referee system, that we case-managed cases with before.
Q168 Mrs Grant: I can see the difficult balance that you all have to reach and I am sure it is hard, but can you think of any place where you might be able to refocus the resources that you have at your disposal as judges in public and private law children cases to get better outcomes for children?
Sir Nicholas Wall: I think in public law the key is judicial continuity. There is nothing more time-consuming or wasting of time and resources than several judges looking at the same set of papers and possibly reaching inconsistent conclusions in relation to a particular set of facts. It is very important that in the future we not only operate the PLO but operate it in a way that enables the judge to be entirely in charge. You have to remember that this is a change of culture for a lot of judges. Judges were not brought up to be case managers and we are having to teach them and persuade them to do so, but it is absolutely crucial that they are. Post-Norgrove, I think we will find that the modern generation of judge will be brought up to be a case manager. They will take a case, and should take a case, be solely responsible, be docketed for that particular case and do it from beginning to end as quickly as possible.
Q169 Chair: I was involved in a private law contact and residence case, fully contested. It came to a hearing in August and went part-heard after three days until February. That happened in North Wales. It was not because of anything to do with the judiciary. The judge concerned was one of the main family judges in North Wales, but unfortunately his diary was so full that, despite his and his clerk’s best efforts, he could not find anything sooner than February. That is unacceptable, isn’t it?
Sir Nicholas Wall: It is.
Mrs Justice Pauffley: It is totally unacceptable.
Sir Nicholas Wall: It is completely unacceptable.
Mrs Justice Pauffley: If he was, for instance, committed to go off to the Crown court, as he may have been, then in my view he should have said, "I can’t fulfil my Crown court responsibility because this case has to take priority. I owe it to this child and this family to come to an earlier decision than February."
Mr Justice Ryder: I strongly endorse that. If you are looking at this from the perspective of leadership judges, as a presiding judge, I will, and do, regularly change judges’ patterns to take them back into family from crime or civil, which may be their majority other specialism.
You have to look at this on a case-by-case basis. We open courts up in order to provide for a particular case which otherwise would not get heard within a reasonable time scale. We accept that money is not going to increase; it is going to reduce, but, where we have no more money, we have re-patterned judges within the justice system so that family, to take the North as an example, has had about a 25% increase in judicial cover over the last two to three years purely by using internally the resources we have and sitting down as a group of judges and saying, "We have to change this."
Sir Nicholas Wall: Part of the guidance which I have recently issued is the emphasis on judicial continuity and listing effectively being a judicial rather than administrative function. Many judges are brought up effectively to do what they are told. We go and sit in X for Y weeks and we sit in Z for so many weeks and so on. That is going to have to change. Increasingly, the judge, with the co-operation of the listing officer and colleagues, is going to have to do exactly as Ernest suggests and say, "I must hear this case. This child’s case can’t wait. This must have priority and it must be heard."
Q170 Chair: In that particular case, and obviously it would be improper for me to name anybody, the judge did make every possible effort but his diary was so full of other contested family matters and I don’t think he sat in the Crown court in the ensuing eight months anyway.
Sir Nicholas Wall: There is a resource issue there as well.
Q171 Chair: Since then, I can say that certainly a family district judge has been appointed. That has taken some of the pressure off.
Mrs Justice Pauffley: Most of us have a very good grasp of what we are going to be doing in the months ahead. We know which cases are likely to resolve themselves within the time frame: go short, in other words. I believe that it is vital for us all to work collaboratively with listing officers so that we can slot in these important cases that need to be finished within, as I say, an acceptable time frame. Your example was unacceptable.
Q172 Mrs Grant: I have one final point on that. Do you think practitioners-solicitors and barristers-can do more in helping you to manage and deal with these unacceptable delays?
Sir Nicholas Wall: I think the answer is yes. In the guidance I have issued, I have said this is a message for everybody. If a judge says a report must be filed in three weeks, it must be filed in three weeks. If a statement has to be filed within X days, it must be filed within X days. There is a resource issue here and the Bar and solicitors are under the same degree of financial pressure as the courts are. None the less, if everyone adheres to the timetable which the judge sets, that is the best we can do.
Mrs Justice Pauffley: There is a general willingness to do that. I would say 99% of practitioners readily fall in with our time frames, recognising that from their clients’ perspective there is nothing that would be better than an early decision.
Q173 Mrs Grant: That is very reassuring to hear. Is Cafcass still operating the "safe minimum standard" that you referred to in your guidance?
Sir Nicholas Wall: Again, this is very difficult because it is so mixed regionally. There are places where the local co-operation on the ground between the Cafcass manager, the DFJ and the relevant authorities is working extremely well. The object of the Guidance which I introduced was to eliminate duty guardians and to give the judge a much more proactive role. The answer has to be that there are places where-and Cafcass would be the first to acknowledge-the position is unacceptable and other places where it is working reasonably well. I am slightly out of touch because I have spent the last few years in the Court of Appeal. My colleagues will be in a better position to deal with that on the ground.
Mrs Justice Pauffley: There is a regional variation of worrying proportions, in my experience. In some areas Cafcass is demoralised. Its numbers are depleted. Guidance is being given that they must work proportionately, which in some instances has meant that Cafcass officers have not been able to attend final hearings and they have been limited in the amount of work that they do. It is also a major anxiety that the self-employed guardians, generally the more mature and more experienced guardians, are viewed by some areas as being too expensive. In the judges’ experience, those are precisely the individuals who are best able to help in private and public law cases, for that matter. There is a very big problem. It is an embarrassment when, at a first appointment, a district judge is told, "I am sorry, although this application was launched six weeks ago, no one from Cafcass is available to begin the work that is needed." There is a grave problem in some areas. In other places, happily, there are good working relationships between judges and managers at Cafcass and things are operating quite smoothly.
Mr Justice Ryder: The President’s interim guidance, when it was first issued, and of course it has been reissued twice since then, had, as one of its aims, imposing better standards of practice, so improving good practice while trying to reflect the resource shortfalls that had then been identified and the inconsistencies that we have all talked about. For example, we strove long and hard, and are still doing so, to get Cafcass reporters and judges to understand that an issue-identified report rather than a general welfare report may be much more suitable to the facts of the case and a much better use of a scarce resource. So far as achieving a timetable for the child within the proceedings, it is more likely to get you to that final hearing on time without an adjournment and delay. If you look at those documents, you will see that the overall intention was not just to provide a safety net for Cafcass-though it was by providing a minimum quality of service that had to be provided nationally-but also to pursue or encourage good practice that might make it easier to get more cases through the system in a more timely manner.
Q174 Mrs Grant: Why do you think Cafcass kept failing Ofsted inspections, and why are they doing much better now?
Sir Nicholas Wall: I think that is a question you are going to have to put to Cafcass. We need a welfare service; there is no doubt about that. We have to cope with what we are given. We have done our best to co-operate with Cafcass in the last 18 months or two years. I have been surprised that ordinary Cafcass guardians, when I have met them up and down the country, have welcomed judicial involvement. Historically, the guardian was always perceived as being the independent voice of the child, not to be the subject of any pressure from the judge. They were given very wide powers under section 42 of the Children Act and so on. But in fact Cafcass officers welcome the judge sometimes saying to them, "I think this case is about X. Will you please investigate X? Of course investigate anything else you like, but do investigate X for me." That has been helpful. As far as Ofsted and Cafcass are concerned, I am afraid you will have to ask them.
Q175 Chair: Can we move to the Public Law Outline? We touched upon it earlier on. My understanding is that your agreement with Cafcass emphasised that "it is of the utmost importance that the Public Law Outline is fully and effectively implemented by all judges, magistrates, legal advisers and guardians." How effectively is the PLO currently being implemented, and do you think something can be done to improve compliance, if indeed it is necessary?
Sir Nicholas Wall: Can I answer that in a general way, and then I will hand over to Ernest, who will deal with the detail? We are about to get some research from Professor Masson, which I hope will also be made available to this Committee, which will show that judges are having too many hearings and not case-managing in the way that they should be. I am very hopeful that post-Norgrove we will be told that the number of hearings is unacceptable, that judges must case-manage and there must be judicial continuity. That is a message which I will promulgate very strongly. The answer again, I am afraid, is patchy. There are places in the country where the PLO is properly and effectively operated and efficient, and other places where it is not. But I am in no doubt at all myself that the PLO is the way forward. We must case-manage and we must case-manage according to the PLO.
Q176 Chair: I am sure that is right. We get the impression that there is good practice and less good practice here and there, but surely one of the drivers must be resources? If a judge is working all hours God sends and the Cafcass people are running around day in, day out, it is very difficult to allocate time to be able to sit down and say, "Look, this is the procedure we should adopt. This is the way we should integrate or at least be moving in the same direction." It is partly a resource issue, isn’t it?
Sir Nicholas Wall: It is indeed, but I am a great believer-and I am sure Ernest will amplify this-that in the first appointment, if the judge is allocated to the case, reads the case, knows what the case is about and has a good grasp of the issues, the judge can drive the case in the way the judge thinks appropriate in the best interests of the child. I think that is the way forward myself.
Mr Justice Ryder: There is no doubt that this was intended to be a huge culture change. The idea that the advocates could isolate the issues themselves and that the court would just go along with that-that they could have whatever formal style of hearing, split or otherwise, that they wanted and take as much time as they wanted-had to become something of the past. We brought in four specific imperatives that we have trained every family judge in, although I am the first to acknowledge that, if we had more resources to train more, that would achieve some benefits quite quickly, both with advocates and judges.
The first point was procedural front-loading. As Nicholas has said, you want to get the thing read by one judge at the beginning, but you also want the parents to be told what is going on and why it is going on, preferably before they get into the court environment. We brought in a degree of advanced disclosure and preparation. For my part I would like to see more, but at least it was a start point on an almost clean sheet of paper where that was simply not the norm beforehand.
The second thing which is particularly important, in my view, is the timetable for the child. If you are going to try and avoid the example that you, Sir, brought out from Wales, you do it by having a timetable which is fixed. Yes, of course you can amend it as you go along, but all social care and legal steps are timetabled from the first appointment, through the case management conference, which is the second stage when you identify the issues. You keep looking at that at every stage and don’t ever forget the fact that it is the child that usually suffers from the change in the timetable.
The third issue is not to allow the parties to identify the issues but for the judge to do that. That implies adequate preparation time and therefore good listing guidelines to give you that time. Then there is the issue resolution in the way the court sees it is appropriate. One of the keys there is that, where you have a great shortage of court time, if you are not listing every case for final hearing at the beginning, which then fills the diary for eight months plus, but you are only listing them for final hearing at the point where you get to the third stage-the issues resolution hearing-you are then able to use the scarce resource of the court much more quickly for the appropriate case.
I have been out of some of the detail of these cases for a year, sitting in crime, so if I am slightly wrong on my statistics, forgive me. We were still having the position a year ago where 60% of the county court cases in public law were settling at the door of the court of a contested hearing. That does not necessarily bespeak of good case management or indeed good management of the cases by advocates. It may be the way in which people behave; they come to decisions about risk at the door of a court. Nevertheless, if we can advance that forward to the issues resolution hearing and have a neutral evaluation of the evidence there, you don’t need four to 10-day cases listed in a long diary into the future. You can use your time much more productively.
That was a huge culture change because it meant judges having to say at an issues resolution hearing, "What is your best case?" They neutrally evaluate the evidence on paper. "If you win everything, including credibility, in the evidential challenge in front of me, what are you going to succeed in, what are you going to fail in, and what is your worst case?" Teaching judges to do that-which is not the referee on the playing field; it is a very proactive case management system-we had to develop in a Practice Direction. We then had to teach it. We then have to build on the experience of getting judges to do it. I absolutely agree that we are not there yet by some way. We are very much hoping that the David Norgrove review will help us to build on that.
Q177 Chair: Hopefully, we won’t be seeing-I won’t say pointless, but unnecessary-finding of fact hearings.
Sir Nicholas Wall: Yes. I have issued guidance about that, which I think has had a reasonably good effect.
Mr Justice Ryder: Yes.
Mrs Justice Pauffley: Yes.
Q178 Chair: How is the compliance with the PLO monitored? Are there difficulties with the number of bodies involved? How would you like to see the thing monitored?
Sir Nicholas Wall: Again, I will defer to Ernest on this. One of the most welcome recent developments is the local performance group. This involves another culture change. Historically, people have been very deferential towards the judiciary and if a judge is falling down on time scales the judge has not been told. For years and years and years, we have been calling for proper statistics and a proper system of enforcement. My own view is that, now we do have the local performance groups, on which the judiciary will be represented, there will be a much freer and franker exchange of views between the various disciplinary bodies engaged. They will tell the judge and the judge will be part of that process. If the judge is not case-managing a case effectively, he or she will be so told. I hope that will happen. I shall certainly do my best to ensure it happens. That is one of the things we can do.
Mr Justice Ryder: I think there are three aspects to monitoring that compliance and to try and build on the successes as well as to counter the failures. One has been the research projects. You will have had Dr Brophy’s evidence. You will have read and may be hearing from Professor Masson. Frankly, we would welcome more because those projects and those pieces of research are hugely useful to us as well as to yourselves. The second aspect is the business committees and the performance implementation groups, because they have to talk about why it is not working in a particular area or how we could improve on it in a particular area. The third is that we change the statistical method of collection. Although family statistics through the computer system FamilyMan are notoriously fragile-not my words, but I could go a lot further in describing how poor they are-nevertheless, if you are tracking whether a court is hearing a case management conference within a reasonable period of time from the issue, if you are tracking whether the issues resolution hearing has likewise been listed at the time the judge said it should be so that listing is working and the timetable is being complied with, then you can get some indication that it is beginning to show results in terms of not breaking the timetable you set at the beginning.
Q179 Chair: What implications are there for the effective appliance of the PLO in light of diminishing resources?
Mr Justice Ryder: It is going to become more important. I make no bones about the fact that when we introduced the concepts in the PLO there were a significant number of detractors. There always are when you are bringing in changes of this kind. Some of those detractors would have been individual judges who simply said, "I don’t do things this way." We have gone beyond that now and people have realised that the shortage of resources will mean no more judges. We may change the composition of the existing benches. We may use people for more things than they were used for before, but there is going to be no more money in that system. There are going to be no more courts. The court building programme has stopped and the court closure programme has been implemented. It is down to us to make sure that our case management is better with the resources that we have. If that means that for once we are actually achieving timetables that we have set, then you have an answer to delay in there as well. It may be an odd silver lining to a cloud, but there is a very significant benefit to be had from this culture change.
Mrs Justice Pauffley: Judges talk to one another as well, which I regard as a particular strength. In any court centre there will be a leadership judge-the designated family judge-who will be ensuring that his district judges and the other circuit judges are case-managing appropriately. They will discuss problems together over lunch and hopefully resolve them. The leadership judge will then ensure compliance, so far as he or she is able.
Q180 Chair: I am sure that is right and most welcome, but it does disturb me to hear Mr Justice Ryder reminding us that 60% of these fully contested cases settle on the morning of the court. It is not a good use of judges’ time or anybody else’s.
Mrs Justice Pauffley: He was saying at the issues resolution hearing.
Mr Justice Ryder: Yes; the historic statistic was at full hearing. My understanding is that we have now moved that back to the issues resolution hearing.
Q181 Chair: That is before the new regime, as it were, with regard to identifying the issues early on.
Mr Justice Ryder: Yes. I would agree with your general proposition that, if we were unable to effect late settlement in that way, that would be unacceptable.
Q182 Chair: I move on to the rather fraught topic of litigants in person. Sir Nicholas, you told us previously that "there is not an adequate appreciation of the pressure that the family justice system is under at the present moment." Where do these pressures come from, and what would be the impact of a significant increase in litigants in person?
Sir Nicholas Wall: The answer to the first part of the question is a pure resource issue. The second part of the question is that I do genuinely think-and my colleagues will no doubt give you more hands-on experience-that my experience of people who are not represented by lawyers is that they come in all shapes and sizes. Obviously some of them are very good; some of them are very nervous; some of them are very upset; and some of them are disturbed. But they do undoubtedly slow the system down. The person who is not represented will take most points, good, bad and indifferent. They will not understand the rules; they will have to be explained. Although there is a consultation on public funding, at present all the indications are that public funding is effectively going to be removed from private law work. We are going to have a very substantial increase in the number of people who are representing themselves in the process.
The result of that will be, in my view, very substantial delays. We are not increasing the number of judges, courts or sitting days. We are going to give priority, as far as we can, to children’s cases, but we will undoubtedly be slower, longer and there will be a great deal of frustration. That is my experience of dealing with litigants who are not legally represented. I think it is probably the same with my colleagues.
Mrs Justice Pauffley: It is absolutely the same. It is extraordinarily difficult to manage a litigant in person. We all have a duty to listen to the arguments that they present. It would be rude and offensive, and, frankly, one might say, a denial of justice, to say, "I’m not interested in this; move on." There is only a limited amount of that in our armoury. In most cases a litigant in person will add enormously to the length of time a case will take, not least because most of them will want to litigate every last little issue.
Q183 Chair: Sir Nicholas has said previously that, if public funding is removed, then obviously a parent who is anxious about either contact or residence is not going to give up simply because he or she is unrepresented, are they?
Mrs Justice Pauffley: Absolutely not.
Sir Nicholas Wall: Absolutely not. As I mentioned earlier, what we have done in the private law programme is to have a first issues resolution appointment, a dispute resolution appointment, where the Cafcass officer says to the parents in front of him to go off on an educational programme or what is the issue and can we resolve it? Unlike other areas of the law, people will not give up simply because they do not have public funding. There are other areas of the law such as immigration and so on where, no doubt, swathes of work may be cut out because there is no public funding. But, in family work, there is no doubt at all that you are right and there will not be a diminution; there will be an increase, if anything, in the people who litigate.
Mr Justice Ryder: I don’t think it is necessarily appreciated that at this first appointment in private law about 70% of all cases-it varies across the country-are conciliated by the district judge or, in those areas where the family proceedings court does this, by the legal adviser with or without the magistrates. That is an extraordinary percentage of cases that don’t fight in a traditional way through the courts. If we are then going to remove legal aid from those cases that need some legal assistance, the inevitable effect is going to be significant upon the judges.
We have noticed, in the five years since Professor Moorhead’s research that was quoted to you, quite a significant change in the composition of litigants in person. They are now more obsessive. They are now more obdurate-I make no bones about it-and there are far more of them than there used to be. That is in the High Court, the county court and indeed in the family proceedings courts.
Q184 Mrs Grant: In addition to those categories, does it worry you as judges that there are going to be a very large number of people coming before you who just cannot manage? They cannot navigate their way through the court system. Many lawyers find it difficult. Many of these people are emotionally connected to the case. They may have some learning difficulties or mental health problems. What are you going to do with them?
Mrs Justice Pauffley: It is a massive problem.
Q185 Mrs Grant: Where are you going to send them?
Mrs Justice Pauffley: We all have our routes of possible assistance. We send them off to the Bar pro bono unit, for instance. If a stepfather is accused by his adolescent step-children of having sexually abused them very seriously and over a number of years, you cannot have a man in that category cross-examining those young witnesses himself. It would be a denial of justice, and it would be emotionally the most upsetting of spectacles for any court to encounter. So you send them off to the Bar pro bono unit. You ring up chambers with whom you have perhaps a slight connection and you say, "Could you possibly send somebody along to represent this poor unfortunate?" But it is calling in favours, which is really outrageous in a civilised society.
Q186 Chair: The Minister with responsibility for legal aid told us that cases with litigants in person are quicker than those with represented parties by up to 50%. I suspect I know what your answer will be. I am just wondering whether you have any comment to make on that.
Sir Nicholas Wall: I think he ought to come and sit with one of my colleagues or myself for a day with a litigant in person and then he might not give that evidence.
Chair: He may well accept that invitation in due course.
Mr Justice Ryder: I cannot think of a single case where that would be correct in the time that I have been sitting. I do note, in fairness to the Minister, that this research was in 2005 and related to the period before then. Case management changes have been the most significant in the five years that have followed. But even if one reads that research carefully-and I would suggest it is read carefully-what in fact the Professor said was that there are more orders, more contested hearings and more activity, as in "You need more time for the unrepresented party in litigant in person cases." That is a rather selective quote, if I may so with respect to the Minister, when one looks at the research overall.
Q187 Chair: The Lord Chancellor told the Committee that "I think in some of the family courts it is most helpful for the judge to listen to the actual parents." Could more litigants in person be helpful in some cases? How can appropriate cases be identified?
Mrs Justice Pauffley: We do listen to parents; that is our role. Sometimes they are represented and they are focused by their representative on to particular issues. If they are unrepresented, then it is open season. Therefore, a great deal of time can be wasted. I can’t quite understand how the Lord Chancellor believed that we weren’t listening to parents if they were represented, because we most certainly do.
Q188 Chair: I merely quoted a view expressed by the Lord Chancellor. I am very concerned about the response I have heard from you regarding the sexual abuse allegation type case-the Rule 9.5 type case. This is a major issue, is it not?
Mrs Justice Pauffley: It is.
Q189 Chair: From my own experience it is not unusual for these allegations to be made in the heat of battle, as it were.
Mrs Justice Pauffley: Particularly in private law proceedings. In public law proceedings it would be different, because as matters stand at the moment, that parent would be entitled to legal aid as of right, but in private law, no.
Sir Nicholas Wall: It is a real difficulty because in the criminal sphere there is a statutory intervention. It is not possible for the situation which Mrs Justice Pauffley indicates to take place. A potential abuser cannot cross-examine a victim. In family law there is no such provision. It is enormously difficult.
Mrs Justice Pauffley: The only other way I have seen it managed is for the guardian or the child’s representative to shoulder the burden of cross-examining the young person with a list of questions provided by the accused, but that is less than satisfactory.
Mr Justice Ryder: There is no provision or funding for special advocates to be appointed in the family arena. They are very, very rare indeed and wholly in the discretion of the Treasury Solicitor.
Q190 Claire Perry: Carrying on a little bit with this theme of the balance between confidentiality and openness, and with the changes in the proceedings as a result of the Children, Schools and Families Act last year-there was an increase in media access-what are the flaws, as you see it, in those proposals which have just been implemented? If we need to do better, how can we balance this desire for openness and accountability with the concept of child protection and confidentiality?
Sir Nicholas Wall: There are several answers to this. The first is that the Act is not popular, I am afraid, either with the press, the judiciary or indeed the general public-the litigant. I myself don’t think that legislation is the way to deal with this particular issue. If the Act is implemented, we will spend a huge amount of time, and incidentally a lot of money, arguing about what can and cannot be reported. In my view, that is not a profitable use of judicial time or litigants’ time. It will delay cases very substantially. It is an issue which we have to address. At the moment there are discussions going on which I have instituted with the press to try, first of all, to establish where we are and what the law currently is-because the law is very complex at the moment-and then to move on to try and see whether we can’t reform. Those discussions at the moment are at a confidential stage and I can’t go any further than I have gone already.
The second point I want to make is that the press themselves respect confidentiality, particularly in relation to children, and have no desire to publish. What tends to happen, and this is a matter which we do have to address-and Mrs Justice Pauffley, I know, has suffered from this in particular-is that one side will give a tendentious view of a case to the press. The press will then publish that case as though it was the gospel truth, and the judgment which may be given will not be corrected in the press because by then the story will be old. Indeed, one of the defects of the Bill is that there is nothing to stop a journalist on day one listening to a case being opened and not reporting anything else other than what the one side has said on day one. What we are aiming to achieve is fair, balanced reporting.
There is a real difficulty. I go up and down the country and I see hard-working, dedicated, professional people doing their best, often with inadequate resources, to represent children. Yet in the press I read that there is a system whereby judges rubber-stamp care orders and children are removed by wicked local authorities from right-thinking members of society. That is a credibility gap which we are going to have to address; there is no doubt about that. The question is how best we do it. My own view is that legislation is not the way to do it. What needs to be done is protocol.
Q191 Claire Perry: Would anybody else like to comment?
Mrs Justice Pauffley: I agree with that entirely. The worst thing from our perspective is that the family justice system is painted as secret, wicked, reliant on Cafcass officers who are unaccountable, reliant on experts who are likewise unaccountable, and judges simply do what these professionals tell them to do and children are wrongly lost to the care system. There is nothing I would want more than to redress that shocking imbalance of public perception.
Anyone who comes to sit in a family court would very quickly realise that every judge there is straining beyond everything else to ensure that children are only ever removed from their natural families where there is no other course available and where their welfare needs strongly point towards removal. We are not intent, as we are painted, on endeavouring to fulfil some sort of crazy statistical system for taking children into care needlessly. The reverse is the case. We struggle wherever possible to reunite children with their natural families because we all recognise that the best place for a child is with his or her natural parents.
Q192 Claire Perry: Both Sir Nicholas and Mrs Justice Pauffley have basically said that there is not public confidence in the current system. If we don’t rely on legislation-if we are relying on protocol-how could that look? How could we try and restore public confidence that the courts are in fact doing as you say?
Mrs Justice Pauffley: I believe that by some means or another we must enable there to be fair, accurate and balanced reporting of what we do. Until we have achieved that, there will continue to be a stream of terrible stories of perceived injustice, which, if you look at the court file, you would rapidly realise were nothing of the kind, because there was another side to a very interesting human story, and there were very good reasons why a particular course was taken. By some means or another we have to have some opening.
Sir Nicholas Wall: One of the difficulties is that we sit in private, and we sit in private at the behest of Parliament in order to protect the confidentiality of children. Of course, that is very easily translated in the minds of the press to secret justice. I am doing my best to encourage judges, whenever possible, to put their judgments into the public domain, suitably anonymised. If you look at the website BAILII, you will find a number of High Court judgments in the public domain. There has recently been a pilot to try and do the same for the county court because it is the circuit bench who, up and down the country, are doing the bulk of this work. They are the workhorses of the family justice system. I would very much like to see many more judgments in the public domain suitably anonymised so that children are protected and the public would have a perception of what we are doing. There is a huge credibility gap and we are addressing it.
Mr Justice Ryder: I am an exponent of having an open family justice system and perhaps would go further than some of my colleagues, but you are not going to have confidence without the degree of openness that a Committee like this would understand, or people in the media generally will obtain through local government and other agency deliberations.
The scheme in the 2010 Act is far too complicated and does not, on its face, seem to reflect the essential confidentiality necessary for the child. Having been a child advocate for 20-plus years before I got on the Bench, I can see the force of the quite strong complaint that there has been from that advocacy lobby about the effect upon the individual child. What is much more important is the reporting of the overall process but maintaining the anonymity of the child and sufficient of the circumstances necessary to enable that child to carry on living without the public perception and the press at the front door.
Q193 Chair: Before I ask Mrs Grant to put a question, can I put my personal hobby-horse to you? In the early days when I was elected, full of vigour and youth-all sadly gone by now-I amended the Family Law Act 1996 to provide for separate representation of children in special cases when it was necessary, having a view of article 43 of the Convention on the Rights of the Child, and so on. I am very disappointed that, to date, no regulations have been placed before Parliament and that has not been activated since 1996. Do any of you have a view on that at all?
Sir Nicholas Wall: In public law cases, of course, the child is separately represented. In private law cases, generally speaking, representation is not deemed to be necessary except in cases of difficulty, and there are guidelines. I am very strongly of the view that, in a difficult case, it is important that the child’s voice should be heard through separate representation. The difficulty again is funding. I do not know whether my colleagues have had the same experience, but I have had the very frustrating experience at first instance when I have ordered separate representation and been told by the Legal Services Commission that there is not the funding to produce it.
Mr Justice Ryder: I agree; this is a funding issue. Any civilised process would want, were there funding to be available, to provide for representation of children within the private law arena as much as one would want it in the public law arena. Like a number of other facets of that Act that weren’t brought into being, it is a sadness that we do not have the benefit of that. We do redress it on a regular basis, for example, by getting the specialist unit such as the High Court unit of Cafcass in London to see children at the beginning and for them to get a very, very accurate picture, usually in the form of a wishes and feelings report, as to what the child feels about the application that is being made, not least because adversarial parents regularly, perhaps frequently, fail to see the child’s perspective in the argument. Having that at the beginning, which you can get through the first appointment system that we have under the private law programme, means that you can often bring up the adversarial parties quite short when they realise the impact they are having on the child, even about a minor thing. They often forget that football is on a Saturday afternoon. They often forget that the dancing lesson is on a Wednesday night or that there is homework to be done. Their own issues completely overwhelm the child, and to hear what the child says can sometimes be very cathartic indeed. In fact, there are some judges among us who quite often listen to what children say directly in relation to wishes and feelings.
Q194 Mrs Grant: Domestic violence is prevalent in the family courts. I wondered what action you thought might be taken to improve the process of going to court for the victim, both whilst waiting outside court where, as I am sure you know, often there are families and eyeballing and trouble, but also inside court when the victim-and we touched on it a little while ago in a slightly different context-might have to be cross-examined by a perpetrator.
Sir Nicholas Wall: I will deal with this generally first and then defer to my colleagues.
One of the problems with the family justice system is that it has been built on the adversarial common law system. Therefore, if, for example, you accuse your partner of domestic abuse, you have to prove it. That means giving evidence and being cross-examined, particularly in the criminal context. My own answer to your question has to be that there are limits to what we can do. We can have separate waiting rooms; statements; sometimes perhaps forbidding or not permitting cross-examination on sensitive areas is one result. The difficulty is that under the Government’s proposal in the Green Paper, when public funding will be available for victims of domestic violence, there is in my view-and I think this is the view of the family Bar as well-a perverse incentive for a litigant who may have been subject to domestic abuse but not necessarily to violence, first, to allege violence. Secondly, he or she will have to go to court and get an order in order to qualify for public funding. To my mind, that may either deter a number of victims or, alternatively, will provide a perverse incentive for a number of victims to make allegations which otherwise would not be made.
Mrs Justice Pauffley: In serious cases of domestic violence I would not shrink from setting up video-conferencing facilities to protect the victim from being in the same courtroom as the alleged abuser. There are other ways too, as Sir Nicholas says, such as limiting cross-examination and ensuring that the well-being of the witness is at the forefront throughout. It is a difficulty, but we are aware of it and we do what we can to protect.
Q195 Chair: Special measures, in effect, applied in crime could be applied to family, could they not?
Mrs Justice Pauffley: Exactly.
Mr Justice Ryder: I think you will find in the bigger family centres the use of vulnerable witness measures in exactly the same way you would use them in the Crown court. Though not a statutory formulation, they will be used in exactly the same way.
Mrs Justice Pauffley: So they don’t even have to come into the same building. They can come to somewhere local and give evidence over the video link.
Q196 Mrs Grant: The Domestic Violence, Crime and Victims Act made breach of a non-molestation order a criminal offence. Is the Act working? I don’t know whether you are able to answer this, but you might sense the impact on your courts. Are they prosecuting people for breach, or do you feel, perhaps, that maybe there has been too much criminalisation and too many cases being put into criminal courts, possibly at the expense of victim choice and victim protection? There are two or three issues in there, but I would be very interested to hear your comments on all of those points.
Mr Justice Ryder: I see this directly in the criminal courts. I will start from that perspective first and then come back to the victims, if I may. The criminal courts were perhaps not the most used to dealing with domestic violence cases. Unfortunately, the history, of course, is that the majority of domestic violence disputes did not find their way into a criminal charge. It has taken time for the criminal justice agencies, for the police and for the CPS to get to grips with the intention of that Act and to get the cases into the criminal courts.
The inevitable effect of using the criminal courts for enforcement purposes is another delay. First of all you have to get through the hurdle of the CPS bringing these cases and having confidence in them being successful, because the imperative is perhaps not so much protection of the victim here but making sure that the criminal justice system is operating effectively. Without being too cynical about it, what does one’s criminal justice statistics look like? You could wait nine months for a significant ABH or GBH to be tried in a criminal court under the guise of this legislation and as a direct consequence of it, whereas we were putting victims and perpetrators before the civil courts in 24 or 48 hours under the old scheme.
Although I can see the statutory rationale for criminalising, I am not so sure the end product has been as effective as people wanted it to be. I am sure in terms of protection, if you are asking a victim six to nine months on to give evidence against a perpetrator with whom she or he may have managed to re-form a relationship, for example, for the benefit of their children, let alone the usual ups and downs of domestic violence relationships, you are not likely to get a very successful criminal case in any event. I have significant hesitance about the beneficial impact of that legislation.
Mrs Justice Pauffley: I agree with that.
Claire Perry: Thank you. I will leave it there on domestic abuse.
Chair: All I need to do is to thank the three of you very much. You have been very, very helpful. We know the pressures on your time, and we have appreciated what you have said to us today. We hope to reflect many of the points that you have raised in our report ultimately to Government. Thank you very much indeed.
Examination of Witnesses
Witnesses: Dr Judith Freedman, Consortium of Expert Witnesses to the Family Courts, Judith Timms OBE, Policy Adviser, Nagalro, and Harry Fletcher, Assistant General Secretary, Napo, gave evidence.
Q197 Chair: Good morning. Would you care to introduce yourselves briefly please for the stenographer, not that you need any introduction?
Dr Freedman: I am Dr Judith Freedman. I am the convenor of the Consortium of Expert Witnesses to the Family Courts.
Judith Timms: I am Judith Timms. I am the Policy Consultant for Nagalro. That is the professional association for family court professionals.
Harry Fletcher: I am Harry Fletcher, Assistant General Secretary of Napo, which is the trade union that represents probation and Cafcass staff.
Chair: Thank you.
Q198 Claire Perry: Thank you for joining us today. I would like to ask some questions around the thorny topic of expert witnesses. The MoJ has stated in its 2010 report that there has been a substantial increase in the number of expert witnesses. Indeed, Barnardo’s told us that this increase in witnesses was one of the contributory factors to the delay in the family courts. Do you think there are too many expert witnesses in public family law cases? If it is not true, why is it perceived as such? This is very much a topic people focus on when we are looking at cost and delay in the public law system.
Dr Freedman: Perhaps I could start. Our consortium now represents 500 experienced professionals-there has been quite a considerable increase since we filed our submission with you in September-which means that we represent a significant proportion of the expert witnesses who report to the courts. We are essentially clinicians. We come from a range of medical and surgical specialists, forensic physicians, psychiatrists, adult forensic and perinatal, child and adolescent psychoanalysts, psychotherapists and psychologists. So we cover quite a lot of different questions that the court raises.
I know from reading Jonathan Ewen’s evidence to this Committee, from Barnardo’s, that he said the court should place more trust in social workers and guardians. We agree that social workers and guardians are important to the well-being of children, but I think it is important to recognise that expert witnesses are clinicians. That means that we bring to the court our knowledge and experience in vital areas that social workers and guardians are not trained to assess. For example, as medical specialists we advise the court on whether sexual or physical abuse has occurred. Similarly, the psychiatrists diagnose mental illness, personality disorders and drug and alcohol abuse. This is why an experienced childcare solicitor said to me recently, "The family courts couldn’t operate without expert witnesses."
Q199 Claire Perry: Dr Freedman, would your assertion be that there are not too many expert witnesses currently operating in the system?
Dr Freedman: Obviously I am not in a position to have an overview of numbers, but we sometimes feel that there have been too many experts appointed in one case because everyone feels that they have to have their own expert. When the court accepts the importance of a single jointly-appointed expert, in general we think that is a system that works well, provided there are not other issues that also need separate expert opinion. For example, a multi-disciplinary team might be able to cover all the issues about parenting and the needs of the children, but we may still say it would really help if there was a drug and alcohol specialist who could comment on particular questions about drug and alcohol abuse. We are certainly not in charge of how many instructions there are. We comply with the instructions that are given to us.
Q200 Claire Perry: I know you have said before, and it sounds as if you are repeating it, that there may be cases where a multi-disciplinary expert could save a lot of time. We have cases where an expert will opine on a parent’s mental state but not on their parenting skills. That must be very unhelpful, I suppose, in trying to get resolution, so there may well be a role for either joint commissioning of an expert or an expert that is working across several disciplines as a way of speeding up the process.
Dr Freedman: The parties who are instructing don’t always recognise that. I work from the perspective of having available to me a multi-disciplinary team. More often than not, I have to tell the people instructing us, "It would be more helpful if you would ask us to assess the adults and the children rather than just one or the other." We try and encourage people to do that. We are not in charge of the instructions. If the solicitors don’t ask us to do that, we can’t do it.
Q201 Chair: Ms Timms or Mr Fletcher, do you have a view on that at all?
Judith Timms: We need to think about why the expert witness evidence is necessary. We do need to look at this very complex profile of parents’ problems-43% of serious mental health problems are evidenced in the cases before the court. Dr Brophy’s review of childcare practice over 17 years has shown some very significant and consistent findings. One of the findings is the limitations of the social work evidence, for example. This is one reason why expert witness evidence is necessary. There are consistent findings that 40% of cases arrive at court without a core assessment having been carried out. Without the core assessment, the court is not in a position to have the information that it needs to make the right decisions for the child. These are very complex decisions.
While Cafcass officers and children’s guardians can be considered generally as experts in general childcare matters-bonding and attachment; parenting capacity; which parent a child is more attached to and all of those matters-when in simplistic terms you can see that a child might have been bitten, you need an expert to tell you whether that is a human bite or a dog bite. You need a radiologist to tell you whether this is accidental or non-accidental on the basis of the forensic and medical evidence. It is question of knowing early on in the process and identifying whether it is general childcare expertise that you need or specific childcare expertise. That is extremely important when we look across a range of the problems for children of physical, sexual and emotional abuse, and consistent and multiple allegations of long-standing and chronic neglect of children. We need that expert witness input to tell us what the sequelae are going to be from the experiences that this child has had. The expert witness evidence is part of a developing body of knowledge which allows us to apply the accumulated research findings in a dynamic way and take practice forward.
Harry Fletcher: I am sure the Committee will be aware that the anticipated expenditure of the family court system in the financial year that is just about to end is £1.6 billion. I recall a discussion about six months before the last general election with the Secretary of State for Justice. He was alarmed because he had discovered that expenditure on experts in the family courts had gone up, from memory, threefold in about four years. It was the largest increase in any of his budget heads. He asked me why I thought it was. The reasons are the same as the ones I would give today, which my colleagues have explained. The cases are far more complex than ever before. There are difficulties in interpreting individuals’ behaviour and in ascertaining what the causes of neglect are. Whether we are police, probation or working in the family courts, we all now live with the risk-averse culture and the need to get it right at all costs. Ultimately, I think the question we have to decide is what comes first: is it cost or is it the best interests and welfare of children?
Q202 Claire Perry: But is there not a danger that expert evidence is crowding out common sense? Ultimately, these are decisions that judges would have made in the absence of quite the same level of expert witnesses in the past, and you would have relied on social work reports and on solicitors’ evidence. I take your point, Mr Fletcher, about this risk-averse culture. For goodness sake, I hate to think what an expert witness would make of me and my family. You can imagine them looking for medical conditions that perhaps don’t necessarily exist or indeed are just a normal part of human behaviour. I worry that this constant risk aversion-this inability to stand up, make a decision and apply common sense-is perhaps leading to this very dramatic increase. Yes, we have had Baby P, but has there really been such an incredible complexity in our family law cases in the last five years? I personally don’t think so.
Harry Fletcher: I think the cases are more complex, but the fact that the increase in expenditure is so great over such a short period means there are questions there that need answering. I had sympathy with the former Secretary of State when he had those discussions but struggled to see, because of the risk-averse culture, how we could reduce that expenditure only at the margins. You are right: I was an independent social worker a long time ago in care proceedings and often I was the only person who appeared apart from the local authority and people acting for the parents in court. Now I am sure that if I went into one of those proceedings there would be four or five people.
Judith Timms: I think there are some issues around social worker training and the confidence of social workers and children’s guardians, to feel competent in that general childcare expertise. We probably need to look at the beginning of the process as well in terms of what you would refer to as common-sense decisions or common-sense conclusions. It is a body of knowledge which social workers who are being precipitated on to the front line are lacking in confidence about approaching. You do need those years of experience; you do need to have that confidence.
Sometimes as a guardian, in my practice, I’ve said in the past, "We don’t need an expert in this case, because actually I can see what is needed, I feel I have the experience and I can put that across to the court." It is something to do with confidence in the role. I do think that social workers are sometimes sold short on how well equipped they are to go into court and stand up under cross-examination. I think those are some of the issues that the Munro review of child protection social work is addressing.
Q203 Claire Perry: Of course, with the proposed funding changes, we will be removing legal aid in private family law cases where there is no domestic abuse. So we will not have recourse to the public purse to pay for experts in those cases. What do you think will be the impact on case numbers, and also the actual impact on children, whom ultimately we are here to try and help?
Judith Timms: If I can address the impact on children first of all, we are extremely concerned about the impact of these measures. What is happening is that, apart from the domestic violence cases, the other cases are being removed from funding scope. The definition of domestic violence is being taken very narrowly in cases where there have been criminal orders-non-molestation or occupation orders. That excludes an awful lot of grey area. The recent Court of Appeal case has defined domestic violence in the much broader terms of verbal abuse, bullying and controlling behaviour. Over the years, the split between public and private law cases has not been helpful to children, because the impact of domestic violence on children in private law has been largely overlooked and also the fact that they may also be not just in private law conflicts but also children in need or at risk in terms of the Children Act.
Our key concern is that children are not represented within this process. In the earlier session you touched on the fact that there is no separate representation for children, that section 64 of the Family Law Act 1996 was not implemented, and also section 122 of the Adoption and Children Act 2002, which sought to achieve the same end, which was separate representation for children. In private law proceedings, Parliament has twice decided that children need to be represented more often than they are. In fact, the proportion of children who are separately represented now is falling, according to the Cafcass latest statistics and indeed NYAS statistics-National Youth Advocacy Service-both of whom represent a small number of children under the provisions of Rule 9.5 of the Family Proceedings Act. In 2008, Cafcass recorded that there were approximately 1,800 cases in which children were separately represented in private law proceedings. In the last annual report for last year it has gone down to 998. In fact, the resources are being squeezed. It is children, who are, I would submit, our main concern in family breakdown, who are receiving a smaller and smaller share of the cake.
Dr Freedman: Can I add to that? Those of us who have prepared expert reports in private law cases know that these are generally the most complex cases and that the concerns about the state of the children in these families are of grave concern to us. This includes not only emotional abuse, which is a concern throughout the serious private law cases, but also allegations that are made throughout these cases of physical and sexual abuse, which may be founded or unfounded and in both ways are damaging to the children.
Harry Fletcher: To add briefly, what colleagues are already telling me in Cafcass is that a consequence of an increase in applications in person is that proceedings are taking two to three times longer. That is because of delays, adjournments and judges having to intervene and explain to the parties who are not represented what is going on. I don’t know but it may well be that taking away legal aid is going to cost more.
Q204 Chair: Barbara Esam of the NSPCC told this Committee that "there aren’t enough experts around of sufficient quality. That means that the ones that are there are overworked and not available, which also causes delay." Do you agree? Are there particular disciplines where the shortage, or the perceived shortage, causes most difficulties? What are the reasons for this?
Dr Freedman: I have to say that there is a crisis now in expert witness availability. This is partly due to the increase in the number of proceedings and the need to move forward as soon as possible, but it is also due to the critical issues about funding, which are already deterring some of the most experienced experts from continuing to work in this field. I hope we will have time to go into that later, but people with years of experience do not want to be devalued. That is really what is happening to them now. I think there are potentially a sufficient number of experts to report to the courts, particularly if issues around timing and how instructions proceed can be addressed. I will talk about that in just a moment. But if experts are being pushed out of the field at the same time, the number is going to become even more critical. I said I would talk about-
Q205 Chair: Before you do, when you say experts are "being pushed out of the field", is that really a resource issue? In other words, you say they are undervalued, but are they underpaid as well relative to what they think they are worth? That is a rather crude way of putting it.
Dr Freedman: I can say to the Committee that, since I made our submission in September, the funding issues have become so critical that quite senior experts are telling me that they are closing down their family court work.
Chair: I am sorry, I interrupted you. Carry on.
Dr Freedman: I can go into that now or we can come on to funding later.
Chair: Yes; please do.
Dr Freedman: Since the Green Paper was released, the Legal Services Commission embarked on a cutting back of fees without ever telling anyone that I know of what their guidelines are. Expert witnesses find themselves in a dreadful bargaining, without even knowing what the guidelines or benchmarks are. We are unable to achieve prior authority for our work, which used to be the way the LSC operated, so that experts are now routinely told, "Get on with the work and the LSC will decide after the fact how much you can be paid." It is like calling a plumber in and saying outside, after the job, if I am going to pay you, or I am going to pay you just half of what you have told me you will be requesting.
Q206 Mrs Grant: Dr Freedman, just on a clarification point, are you saying that the work is done, you can’t get prior authority, but the expert is being instructed to do it, rightly, by the solicitor? The bill is then submitted. The file is costed and it comes back reduced. Are we talking a small reduction or in some cases quite a substantial reduction?
Dr Freedman: We are routinely talking half the cost.
Q207 Mrs Grant: So up to 50%?
Dr Freedman: Yes, and the reports come back from the LSC saying the work was excessive. "The work that you undertook was excessive", despite the fact that a detailed work proposal has been sent to the instructing solicitor in advance. Often the court has seen the detailed work proposal and the judge has agreed it. The LSC then says, "We don’t care what the judge said." We have had written comments from the LSC saying, "We don’t care what the judge said. It was excessive and we are not paying more than half."
Q208 Chair: Prior to the LSC of course, under the old Legal Aid Board system, if you engaged a witness you would ask the witness for a statement of his or her fees and the likely number of hours that he or she would spend, and then there would be prior approval.
Dr Freedman: That is no longer the case. Even though the Green Paper states that the LSC is giving prior authority, in fact the experience of all the expert witnesses, particularly in the last year, is that there is no prior authority. We ask for it. Solicitors come back and either say to us, "We asked and the LSC refused", or they say, "There is no point in us even asking because the last 10 times we asked the LSC refused." So there is no prior authority. Experts have handled this in different ways. Some have withdrawn from the work. Some have said, "I will do my best" and hope for the best. Some have asked for a written agreement that solicitors will support them in an appeal, if necessary. Expert witnesses are finding that they are spending increasing amounts of time appealing LSC decisions about cases that are already finished. At the same time the LSC has started a process, which they announced in their business plan, of claw-back, where they have been looking at old bills and asking experts sometimes to return money on cases that were paid for four years ago. Our legal advice is that this is probably illegal, but that doesn’t stop the LSC from doing it and it doesn’t stop us from having to write detailed accounts to justify the work that we have done. It has become a nightmare scenario, and I think expert witness work is at a crisis right now.
Harry Fletcher: Just to add to what Judith said, the context is that care applications in January of this year were the highest ever for a January. Care applications in February of this year-so as of yesterday-were the highest ever for a February. In 10 of the last 12 months, care applications were a record for those 10 months, ever. We all know that following Baby Peter, which I think was November 2008, there was a surge in the next 18 months of 30% in care applications, and it seems they are still going up at the rate of 3% to 4% per month. Care cases are taking longer than ever to reach a conclusion. Cafcass tell me that the average is now 55 weeks, and divorce and separation cases are several weeks longer than that. I agree entirely with what Judith is saying about a crisis.
Dr Freedman: Can I just add on to what Harry has just said? I have done a whip round of my members before coming to this meeting to ask, "What is happening to your workload?" People are routinely reporting to me, probably more in the southern half of the country than the northern half, but to some extent everywhere, that they are getting more inquiries than ever. There are more requests for, "Will you consider doing a piece of work?" but fewer instructions. So just at a time when the court needs more expert witness input, in fact most expert witnesses are not working to capacity. That is not because we want to do it that way and it is not because we want to cause delays. In fact, many of us are finding that we agree to do a piece of work, we give a date when we can complete it by and we haven’t even received the letter of instruction by the time the date has passed.
Judith Timms: May I say that there is a particular problem about the availability of independent social work expert witness reports? Basically, independent social workers are effectively being locked out of the system. This is a combination of factors and is the result of a funding disconnect between the DfE, the Legal Services Commission and the MoJ. Independent social workers have been excluded from the review of all other expert witness fees which the MoJ has carried out. The fees are about to be capped at the Cafcass rates of £30 outside London and £33 inside London.
Our view is that there are gradations of expertise within every profession and that you have to look at a situation where you have GPs, who are all doctors but who refer to consultants, and there are independent expert social work witnesses who have a considerable body of expertise and experience. Roughly half of our membership act as independent social workers. I have done a bit of research amongst colleagues and many of them have in excess of 25 years’ child protection experience. That is being compared with a situation within Cafcass where Cafcass is now recruiting people who have only two years’ post-qualifying experience, so there is a big gap.
The Legal Services Commission are saying that they have excluded independent social work expert witness reports from the scope of the expert witness review because that has already been decided by the Cafcass rate, but that is something which is becoming more and more contentious. Now the expert witness review has reported, our plea has been, "Please include us in that general review", because otherwise we are locked out of the system. We are aware that the Legal Services Commission is most reluctant to pay independent social work expert witnesses, but at £30 an hour our rates look fairly competitive in comparison with some other clinical expert witnesses. Our experience is that we can save an awful lot of time and save the costs of more complex expert witness cases on the basis of our general childcare experience.
We have made submissions to the Legal Services Commission on this. Even before the implementation of this new fee, which is now scheduled for May, fees are being cut. I would echo what Dr Freedman has said. Also, what the Legal Services Commission is doing is agreeing a rate and then the fees are being cut retrospectively. People are carrying out work and then being told, "Actually that is your fee, fine, but now we are cutting it by this percentage in retrospect."
We have some highly committed people and we estimate there are between 1,500 and 2,000 really well qualified, experienced child protection expert witnesses who are one of the major cogwheels in keeping those court proceedings turning. They are being excluded from the system. They cannot work at that sort of rate. Basically, in the expert witness review there is nobody who has a lower rate than independent social work witnesses. The only comparable rate is process servers. Vets, for example, are £90 an hour. Drain experts are something like £60 an hour. The message to independent social workers as expert witnesses is, "We don’t want you. We don’t value your contribution."
There is absolutely no data on their contribution. Dr Brophy is currently looking at a possible research project. The MoJ and the DfE have both admitted they have no data on the number of independent social workers, their contribution to the proceedings or their role in facilitating the completion of proceedings. There is no data and so all of these decisions are being made in an entirely unsupported way. It has got to the stage now where, if this fee-capping is implemented, then many people have already been driven away from the work and many more will go. That will be to the detriment of the children in the proceedings.
Dr Freedman: To put into further context the data exercise that you were saying the independent social workers were left out of, it was a very poor data exercise. I sat on the Ministry of Justice Committee that was reviewing the work. We told that Committee over and over again that the data was insufficient and did not properly reflect the work of expert witnesses. So not only were you left out, but you were left out of a very poor data exercise. The decisions are being made across the board without sufficient data.
Q209 Chair: I hear what you say about the crisis. I have one other question I would like to ask you. Do you believe that there is sufficient regulation of expert witnesses? If not, should something else be done? I am mindful of the evidence you have given, by the way, but I think I should ask you that question anyway.
Dr Freedman: It is hard to know what makes people good at their work. For the most part the regulation has taken place within the system, in that good people are asked back. We all have our professional regulation that we have to comply with. For example, I am a Fellow of the Royal College of Psychiatrists. Does that make me a good expert witness? Maybe it does; maybe it doesn’t. I happen to be somebody who is experienced at doing expert witness work. I have colleagues who are also fellows, who wouldn’t touch it at all because they feel it is not something that they would be good at doing.
There would be an argument to be made down the road for expert witnesses to show that they have undertaken training. It is very hard for us to keep up with the new pieces of legislation that come in about the family courts or for my colleagues who work in the criminal courts. We are really the people who are unrepresented in the court proceedings. We are the only people in the room who don’t have a legal representative. For us to be recognised and to say, "Here, there are training programmes that the court system wants us to undertake," I think most experts would welcome that.
Chair: Ms Grant has some questions to you about Cafcass.
Q210 Mrs Grant: Cafcass has faced some fairly considerable criticism. Do you think Cafcass has improved? That is a question to all of you.
Harry Fletcher: I do believe that Cafcass’s leadership understand what its problems are, but the difficulty I and my members have is their solutions. Over the last five or six years we have seen a very significant increase in what we will call senior manager grades. The ratio in terms of money is about £40 million spent on the front line and £20 million on managers. We have seen a very significant increase in quality inspections and Ofsted inspections of staff, which takes a lot of time to prepare for. We have seen a significant increase in the monitoring of staff. Also, there have been problems lasting until now in terms of allocation of cases. I am sure Cafcass will say that very few cases are unallocated, but if you were to talk to a sample of staff on the ground they would say, no, that is not true and that is disguising reality. In the good old days, cases would be allocated following discussions in teams or individually. Increasingly now, it is done without any kind of discussion and allocated by e-mail. Often the managers, who are not practitioners, will hold cases waiting for a time when they can be distributed. I do believe that Anthony Douglas and his team know what the problems are.
Q211 Mrs Grant: Can I be blunt, Mr Fletcher? I am sorry to jump in there. Are you saying that it might be the case that there are perhaps too many managers and not enough front-line workers?
Harry Fletcher: I think an observation I would have across the board in the public sector, including Cafcass, over the last decade or so, is yes, there was a very significant increase in the employment of senior managers, middle managers and regional managers. The number of people on the front line stayed the same, so therefore the ratio changed.
Judith Timms: I think Cafcass has faced the most enormous pressures. What practitioners have been doing over the last few years has been beyond praise because they have been struggling with the most enormous number of cases, all extremely difficult. Having worked as a guardian myself for many years, I know what it is like to worry about so many of those cases and the overwhelming nature of the stress that you encounter. In that situation you need to feel that you are in a supportive organisational structure.
Our problem, and I agree with Harry, is the solutions. The operational model which is being driven through is unfortunately misguided in some elements. The emphasis has been on a process-driven, line-managed system which is very similar to that found within local authorities and which is now increasingly being called into question. The strength of the Cafcass system in public law is the tandem model of continuity of oversight for a particular child during the life of those proceedings. It is the continuity and the vigilance of that oversight which provides the safeguard for the child.
If you replace that, which is our fear, with a proportionate model in which children’s guardians may opt in and out at various points and there is front-loading in the early part of the case, and then to all intents and purposes as far as the child is concerned the child is not then seen until later on in the proceedings, that does not give that particular child in the centre of the proceedings that sense of somebody being with them through those proceedings, observing what is going on and seeing what is going on. We are concerned that there are now three categories of allocation: unallocated, duty allocated and substantively allocated.
Q212 Mrs Grant: If I could just pick you up on the point you made just before you went on to allocation, which was following the child through, we have received written evidence to this Committee to the effect that, in order to help decrease some of the backlogs, Cafcass officers were not meeting children. They were doing interviews over the phone and were not visiting homes. What is your view on that point? Do you agree with that? Is that happening?
Judith Timms: I think it is happening in some cases, particularly in the duty allocated category. The risk assessment of the child’s situation may be an arm’s length process. Nagalro are extremely concerned about arm’s length risk assessment. We would like to see key performance indicators which indicate when and where the child was last seen. In the event of a tragedy and a serious case review, the first question which would be asked is, "Who saw the child last and when was that child seen?" Unfortunately, my understanding is that the system of data collection and the key performance indicators don’t tell us that at the moment. They don’t give us the reassurance of when and at what stage the child was seen. If you have a process-driven system-
Q213 Mrs Grant: It is fundamental, isn’t it?
Judith Timms: It is fundamental. It is absolutely fundamental and as a guardian one’s first preoccupation is to say, "Where is the child? Right, let’s get over there as soon as we can," and see the child for yourself. There is nothing that can replace that. That is our worry about this process-driven system of KPIs. In fact, the report which was commissioned by the DfE from PA Consulting to look at Cafcass and its operation drew attention to the fact that they were worried about the use of allocation as a key performance indicator because it may give you a false sense of security in terms of the fact that you have allocated a case. That implies that something is being done. It implies responsibility and it shifts the burden of responsibility on to the hard-pressed practitioner, but it doesn’t necessarily mean in that duty allocated category that the local authority files may have been read in every case or that the child has been seen at that stage. The issue now is not so much about numbers but the quality of the service that is being provided. We need to drill down into what that proportionate model actually means.
Dr Freedman: Just to connect to the Committee’s questions before about representation of children, five years ago when I spoke to a child, the child would tell me about concerns and tell me about the discussions that he or she had had with the guardian. That no longer happens. Now I will ask children, if they haven’t mentioned it, "Have you discussed this with your guardian?" More often than not they will ask me, "Who is that?" If I name the guardian, if we are lucky enough to have a guardian by then in a case, they will say to me, "I think maybe I saw them once", or, "I haven’t ever seen them." For many children, the guardian is no longer a person in their minds who is looking after their needs, and I think that is critical.
Q214 Mrs Grant: Still on this matter, what is a manageable caseload in your opinion? I have seen figures of 12, 25 and 35. Obviously there are different experiences, but generally what is your view?
Harry Fletcher: I did discuss with Anthony Douglas this week the comment he is alleged to have made about a benchmark of 35 per practitioner. He said, no, no, he has been misinterpreted. What he meant was that, if the workload continues to increase at the rate at which it is happening now, then it will not be long before 35 is the norm. You are absolutely right that, in 2005-2006, for care cases it would have been 12 to 15, and for separation and divorces slightly more, maybe 15 to 18. My understanding now is that the average mixed caseload would be around 20 to 25 and rising.
I agree absolutely with Judith and Judith. If the number of cases continues to rise, and those cases are as complex as ever or more complex than before, and assuming the number of days in a week stays the same at seven, then the impact on staff is bound to be sickness, stress levels, people leaving and inevitably corners being cut. Staff already tell me that they regularly work most evenings and some are forced to do paperwork at the weekend. It is a situation that cannot continue.
Q215 Mrs Grant: What is manageable? What is reasonable?
Harry Fletcher: When we had a workload agreement with Cafcass, it was, as I said, around 12 to 15 for care applications and slightly more for divorce and separation. We now have private and public mixed. I would have thought, not wanting to be a hostage to fortune, that it cannot really be more than 20.
Q216 Mrs Grant: I am dealing with the next question too, which is headed "Future of Cafcass". Cafcass has been criticised as an organisation that is not fit for purpose. This came out of a report on 11 November from the PAC. What is your view? Has it changed? In some respects we have covered some of that, but I just wondered what your reaction to that is. Are there any further matters that you would like to raise?
Harry Fletcher: I would just add that I broadly support the recommendations that were made in the Public Accounts Committee report, although obviously I don’t accept that the staff are not fit for purpose. I have met with the Chair of that particular Committee, and through the family courts trade union group, of which Napo and Nagalro are members, we will be working with the Chair monitoring the implementation of those recommendations over the next 12 months. I have also reached an agreement with Anthony Douglas that we will meet him every three months to, in a sense, try and hold Cafcass to account on the changes that they are making in response to those recommendations. I think it is a question I would like to answer again in 12 months.
Q217 Mrs Grant: I would also like to ask, do you think there has been too much change?
Harry Fletcher: It is very simply again what I said earlier. What characterises Cafcass and Probation over the last decade-the two areas for which I am responsible-is constant reorganisation and partly, as a consequence, increasing layers of bureaucracy to try and monitor those changes.
Judith Timms: May I add to that and say that it is very concerning? The base of the concern is that the proportionate model is being embedded now. What the President’s latest agreement of 1 October and the previous Interim Guidance both have in common is that they were designed to be temporary. We all agree that it is not the service one would like to see and it is a "minimum safe standard", so how do we roll back from that proportionate model and what are the plans for that? As Harry has said, and I agree, this is not a sustainable situation. What we have to look at now is almost to separate out the interests of Cafcass the organisation from the interests of the service.
You will be aware of the coming together in an Interdisciplinary Alliance for Children of 22 different organisations who have expressed concern about the model that was being espoused by Cafcass. What is very rewarding about the discussions with interdisciplinary colleagues is that there is a very high degree of consensus about the need to maintain the integrity of the statutory framework for children; that actually there is not much wrong with the legislative framework. The Children Act is good legislation. What we need to do is to implement it better and we need an organisational structure which facilitates that rather than inhibits it. These are very, very difficult questions. The Family Justice Review is looking at them at the moment. The Interdisciplinary Alliance for Children is putting forward some proposals for an alternative model, which would make the best use of the available resources and which we hope would give us increased capacity.
Dr Freedman: The problems in stepping for guardians obviously have lots of knock-on effects, but one of them is in the ability of expert witnesses to work. We have always felt that we worked very closely together with guardians. The fact that a guardian was in position, was looking carefully at the instructions that were given to us, was coming to meet with us at the beginning in professionals’ meetings shaped the work that we did. Now it is not uncommon that a guardian is appointed after we have already begun our work. The guardian will call me up and say, "I think you’ve been given the wrong instructions." It is another source of delay and lack of focus in the work that we are able to do.
Q218 Claire Perry: I think we have touched on the issue of social workers before, who clearly could be even more of a resource in the current system. In earlier evidence there was agreement that perhaps the courts don’t trust the judgment of social workers as much as they could do. Would you all concur with that? If so, is that an issue of training or is it simply that we have created something where we are more reliant on experts than we are on social workers?
Judith Timms: I think it is an issue to do with training and confidence. If we had a professional management model-the sort of model that Eileen Munro is looking at-which facilitates the proper exercise of professional discretion within a supported, professionally supervised structure, then you would have a situation where you have a pool of people who are growing in confidence and reinforcing each other. That will not never obviate the need for the sort of clinical expertise that we have heard about today, but there is a crisis of confidence not just amongst social workers themselves but amongst the public as well. The public do need to value social work because over the last decade, and in fact before that, we have been a very devalued profession. There are some very positive steps now which are being made towards recovering that professional territory.
Dr Freedman: I would echo what Judith has said. My experience in court is that courts listen very carefully when a good, consistent social worker files reports. We usually find ourselves in the same general area of that social worker and I can hear that the judge is as well. The problem is that the majority of the cases that I am involved in don’t go through with just one social worker. Families complain about this. Families come to talk to us and say, "We’re on our fifth social worker. How are we supposed to have any confidence in them?" The structure is really working against social workers. We have to be honest that there are social workers who are not well trained and who are not very good at doing their jobs. They are really in distinction to the very good, consistent social workers. It used to be the case that you could reckon that if you were working with a particular local authority you would have good social workers; another local authority, maybe next door, wouldn’t. It is now pandemic in my experience.
Q219 Chair: There is a demoralising effect, because when anything ever goes wrong the press want to blame social workers each and every time. When they get it right we never hear a thing about it, do we, to be fair?
Claire Perry: Mr Fletcher, would you like to comment?
Harry Fletcher: Yes. As far as Cafcass is concerned, the comments that I have received from family court judges, from the creation of Cafcass onwards, have generally been fairly positive about the role that practitioners play in courts. I certainly agree that they have been more problematic since the surge in casework post-November 2008.
In terms of local authority social workers, I could sit here all night talking about the image of social work. I have given evidence to Munro and to Moira Gibb’s review of social work. One thing I would say is that in the case of Baby P there wasn’t any organisation that was able to contextualise what was going on in Haringey on the ground at that time, which is a role I have in respect of when the press come to blame Probation for something going wrong. That was the substance of the evidence that I gave to Munro in the social work review. There needs to be a body to try and redress the balance. Hopefully, the social work college, if it can be independent of Government, might fulfil that role.
Chair: On behalf of the Committee can I thank you, Dr Freedman, Ms Timms and Mr Fletcher, for giving us your time and for the evidence that you have given? We very much appreciate the fact that we have had a few insights today which undoubtedly will be reflected in the report when we eventually report to Government. We are very grateful to you. Thank you very much indeed.
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