Rt Hon Dame Elizabeth Butler-Sloss DBE, President, High Court, Family Division, Rt Hon Lord Justice Wall and Hon Mr Justice Munby, examined.

His Honour Judge Meston QC, District Judge Michael Walker and District Judge Nicholas Crichton, examined.

9 NOVEMBER 2004

RT HON DAME ELIZABETH BUTLER-SLOSS DBE, RT HON LORD JUSTICE WALL AND HON MR JUSTICE MUNBY

  Chairman: Good morning, Dame Elizabeth, and welcome back, in your case, and we are particularly glad to have you back. May I just first make sure that we declare any relevant interests around the table.

  Mr Clappison: I am a non-practising barrister.

  Ross Cranston: I am a barrister and recorder.

  Peter Bottomley: My wife implemented the Children Act.

  Keith Vaz: I am a non-practising barrister.

  Q1 Chairman: You will know that the scope of both our current work and of the Committee itself is focused primarily on the responsibilities of the Department of Constitutional Affairs for the courts, but also the Department's involvement as a shared policy department with the Department for Education and Skills and the Children's Minister in this area. When we were considering CAFCASS and produced a very critical report about the limitations and failings of that organisation, which we now hope is on a much better course, I think we became aware of some of the problems in the courts and the problems faced by the courts and thought we would like to look at them further. Needless to say, Members of Parliament generally become particularly aware of some of the points of greatest difficulty through their own constituency work and the people who approach them. Perhaps a helpful starting point would be to put to you that the levels of recorded dissatisfaction amongst court users are much higher in relation to family courts in disputed contact cases than they are generally, and although there are certain obvious explanations for this and it is also the case that in almost any action somebody might have cause to be dissatisfied, why is there this higher level of dissatisfaction?

  Dame Elizabeth Butler-Sloss: Well, I think there are a number of reasons. We are dealing with very fraught emotional situations with the breakdown of relationships and in the old days in divorce cases, which were fought, everybody fought out their emotional anxieties in the breakdown in the divorce. Nowadays, we notice in money cases after divorce and in children cases, a great many families continue to fight the fact that they have not resolved the conflicts of that breakdown. Of course an obvious one is that one party sees himself or herself as winning and the other is losing, which is inevitable. We do not, I think, engage yet enough in catching people before they ever get to court which I think is perhaps the most important thing. Secondly, we need to catch them at every stage in the court procedure to make them settle and we have not yet got sufficient resources or sufficient arrangements for that. I think we may be to some extent guilty of concentrating on the public law cases to the detriment of giving perhaps sufficient attention to private law. This has all really come to a head in the last perhaps four years. We have created, thanks particularly to James Munby and two other of my High Court judges, a very efficient protocol for judicial case management in public law cases. We have now begun to put forward a similar, rather simpler framework for private law cases and I think a real, genuine criticism of the system, which was highlighted of course in the case that James Munby gave which got a lot of publicity, was that there was not sufficient judicial continuity. We have not been able to enforce orders because we do not have the powers to do it. We do not always have sufficient judges for continuity and we have of course given a preference to continuity on the public law work and when you are looking at the judiciary, who are the people available to do it, they are the same people largely doing the same sort of work, but the majority of private law family work is actually being done by the district judges, two of whom of course are going to give evidence to you shortly, and it is, I think, very important that they provide the backbone of the judicial continuity. I am wondering whether either Nicholas or James might like to add to that.

  Lord Justice Wall: I think I would add to that that you must remember where we start from. The overwhelming majority of parents are able to resolve their differences before they come to court and we get the 20% or so who cannot and the disputes are often very difficult, very intractable and very high emotions are involved. People come into contact in particular with all the baggage of the relationship with them and very frequently, I am afraid, a contact application is a means of continuing the power struggle that existed within the family and the child becomes the ammunition. We are at the forefront of recognising that the court structure is not the best place to deal with that process and it is much better dealt with by mediation or by conciliation or by out-of-court settlement.

  Mr Justice Munby: I would only add this: that public perceptions are very much driven by the highly vocal views of the comparatively limited number of people in a situation where public perceptions are hindered by the fact that we sit in private and that proceedings are not open to the public, there are stringent reporting restrictions and the media has no access to the family courts. In fact the only people who do have access to the family courts, apart from the professionals, are the litigants and one of the consequences of that is that those litigants who choose in public to express themselves in a particular way are able to do so without fear of being gainsaid because there is nobody who is, as it were, able to set the picture right.

  Q2 Chairman: We would like to come back to that particular issue later, along with a couple of others that were raised, but I wonder if I could just clarify at this stage perhaps, partly arising out of something Dame Elizabeth said about catching people earlier, whether you think it would be better if mediation occurred before couples appointed solicitors?

  Dame Elizabeth Butler-Sloss: Yes, if we could catch them. The difficulty is that you do not necessarily know out there where they are, but if we could, yes. The Family Law Act of 1996, which had a considerable number of deficiencies, had extremely good proposals for requirements for mediation and information in relation to any couple who divorced. That would deal with a section of the population, but of course a very large number of people do not marry, but have children, so we have to be sure that we are dealing with the separation of partners rather than the separation of divorced people.

  Q3 Chairman: So you are saying there is a gap in the law in that there is some provision within the system for mediation to be compulsory?

  Dame Elizabeth Butler-Sloss: Well, no, you see, because that part of the Family Law Act never came into force and for a number of very practical reasons it did not come into force, much to the sorrow of many people, but what was in it in relation to mediation was good stuff. We have got of course the early resolution pilots, which I know only a little about, and I had hoped that Mrs Justice Bracewell would be here because she is on the committee, but unfortunately she has had to go to have some medical advice today which is urgent so she could not be here, but District Judge Crichton is on the steering group of that, and if that worked, then you would catch the people before they ever got to court at all, and that is an admirable scheme.

  Chairman: We shall ask you about that later.

  Q4 Mr Soley: I think this brings out an issue that I have struggled with for years actually, that it seems to me that the current adversarial system actually aggravates the problem and I wonder if, in giving your views on that, you could also tell me whether you think the fault-based divorce laws that we have mean that it is too late by the time we get to dealing with the children and the custody issue, in other words, rather touching on what you said before, the intervention needs to be at a much earlier stage and perhaps the adversarial system actually makes it more difficult to do that?

  Dame Elizabeth Butler-Sloss: Well, we are to some extent inquisitorial as judges. I think our problem is that the parties make it adversarial and whatever the system, unless we went into the French system where everybody is examined, but under any form of the English system, the parties and their lawyers come very often in entrenched positions determined to fight. The other part is of course that if the judge descends into the arena, one side or the other tends to think, and some judges do descend into the arena, that they are not getting a fair trial. I think there is a deeply held perception on this. I do not think the fault-based divorce actually matters very much. At any stage of the dispute between parents who are married and then divorced, what they are divorced for is almost irrelevant. Nowadays, there is one in about I cannot remember how many thousand cases which is actually fought. It all goes through on paper now.

  Q5 Mr Soley: But when you say that, in the legal representatives are people coming with a preset view which they have already discussed with their clients, have they not?

  Dame Elizabeth Butler-Sloss: Not in relation to divorce because in either children cases or particularly in ancillary relief, money cases, for parents or particularly the parties fighting money, conduct is irrelevant.

  Lord Justice Wall: I think the emphasis on all our work nowadays is on pre-court intervention and information is given to parents so that they can realise what is happening, how do they tell their children, how are things explained to the children and so on. If all that fails and parents have to come to court, there are inevitably cases where issues have to be decided. For example, if there is an allegation of domestic violence, that has to be resolved by the court and there is no other method of doing that. You cannot put a child into a situation of risk by ordering contact when there is an unresolved issue of domestic violence, so there are some situations where the litigation has to be adversarial. I absolutely agree with Dame Elizabeth that judges, magistrates and district judges up and down the country conduct these cases in a quasi-inquisitorial way, trying all the time to steer people away from aggravation, but, as we said, CASC, in our report, the adversarial system does tend to polarise attitudes, and that is why we are so strong on pre-court intervention and taking these cases out of the court system wherever we possibly can.

  Q6 Chairman: But, worse than that, it tends to be destructive in a situation where emotions are running fairly high and one side is trying to undermine the other.

  Lord Justice Wall: Yes, indeed, I agree with that entirely, but sometimes if it is an issue of fact which has to be resolved, our system decrees that that is not done by the judge reading the papers and making a decision, but by oral evidence and cross-examination.

  Q7 Mr Soley: I am struggling to understand your answer a little, if I may say so, Dame Elizabeth.

  Dame Elizabeth Butler-Sloss: I am sorry.

  Q8 Mr Soley: Well, what I am struggling with is that you are almost saying, I think, that the adversarial system is not a problem because it is not practised.

  Dame Elizabeth Butler-Sloss: No, no, I did not say that at all.

  Q9 Mr Soley: Well, it is perhaps what I want to get clear because I do tend to see it as the adversarial system versus a conciliation system. That might be too simplistic.

  Dame Elizabeth Butler-Sloss: Yes. I think we have to have both.

  Q10 Mr Soley: What are you actually saying?

  Dame Elizabeth Butler-Sloss: Well, the ideal in a far from ideal world of dealing with these sometimes damaged personalities, and everybody is damaged by separation in acrimonious circumstances, so we start with that, we are always dealing with people whose lives have been adversely affected by their domestic disputes and we never deal with people who do not have it because they would not be coming to court and thank goodness that 80 or 90% of people do not come to court, but if they do, if we can stop them at the earliest possible stage, the private law framework, which is now just about to be rolled out across the country and is already happening in a lot of places, is intended to stop any adversarial element at all. It is to get them to settle, to agree, to produce a consent order because an order is sometimes quite useful, everyone can see where they stand and they never come back. However, if they are fighting their corner, they will be alleging things which may be true or may be untrue. Now, domestic violence is a very hot topic and it is said by wives that husbands beat them or intimidate them, and it is said by husbands that they do not. Well, we have to, we do not have any choice but to, resolve it, which is what Nicholas is saying. If you are going to resolve it, you have got to hear both sides and decide who wins. If that is not adversarial, I do not know what is. There is no way round it. Again if sexual abuse allegations are made, we have to resolve them. Did the father attack his daughter?

  Q11 Mr Soley: So if I can just clarify, you are saying actually that the conciliation system is a preferred one, but inevitably you are pulled into the adversarial system because of the nature of cases and some of the people you are dealing with?

  Dame Elizabeth Butler-Sloss: Yes.

  Q12 Mr Soley: That is the sum of your answer and can I ask if your two colleagues agree with that?

  Mr Justice Munby: I agree with that, yes.

  Lord Justice Wall: Yes. I would just make one point before James comes in, that the new research for the Family Law Act showed that 80% of people's first port of call in a separation situation was to a solicitor. I think you are going to be hearing evidence from the solicitors in due course. My experience is that specialist solicitors nowadays do not immediately go into litigation. They are as keen as everyone else to refer their clients to conciliation or mediation or to have a mechanism which they can take their clients to which will not take them to court.

  Dame Elizabeth Butler-Sloss: Some of them are mediators.

  Lord Justice Wall: Yes, some of them are mediators.

  Dame Elizabeth Butler-Sloss: Quite a lot of solicitors have now become mediators. It is an admirable development of the specialist solicitors.

  Mr Justice Munby: In an ideal world, one would hope that parents could reach agreement on these matters without outside assistance. We do not live in an ideal world. If outside assistance is required, then mediation is infinitely preferable to the court process. There will be an irreducible number of cases which have to come to court. Inevitably, given the emotional background to these disputes, whether the system is theoretically investigatory, inquisitorial or adversarial, the process will actually become adversarial, and that is simply a reflection of human nature. It is at that point, I think, that the court process at present tends to exacerbate matters and tends to make matters, which are already difficult and potentially adversarial, even more adversarial and it does so in two ways. First of all, the mere fact of delay means that people become more and more entrenched and the longer proceedings go on, the more entrenched attitudes become and the higher the stakes get. The other aspect, which is fundamental, is that the court process involves people putting out their case on paper. Now, the moment at which the father starts setting out his case on paper, complaining about the mother in relation to contact, then, human nature being what it is, the allegations are going to be put in their highest form. They are then met and the other party puts in a statement which meets all of those allegations and, human nature being what it is, tends to put the best possible spin on that and then meets those allegations and there is another raft of cross-allegations. The moment that process starts, the moment you get in the court context to the case being reduced to paper, of its very nature, matters tend to become more adversarial and if you then exacerbate that by delay, the matter gets worse and worse and worse because one of the inevitable products of delay is that you have to update the evidence, and updating the evidence simply means taking a rather weary, if not cynical, view of it. You are giving the parties another opportunity to return to the fray and make matters worse. In a funny sort of way, and this is counterintuitive, I find it is often easier dealing with cases if the parties are appearing as litigants in person because what you are actually getting is the facts of the case as they see it without the assistance, and some people might put that word in inverted commas, of lawyers. My view, I have to say, and on the first part of this I do not think I say anything different from Dame Elizabeth or Sir Nicholas, is that we want, if at all possible, to get these cases out of the court system altogether. Mediation is obviously infinitely preferable to the court process, but in relation to that irreducible number of cases which have got to go through the court process, I think we need to take a much more rigorous view both in relation to delay which generates difficulty, but also in relation to the actual process itself.

  Q13 Chairman: We will come on to delay in a moment, but do you want to clarify just a little further what you could do to the court process to reduce its adversarial impact in those cases?

  Mr Justice Munby: Well, I think we need to take a much more sceptical view as to what we need evidence about. We have all grown up in the legal system, and it does not matter whether it is criminal, civil or family, where one side puts its case on paper, the other side puts its case on paper, the first side responds, you then get expert reports, and, typically in these cases, before the court actually adjudicates on the case, either the rules or the process or the court's own directions have generated a vast amount of paper without very much control by the court as to what topics are dealt with. If you simply, as we tend to do, say, "Father to file evidence in 28 days. Mother to respond 28 days thereafter. Father to respond, if so advised, 14 days thereafter" without any control as to what goes in, human nature being what it is, the emotional background being what it is, you will find wide-ranging evidence raising all sorts of allegations, many of which are, whether true or false, either irrelevant or exceedingly peripheral and marginal to the real issues in dispute. If there was a much more controlled use of evidence, if we had a much tougher system, saying in effect that you cannot put it in evidence unless the court says you can, and a much more rigorous control of the subject of the evidence and the topics which can be dealt with, in other words, the court is saying, "You can put in evidence, but in relation to the following matters only", if we took a tougher line, and some judges do this in some contexts, saying that the evidence is not to exceed five pages or 10 pages of A4, things of that sort might help. They will not solve them, but they might help to reduce the temperature and to keep the thing manageable.

  Q14 Mr Dawson: How easy is it to hear the voices of children in some of these very intractable and hotly disputed cases and is there a case for extending separate representation in private law and providing better advocacy services for children?

  Dame Elizabeth Butler-Sloss: Yes, is the answer to that. There is a resource implication here which is very considerable. In again our so-called ideal world, which cannot be ideal because here are children whose parents are in dispute, if the parents are locked into an intractable dispute, I think the children should get a better voice than they are getting at the moment. The trouble is, and I have just produced a practice direction, Rule 9.5 which gives separate representation of children in these difficult cases. Now, to appoint a guardian, which is what we are talking about, takes up CAFCASS's time and there is a considerable pressure on the judiciary, I have to say, not to appoint guardians unless it is absolutely necessary. I think we are probably having to err on the side of not putting guardians in place when perhaps we would like to do it partly because my practice direction is deliberately restrictive. I do not think it is seen as restrictive, but it is intended to be because of the resource implications of CAFCASS, and I would like to see some more children represented in these really very difficult cases. At the end of the day, I have to say, there are cases which are unresolvable. We have a small number which we know, for personality problems of one or both parents, we just cannot, as courts, manage, they are unmanageable and some of those, I have to tell you, are the vocal people that you are hearing.

  Lord Justice Wall: May I just add that this is a point about which I feel very strongly. In the public law system there is the automatic representation of the child and of course the philosophy behind that is that potentially the State is taking the child away, therefore, the child has to be a party to the proceedings and must be represented, but the tandem system of representation in public law cases works extremely well, in my experience. The child has the benefit of a social worker/guardian who is able to investigate the matter thoroughly and give sensible advice and a solicitor who can present the case in court. I have found when I was sitting at first instance and I have used 9.5 to achieve dual representation that it has often had remarkably satisfactory effects. The dangers of it are that it can cause delay, unless one is proactive about how one manages the case, but the advantage of it is that because the guardian is actually representing the child, the guardian can often be a bridge between the parents. I have had several cases where the guardian and the solicitor representing the child have in fact brokered agreements and resolved issues which I do not think we would have resolved in court. I think one has to keep it for a minority of cases for the financial reasons that Dame Elizabeth has indicated, but as a mechanism it is very useful and I think it should be increasingly used early in these cases. If one can see that a case is going to be difficult and intractable, that is the time, at an earlier stage than when it is in court, to get in the guardian and separate representation.

  Q15 Ross Cranston: Could I ask some questions about case management and first of all about the guidance which you, Dame Elizabeth, are going to issue or have issued and which will take effect before the end of 2004 and whether that is on track. Could I ask you to step back and explain whether the sort of case management that operates in other parts of the civil justice system as a result of the Woolf reforms already operate in the Family Division or were cases regarded as different and, therefore, not subject to those sort of techniques?

  Dame Elizabeth Butler-Sloss: First of all, so far as the guidance, which is in the private law framework, is concerned, I have just drafted a letter yesterday which is going out to the judiciary generally to reinforce the advice I gave in July and, yes, I am hoping that we are on track already on various parts of this private law framework. I would like, if I may, Chairman, to have an opportunity just to explain it at some stage, convenient obviously to the Select Committee, because I think it may answer some of the problems which I totally agree with James Munby exist in the private law. We of course are not part of the civil procedure rules, save insofar as our family proceedings rules are deficient. The new Family Proceedings Rule Committee has its first meeting on Thursday and we will be creating rules, and, as I say, I am a member of that committee, which will particularly enhance in the family proceedings rules the overriding objectives of the CPR, and it is very important we do. However, in fact in the public law sector, thanks to James Munby, Paul Coleridge, Ernest Ryder and the Department for Constitutional Affairs' committee, there is an extremely tightly based case management in relation to children who may be taken from their parents. We have not yet achieved that in the private law sector. I hope that my framework guidance will be a broad guide. I am not sure that it is appropriate to give quite such tight case management in private law cases. The whole point about a public law case is that it has got to go through, you basically cannot settle it because if the local authority wants to take the children from the parents, the parents naturally are not going to consent and you have to decide if the facts, which the local authority thought would make it necessary to remove the children, actually exist. Until we reach what we call the `threshold' which permits us to make a decision as to where the child goes, if, for instance, there are allegations of physical violence against the child and the local authority says that the child is at risk and must be removed, we have to decide if those risks exist. Was the child a subject of physical violence or was it an accident? It is not until we have decided that that we have any right to deal with what happens to the child. In private law cases it is a dispute between the parents and at every stage we want to make the parents settle, so we do not want to go through a pattern of 40 weeks as to how the case is going to be tried, but we want it finished on day one.

  Q16 Ross Cranston: There is a great deal of argument of course around case management where the proponents say that case management goes hand in hand with settlement, you grab hold of the case and you encourage settlement. In your submission, you said that one of the causes of delay was the lack of judges. Now, what sort of estimate would you make of the need for additional judge power and where would that be? Is that in the Family Division or at other levels?

  Dame Elizabeth Butler-Sloss: I have discussed this with the Lord Chancellor not very long ago and we do need both additional judges at, I think, all levels if we are to create a situation in which there are not delays for children. We need it at the High Court and the county court, both circuit judges and district judges. At the county court level with circuit judges there is a tension between the criminal and the family work. Until relatively recently I think it would be fair to say that the criminal work has always taken priority for very obvious reasons. A great many people are in detention on remand, awaiting trial, so there must be a real need to get their trials heard as quickly as possible, but I think that in the past the administration of family justice has suffered because many of the same judges are trying both sorts of cases. The district judges have only fairly recently had the private law jurisdiction, only in the last two or three years. Very much I requested this and it took some time to achieve it, but we now have district judges and if we can get continuity of district judges in private law cases, which are not the most difficult, I think they ought around the country to crack that. District Judge Walker, who is the Secretary of the Association of District Judges, is one of the people who is going to give evidence to you, and they are, I think, the backbone of this private law work. If they can get the cases back really quickly, and what I am looking for is that if you cannot settle, you just find out what the issue is, whether it is staying in contact, and the CAFCASS officer should only write a report on that issue instead of the whole general picture, if that is genuinely the only one, it should get before probably a district judge within a very short time, and I am talking about not more than three months and preferably much less. Then the district judge makes an order, but the CAFCASS officer should monitor the order, ring up on the Monday after the contact and say, "Did it work?", and if it did not, it should be back before that same district judge within a fortnight. In the more difficult cases that do require to go before the circuit judges, and the few that come to us, and all of us have experience of intractable disputes which we have tried to manage, we need proper enforcement. Again Nicholas wrote, as Chairman of a sub-committee of CASC, a marvellous report three years ago on how enforcement was needed. What we need is community service, parenting plans, requiring people to go and get information to teach them how to be good parents and why the other parent matters because we want children to have both parents

  Q17 Chairman: What about the cases in which delay is being used as a tactic by one of the parties in the belief that if the case is kept going longer, perhaps by new accusations being thrown up, the stage will be reached when the court sees the enforcement of contact as no longer relevant?

  Dame Elizabeth Butler-Sloss: Well, that is why we have got to catch them. We have not put sufficient energy, in my view, into the private law side to require the cases to come back at very short notice and if we can knock them back into the court on a fortnightly basis, if necessary, I would hope that the mother, because it is very often the mother, will get tired of coming back and will actually begin to comply, or she might listen to the need for children to see the other parent. Michigan has the most marvellous video of children explaining how they wanted to see both parents and how they were upset, angry, guilty that they were responsible for not seeing the father and so on, and this sort of video is what I would like to see as part of the information pack. At the moment they are doing a video, I believe, DCA or DfES, which is going to be shown to parents to teach them that the non-residential parent is very important to the child.

  Lord Justice Wall: Proactive judicial management is absolutely crucial. In the old days, the judges were reactive. The parties made an application, they came to the judge and they then made another application and came to the judge, but that has changed in family work. We were in fact case-managing well before Woolf and what is crucial is proactive case management where the judge calls the case back and that is one crucial point, but of course that has to go hand in hand with judicial continuity. Dame Elizabeth's point I had recently just before I went to the Court of Appeal in a case where I arranged contact on the Friday, the social worker said that she would make sure it happened on the Saturday and on the Monday the case was in court because in fact there had been difficulties. The social worker was able to contact me by e-mail and I knew all about it because of the report which she e-mailed to me, so that is the sort of modern case management we require, but it does require judicial continuity and that is of course one of the messages that Dame Elizabeth has been giving.

  Mr Justice Munby: I entirely agree. That is the problem where the inadequate number of judges comes in. The fact is that on the family side we do not have enough judges at all levels. The result is that we have to try to prioritise. We have to put children before money and on children, partly because of the public law protocol where it is imperative to decide cases within 40 weeks, we have to put the public law cases ahead of the private law cases.

  Q18 Ross Cranston: If I could just interrupt, will the tighter case management not reduce the need for additional judge power?

  Dame Elizabeth Butler-Sloss: Well, we hope so.

  Q19 Ross Cranston: Well, that is the conventional wisdom of all the literature.

  Mr Justice Munby: It will reduce the number of additional judges which are required, but it does not remove the need for additional judges. The simple fact is at present that we are struggling to maintain the 40-week period in public law cases and we are not meeting it. Because that is the imperative, the private law cases are being pushed back. Now, the kind of proactive judicial case management involving judicial continuity, which Sir Nicholas has just referred to, the idea that you get the case back on Monday if there are problems, there simply are not enough hours in the day and we are only managing to do this, for example, in the private law cases by sitting outside normal court hours. I can only actively case-manage private law cases by fitting them around my normal tiMETAble and I sit repeatedly at nine-thirty in the morning so that I can fit the cases in around the normal list and that is simply a reflection of the fact that there are not enough judges.

Q20 Ross Cranston: In the DCA White Paper, the statement is made that cases currently take 36 weeks to complete, on average. What is a reasonable target if 36 weeks is not acceptable?

  Dame Elizabeth Butler-Sloss: You cannot treat a private law case like a public law case. A public law case has to go through to its conclusion if the evidence shows that the child is seriously at risk. In the private law cases, I do not think there should be a target because I think we should be trying to stop them coming back at every single moment, so it is really impossible. I do not know where the DCA got those figures from, they certainly did not get them from the judges. I do not think that we ought to be looking at targets because if the case is easy, it is resolvable quickly and if it is difficult, it would take possibly years. What is happening is that because, as James Munby says, we are having to concentrate at each level, and this is the important thing, that the circuit judges and the High Court judges with different degrees of difficulty are doing the same work, we are having to concentrate in getting the public law cases out which means that we cannot always or cannot generally get the private law cases back in quickly enough.

  Q21 Ross Cranston: There is a lot of talk about the effect of legal aid and one line of criticism is that legally aided parties spin the cases out. Now, I am not sure that is supported by the empirical evidence. Lord Justice Wall referred to Professor Eekelaar's study which did not actually support that, but what is your view of this?

  Dame Elizabeth Butler-Sloss: I do not think that is true. So long as you have the specialist Bar and the specialist solicitors, and I am talking about the Solicitors Family Law Association, the Family Law Committee of the Law Society and those who support it, they have that protocol as to how to behave and they, by and large, obey it. The Family Law Bar Association also has very much at the forefront the welfare of the children and the needs of the parties to settle. We do get of course people in who do not belong to those associations, but if there is the slightest view by the judiciary that this is someone trying to spin it out, then if you are any good as a judge you are going to stop it, and I do hope most of us are competent to do it. The three of us are deeply into proactive case management. What we have got to be sure of is that at every level people realise that they must avoid unnecessary information. If someone wants to tell me about the fact that the wife committed adultery five years before they got married, I will not listen to it. It was said to me not so long ago, "Well, I'll appeal you", and I said, "Great, but see what the Court of Appeal says about that sort of allegation". We are not going to listen to it.

  Q22 Mr Dawson: We have already heard a lot of information about CAFCASS and about the way that their role could be developed in relation to separate representation and to supporting contact, and the Government wanted them to do more in terms of mediation and in terms of developing the role of family assistance orders. Presuming that the judges would want CAFCASS to develop their role, but plainly you are aware of their very limited resources, is there more that you could do to ensure that CAFCASS produced tighter, more focused, fewer reports, and is there something that CAFCASS could do to amend their practices as well?

  Dame Elizabeth Butler-Sloss: The answer is yes and yes. Yes to the first one, that we must be requiring particularly the district judge at the first appointment. If the case is not settled at the first appointment with the help of CAFCASS, then I am hoping right across the country in every area where there are applications for contact and residence, the CAFCASS officer will be present at the court and the district judge will send the case to the CAFCASS officer. If the CAFCASS officer cannot settle it, the district judge will do a very carefully drafted order which includes setting out what the issues are. This is happening in a large number of places in the country and it has got to happen everywhere. The district judge will then say that the CAFCASS officer must deal with staying in contact, and that is the only real issue between them. The CAFCASS officer will then be expected to produce within a much shorter period, than anything from 12 to 20 or 30 weeks, which is one of the problems that it is sometimes six months before they can provide a report, and not their fault, but a lack of people, they must produce a report quickly of five pages, not 20 or 50, on the issue that matters. It is up to the judges to require CAFCASS to write focused reports and short ones and why not e-mail? Why does everything have to be done on a sort of template and handed in on hard copy? E-mail everybody and save time. Secondly, the CAFCASS officers must accept that this is the right sort of report because there are a lot of CAFCASS officers who think it is their duty to set the whole case out in detail. All of us are guilty of writing things that are too long, but we do want to encourage CAFCASS to save time, and it may not be necessary to have guardians in every case. If CAFCASS can have a support service in relation to families, it may meet a large number of cases without using guardians at all.

  Lord Justice Wall: May I add to that that I regard CAFCASS as absolutely critical to the successful operation of the family justice system, and in the report we received enthusiastic support from CAFCASS for that. Historically, CAFCASS, the old court welfare service, was largely used for report-writing and clearly what is required is that CAFCASS is going to be part of the information-providing stage at the very outset, it is going to have to be part of the conciliation stage, it is going of course to go on writing reports, but we want CAFCASS officers to have more time to work with the children, to work with the family in the way the President has just indicated and if they can take that proactive role in assisting us, that, we think, would be absolutely essential to a successful outcome, but it does mean that CAFCASS has to expand and to meet the various roles we would like.

  Q23 Keith Vaz: Dame Elizabeth, there is a perception that the family court system is biased against fathers. What is your view on that?

  Dame Elizabeth Butler-Sloss: Well, it is untrue for a number of reasons. First of all, the Children Act requires us to treat spouses equally and parents equally, and my experience is that we do. I must have found, like both my brethren, for fathers on many, many occasions, but the situation is basically that when parents separate, the vast majority of children stay with mother and for the minority who stay with father, at the end of the day probably what we call the status quo is the situation which occurs because the child is settled there, and in cases where father is caring for the children, that is where the children are likely to stay. I have not come across in recent years, certainly in the Court of Appeal when I was there or now as President sitting both in the Court of Appeal and the High Court, cases where I have come across any bias in favour of mother or prejudice against father. I think one of the problems is that the public do not know what we are saying and I feel quite strongly, and what I had to say was endorsed and repeated by James Munby in the judgment that hit the headlines, that we ought to be giving our judgments to a far greater extent in public, and I think if we did that, whether we would dispel the perceptions, I do not know, but at least those who wanted to read them would know what was actually going on, but it is not true.

  Q24 Keith Vaz: Nevertheless, when I practised family law 20 years ago, I cannot remember a circumstance and a time when so much direct action was being taken by a particular group. We have had items being thrown at the Prime Minister, Batman going into Buckingham Palace, Spiderman at the top of the London Eye—

  Dame Elizabeth Butler-Sloss: And a lot at me too, I have to tell you!

  Q25 Keith Vaz: I was just coming to that! Do you not think there is anything in it, that these are just people who are upset about individual cases rather than the principle? Is there absolutely nothing in this?

  Dame Elizabeth Butler-Sloss: So far as the principle is concerned, there is nothing in it at all. There is absolutely nothing in the law that leaves the courts to choose one parent rather than another. We look at the cases on the basis of which is the better parent because the welfare of the child is paramount, but all judges are human. It may be that some judges will, I do not know, I have not come across it, but it is possible.

  Q26 Keith Vaz: The Solicitors Family Law Association has suggested that one way of dealing with this perception is if we have a presumption that there should be post-separation contact for both parents. Would that presumption help deal with the situation?

  Dame Elizabeth Butler-Sloss: No, and I will tell you why: because we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which takes precedence? As you know, if I may say so, Mr Vaz, as a lawyer, the word "presumption" is different in the law than perhaps it is for the public. If you have a legal presumption, you have to apply it, except in exceptional circumstances. The legal presumption is the welfare of the child. I can see a case for something slightly less, such as that the court should have regard to the importance of a relationship between the children and a non-residential parent.

  Q27 Keith Vaz: So there is scope?

  Dame Elizabeth Butler-Sloss: I think there is scope.

  Q28 Keith Vaz: We can have Section 1 of the Children Act—

  Dame Elizabeth Butler-Sloss: Section 1(3) could have something to that effect. I have not consulted James Munby, and I did consult actually Nicholas Wall yesterday and I think you would agree that that would recognise what we see as the situation anyway.

  Lord Justice Wall: Yes. The danger is that the more you define, the more you are open to argument and that is the problem. If you then put in something along the lines the President just suggested, no doubt the women's movements quite reasonably would say, "Well, what about domestic violence? What about the safety? If you are adding in this proviso, what about X, Y and Z?", and that is the danger of it, I think. I think the point I principally agree with the President about, and I think this is something shared by all three of us, is that the perception exists largely because most of our work is done in private. It so happens that of the last three cases I tried at first instance, in two of them I took children away from their mother and gave them to their father because their mother was obstructing contact, and in a third a father withdrew his application and the reason he withdrew it, I found, was because his conduct had made it impossible to have contact with his child. All these cases are different. I went out of my way in that case in public to say that there is no presumption, and it is in the paper which I submitted to this Committee, I said in terms that there is no gender bias and we decide each case under Section 1 of the Children Act, and I think we have to keep the focus on Section 1. I am quite happy to see an expansion of it, but we must be very careful in our drafting because it could be seized on.

  Q29 Keith Vaz: I have had people come to my surgery and I think they have also written to this committee, as we see in the evidence which is produced to this committee, fathers complaining bitterly about the fact that they cannot get access. Do you think that if we had an interim order being made right at the start of the proceedings so that the contact issue was taken out of the game and everyone was very clear that contact would not be used by one party or the other as opposed to the residency issue, that would help resolve the situation, that both parents would get contact on an interim basis and then you would proceed with the rest of the case?

  Dame Elizabeth Butler-Sloss: The trouble is that if the mother says that the father has been guilty of domestic violence or is not suitable to care for the child, you have got to deal with it and, therefore, you cannot make an interim order until you have dealt with it. On the whole, I think that the problems of contact are greater than the problems of residence because residence does on the whole resolve itself, subject to the question as to whether it should be joint residence or shared residence, about which I know fathers' organisations feel very strongly, but subject to that, yes, I would want the parties to agree the contact before they ever come to court, which means they would not come.

  Q30 Keith Vaz: Do you think what we have got, at the moment, is a situation where the courts are being unfairly blamed for the failure of politicians Government to be very clear as to what they think parental responsibility should be and that if the Government came out and Parliament came out with a clear statement it would be much easier for you to interpret that statement? At the moment it is all being thrown back on the poor old judges.

  Dame Elizabeth Butler-Sloss: Yes, judges are being unfairly blamed, there is no doubt about that. We are bearing quite an interesting burden of blame, which I have never come across before. I have been on the bench now since 1970, in one capacity or another, and I have never known a period when the judges have been, in our part, so much blamed. I do not, for a moment, think it is the fault of politicians. I think the relationship breakdown paper is excellent. However, politicians cannot make the parties be sensible.

  Q31 Keith Vaz: True.

  Dame Elizabeth Butler-Sloss: The law seems to me, on the whole, since the Children Act, to be reasonably good. I think we need to improve the management by judges; we need to have enough judges—and enough courts. When I was out of London recently I found district judges did not have courts to try cases. District judges cannot be expected to sit in rooms because we have violence from time to time by parents where their fraught emotions just completely overwhelm them. There was a grandmother who was not going to see her grandchild again; she absolutely went berserk in a district judge's court in London and she wrecked the court. Fortunately, that district judge was sitting in a proper court; if it had been in a room—it is just not safe. So we have a lack of courtrooms, too.

  Q32 Keith Vaz: Lord Justice Ormrod has said that there are some cases that are insoluble—as you have said today—and even the greatest judge in the world is never going to be able to solve those cases. What do we do about those cases?

  Dame Elizabeth Butler-Sloss: The personality problems are sometimes of both parents. Fathers complain that they have come to court a hundred times but they do not explain why they have come to court a hundred times. I think we have to try. We have put in evidence a number of decisions of the Court of Appeal and of the High Court judges. Unfortunately, at the level below the High Court very seldom are judgments recorded. I did try to get some so you have a broader flavour, but I could not find them, just to give you a feel of the intractability of some of the cases and how we try to approach them. Yes, I think we have to try as far as we can go and then we occasionally give up. I remember a case in the Court of Appeal, when I was quite a junior Court of Appeal judge, where the then Master of the Rolls, Lord Donaldson, was very shocked to find that the circuit judge had given up in Bristol—a very experienced circuit judge—but the mother went to court on every occasion with her suitcase packed. Why? Because she expected to go to prison; she was quite prepared to go to prison; she was not going to let the child see the father. The child had never seen the father, so, in fact, the child could not go to the father as the alternative parent. We have no hesitation in moving children from unreasonable mothers to reasonable fathers (or the other way round) but if the child has never met the father, what do you do? How long do you put them inside for? Two years is the maximum for contempt.

  Q33 Keith Vaz: I realise that this not Kramer v Kramer and there is not the kind of emotional background that would enable us to solve this on a sentimental basis, but have you or your colleagues met with the Fathers4Justice campaign or any of these other, campaigning organisations that are seeking to put forward in a sensible way, as opposed to the rather dramatic and unacceptable way—

  Dame Elizabeth Butler-Sloss: May I say, I think we all have. Fathers Direct and Families Need Fathers I have had quite a lot of contact with. I was chairing a conference which was disrupted by Fathers4Justice at the very moment that the Chairman of Families Need Fathers was giving a paper in which he was putting forward extremely well the father's point of view.

  Q34 Keith Vaz: So there is a schism within the fathers' movement?

  Dame Elizabeth Butler-Sloss: Fathers4Justice chose to disrupt this and put a flare into the conference room so the smoke detectors went off, we could not see, and we had the father actually giving a very good paper. Eventually we got back and he continued his paper.

  Q35 Chairman: That is why we had to make arrangements today different from the ones the Committee normally has because we did want to hear from you and from other witnesses in conditions in which you could express yourselves freely.

  Dame Elizabeth Butler-Sloss: We are enormously grateful to you, Chairman, for the care you have taken for us, because we have no problem in meeting fathers or mothers. We have to bear in mind that the mothers' groups have a point as well as fathers' groups, and it is the fathers' groups which are being heard at the moment. Yes, of course we meet them and you meet them.

  Lord Justice Wall: A few years ago I went to address the annual general meeting of Families Need Fathers and I was actually very impressed by the strength of their feelings and their emotions. The message I gave them—and I was not the only one doing it—was that the way to succeed, the way to get into the system, is not to sloganise but actually to get on the committees, get in with government where there is lots going on and people want to consult you, and respond to Making Contact Work. We had an excellent response from Families Need Fathers, part of which we incorporated, and I think Families Need Fathers has become a key player in the debate about on-going contact and joint residence. We make progress with rational argument; we do not make progress by sloganising.

  Dame Elizabeth Butler-Sloss: I cannot meet Fathers4Justice because they are not being sensible. As long as they throw condoms with purple powder and send a double-decker bus with a loudspeaker outside my private house in the West Country there is no point in talking to them; they are not going to talk, they are going to tell me.

  Q36 Dr Whitehead: One of the arguments that has certainly been put to me sometimes in my constituency surgery about the issue relates to what is seen by some people as the impotence of enforcement and the issue, for example, as has been mentioned this morning, of imprisonment. Indeed, Sir Nicholas, I think, in your recent paper you described imprisonment as an extraordinarily crude weapon. I think you also cast some concerns about fining mothers who already were on benefit. You have identified, Sir Nicholas, a number of alternative routes of enforcement. Do you think those would actually, as it were, make for open water, as far as enforcement is concerned?

  Lord Justice Wall: Yes, I do, and I am very pleased to see that in the Green Paper the Government has adopted most of the proposals we put forward in Making Contact Work. May I just say that I do not see this as simply an enforcement or punishment issue. If a contact order is not working what I want to have is a mechanism which will help it work. Contempt of Court is designed to be partly punishment for disobeying the Court order and partly deterrence not to do it again. In the very sensitive family field I have not found, in contact and residence disputes, putting people in prison operates. Indeed, in the case of Re D, in which James gave judgment, I think imprisonment had taken place and it still did not work. So what I want and what the Government seems to have accepted, and what we put forward in Making Contact Work, is a raft of proposals which would, in the first instance, be facilitative; so if an order is not working you want to send someone off—whichever parent it is—to a resource which can address that particular issue (whether it is a parenting class or a programme or what-have-you). It is only if that does not work that you then move into the punitive, and the punitive could include community sentences and so on. However, the idea behind our thinking is that if we are trying to make an order work we need a range of facilities and, ultimately, maybe, in a particular case, imprisonment is a method which will work. I am very sceptical about it but it can do. So we call it enforcement, but I would prefer to see it as a wider form of facilitation.

  Q37 Dr Whitehead: I notice you have suggested, and the Government has placed it in its Green Paper, awarding financial compensation where, say, a holiday has been frustrated. Have you looked at or thought about the idea of compensatory contact where, perhaps, a non-resident parent might be given additional contact where contact had previously been frustrated?

  Lord Justice Wall: That, as a matter of practice, happens. That is a regular order that would be made. Yes, absolutely. If contact is frustrated on a particular occasion the court will almost invariably seek to make it up in some way or another.

  Dame Elizabeth Butler-Sloss: I will tell you where the problem arises. Mother brings a child late to contact by half-an-hour; father then requires an extra half-hour the next week. This is getting silly. If, in fact, the father does not see the child at all, of course he should see the child on another occasion, but there are fathers who actually add up the minutes and produce it and say "Now I should have so much more contact because I lost five minutes last week and 10 minutes the week before". It is difficult to deal with that sort of thing. I will tell you one area about which I am very concerned: if we should be sending to mediation, or anger management, or counselling—or whatever it may be—at every stage, including the so-called enforcement stage—the trouble with mediation is it is means-tested, so if you are on Legal Aid you get it free but if the other parent is not legally aided, and quite often father is not, he is going to have to pay several hundred pounds to go to mediation, and if he is not very keen it is not really an encouragement for him to do it. We live in a resource-restricted world, but if we are to make mediation work, at whichever stage, to have a money barrier to getting people to save money in the courts may not be the best use of money.

  Q38 Chairman: I get a bit worried at this point, where compensatory time is discussed, about the position of the child. Surely that becomes extremely relevant at this point because the child may have quite strong views about which group of friends in which place it wants to play with that weekend, or which organisations—whether it is the ballet class or the football team—it wants to be with on Saturday. If it becomes a time negotiation the child is omitted from this process.

  Dame Elizabeth Butler-Sloss: Last week I was sitting in Nottingham and I had three contact cases, as it happened. In each of them I found out what the child did at the weekend and I said to the father—because the child was having football classes—"You must take him to football. Don't expect contact instead of football; you go there, you watch him play, you take him away and give him a meal and send him home."

  Lord Justice Wall: I think the Chairman has identified a genuine tension because the order of the court has to be an order and it has to be devised. So you tend to say "10 to 4" in the court order, whereas the best form of contact is that which is entirely flexible. If the child is thoroughly enjoying him/herself the child can come back at half-past five, six o'clock or seven o'clock—what-have-you—but that is not the way it works in the context of a court order, unless the parents are flexible—and if they are prepared to be flexible they do not need an order. So you go round in a circle.

  Q39 Mr Soley: I understand in some other countries they do make a financial contribution to the other party if they do not keep the arrangement. I wonder if you have any thoughts about that, and, also, whether, if you were to go down that road, you could not make the financial contribution to the child in terms of a held fund of some sort. It actually does indicate then that it is the child that is losing out.

  Dame Elizabeth Butler-Sloss: I would be delighted, but we live in a world where almost everybody does not have any money and the woman who is looking after the child may be having a problem in managing, and to fine her, in effect—

 Q40 Mr Soley: Other countries do it and they are poorer than us.

  Dame Elizabeth Butler-Sloss: I do not know. One of the problems is the payment is through the child support service, and a lot of mothers equate—and you cannot be entirely surprised—how far they are prepared to be friendly about contact with the extent to which the father is paying. It is not always the fault of father, because sometimes there is a hold-up on the child support payments—

  Q41 Chairman: And incorrect assessments.

  Dame Elizabeth Butler-Sloss: —and incorrect assessments and so on, and money and child contact do go together. They should not, but of course they do. If the woman is not being paid she is not going to let the father see the child, in quite a lot of cases.

  Q42 Mr Dawson: Children are murdered during contact visits in this country and children are abused during contact as well. I think the last year for which we have figures is 2002 and at a time when CAFCASS were saying that 23% of contact cases involved domestic violence in only 0.8% of cases was contact actually refused. Is this not evidence that rather than actually not acceding to the wishes of fathers judges are going the other way and not taking domestic violence seriously enough?

  Lord Justice Wall: This was the theme of our first report, which is on contact where there is domestic violence. We had a choice of how we addressed it: we could either go down the New Zealand road, which would be legislation with a presumption there is no contact where there has been domestic violence, or we could try and address it, in the way that we did, by guidelines. The direct answer to your question is that no judge will make an order for contact where there is a risk to the child, unless that risk can be properly catered for and the contact is in the interests of the child. So the guidelines, which we laid down, which were supported by the President and are currently in place, are that in every case where domestic violence is alleged the court must be acutely aware of it, investigate it and decide whether or not it has taken place. One of the difficulties, of course, is that one often is not told about domestic violence; women are often very ashamed of having been treated badly in the course of a relationship. Indeed, one of the most sensitive cases I tried, where a father was on the point of murdering his children during the course of contact, was not because there was a court order for contact but because the mother was willingly allowing the father to have contact, quite unknown to her that he was making this particularly terrible plot. I think the answer to your question is that there will always be tragedy but the courts must be increasingly acutely aware of the risk of domestic violence, and if there is any risk to the child during the course of contact from violence then the judge would have to decide whether or not contact should take place. Probably it will not if there is a risk, unless that risk can be totally covered and the contact remains in the interest of the child. It is a question of awareness, I think.

  Dame Elizabeth Butler-Sloss: The Court of Appeal did give guidance in a cased called L v V and others, (Lord Justice Thorpe and I gave the main judgments on it) in which we gave guidance. Whether it is read or not, I do not know. We did give guidance on how courts should deal with this problem.

  Mr Justice Munby: One of the problems is that we do not have enough fact-finding hearings resolving these issues. Intractable contact disputes and contact disputes which are on the way to becoming intractable are always fraught with large numbers of allegations and cross-allegations. What happens too frequently—sometimes it is lack of judge time, sometimes there is not enough time in court for the hearing—is that one tends to put it off; the father, if the allegation is of violence, will give some undertaking and the issue, in a sense, is swept under the carpet. Then you discover, three years down the line, that these allegations have festered away and have never been judicially investigated. It seems to me that where we do have cases in the court system where there are factual allegations being raised, we need right at the outset to take a firm view: are these allegations which, of their nature, require to be resolved or are they simply irrelevant or peripheral? If it is domestic violence plainly they need to be resolved. The crucial thing is to have fact-finding hearings at a very early stage; get to the bottom of it, make findings of fact and, thereafter, plan the child's future and plan the future of the case on the basis of findings of fact. One of the great defects of the system in practice at present, in my experience, is that too often allegations which ought to be investigated are either never investigated at all or are investigated far too late.

  Dame Elizabeth Butler-Sloss: I wonder if you could let me add just two things. One is that the form is going to be changed, I think, as from January and there will be a box to be ticked by a mother—or sometimes a father—that there is an allegation. Yes, fathers suffer from domestic violence as well as mothers. I have come across a number of cases before me where fathers have been very badly injured by mothers, but the majority, of course, are mothers. There is going to be a form which will be ticked on any application in relation to children as to whether or not domestic violence is an issue. You see, it is the parties that, very often, sweep it under the carpet. In our L v V and others cases on domestic violence we said very firmly that this is an issue that must be sorted at a very early stage, and we told the judges to do it. However, of course, if they are not asked to they do not do it. Of course, the parties do not necessarily want it tried.

  Lord Justice Wall: One of the most interesting things about Re L was that there was a report from two very distinguished child psychiatrists spelling out very clearly the effects of domestic violence on victims and on children. I think that brought home to the judiciary—certainly it brought home to me—very clearly the learning on this particular subject and that, perhaps, in the past we had not addressed it sufficiently.

  Q43 Mr Dawson: The Green Paper talks about the application of the CASC guidelines being patchy, and clearly we have also got the implementation next year of Section 120 of the Adoption of Children Act and significant harm in relation to domestic violence. We receive allegations from bodies such as the NSPCC and Women's Aid that judges continue to allow unsupervised contact—and indeed residence—to Schedule One offenders, which seems absolutely extraordinary.

  Dame Elizabeth Butler-Sloss: We do not always know they are Schedule One offenders at that time. If the local authority comes in and tells us they are a Schedule One offender then, of course, we will take steps. It is always a question of what has been told to the court at the moment the contact order has been made.

  Lord Justice Wall: May I just add to that that I have, obviously, been to Women's Aid conferences and discussed this issue with them, and one of the things that will be very helpful, at some point, is if this evidence could be investigated by a senior judge. One frequently has allegations, for example, that a woman in a refuge is required to make her children see the person whom she is fleeing. I would be interested to look at the file on that case, to look at the evidence put before the judge and to look at the judgment. What was the judge doing? Did he make an order like that? If so, why? If that sort of order is being made it is totally unacceptable, it is dangerous to children and it should not happen. I think this needs to be slightly more than just anecdotal, I think it needs to be investigated properly.

  Dame Elizabeth Butler-Sloss: If I found it and I found a judge, in those circumstances, was actually allowing unsupervised contact where the father was dangerous, I would consider whether I would take his Family Law ticket away. I do not get told about these. We have a lot of anecdotal evidence, even from the NSPCC, for whom I have an enormous regard, which I think is not necessarily based on fact, or on facts which did not come to the court, which I think is really the problem here.

  Chairman: That brings us to the point which you made earlier, which I will ask Mr Cranston to deal with, which is about the openness of court proceedings. You have just referred to how useful it would be to know about various things which, in the nature of things, we do not.

  Q44 Ross Cranston: I do not want to embarrass him but Joshua Rozenberg said in a submission to us that the courts ought to be more open.

  Dame Elizabeth Butler-Sloss: Yes. He is here.

  Q45 Ross Cranston: Absolutely, and he is very distinguished as well.

  Dame Elizabeth Butler-Sloss: I agree, Mr Cranston.

  Q46 Ross Cranston: Comparable jurisdictions, like Australia and Canada, as we understand it are more open. Is it possible to be more open while, of course, keeping secret the names of the parties involved?

  Dame Elizabeth Butler-Sloss: I think there is a distinction between the giving of the judgment, which I believe ought to be open (at least, the press should be able to come in, which makes it open), possibly the submissions of counsel, but in very fraught family cases I have my doubts as to whether the public should pour in and listen to people exposing their real concerns. I have had fathers in the witness box huddled up in tears; I have had mothers who are distraught; I am not sure that having the public in would not make it even worse for them. So my gut feeling is that a distinction be drawn between the evidence of the parties. I think in some cases that have medical evidence I would not object to that part being given. I try a lot of vulnerable adult cases and almost all of them, if we are dealing with medical cases, are open, particularly on permanent vegetative state, where the people are likely to die. The whole of that evidence is given in public because the person about whom we are dealing is not giving evidence. I think parents need protection.

  Mr Justice Munby: I think this is a topic on which views differ and I personally would take a rather more open view. The fact is, and I believe it is a fact, that the family justice system is under criticism today because it is perceived as being a secret justice system, and in that sense we are crippling public debate. As the President has indicated, a lot of the criticisms, whether they come from Fathers4Justice or the NSPCC, are necessarily anecdotal and nobody is able to see the relevant material. I think it is doing us serious harm, and I do not think that the existing system, the existing rules, are necessary. That is not to say we simply open the doors to everything but I think we could do more to open up the system. One thing—it is only an idea—is I think I am right in saying that in the Juvenile Court (the Youth Court) the press is able to attend but is subject to a reporting restriction. I think there might well be attractions in considering whether the press, the media, other interested bodies, should have a right to be in court, subject to judicial discretion to say not in a particular case, but subject to reporting restrictions. At present the rule is nobody can be there, nobody can report anything unless a judge says so. I think, perhaps, a more flexible system is required. I also believe that there are more judgments which could be given in open court. Traditionally, we have tended to give judgments in open court only if we think there is some legal point of interest to the law reporters, but the consequence of that is that the public judgments tend to be skewed away from the ordinary run-of-the-mill case to the legally complicated case, and the consequence is that the public has very little insight into or access to the routine work we are doing. I think many more judgments should be given in public.

  Dame Elizabeth Butler-Sloss: Could I just make two points? One is that this was discussed in a paper which came from the LCD about 10 or 12 years ago, and there was quite considerable consultation on whether the Family Court should be open, and then it died a death. It is quite an interesting paper and I think it would be worth, actually, looking at that. Secondly, I would not disagree with having the same system in the magistrates' court and right the way through the county court and the high court of allowing the press in under certain restrictions. We have always done it, of course, with divorces and annulment where the public are permitted and we go into open court. The trouble is I would not want us to get robed on those occasions, because I think there has to be a degree of informality. How you play that, I am not sure. What James Munby says is well worth considering.

  Q47 Peter Bottomley: It may be possible for you to consider whether you could do us a note on what inhibits the changes being made. Is it law or is it custom and practice? If it is possible for you to make changes it would be worthwhile.

  Dame Elizabeth Butler-Sloss: I am sorry. Do you mean the change in going public?

  Q48 Peter Bottomley: As a minimum, to have judgments issued so they can be reported, in the same way that appeal judgments—

  Dame Elizabeth Butler-Sloss: It is a matter for a judge. Everything is heard in private, save where a judge says it should be heard in public. So it could be heard in public all the time.

  Q49 Peter Bottomley: The suggestion I was making was for you to consider rather than directly answer. My request is for you to consider this rather than commit yourself to an answer now: whether you can look back at what was said 10 years ago and say whether, by practice direction or convention, we can meet what the journalist has suggested, at least the openness and perhaps the judgments. Clearly, at the moment, Fathers for Publicity, (?) the more extreme wing of fathers, are pandering to an ignorance in the public that the press have not been able to do their job at making available to all what is known to a few. Those of us who have had a chance of listening to the Re O judgment actually know a great deal more than most who just read the tabloid newspapers from the protesters. Also, if more parents knew the vast majority of cases were resolved without going to court and of those in court many of them were resolved because people were willing to recognise there was going to be a decision and it is far better to take part in the decision than be subject to the decision, I think there would be greater understanding as well. Can I make one final point for you to consider? Why in judgments that are given are experts' names or initials changed but the children's are not? It seems to me obscure reasoning that says that the person whose personality is supposed to be protected gets less protection than a professional who is there because they are an expert.

  Dame Elizabeth Butler-Sloss: We usually do initials.

  Chairman: But the initials are actual initials.

  Q50 Peter Bottomley: For the children.

  Lord Justice Wall: Not always. I have often called children X or A, B and C and so on.

  Peter Bottomley: I leave the point.

  Q51 Mr Dawson: Given the difficulties that we have heard of victims coming forward to allege domestic violence, and given the problems of hearing the voices of children involved in difficult private law proceedings, is there any reason to suppose that opening up that court process to further publicity and the presence of journalists would actually aid those people in coming forward, or would it make it less likely that the court would hear information that it needs to hear?

  Dame Elizabeth Butler-Sloss: I have no idea.

  Chairman: That is one of the most honest answers the Comittee has had for some time!

  Q52 Peter Bottomley: Again, it might be something you want to consider and give us some notes about, but are there any circumstances in which a person involved in a private law case cannot consult their Member of Parliament about their concerns and worries?

  Dame Elizabeth Butler-Sloss: As you appreciate, I am sure, the DCA is now looking at this and I understand that in the Children Bill there is a clause that is going to deal with the problem of rule 4.23 of the family procedure rules. This has been the subject of a considerable amount of discussion. It was exposed, actually, by Lord Justice Thorpe and myself in a case in the Court of Appeal and we had not appreciated it, but of course it must be cleared. However, if I might respectfully say so, not just for MPs.

  Q53 Peter Bottomley: So the answer is no; there are no circumstances in which that restriction should be maintained?

  Dame Elizabeth Butler-Sloss: I do not think it should be maintained, no, of course not. We did not even know it existed until it was brought to our attention. You obviously did not know it existed.

  Q54 Chairman: Thank you very much, Dame Elizabeth, Sir Nicholas and Sir James. You have been very helpful this morning. Clearly, we might want to contact you at a later stage, but we are looking forward now to hearing from your colleagues who are at the sharp end, so to speak.

  Dame Elizabeth Butler-Sloss: I take it from what Mr Bottomley said that you would like a short paper from me on the points that he raised?

  Q55 Chairman: He asked you to consider whether you would like to submit one and it is entirely up to you.

  Dame Elizabeth Butler-Sloss: Certainly I shall.

  Chairman: Thank you.

9 NOVEMBER 2004

HIS HONOUR JUDGE MESTON QC, DISTRICT JUDGE MICHAEL WALKER AND DISTRICT JUDGE NICHOLAS CRICHTON

  Q56 Chairman: Judge Meston, Judge Crichton and Judge Walker, welcome, we are very glad to have you with us. As I said earlier, I think you are at the sharp end of dealing with the quantity of cases, many of which do not reach the higher courts. What practical steps do you think the courts can take to reduce the average length of cases, an issue which we raised in the earlier session?

  Judge Meston: I think we would all agree pro-active cas