Tuesday 14 December 2004
Members present:
Mr A J Beith, in the
Chair
| Peter
Bottomley |
Mr Hilton
Dawson |
| Mr James
Clappison |
Mr Clive
Soley |
| Ross
Cranston |
Keith
Vaz |
| Mrs Ann
Cryer |
Dr Alan
Whitehead |
CONTENTS
Examination of Witnesses
Question Number 187 to 229
Hilary Saunders, Policy
Officer, Women's Aid; Ruth Aitken, Policy Adviser, Refuge; and Phillip
Noyes, Director, and Barbara Esam, Lawyer, Public Policy Division,
NSPCC; examined.
Examination of Witnesses
Question Number 230 to 247
Mavis Maclean CBE, Senior
Research Fellow, Department of Social Policy and Social Work, and
John Eekelaar, Reader in Law, Oxford University, examined.
Examination of Witnesses
Question Number 248 to 274
Anthony Douglas, Chief
Executive, and Baroness Pitkeathley OBE, a Member of the House of
Lords, Chair, CAFCASS, examined.
14 DECEMBER
2004
HILARY
SAUNDERS, RUTH AITKEN, PHILLIP NOYES AND
BARBARA ESAM
Chairman:
This morning I am very glad to welcome Hilary Saunders from Women's
Aid, Ruth Aitken from Refuge, who has come in at short notice, for
which we are very grateful, and Phillip Noyes and Barbara Esam from
NSPCC. Thank you for agreeing to give evidence to us. We look forward
to what you have to say, which I think will help us a great deal in
our work. We have some interests to declare in this particular inquiry.
Ross Cranston: I
am a barrister and recorder.
Keith Vaz:
I am a non-practising barrister and my wife holds a part-time judicial
post.
Mr Dawson:
I am a parent and I think that is fairly common round here.
Q187 Mr
Soley: In your view, do you think the family courts take sufficient
account of violence, and I am using the word "violence" in the widest
sense, as it covers various types of abuse, as you know, when they
are hearing contact and residence applications?
Hilary
Saunders: I think the answer has to be no because we are frequently
seeing cases where contact orders are granted where really it is unsafe
to do so. We have seen cases where contact orders have been granted
even when there is evidence of domestic violence, even when there
are convictions for violence and sometimes even to Schedule 1 offenders.
What is absolutely extraordinary is that increasingly we are being
told of cases where unsupervised contact is being granted to Schedule
1 offenders. That was one of the findings of our "Failure to Protect"
report last year. Certainly, I think, if you want to have some idea
of the scale of the problem, if you look at the judicial statistics
they will show that last year more than 67,000 contact orders were
granted and contact was refused in only 601 cases, less than 1%. The
most exact, well, almost exact, figure that we have for the number
of domestic violence cases that go through the family court system
where there are court welfare reports ordered was ACOP's Response
to the Consultation Paper on Contact between Children and Violent
Parents, where they said that domestic violence existed in almost
50% of the cases where court welfare reports were ordered. They quoted
a figure of 16,000 cases a year, and I presume that will have increased
simply because the number of contact applications has increased. I
think, if you set that figure of 16,000 against 601 refusals, you
can see that domestic violence is not considered to be a very serious
problem in thousands of cases.
Q188 Mr
Soley: Really your evidence is to say that they do not take sufficient
account of violence, your evidence is that there are enough people
coming forward where either there are convictions or other evidence
of domestic violence who are still getting access. Does not that imply
that any evidence at all would mean no access?
Hilary
Saunders: That is not what Women's Aid is asking for. We are
frequently misrepresented on this. We are not saying there should
be no contact in cases of domestic violence because we know that a
lot of children actually want to remain in contact with violent parents.
What we are asking for is that contact should be safe and I think
that is not an unreasonable request.
Q189 Mr
Soley: We know of the evidence of the violence of men against
women but what about the cases of women against men?
Hilary
Saunders: As far as we are concerned, the same principle should
apply to each. We do not condone violence by women, not for one minute.
Q190 Mr
Soley: Do you think it is a significant problem, or not?
Hilary
Saunders: I think all the statistics show that domestic violence
is a very gendered issue and in the vast majority of cases it is men
committing violence against women, but that does not excuse women
on occasion committing violence against men. The problem does exist.
Q191 Mr
Soley: You do not see the other side of the problem, do you, of
women against men?
Hilary
Saunders: Only insofar as women sometimes are violent in self-defence.
Q192 Mr
Soley: That is different. Can I ask the other two what they think
about the gender issue?
Phillip
Noyes: From our own research and that of others, we believe
that domestic violence, by and large, is perpetrated by men against
women. We share the concern of Women's Aid that the safety of children
must be paramount and the research that we have conducted, which also
is being widely misrepresented on various websites now, makes very
clear the very strong association between domestic violence and the
maltreatment of children, to an extent that the authors of the research,
who are not playing to the public gallery, identify that in cases
where there is domestic violence it should be regarded as a predictor
of abuse, even though there may not be evidence of risk to the child.
That feels to us to be a very high coinage recommendation in a very
thorough and sober report.
Q193 Chairman:
Does not that make it necessary to ask of you what Mr Soley asked
Ms Saunders, whether the presence of domestic violence in cases is
an absolute barrier against contact with the children?
Barbara
Esam: Definitely not. It would not be an absolute barrier
at all. What we think is important and in fact absolutely essential
is that investigations are carried out to make sure that the child
is safe. If the court can be assured that the child is safe and everyone
else can be assured that the child is safe then contact can go ahead.
Our big concern is that children do not have any opportunity in private
proceedings to have their views represented. I think it is widely
recognised that domestic violence does not always come to light. Even
within court proceedings families do not always talk about it. Mothers
might feel frightened and do not tell everybody about it. Children
do not get an opportunity in general to say what their views are and
that is in sharp contrast to what happens in public proceedings where
children are represented. We think that is a real problem. In terms
of representation, it is not just about domestic violence or violence
against children or parents, children's views should be represented
in any case, they have a right to be heard and that right is being
denied them in our present set-up.
Chairman:
We will come back to that point a little later. Just for the moment
we will stay in this area.
Q194 Ross
Cranston: Can I ask you some practical questions about mechanisms,
the existing mechanisms for uncovering domestic violence, and what
you think of the Government's proposals. First of all, there are going
to be these new forms, and the Law Society, when they gave evidence,
thought that was a good idea. Also there is going to be the piloting
of an integrated domestic violence court. Could I get your reaction
to the deficiencies in these proposals, as to whether they will address
what in your view are the deficiencies?
Ruth
Aitken: I think there are large problems with the way in which
domestic violence is investigated across the board really, not just
in private proceedings but in all aspects of the law. What we have
been calling for at Refuge and Women's Aid and other groups is an
accurate definition of "domestic violence" to underpin any formal
investigation, so whether that is in terms of establishing the veracity
of claims or whether that is in terms of an assessment which is necessary
to look at the impact that the violence may have had, once it is established
that it has happened, also looking at the risk for future victims.
I have not seen the gateway forms but I do understand that they are
an opportunity—and if anybody has seen them they can correct me if
I am wrong—for somebody just to flag up the fact that domestic violence
has occurred within a relationship at the beginning of any kind of
investigations or proceedings. In our view, firstly, it is not enough
and, secondly, it could be dangerous. One of the reasons why I say
that is because domestic violence victims sometimes do not even recognise
themselves as domestic violence victims. You might think that is a
strange thing to say, but in my experience of working with women within
a refuge over a number of years I met people who had fled from their
home, with their children, had come to stay in a refuge and they would
say, "Well, actually, I'm not one of those abused women, I'm just
here for a bit of a break. He needs to calm down. We're just having
a few problems." They would not have been able to see the systematic
pattern and nature of abuse of power and control that was occurring
within that relationship, because one of the by-products of abuse
is that it is minimised and denied by the perpetrator.
Q195 Ross
Cranston: As a practical matter, we are concerned about the machinery
of Government and how the courts ought to operate, how are you going
to address this issue? I think Barbara Esam was hinting that there
should be separate representation, but is that going to be in all
cases? How do we actually address the issue; that is what I am asking
you to consider?
Ruth
Aitken: We need to have more detailed assessment. We need
to have interviews with parents and children and we need to gather
information from other sources: what does the school know, what do
hospitals know, are there any police reports, are there any other
proceedings in other courts going on? We need to be looking at it
in a broader sense.
Q196 Ross
Cranston: Who is going to do that, as a practical matter?
Hilary
Saunders: Initially, obviously, it would be the CAFCASS officer,
if the court had requested a welfare report in response to a tick
in the domestic violence box. Essentially, what we really want to
see is a differential approach, instead of this one size fits all
assumption that contact is almost always in the interests of the child.
With our written evidence we submitted a table drawn up by Peter Jaffe,
who is renowned for his research on domestic violence. What he points
out is that the judgments that you make and the information that you
have to collect and assess should be focused on safety, in cases where
there are allegations of abuse, whereas in other cases what you are
looking to do is reduce hostilities and do everything you can to promote
contact. Essentially, that is the first thing we want to see, a recognition
that when you have got allegations of abuse you have to address the
issue of safety, and we are not satisfied that is being done properly
at present. After that, obviously, having a proper definition of domestic
violence is fundamental, so that people recognise that what we are
normally dealing with is a wide range of abusive behaviour, and instead
of looking for just one incident and saying, "Oh, well, we can prove
one incident of domestic violence," then a lot of the courts will
say, "Well, it was only one incident and he was terribly upset because
they were separating." They will not look, and because there has not
been that holistic assessment they will miss it.
Q197 Ross
Cranston: You are saying CAFCASS, to inquire, now what about an
early hearing by the court, are you also saying that is the implication,
so that they can make a fact finding about this? Is that a corollary?
Barbara
Esam: I think that we would really welcome the approach of
the court having an early investigation when domestic violence is
flagged up, that the court has a look at that issue as early as possible
and makes findings of fact. I think that has to be a good thing. That
is a practical approach and that is a very positive way forward. We
have not seen these forms either, but we think that it is certainly
a move in the right direction.
Q198 Ross
Cranston: At the present time an injunction might often be issued
but without any sort of inquiry, there is no inquiry into the violence,
there are no admissions. Is that a practice that you support, in terms
of courts issuing injunctions in that way? You are saying that they
have to inquire, are you, in each case?
Barbara
Esam: If you mean emergency injunctions, I think that is an
absolutely essential part of the system.
Q199 Ross
Cranston: Not necessarily emergency injunctions. If there is an
injunction against a person on the basis of behaviour but without
any admissions of past violence, the court would just issue the injunction.
You want an inquiry in each case, do you?
Phillip
Noyes: It will be better to look into each case and decide
on its own merits. We are very much also in support of an approach
that is not one size fits all. The limitation of a form is that you
can put too much reliance on ticking boxes, and certainly we want
to see a process in which children are talked to as early as possible,
with two evidence-based things in mind. The first is that when you
talk to them about what might have happened in the past you must recognise
that they might not have told anybody that they had been abused in
the past, because a lot of children do not. Secondly, evidence from
our maltreatment study, the NSPCC maltreatment study that I have quoted
already is that children tend to minimise what has happened to them
and make the best of it. We think it is very important that every
case is looked into and judged on its merits, and not in terms of
dogma or general principles but one child at a time, even within families.
Q200 Chairman: There are a couple of dangers in the answers
you have given. We have had two answers, one in relation to mothers
and one in relation to children, in which the implication is almost
of a criticism of mothers and children for not recording or admitting
to more violence having taken place. That suggests leading witnesses,
does it not?
Ruth
Aitken: Can I just say, it is not a criticism, it is just
an understanding of the way in which abuse affects victims.
Q201 Chairman:
Once you make that assumption you are in danger of leading a witness,
are you not?
Ruth
Aitken: We are not making that assumption, we are just raising
it as a possibility. Some people do not say that they have been abused,
because of fear, because of shame, others do not identify themselves
as being abused, and because denial, minimisation and distortion of
reality are part of the abusive process that is the effect that it
can have on victims. I think that the courts need to be aware of that.
Chairman:
Have you ever come across instances where abuse is alleged by all
the parties without foundation as a weapon in the on-going argument?
Q202 Ross
Cranston: Have you come across malicious allegations of abuse?
Hilary
Saunders: I am sure it will happen on occasions, but that
is not what we see in refuges. With regard to false allegations, I
think probably the best comment on all that is in Peter Jaffe's book,
"Child Custody and Domestic Violence". This is a man who has had 25
years working in the family court clinic in London, Ontario, and who
is well respected for his work on domestic violence. He says here:
"Women who raise concerns about a violent partner in family court
proceedings are unlikely to be believed because lawyers and judges
tend to overemphasise the possibility that false allegations are being
used to further custody claims."
Q203 Chairman:
My question was whether any of you had come across examples, and Mr
Cranston following, of malicious allegations?
Phillip
Noyes: Yes, but also we have got examples of situations where
the referrer has been malicious about the adult and in fact the allegations
have been true. So a golden rule for the NSPCC staff taking the calls,
including calls about domestic violence, is to separate out what sounds
like malice between adults from what needs to be investigated in relation
to the safety of the child.
Q204 Mrs
Cryer: Ross Cranston was asking about injunctions, that a woman
could make allegations and gain an injunction against her husband
to exclude him entirely from the family. Am I right in assuming that
husband normally would appear before that judge, perhaps a week later,
and put his side of the case, therefore appealing against that injunction?
I just want to clarify it in my own mind. That is still the case,
is it not, that the excluded husband would have a right of appeal?
Hilary
Saunders: Yes.
Q205 Mrs
Cryer: An application for the injunction would be heard without
his presence but then he would be invited to come into the court,
say, a week or so later, to put his side of the argument?
Hilary
Saunders: Certainly that is my understanding.
Mrs Cryer:
I just wanted to make sure that was right.
Q206 Mr
Clappison: Just going back to the point about finding out when
women have been victims of violence, is it within your experience,
when you say that sometimes you have had women who, perhaps through
sheer embarrassment, have not said anything about violence, that later
on you have uncovered cases where there has been actual, serious,
physical violence?
Ruth
Aitken: Yes, absolutely. Another common theme is that women
may say, "He abused me but he was okay with the kids. I don't think
the kids have seen anything, we always tried to keep it quiet." Before
I was Policy Officer, my job was working as a psychologist directly
with women and children in a refuge, in fact for a number of years,
and I would be working in parallel with the woman and with the child
so I would hear both sides, confidentially, of course. I have had
a little five year old say to me "My dad used to strangle my mummy.
She used to say it was a joke but I know it wasn't a joke, but I don't
tell her because she gets upset." So there is silence and secrecy
between the parties.
Q207 Mr
Clappison: I understand that you are dealing with complex situations
in which people sometimes do not want to admit things. On the question
of the definition, which you did strive to highlight, would you accept
that there is some danger if you pitch the definition too wide on
this, in perhaps the vast majority of cases, given that there is always
going to be disagreement, rancour, between the parties, reasons why
people want to separate from each other? Do you accept that there
could be a difficulty in having a definition which was too wide and
it would include nearly every case?
Ruth
Aitken: I do not think so, because our understanding of domestic
violence, and the understanding that comes out of the New Zealand
legislation definition, is that it is ongoing, systematic, purposeful,
the purposeful abuse of power and control within a relationship. We
need to find ways, I agree, of differentiating that from problems
around relationship breakdown, problems around arguments, problems
around conflict, but if we have a clear definition and people are
trained I cannot really see that there is a problem with that.
Q208 Mr
Clappison: The definition should spell out a clear difference
between the two?
Ruth
Aitken: Then couple it with training, rolling it out, implementing
it, I think that would help.
Q209 Mrs
Cryer: Can I put a question to the NSPCC. This Committee has received
submissions which suggest that in cases which involve the neglect
and physical or sexual abuse of children the children were more likely
to be living with their natural mother alone. Have you any evidence
to support this?
Phillip
Noyes: It is very difficult that way round. In terms of who
perpetrates abuse, the NSPCC's prevalence study, which looked at a
sample of about 3,000 18-24 year olds talking about what had happened
to them when they were younger, suggested that more women than men
physically abused children and neglected them, and more men than women
sexually abused them. Because of the limitations of the data collection,
that did not take into account the incidence of children living with
their natural mothers on their own. Previous research that we had
done, which was on incidence, based on child protection registers,
suggested that when you controlled for the domestic arrangements of
children then men were probably round about twice as likely to be
afflicting physical abuse on children than women.
Q210 Mrs
Cryer: This is to Women's Aid. You have suggested that non-resident
parents should be banned from applying for contact for several years
in high risk cases. What do you consider to be high risk cases? In
order for such an order to be made, should the non-resident parent
have been convicted of an offence in a criminal court?
Hilary
Saunders: No, because the level of criminal convictions is
very, very low. The central problem with all of this is that we are
talking about abuse that is committed usually within the home, behind
closed doors, and so what the court is presented with is a he said,
she said, situation. If you do not have that broad understanding of
what constitutes domestic violence, you can get narrowed down to talking
about just one event. It is extremely difficult to prove. One of the
things that we would really like to see, and we argued for this in
our latest report which was launched yesterday about 29 child homicides,
these were children who were killed as a result of contact or residence
arrangements in England and Wales over the last 10 years, 10 in the
last two years, we talk about the need for front-line staff in statutory
agencies to recognise significant risk indicators and for research
to establish what significant risk indicators are with regard to children
affected by domestic violence and involved in family proceedings.
We are close to it in South Wales because the Cardiff Women's Safety
Unit has worked with the South Wales Police and also with the NSPCC
to draw up significant risk indicators with regard to women, and if
you applied them to the 29 child deaths that we looked at in that
report you could see that there was a high correlation. What we want
is for front-line staff to have good risk assessment tools and an
awareness of where the risks are, because if you do not understand
the dynamics of domestic violence you can make very dangerous assumptions.
Q211 Mrs
Cryer: You would say that no-one would be banned from applying
for contact for several years unless there was some strong body of
evidence?
Hilary
Saunders: Absolutely; yes.
Q212 Mrs
Cryer: It is just that there are some very high profile pressure
groups operating on this and this is not always made clear?
Hilary
Saunders: I think when contact is refused in less than 1%
of cases there has to be a good reason for those refusals.
Q213 Mrs
Cryer: Again to Women's Aid. You have complained that the standard
of proof has been raised higher than the balance of probabilities
in serious cases involving sexual abuse. In fact, the civil standard
of proof which is applied by the courts always means more likely than
not. If non-resident parents were to be denied contact for several
years in high risk circumstances, how could their rights be safeguarded
against malicious accusations? Also, if the consequences of an accusation
of domestic violence are to escalate so that a non-resident parent
were to be denied contact with the children until findings of fact
were made, should the standard of proof also be raised?
Hilary
Saunders: I appreciate the concern about a loving parent being
denied contact with their children. I think that is very unlikely
to happen. What I would be much more concerned about is what happens
to children when the courts demand what they call a higher standard
of proof, a higher balance of probabilities, because the worst cases
that we see are cases involving child sexual abuse. When a woman says
that a child has just disclosed child sexual abuse, we know that woman
is going to have a terrible time in the family courts, because very
often we are talking about children who are under the age of five
and that child is too young to give evidence. So even if you have
got a social worker and a police officer agreeing that, yes, they
think this is sexual abuse, you have to prove that he did it, it is
not enough just to prove that the child has been sexually abused,
you have to be able to show that it was that particular person. It
is incredibly difficult.
Q214 Chairman:
You have to show that he was party, in some way, to the abuse?
Hilary
Saunders: Yes.
Q215 Chairman:
Not that he carried it out but that in some way he was party to it?
Hilary
Saunders: Yes, and because that is so difficult we come across
really bizarre situations. That was highlighted in the AMICA survey[1]in
1999. This was a study of 130 abused parents talking about what had
happened to their children in family court proceedings. They found
that direct contact was slightly more likely to be granted in cases
where there were allegations of physical or sexual abuse of a child
than in cases where there were simply allegations of abuse to the
mother. If you think about that, it is quite extraordinary, in fact
it is utterly perverse, and we think that is a direct result of the
Re H & R judgment. I know that Lord Hoffman has made a statement,
quite an amusing statement, which aims to clarify the position, but
we are still seeing cases where, frankly, very dangerous decisions
are being made, particularly in cases involving child sexual abuse.
Q216 Keith
Vaz: Do you think there is a bias against fathers in the family
justice system?
Hilary
Saunders: I do not think there is a bias against fathers.
I do not think there is a bias against mothers. I think the one real
problem that we have got is that there is such an overwhelming presumption
of contact, that has made the family courts a profoundly hostile environment
for abused women and children.
Q217 Keith
Vaz: What about the NSPCC, do you think there is a bias?
Phillip
Noyes: I agree. We have got no evidence that there is bias.
I guess it is underpinning what we are saying that we are concerned
about bias against children and that the discourse around men versus
women will somehow blind us even more to the fact that children, one
at a time, need to be properly safeguarded when they get contact with
their parents.
Q218 Keith
Vaz: Let us look at the bias against children then and the issue
of contact arrangements. Do you think that the views of the children
are being taken into consideration adequately when these arrangements
are being made?
Barbara
Esam: I started to refer to that earlier, as you know, and
certainly we do not think that these children's circumstances are
being adequately looked into and that is a failing of the system in
private proceedings at present. There seems to be a sometimes dangerous
presumption that if you consult both parents the welfare of the child
is automatically then going to be safeguarded, and we think that is
a real concern and is not giving children the right that they deserve
to have their views properly taken into account. They need to receive
information as well about what is happening, and of course all of
that needs to be with the proviso that there has to be the recognition
that children have to be of a certain age and understanding so that
they are not overburdened with this.
Q219 Keith
Vaz: Let us look at the age situation. Obviously, the younger
children, their views will carry less weight than if the child is,
say, 10 or 11. Do you think that there is a difference, in terms of
priorities, in the views of the children, depending on the age of
the child?
Barbara
Esam: I do not think their views should carry less weight,
necessarily, depending on their age. It is more difficult to get information
from children the younger they are, but there should be sensitive
procedures to provide age-appropriate means of getting information
from children, giving them an opportunity to have their views listened
to.
Q220 Keith Vaz: Who should be doing this? Should it be CAFCASS,
should it be the judge? Who should be involved in this process of
listening to the views of the children and moving this whole issue
forward?
Barbara
Esam: I think CAFCASS is the most likely source, although
of course I recognise that resources are a huge issue and already
in the Government's Green Paper CAFCASS is being asked to do an enormous
amount more than it is doing now. I do not think that we would say
therefore the Green Paper is not worth looking at, or therefore we
do not agree with the proposals there. There are resource issues and
we are very concerned about them, but I do not think that we can just
close our eyes to the fact that these children at the moment are not
getting their voices heard regarding something that is absolutely
crucial to their lives.
Q221 Keith
Vaz: The results would be different, do you think, in many of
these cases, or some of these cases, if the children's views were
heard?
Barbara
Esam: I suppose we do not know. They might well be different,
or they might not, but it would have a positive benefit for children
in any case to have been listened to.
Keith Vaz:
What about the target times for key hearing stages?
Q222 Chairman:
Just before you do that, when you say hear children's views, is there
a problem about putting children into the actual court process? Is
this something you would rather see achieved by the intermediary,
CAFCASS, or something else, or is there a real problem once you put
children into the hostile environment that the family court can be
sometimes?
Barbara
Esam: I think it depends on the child and I think it depends
on the way that it is dealt with. I think it is conceivable that it
could be dealt with sensitively. Certainly we know from our experiences
of young witnesses in criminal proceedings that, despite all the special
measures that are there to help children give evidence in those proceedings,
it is a complete nightmare. I think there is perhaps greater potential
in civil proceedings to help children give their views directly to
the court, but it would have to be dealt with very sensitively.
Q223 Peter
Bottomley: Roughly how many times would a child have had to tell
their story before they could tell it in court, to a caring parent,
possibly to a police officer, to a social worker probably, to the
solicitor for the family? How many times, roughly, would a child have
to tell a story?
Barbara
Esam: I think we would want to minimise that, obviously. It
would be best, would it not, to have that dealt with by only—
Q224 Peter
Bottomley: Is it likely to be fewer than 10 times?
Barbara
Esam: Yes.
Q225 Keith
Vaz: But more than four times? That was the point I know Mr Bottomley
was making. They have to keep repeating it again and again and again.
There must be a better way, but as yet we do not know what that way
is, in which the child can put its views forward without having to
repeat the story so many times. That is the damaging part, is it not,
reliving the memories of what was going on?
Barbara
Esam: Yes, and if you were involving a children's guardian
earlier on that would deal with some of it.
Q226 Keith
Vaz: The delays in the system are serious, are they not? What
do you think the optimum time for an average case should be? I know
it is very difficult because it depends on the complexity of these
cases, but at the moment they do tend to drag on. Is there some kind
of average time that you think would be appropriate or acceptable?
Barbara
Esam: I think it is important to remember that from a child's
point of view the delay starts from the time they are not seeing the
non-resident parent and that is a crucial recognition which needs
to be made. From our review of legislation relating to children in
family proceedings, it was stated very strongly, almost unanimously,
that the delays were caused by a shortage of judges and a shortage
of children's guardians who were qualified and experienced. I think
it is very difficult to say this is the right amount of time. What
you want to happen, of course, is for it to be done absolutely as
quickly as possible. I think there is a lot in the Green Paper that
moves us in that direction.
Q227 Keith
Vaz: Do you agree with the presumption that there should be contact
with both parents, a presumption, all things being equal?
Barbara
Esam: As long as the safety of the child can be guaranteed,
absolutely, there should be contact with both parents.
Q228 Keith
Vaz: The legal process itself, the court proceedings, the delays,
the inquiries, Mr Bottomley referred to the number of times a child
has to tell his, or her, story, do you think that is damaging for
children?
Barbara
Esam: Definitely. The delays are very definitely damaging
for children. If they are not seeing one of their parents, and they
would be safe seeing one of their parents, that is a real injustice
being done to children.
Q229 Keith
Vaz: Is there a system somewhere else in the world that you have
looked at, that NSPCC has researched, which you think can provide
us with a better answer to these agonisingly difficult problems?
Barbara
Esam: I do not have an awareness of another system that is
working better, no.
Chairman:
Thank you very much indeed. I am sure there is a lot more you can
tell us, and there is a lot more you have told us in your written
evidence, which we will make good use of. Thank you very much for
your help.
14 DECEMBER
2004
MAVIS
MACLEAN CBE AND JOHN EEKELAAR
Chairman:
Mr Eekelaar and Ms Maclean, thank you very much for giving us of your
time this morning. You both have expertise in this area and there
are a number of quite specific points with which I think you might
be able to help us. Certainly, on the basis of what you have written,
we are quite anxious to hear from you.
Q230 Dr
Whitehead: Do you think that if Section 1 of the Children Act
were expanded to emphasise the importance, precisely, "the court should
have regard to the importance of a relationship between the children
and a non-residential parent," that would be of benefit to separating
parents and their children?
John
Eekelaar: I am going to start off with the present position.
As has already been said, the courts operate on the basis that they
view contact as a good thing. There is no doubt that you cannot look
at that area without appreciating that is the view. The question is
whether any statutory amendment would make any difference and perhaps
it would make things slightly worse. As I see it, I think the debate
has been between writing in special presumptions or some other form
of statutory change. I think presumptions are problematical, people
are concerned about them, because they could be a distraction. It
is always difficult to frame a presumption in a way that would be
satisfactory, say, a presumption that there should be contact. You
might want to say there is a presumption there should be contact unless
it would be dangerous, or something. Then you would have possibilities
perhaps of counter presumptions, and this could be a distraction and
cause an argument. That is why I feel that one has got to be very
cautious about that. There are other possibilities. I am not sure
it would make any difference, but if it was felt that there should
be some sort of public endorsement, or parliamentary endorsement,
of this, something which included an addition to Section 1(3), which
lays out the matters to be taken into account, could be considered.
I will say just a word about that. When you look at those factors
in Section 1(3), they are all matters of fact—the age of the child,
the sex of the child, the background of the child, the needs of a
child, and so on, they are all facts. What sort of fact do you put
in about contact, what is the fact going to be? I think there could
be a fact and something which could be agreed as a fact, I think,
without much controversy, and that is simply the interest that a child
has in maintaining beneficial relationships, especially with its parents.
That seems to me to be a kind of fact and an interest which a child
has. I quite like that wording because it talks about maintaining
beneficial relationships especially with the parents but not solely.
I think sometimes there is a tendency to forget that there are other
relationships, with siblings, grandparents, and so on, which are beneficial
and tend to be a bit marginalised here. If that is simply put there
as something that courts should consider, I do not think that would
lead to the kinds of problems which presumptions might do. There is
another possibility. You could amend some other part of the Act, Section
10, which gives a court power to make Section 8 orders. You could
put in something there that the court should make the order, "recognising
the interests of a child", as I have just said, it could be put in
somewhere else in that sort of way, just recognising that the child
has interests, the court may make an order. These are ways, which
are not for me to decide, which could be considered if you wanted
to put in some statutory form.
Q231 Dr
Whitehead: Are you suggesting that the nature of facts, as opposed
to presumptions, and how one might, as it were, address a presumption
as a fact, to some extent, may need clarifying, in terms of the approach
that the person who is coming to the court thinks the court might
then adopt? That is perhaps the tendency, to regard the presumption
as a right or a fact, whereas, in fact, that must be heavily qualified
by subsequent examination. Is that something you would regard as an
operational problem for presumption, or a disqualification of the
presumption as a starting-point in the process?
John
Eekelaar: If I have understood, yes, I think a worry would
be that somebody would come believing they had got, as you say, a
right, so there is a preferred outcome which is not necessarily based
upon a true assessment of the child's interest. Just because it is
contact, as it were, that is what should happen, irrespective of whether
this would be in the interest of the child, and as we know it is not
always in the interest of the child, and quite often against the interest
of the child, therefore you would immediately have to qualify it.
That is where they could get into trouble, if it was something which
was pointing to an outcome. Whereas, if you simply stated as a fact
that a child has an interest in maintaining beneficial relations,
which I do not think anybody would deny, you could prevent it.
Q232 Dr
Whitehead: In terms of facts, the submission that you have made
to us, Mavis Maclean, concentrates very much initially on a number
of clear facts from research, and so on. In your view, what evidence
is there that where parents engage with the courts that subsequently
agree a settlement they are more content with what has happened, and
perhaps that settlement is more durable than for those people who
have a court settlement imposed upon them?
Mavis
Maclean: That is an interesting and important question. I
think there is a lot of confusion about the impact on parents of going
to court. Often it seems to be being said that it is courts that make
people angry, whereas I think it is pretty clear that you do not go
anywhere near a court unless you have tried everything else and you
are very angry when you get there. Research in progress at the University
of East Anglia, commissioned by DCA, is making it very clear that
even when people first arrive at court they are very conflicted, very
unable to communicate with each other, they have exhausted all their
other resources and very often they have a number of other problems
too. Very often they have problems with debt, unemployment, health
and housing. These families are in a lot of difficulty when they arrive
at court. I think the Green Paper is very wise. There is a sentence
in it about these families' disputes being ongoing, continuing disputes.
They are not something which is going to be resolved on one day by
one piece of paper issued by a court, or signed up to a mediation
or a conciliation meeting, these are ongoing problems which, in my
view, need ongoing support and advice. To get back to your question,
I think that people who have a court adjudication are a tiny, tiny
population. Some of them go back to court for a variation, but very
often this is because circumstances have changed. It is something
like a sixth of the people who have an order who feel that they have
to go back, that the matter is not resolved. Of those who have an
in-court conciliation appointment, again, from research in progress,
which I think the DCA will publish shortly so I cannot give you precise
numbers, it is not in the public domain, but from having read those
reports, my understanding is that a majority of people manage to agree
after one of these in-court conciliation appointments, and more contact
does happen. Again, a large number of these agreements are not kept
to in full, they may be kept to in part but they do not get set in
stone and follow automatically. I think what worries me most about
them is there is no indication that there is any change in the level
of conflict between the parents. Although these parents seem to sort
of break the court habit, when they have a problem they do not immediately
rush back to court, and I think that may well be a positive step,
there is still anxiety about children experiencing contact in a situation
where the parents go on being so highly conflicted. I do not think
anyone would dispute the fact that to lose contact with a parent who
is loved, or with any carer with whom a child has bonded, is bad for
a child. To be involved in a parental conflict, to be a sort of pawn
in the game, similarly is bad for children. The difficulty for policy-makers
arises where you have these two conflicting aims. You want to maintain
a relationship with a parent but you do not want to expose the child
to ongoing difficulty while experiencing that contact. I think this
is a bit of a gap in the research knowledge. We do not know yet how
to balance the short-term stresses of changeovers and being used as
a pawn in the game, or being asked not to refer to a new partner,
any of those problems which children in research have told us about,
how we would balance that against the long-term benefits of an ongoing
relationship with a non-resident parent. There are still lots of unanswered
questions.
Q233 Dr
Whitehead: Essentially, you are encouraging the idea that engagement
through either mediation or other forms of settlement subsequent to
a brush with the courts and that outcome not being simply the end
of an imposed settlement is desirable. At the very end, we have got
the idea that where it is necessary to protect a child from clear
harm a court order may then be necessary, but only then necessary.
This is a question to John Eekelaar. Does not that give a licence
to whichever parent is in a more powerful position to abuse that position,
when the end of the road has been reached simply to say, "Well, I'm
sorry, I'm not going to co-operate any further and there's nothing
you can do to me because the criterion of harm to the child is something
I can hide behind"?
John
Eekelaar: If I could explain the reasoning behind the suggestion
which I made. The first point is in terms of enforcement, and in a
way enforcement is the really crucial thing and this is where people
get really very frustrated. They have got an order and it is not complied
with, and you try and it is not complied with and nothing seems to
happen. Perhaps it is more important than the first things we were
talking about. So how can we improve it? The first thing, I think,
looking at the cases, is that the courts are all over the place on
this. They do not really know what to do. On the one hand, they will
say, "Look, we just must enforce this, because otherwise they are
flouting the power of the court." On the other hand, they say sometimes,
"Well, it's bad for the child, we can't do it." It is very difficult.
I think we need clarity here, which we lack, and how can we make it
clearer but also just and also protect the child? It seemed to me
that if you had a criterion that a court should take enforcement,
and we are talking about enforcement, we are not talking about the
initial orders, we are not talking about persuasion or other things,
or even a parenting order maybe, or education order, we are talking
about real coercion, say, that the courts before they will do it must
be satisfied that this is necessary to protect the child from clear
harm, if that is the basis for the order and a finding has been made,
it does seem to me that it is more likely that the courts will carry
it through, because, here you are, you have got clear harm found to
the child. I will give you a parallel from another part of family
law. In the case of occupation orders, and these are orders which
courts can make, indeed must make, to kick somebody out of the house,
it can cause significant harm for the applicant or a child. There
is a test there which says that the courts actually must make such
an order, unless they consider that equal or greater harm will be
caused to the applicant or the child by making the order. Here we
have got a statutory provision which actually accepts that in some
cases making an order, in this case expelling a person from the home,
might make things worse, even if significant harm is being caused.
Q234 Chairman:
Can I ask a question the other way around. A person who says, "Well
I know perfectly well the court won't do any enforcement of any kind
unless there's the threat of harm to the child, and there's no way
that he's going to be able to convince the court that it's harmful
to the child for me to deny contact, in other words, enforcement measures
will not come in unless I, the resident parent, am able to allege
harm against the non-resident parent, it won't work the other way
round, so frankly I cannot make the child available for the agreed
and ordered contact"?
John
Eekelaar: Where a parent is denying contact where that contact
is a beneficial and valuable thing for the child, I think that child
could be held to be suffering harm.
Q235 Chairman:
Have the courts so held in many cases?
John
Eekelaar: Certainly the presumption of contact suggests that
they see it that way. In fact, I think they see it rather more broadly,
in a sense. I would suggest that any form of denial of contact could
be seen to be harming, it does seem to me, if that is the case. Obviously
it depends on the facts and what is happening.
Q236 Chairman:
There is a fundamental difference here. If the possibility of harm
is the non-resident parent taking the child away, out of control and
causing it harm, the court is quite likely to take that very seriously
indeed. If it was the other way round and the resident parent were
to say, "No way. The court can say what they like. I don't agree with
this contact. I'm not going to allow it," the likelihood that the
court will say the child is suffering serious harm from this denial
of contact is much less the other way round?
John
Eekelaar: I just do not know. If a parent alleges that the
non-resident parent might take the child away, the court is going
to have to decide on the reasonableness or the plausibility of that
claim, and it seems to me that if a court thinks that this is just
a ruse, that there is no reasonableness in this and the result—
Q237 Chairman:
I am comparing two situations. The likelihood that harm from non-contact
will lead to the court taking enforcement action of a real and effective
kind is argued by many people to be very low indeed. The likelihood
that the court will inflict some measurable punishment or deterrent
upon the resident parent in those circumstances would seem to be very
low indeed. Can you give me an example of what the court might do,
given that prison is thought generally to be a pretty useless thing
to do to a non-resident parent?
John
Eekelaar: Yes, that is my point, that the court would have
to make a decision. Does the denial of contact cause greater
harm than taking enforcement action? There may be cases where it would
be. It is possible, it seems to me, that a court could say that a
child who has had an excellent, splendid relationship with the absent
parent and that has been denied, for no good reason whatsoever, is
being caused harm, which will be greater than the harm which might
be caused by taking enforcement action. I do think that is a question
that has got to be faced. It may be a difficult one but it has got
to be faced. I accept also the possibility that the court might go
the other way and say that it would cause greater harm to take enforcement
action by allowing the contact, which is a problem. Is there a problem
of imbalance there? The answer is that of course there is, of course
there is, and we have got to be honest about that. The world is not
equal here, the position between men and women, and so on. A mother
may well have had the greater control, or does have a greater control,
of the child. The issue is then, and we have got to face it, that
the father of course has interests and rights, they are protected
by human rights law, but what does human rights law say? Human rights
law says that the state must do everything in its power, its utmost,
to try to protect those rights, it has to do that, short of causing
damage and harm to the child, and that is a crucial thing. If the
only way in which the father's interests here can be protected is
by a measure which the court has expressly found, and that is why
I want to highlight this, has expressly found, will cause greater
harm to the child by making it than the present situation of the child,
that it will cause greater harm to take those steps, we have just
got to make a decision, which person's interests to protect the child's,
protection against harm to the child—or the father's interest. You
have got a straight choice. I cannot solve that dilemma, it is just
part of the dilemma.
Q238 Dr
Whitehead: If we return to the notion I put a while ago, about
Section 1 of the Children Act and what you might call an enhanced
presumption, would that not therefore change the basis upon which
that decision subsequently might be taken by a court? That is, if
there is an enhanced presumption of the importance of the relationship
between the child and the non-residential parent, the notion of harm
therefore is influenced by that presumption. One of the problems at
the moment I think that some people perceive is that, as our Chairman
said, if the powerful parent simply holds to their position and there
are no other circumstances where one can say that the powerful parent
is harming the child, or indeed the contact itself would harm the
child, they would simply deny that the contact itself is perceived
by the non-resident parent as simply saying, "Well, I appear to have
got this far, in terms of the rights of contact, now I'm simply going
to have to give up because there is no other remedy"?
John
Eekelaar: First of all, I was not really arguing for an enhanced
presumption. I think the Section 1 thing is just simply stating in
a way a rather bland, obvious point, but in a specific case I do not
think it would make much difference to a person. I do think a court
has to make a judgment, that is what courts are for, and it has to
make a judgment, "Is the denial in this case of contact causing this
child more harm than would be caused to the child if we put the mother
in gaol, or if we did that?", and so on.
Q239 Chairman:
Or to find another form of redress or deterrent or punishment?
John
Eekelaar: Yes, any form of coercion. The evidence seems to
be, and I think it is really clear, that, coercive measures, once
you get into coercion and you try to make a mother carry out instructions
about contact, as it were, under coercion then this is likely to cause
harm to the child, and a judgment has to be made whether that is worth
it, whether that is desirable, given the harm that otherwise would
be caused by not allowing contact. I just want to heighten that as
being what the choice is.
14 DECEMBER 2004
MAVIS
MACLEAN CBE AND JOHN EEKELAAR
Q240 Mr
Clappison: We have been helpfully supplied with the headnotes
of the case, which I am sure you are familiar with, V & V, in
front of Mr Justice Bracewell. It is a very recent case, this year,
a case which was dealing with a mother who showed implacable hostility
towards the father having a right of contact, and in the end the judge
made a residence order in favour of the father, after going through
all the issues and finding that the mother had been unreasonable and
shown hostility. It is a fairly robust case, but is there anything
wrong with that case, in your view?
John
Eekelaar: I cannot remember the details of that. Maybe I am
mixing it up with another one where I think a care order was made.
Mr Clappison:
This was a case in which the mother was found to have shown implacable
hostility, and the headnote takes us through all the things which
the mother had said, which turned out to be wrong, and at the end
of the day the judge robustly gave a residence order in favour of
the father. Have you seen this? It was Mr Justice Bracewell.
Q241 Chairman:
This is speaking to an individual case, but Mr Clappison mentioned
another step the court can take in carrying out this judgment?
John
Eekelaar: Exactly, so transferring the residence is certainly
an action. I would say again that the test for that should be is the
present harm the child is suffering by what the mother was doing in
not allowing the contact greater than whatever harm might be caused
by forcibly taking the child away from the mother and giving it to
the father? If the judge came to a clear conclusion and thought that
the present harm to the child was greater than any disruption, etc,
caused by the removal and came to her decision, that is what the judge
is there to do and probably I would agree.
Q242 Mr
Dawson: Just a few questions on the Family Resolutions Pilot Project,
which people are very interested in, we were discussing it on the
floor of the House only last night. Mavis, why was it not possible
to make the Family Resolutions Pilot Project mandatory, and do you
think that it would work differently if that element of compulsion
was involved?
Mavis
Maclean: To make it mandatory would have required primary
legislation. This was a small pilot scheme and it simply was not appropriate
to delay introducing the scheme in order to consider primary legislation.
If the scheme is a resounding success and national roll-out is on
the cards then of course that could be revisited. I think myself that
it would make a very minor difference, in that this is a scheme to
which parents are referred by the court, they come to court, somebody
is asking for a contact order, they are then directed by the court,
very firmly, towards this scheme and I think it would take a lot of
resolution to resist this direction. Also, I am sure that advisers
would intimate to parents that if they went on directly into court,
by-passing the scheme, the court would not be too pleased with their
choice. I think a lot has been made of this issue, but I think actually,
in practice, it is a very minor point.
Q243 Mr
Dawson: Are you seeing any resistance to the project at the moment?
Mavis
Maclean: It is very early days, but certainly the courts are
very enthusiastic, the judiciary are very enthusiastic, it has had
a lot of support from local solicitors, so I do not envisage difficulties
so far.
Q244 Chairman:
Surely you cannot test how a compulsory scheme with parenting plans
would work by piloting a voluntary scheme. You may learn something
from a voluntary scheme, it might work out to be very good indeed,
but you are not testing the same thing, are you?
Mavis
Maclean: I do not understand the question.
Q245 Chairman:
The essence of the scheme that was not proceeded with, because it
would have required primary legislation, was compulsion. You are not
piloting compulsion. You cannot draw conclusions about whether a system
with those features would work better when it is not being piloted?
Mavis
Maclean: If everybody goes into it, in effect, you are—
Q246 Chairman:
Surely the whole character of the scheme is different, if it is voluntary
from the start and every aspect of it is voluntary? Are there not
two different things here, each of which may have merit but they are
not the same?
Mavis
Maclean: Indeed, but the Florida scheme, which has been much
discussed, was compulsory, simply because judges in Florida have different
powers. If a scheme is offered and everybody who is eligible takes
it up then the mandatory nature is there.
Q247 Chairman:
It is not just signing up to it, it is the obligations you undertake
when you become part of it?
Mavis
Maclean: The primary reason for not making the scheme mandatory
was the legal position, but I think there is also a very positive
aspect of not being mandatory, in that it is widely accepted that
decisions which people take part in, make for themselves, sign up
to, have a higher level of acceptance and sustainability than those
which are imposed. I think there are two strands to this issue.
Chairman:
Thank you very much indeed and thank you both for your help this morning.
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