Tuesday 18 January
2005
Members present:
Mr Alan Beith, in
the Chair
| Peter
Bottomley |
Mr
Clive Soley |
| Ross
Cranston |
Keith
Vaz |
| Mr
Hilton Dawson |
|
CONTENTS
Examination of
Witnesses Question Number 346 to 440
Baroness Ashton of
Upholland, a Member of the House of Lords, Parliamentary Under-Secretary
of State, Department for Constitutional Affairs, and Rt Hon
Margaret Hodge MBE, a Member of the House, Minister for Children,
Young People and Families, Department for Education and Skills,
examined.
18 JANUARY
2005
BARONESS
ASHTON OF
UPHOLLAND AND
RT HON MARGARET
HODGE MBE, MP
Q346
Chairman: Good morning, Mrs Hodge, Baroness Ashton. As you
know, the Committee has been working on this issue for some
time. Why did you decide to make a statement of policy on the
day you were due to give evidence to the Committee and just
before you did so?
Baroness Ashton
of Upholland: Can I first of all apologise, Chairman,
that the venue change was not given to you, as it should have
been, so that you were not able to attend. I know I have sent
to you the notes of Lord Falconer's opening remarks, but I can
only apologise. It was a cock-up. It should not have happened.
The reason was one of logistics. We were ready to give the statement
and, as you know, it is quite important to tiMETAble these things
in consultation with colleagues across government. We ended
up in the position where this was the best day in order to get
the kind of coverage this issue deserves. We did, of course,
talk to your clerk and make sure that the Committee was fully
informed, and I was delighted the Committee was able to alter
the timing in order to facilitate that.
Q347
Chairman: We altered our timing so that we could know what
was happening in the press conference, which you then moved
without telling us.
Baroness
Ashton of Upholland: I have already apologised for that
unreservedly.
Q348
Peter Bottomley: As a matter of interest, when were the
press told it was being moved?
Baroness
Ashton of Upholland: I think we would have to consult
our press officers, but I assume during the last 24, 48 hours.
It should have been reported to you. There is no excuse for
it. I cannot give you an excuse for it. It was a cock-up.
Margaret
Hodge: I think the reason for it, just to put it into
context, was the security arrangements. Clearly you should have
been informed. I think we both sincerely regret that you were
not.
Q349
Chairman: We have gone to some trouble to make some security
arrangements for your benefit.
Margaret
Hodge: I know you did. Thank you very much.
Q350
Chairman: A decision we made, indeed, when you were subject
to an attack. All our subsequent meetings on this subject have
had additional security, so we do not find it a very convincing
reason for not telling us.
Margaret
Hodge: I do hope, Chairman, you were also given information
as to what—. I was told that you were given information
prior to the announcement today as to what we would announce
so that you would know what was in there, and that was our attempt
to be both courteous and inform you for today's proceedings.
Q351
Chairman: Yes, we were. Is the Government objective to remove
private cases from the Family Courts money driven or outcome
driven?
Margaret
Hodge: Outcome driven, absolutely and totally without
hesitation outcome driven. This is, as you know from many years
of looking at these issues (much longer than we have been doing),
a highly contentious area. It is very difficult. We know that
for the child's best interests we need to do all we can to ensure
that parents decide between themselves on the best arrangements
for their children and maintain a meaningful relationship with
their children, where it is safe for them to do so. We know
that there has been a growing number of divorce and separation,
we know there are a growing number of parents, both mothers
and fathers, who are unhappy with the outcomes of the decisions
that they themselves take, or the courts take on their behalf,
and we know that there are a growing number of children who
suffer from the consequences of separation, divorce and the
acrimony that is caused if the arrangements are not properly
established; so it is for the child's interest and it is outcome
driven. It is utterly completely focusing the work we are doing.
Q352
Chairman: That being the case, you recognise, do you, that
some of the alternatives cost money and that resources will
be required for that?
Margaret
Hodge: Indeed, and you might quite rightly say that
we wish we were to have more resources than we currently have.
I am quite pleased with the additional resources that we have
been able to secure to take forward a lot of the proposals that
are contained in today's announcement. It is never enough. I
would love to be able to say to you there will be even more
money, for example, going into training and funding, more counsellors
for more mediation, but it has been a growth area. We will continue
to look at how we can expand it in an effective way to secure
the outcomes, and I hope that the Committee will welcome, in
the same way as we have done, the additional resources that
we have secured both around introducing the Adoption and Children
Acts, issues around harm and domestic violence, which are going
into the court, the money that we could put into CAFCASS, the
extra money that we are announcing today for contact centres,
which is another element in it, and using money better, so changing
the way in which CAFCASS works so that we can better promote
mediation, conciliation. All those, I think, are putting resources
in the right direction as well as adding new ones. It does not
mean we should not have more, and I will argue that case all
the time.
Q353
Chairman: We will come on to CAFCASS a bit later this morning,
but why have you ruled out a statutory presumption that children
should have contact with both parents?
Margaret
Hodge: We start from the principle, which is enshrined
in the 1989 Children Act, that the welfare of children should
be paramount; and you can only have one paramount principle,
as you will know, and I know that the Committee has discussed
this and, reading the evidence, obviously this has been an issue
that has been raised. It does seem to us very clear that for
the vast majority of children, providing it is safe, contact
with both parents on an on-going loving, sustained way is critical
to their development. One only has to look at issues surrounding
the development of children in terms of even just educational
outcome to see the impact it can have when children do not have
that, but, because it is in their best interests, we would want
to see it happen on that basis, and we think that is the right
way of approaching it.
Q354
Chairman: You did not address in today's presentation, as
I understand it, an alternative suggestion, which is that section
1(3) of the Children Act, which has a welfare check-list in
it, could include a requirement that the courts should have
regard to the importance of a relationship between the children
and the non-resident parent. Why did you not consider that point?
Margaret
Hodge: I think we have to be really careful in this
debate that we do not promise parents something which we are
then not delivering. The reality, as you know, is that all the
case law that has been built up over many years recognises that
the best interests of the child are served by a continuing relationship
with both parents where it is safe for them to do so. It is
pointless, in a sense, to change the law, pretending you are
changing something when in reality you are not. I think that
gives false promises and false hope to people who are really
distressed right across the piece on the circumstances that
face them when they separate and divorce and cannot find an
arrangement, or cannot agree an arrangement between themselves.
I strongly feel this, Chairman, in this whole very tense debate
raising false hopes is the wrong route down which to go, and
we do not need to change the law because it is absolutely clear
they are in the case law.
Q355
Chairman: Experienced practitioners, like those represented
by the solicitors from the Law Association, recommended the
addition to the welfare check-list as opposed to the changing
presumption, and judges we asked about it did not seem concerned
about doing that so long as the drafting was carefully considered.
It seems strange to me that a suggestion that has reasonably
wide backing amongst those who have to practise within the courts
should not have received more serious consideration.
Baroness
Ashton of Upholland: Obviously I have only read the
evidence; I was not at the Committee. I did not interpret what
was being said as wide backing. I think you are right, of course,
Chairman, that the SLFA did raise this, but, as Margaret was
just saying, I think it is quite important that we address the
problem that people have identified to be the problem; and the
problem is not that the courts look at this and say anything
other than that it is in the child's best interests, nor, indeed,
that we would all wish to see on-going relationships for children
with both parents, the problem that was identified is how does
one make sure that actually happens? Simply looking to adding
into a check-list something that is already well understood,
is in law, is certainly viewed by the courts as being of critical
importance, is not affected by a change of that nature. What
matters is how you make sure that down the line what is being
sought for these children actually happens. The way that we
have approached it is to say that the principle is right, the
law is clear; what do we now do to ensure that the reality for
families and, most importantly, for children is that they get
what is in their best interests?
Margaret
Hodge: Can I add something to that? I too have read
the evidence that you had before this Committee, but the vast
majority of those who responded to the Green Paper that we published
in the summer did not favour a change in the legislation. I
just put that to you. Even the SFLA, who I know have argued
for that, see it as symbolic rather than—
Q356
Chairman: That is exactly the point I was going to put to
you. The Government quite often makes changes in the law because
they think a signal needs to be given, even though they do not
think it will have an immediate practical effect.
Margaret
Hodge: Let me come back on two things. First of all,
I think the important signal that we all need to consistently
give is that the interests of the child must be paramount. That
is the absolutely crucial signal, and I do not want to muddy
that signal at all. However, because we know it is in the child's
best interests to maintain a meaningful relationship with both
parents, again where it is safe for them to do so, we need to
demonstrate to parents that that means that they need to comply
with contact orders; and the signal at the other end, which
is the sticks that we are talking about this morning and which
will be considered in draft legislation shortly, the stronger
set of levers that we are proposing to give to judges, that
is the way of signalling that it matters that contact is maintained.
I think muddying the waters at the earlier end does not help,
and I genuinely believe would raise false hopes.
Q357
Peter Bottomley: One of the things that children benefit
from the most is consistent continuing care and control from
parents. One of the things which, I think, has been absent,
both from the evidence to government, from government and to
this Committee is the fact that at least a quarter, if not significantly
more, of children whose parents get involved in court proceedings,
or their children get involved in court proceedings, get into
persistent trouble with the law, and this is particularly relevant
at the moment because of something happening in my constituency,
Worthing, where old people's homes are turning into children
farms, children's homes, without the caring authority even notifying
local social services or police that troubled and troublesome
children are coming. We will be having a separate meeting with
Lord Filkin about this. What is there in all the processes and
procedures that in some way, first of all, alerts parents to
their children's needs for this care and control so they have
worthwhile activity rather than being involved in worthless
activities where they create other victims and become victims
themselves, and how does the integration of government start
setting some kind of aim, if not targets, in reducing the dramatic
increase in the trouble that children get into when they have
troubled family backgrounds?
Margaret
Hodge: I am not sure this is the appropriate forum in
relation to the programme, but I am happy to talk about the
issue of looked after children and those particularly placed
outside their area where I think you are quite right to raise
the issues that I know are particularly pertinent in your constituency
at present. I am happy to deal with that, but I am not sure
it is totally relevant to the debate. Parenting Plans. There
is a lot we are doing today, there is a real menu of propositions
that we are putting forward, but the Parenting Plans and the developments
we have made there which demonstrate in a much more practical
way the decisions parents can take around arrangements for their
children which really put the child's interests first, are part
of the practical things that we are doing in our armoury to
get parents to focus on the interests of the child and give
them the stability, continuity and consistency that, I agree
with you, is utterly central to the good outcomes later in their
lives. What are we doing? There they are. I hope Committee members,
if they have not received them, will receive them. I will make
sure that you receive copies of those today. What are we doing
to try and counter some of the poor outcomes that children from
separated families can have if we do not manage to get the contact
arrangements sorted out? That is part of my much wider programme
of reform for children's services, and I would simply say two
principles underpin that reform. One is to try and spot the
signs of things going wrong much earlier, so as to intervene
earlier to strengthen the preventative services, whilst always
realising that the protection service is important, but getting
a shift focused to prevention. The second principle which underpins
the reform programme is trying to reconfigure the way people
respond to children's needs by building the services round the
needs of the child, with the child's voice being central. Instead
of having a child, for example, who may show in a school the
first signs of distress by truanting or bullying or whatever
it is, just having that happening in isolation, people working
in the school will be working much more closely with the family
doctor or with the health visitor or with other relevant professionals
so that they really do work round the needs of children. There
are lots of ways in which we are doing it, but those are the
two principles underpinning our reform agenda.
Q358
Peter Bottomley: Can I observe that that is a proper response
for what the professions might do, but if I try to talk about
more confident, more competent parents, good enough parents
at a time of fractured or fracturing relationships, is there
anything in the Parenting Plans which mentions children getting
involved in crime and is there anything in what parents can
be alerted to about the extra practical things they do to fill
their children's lives with worthwhile activities rather than
just being cut adrift?
Margaret
Hodge: There is a lot in there about the practical things
that parents should do. Do we talk about crime? I think the
answer is, "No".
Q359
Peter Bottomley: Yet one male child in four by the age of
18 or 20 has been convicted of a serious criminal offence?
Baroness
Ashton of Upholland: Can I add two things on that? The
first is that within the proposals, the curriculum and PSHEs
the whole question of family breakdown is going to be more fully
developed in terms of teaching materials so that young people
understand (a) that it may happen and (b) the consequences of
it for themselves and for their own children potentially of
which the impact on the children would be a critical part. Secondly,
looking at some of the mediation proposals that we have and
the family resolution proposals too, part of that is the opportunity
to talk about the impact on children of parents not reaching
agreement and not finding ways through to the benefit of their
children, of which precisely the point you make about a child
who feels in an impossible situation, who may find themselves
suffering educationally, socially and otherwise (which, as know,
can be the slippery slope, as such), would be part and parcel
of it. We do cover it, not in a heavily profiled way, but in
terms of those two different aspects. All of this is part of
Every Child Matters. All of this is about the integration across
government to develop policies for children that mean that they
get the best start, the best future.
Margaret
Hodge: One final point. These are consultation documents,
so no doubt the Committee also will wish to express its view,
and I hear what the Honourable members say.
Q360 Chairman:
What do you say to the charge that these proposals announced
today are unambitious and do not carry us any further forward,
indeed represent a step back, in some respects, from the proposals
that were produced in 2001, the Making Contact Work proposals
to which the Department responded in 2002?
Margaret
Hodge: I am disappointed by that assertion.
Q361
Chairman: It is a question lots of people are asking.
Margaret
Hodge: Are we going to make people happy out of this?
Are we going to find an answer to every individual problem that
individual families face? I think the honest answer to you has
to be "No", we will not be able to do that: because the best
way of resolving these issues is for adults to change the way
in which they behave when they try and determine the future
for their children. What we are attempting to do, and I think
the package is pretty comprehensive, Chairman, if I may say
so, is to put this whole emphasis on supporting parents to mediate,
conciliate, find their own solution without recourse to the
adversarial litigation that takes place in the court room. There
are a lot of carrots, in a sense, in that side of the agenda
to bring people together, and at the other side of the agenda
what we are then doing is introducing a set of sticks. I think
it is an ambitious package; I think it is a comprehensive package.
Will it work in 100% of cases? No. That is because there is
a limit to what we in the government, the courts, the mediators,
anybody, can do to actually reconcile conflicting adult individuals.
Chairman:
You will have to come back to us at that point because it
really comes up here to compulsory mediation, which is the notable
absence from the proposals announced today. Mr Dawson.
Q362
Mr Dawson: We had some excellent evidence last week from
the National Family Mediation Service which was very encouraging
about the benefits and potential of mediation, and it is good
that the Government are committed to it, but certainly what
we have got from a very experienced practitioner there was that
it was a view that, where it was safe (and mediation would not
be used where it was not safe anyway) there was nothing wrong
with the degree of compulsion placed upon people to undertake
mediation. Why have the Government not chosen to go down that
particular route?
Baroness
Ashton of Upholland: We did consider that. We talked
to a lot of people involved in mediation. Our conclusions at
the moment are that there is a sort of almost contradiction
in terms, if I can put it like that, between compulsion and
mediation that we felt it was really important for the courts
to give a very strong steer that couples should consider mediation,
that they should be looking to do that, but we have not got
as far as saying that they should be compelled. It would take
primary legislation to do that. We are not convinced from those
we have spoken to and, I agree, there have been some interesting
very well considered views taking different views, if I might
say that, around this, but our view at the moment is that we
think it better to have a very strong steer, and the role of
the courts in that is absolutely critical, but not to say, "You
are compelled to sit in a room to try to find a solution to
this", because the situations that arise with some of these
cases, as you will know, Mr Dawson, are very intractable. People
find it very difficult. It just might not be possible in all
cases, and it might not be the right solution in all cases.
Therefore we did not want to make it compulsory. That does not
mean, in any way, that we do not think it is a really critical
and important path to go down for a huge number of people, but,
we felt, compulsion suggests that it is a solution, but it cannot
always be.
Margaret
Hodge: There is an expectation, or there will be—there
is in some instances and there will be increasingly—right through
the system that the first port of call is mediation, where it
is safe to do so. Looking at the evidence that you did get last
week, the argument appears to be whether there should be compulsion
about whether mediation should be considered, not whether there
is compulsion about whether mediation should be entered into.
I think, again, we are on the margins here, because certainly
in the Family Resolutions Pilot, in the work that Elizabeth
Butler-Sloss (the President of the Family Court Division) has
done, there is an expectation right through the system that
the first port of call will be a consideration of mediation,
and I think that is an important distinction.
Q363
Mr Dawson: Do we not have a significant anomaly at the moment?
You are quite right to point out that the requirement would
be to at least explore the option of mediation, but that is
something which is imposed on publicly funded court users at
the moment in order to guarantee the continuation of that public
funding. Obviously the same pressure does not apply to people
who are funding themselves, and the evidence that we have heard
is that that can undermine the whole process where you have
one party with significantly less pressure on them than the
other?
Margaret
Hodge: The judgment is difficult on this one. It is
whether you think it is appropriate to force people into sitting
in a room staring at each other and refusing to talk each other.
Q364
Chairman: You do think it is appropriate if public funding
is involved?
Margaret
Hodge: What we are saying is that where public money
is strongly involved, it would be sensible to try and go down
that route. It is a judgment. It is whether it should be an
expectation or compulsion, and you can play that either way.
I think what you will find with the reforms that we have introduced
today is that the expectation is now so strong that consideration
of whether mediation will work in a particular set of circumstances
will occur in, I would have thought, most cases, with the exception
of domestic violence cases where it is not safe for that to
take place.
Q365
Mr Dawson: I am encouraged by the statement and by Next
Steps that you are also looking at other ways of involving children
in mediation. Are you able to say anything more at this stage
about how you are proposing to do that?
Baroness
Ashton of Upholland: We are looking at the whole question
of how do you make sure the child's voice is heard across the
court system? For many children the voice can be heard through
the parents, even though they happen to be in court, and I would
not wish to take that away. For quite a lot of children that
will be not appropriate, and the role of the CAFCASS officer—and
Margaret may want to talk more about that—will be critical in
listening to the child's views. I know there is some discussion
about where to position that within the process, whether the
child should be listened to first before meeting the parents,
and that is in a sense an operational question to look at what
works best as we roll out some of these initiatives, and, of
course, finally, there is the question of whether a child needs
to be legally represented at the other end of the spectrum,
but that will be there, quite rightly, because having a solicitor
to represent you does not necessarily equate to learning effectively
what the child wishes to have. Central to this must be the child's
position in the process and making sure through the courts that
we know the child's wishes and feelings, but—and it is a huge
"but"—not asking the child to decide or make choices, for all
the reasons that you would expect.
Q366
Mr Dawson: Moving on, if I may. We have touched on funding
already, but I am certainly not one of those who thinks that
no changes have been made. I think that what has been proposed
would be a transformation and a huge cultural shift in the way
that the courts and society deal with the problems around relationship
break up; but in developing Parenting Plans, in court conciliation,
Family Resolutions Pilot Project and in developing mediation,
in developing the other S in CAFCASS much more effectively than
it has been, there is a massive results implication in this,
is there not? Can you say more about the ways in which these
particular things are going to be funded, and are there, in
fact, any savings that could develop from changing the emphasis
so much away from the current system?
Margaret
Hodge: We have over time put more money into mediation,
and I have said we will continue to seek to add to the resources
there. When I first got responsibility for contact centres there
was not a budget line. We now have a solid budget line, and
we have announced today we are increasing that in 06-07, 07-08,
to £7,000,000, if my figure is right, £7,500,000, extra, which
no doubt you will want to talk about in greater detail. I think
we have now put the building blocks in place which ought to
ensure that CAFCASS provides the sort of service that the Committee
aspires for it and that we aspire for it and actually the families
and children aspire for it, and included in that I think the
budget—again my figures may be wrong, and I will correct them
to the Committee if I have got them wrong—when we inherited
it, was about £95,000,000. We are talking now about an 05-06
budget of £107,000,000. So that is a pretty considerable increase,
some of which we have secured at a time when public funding
has been rather less generous than before. We have also secured
the money to ensure that the issues around domestic violence
with the new definition of "harm" and the forms and the training
have been properly funded. I feel pretty good about the extra
money that we have been able to put into the system. I also
think if we can get CAFCASS right, particularly in relation
to these issues around private law, and if we really can get
everybody involved, the judges demanding fewer reports and CAFCASS
officers not writing these lengthy documents, which are not
only costly to write but costly to consider, there should be
some resource redistribution towards the conciliation and the
mediation that we seek. Just to correct my figures: £107,000,000
is 04-05, not 05-06.
Q367
Peter Bottomley: The Family Resolutions Pilots Project,
which we understand to have been running for some time, why
was it not possible to have an early interventions project alongside
to see which worked better?
Margaret
Hodge: I know there has been a lot of discourse on this
issue, and probably, if I reflect on it, the mistake we made
was renaming it. We did it for very good reasons, and I think
it reflects better what we are doing, but I think the renaming
has caused greater hassle and misunderstanding than the benefits
we gained from having a new name. This is an attempt to ensure
that before matters get locked into court there is an early
intervention.
Q368
Peter Bottomley: I am sure we will find some way of incorporating
the very useful parliamentary answer I got, which can maybe
save us a bit of time now. The only question I was asking was
would it not have been possible to have had the Early Interventions
Project Pilot running alongside the Family Resolutions Pilot
Project?
Margaret
Hodge: We are back on the issue of compulsion around
mediation, and our current legislative framework does not allow
us to have compulsory mediation. We could not, therefore, have
had the same structure which existed in the Florida experiment.
We could not have done that. What we have done is adjust, learn
from the Florida and other experiments in this to fit in with
our appropriate legislative framework. We have already had that
debate. We could change the legislation and then we might try
and do the experiment, but at the moment, under the current
legislative framework, we have framed an appropriate pilot for
our UK circumstances.
Q369
Peter Bottomley: I think the Committee need to understand,
in the absence of compulsion you cannot make it compulsory.
I am not sure the Committee yet understands why it was not possible
to have a project that brought in early intervention: because
one of the reasons for changing the name was the fact that Family
Resolution Pilot Projects are not as early as the Early Resolution
Intervention Projects were intended to be?
Margaret
Hodge: I would be interested in hearing from you, what
earlier point before the first point when somebody tells the
court they want to engage in litigation are you referring to?
What earlier point?
Q370
Peter Bottomley: Again, I do not want to go through your
parliamentary answer, which was useful?
Margaret
Hodge: I do not understand it; I genuinely do not.
Q371
Peter Bottomley: I hope you do understand it, because I
thought I understood it when you made it.
Margaret
Hodge: But I do not understand the earlier point. The
moment people appear in court the expectation is that they will
engage in the process of the Family Resolutions Pilot. At what
point could we have sought an earlier intervention?
Peter
Bottomley: I recognise that the roles have been reversed?
Chairman:
Is this customary? It is for us to ask you the questions!
Q372
Peter Bottomley: The earliest is when parents start believing
they are not going to reach agreement without the use of a court,
and from that point the time they actually appear in court provides
a gap which would allow early intervention?
Margaret
Hodge: I am sorry to interrupt, because this is quite
an important point, because I know there has been a lot of criticism.
If parents decide they cannot take a decision without going
to the court. What do they then do?
Q373
Peter Bottomley: They then get professional advice, normally,
and they then find themselves in a queue to go to court and
then weeks follow. Once they get to court, the present—
Baroness
Ashton of Upholland: That brings in two of the proposals.
One is the role of the professional advice, which is from a
solicitor. Two things on that: one is the accreditation, so
that we are clear about what the role will be, and also what
we call family help, which is enabling solicitors to provide
a longer session with parents in a sort of mini-conciliatory
role to see whether there is room for manoeuvre, which I think
is quite important when you look at that; also for the parents
to think about the other opportunities that they will have to
get the kind of information and advice as well. So, when they
arrive at that point, what we are doing is ensuring that we
have provided for them to get the support. The other one is
collaborative law, which is where they have an option to each
have a solicitor, a model that seems to be working quite well
in Canada particularly, also in the US, but Canada is the model
I would look to, where they each get a solicitor and the four
of them, in a sense, within a court setting, quite often, but
not in a court room if I can make the difference, agree to try
and reach a decision. If they completely fail, then those solicitors
go out of the picture and it goes through the normal court process.
Those are examples where we have tried to develop new models
that will fit different circumstances, because the difficulty
for this group of people who arrive in court is that they are
very varied in their relationships with each other and with
the children in question. I am sure, if you have talked to some
of our judges, they will describe how different and difficult
it can be. Those are some other models that, alongside the pilot,
we hope will provide different opportunities, depending on the
needs of the parents in those circumstances.
Margaret
Hodge: Can I, finally, make it absolutely clear to Mr
Bottomley that the moment an application is lodged with the
court the applicants are referred to the Family Resolutions
Pilot. They do not wait for that first court appearance. The
moment the application is lodged, before that application lodged,
the court will not know about the family.
Q374
Chairman: The difference might be, of course, if the solicitor
was saying to the family, the two parents, "There is no point
in my making an application to the court unless you first go
into this project and you embark on a Parenting Plan straightaway
as part of this process"?
Margaret
Hodge: I hope that will roll from the fact that the
moment they do make the application they will be referred. That
follows, in a sense, does it not?
Chairman:
Before I call upon Mr Vaz and Mr Cranston, I am going to
ask anyone to declare any interests they might have.
Keith
Vaz: I am a non-practising barrister and my wife holds a
part-time judicial appointment.
Ross
Cranston: I am a barrister and Recorder.
Q375
Keith Vaz: In its written evidence the Equal Parenting Council
has complained that "the children minister, Margaret Hodge,
has looked my colleague and me straight in the eye and told
us that if a custodial parent is determined enough to exclude
other parent, there is nothing a court can do about it. With
that sort of leadership on this issue the Government is beaten
before it starts." Do you remember that conversation?
Margaret
Hodge: Those precise words I do not, but, in a sense,
I have said not a dissimilar thing this morning at the Committee,
that at the end of the day the authority and power of the courts,
the Government and any other agency will not of itself resolve
very, very conflicting relationships, and to pretend that we
can I think is wrong. It is an interesting area, because we
are often, Chairman, accused of being the Nanny State on many
issues, and this is an area where I am saying actually recognise
the limits of the state to resolve issues within the family,
and that was really the point I was making. If it was interpreted
in that way, I apologise, because clearly the propositions that
we are putting forward today are trying to strengthen the armoury
of both judges and ourselves, but we may not be able to resolve
all of these things.
Q376
Keith Vaz: There is no need to apologise if the statement
is true and that is what you believe, but do you accept that
the court system is currently failing fathers?
Margaret
Hodge: I think the court system is failing families,
and, importantly, the court system is failing children. Probably
I would say that as children's minister.
Q377
Keith Vaz: Do you think that there is perceived to be a
bias against fathers?
Margaret
Hodge: I am absolutely clear that there is not a bias;
there is not a gender bias at all. The reality, as we all know,
is that in most families the mother takes prime responsibility
for the care of the children, and if one needs to decide with
whom the child will live, you will tend to place the child with
the person who has prime care and responsibility. That is changing
a bit, and I welcome that, and I welcome the increasing role
of fathers in the family, but, equally, do not let's look at
this through rose-tinted spectacles. That is the reality of
the situation. Where I do think there is a problem in the court
process—and I think we all agree on this in government—is that
because it often takes so long to get to court, to get the final
decision, you are then in a situation where the status quo
becomes the best interests of the child, and, if there is a
sort of bias in the system, it is the length of the proceedings
which then lead to a situation which could of itself be interpreted
as a bias.
Q378
Keith Vaz: Baroness Ashton?
Baroness
Ashton of Upholland: If you look at the evidence that
I know the Committee has already received, I think the President
(Dame Butler-Sloss) talked about an average of about 40 weeks
in private law, but I know you have also had evidence talking
around 58 weeks.
Q379
Keith Vaz: That is the delay. I am I am talking specifically
about a particular group: fathers feeling that the system is
letting them down because of what they perceive to be a bias
in favour of mothers?
Baroness
Ashton of Upholland: Indeed. I was adding on to the
point—
Q380 Keith Vaz: I take the point about delay?
Baroness
Ashton of Upholland: —about how the perceptions of bias
would be there. I am clear, and I know the judiciary in all
their evidence to you have been clear, that it is not about
any kind of bias in the proceedings that go before the court;
and if one looks at the numbers of orders that are given for
contact, and so on, I think that is very clear. The question
is two-fold. I think, the underlying issue, because particularly
for fathers who feel, quite rightly, totally aggrieved and distraught
on occasions about what happens, we need to look beyond what
they perceive to what the practical realities are of the problem
that they are faced with in not seeing the children who they
clearly love and wish to see and should see. The answer to that
comes in the whole series of ways in which we try to address
it, and it is about delay, it is about enforcement; it is also,
if I might say, about the real cultural shift which we need
to make, which is recognising that fathers play, and should
play, an incredibly important role in the upbringing of their
children and that needs to be recognised in a societal way.
If it has been determined to be in the best interests the child
to see dad, it is completely unacceptable for another parent,
unless there are issues of harm, to refuse that. It is about
the message getting out from the courts, but also from all of
us that this is a really important statement, and the implications
for children will be entirely negative if that is not done.
Q381
Keith Vaz: I asked the President of the Family Division
if she had met the various groups, some of them more moderate
than others, and her response was that she would not; she would
obviously meet people she felt appropriate. But, as politicians,
there is nothing to stop be you meeting the likes of Sir Bob
Geldof and other groups to discuss these issues. Presumably
you have had meetings with Fathers4Justice, the Equal Parenting
Council, Sir Bob and Uncle Tom Cobbly and all, because it informs
you better about the subject that you are involved in. Is that
right?
Margaret
Hodge: I have had meetings with Sir Bob Geldof himself,
in fact a lengthy two hour attempt to see a coming together
of views, and I have met the other main fathers' groups. I have
not met Fathers4Justice, and I think I would not do so.
Q382
Chairman: Except in rather unfriendly circumstances.
Margaret
Hodge: They attempted to meet me!
Q383
Keith Vaz: In the ministerial foreword today obviously we
have three cabinet ministers who will tell us that they have
10 children between them, so they must have some practical knowledge
of dealing with children it says, "The Government firmly believes
that both parents should continue to have a meaningful relationship
with their children after separation as long as it is safe and
in the child's best interests." This is not happening at the
moment, is it?
Baroness
Ashton of Upholland: It happens in a great number of
cases. I do not think we should lose sight of how many cases
are resolved out of court (90%) and how many cases within court
are resolved and work. Nor should we lose sight of the fact
that a lot of parents who do have prime responsibility for children
would love their children to have more contact with a non-resident
parent. I think it is important to put it in context. Having
said all that, which I know the Committee accepts, there are
cases where it does not work and where we have a parent, quite
often but not always the father, who feels quite understandably
aggrieved, and the work that we have done with the fathers'
organisations, who have been very important in the work that
we have now produced, has been to try and address what I describe
as the underlying practical issues that will make the difference
for them and enable them to see the children they love.
Margaret
Hodge: The ONS study, which no doubt your Committee
is well familiar with, showed I think this really interesting
finding, that there are twice as many resident parents who felt
that there was not enough contact with the non-resident parent
than there were non-resident parents who felt there was not
enough contact with the child. I know the statistics are far
from perfect in this area, but that is an interesting perception.
Again, if you think about that in practical terms, CSA issues
and all that sort of stuff, there are too many fathers who disappear
from their children's lives, not because the mothers try to
stop them—the mothers want a continuing relationship—but because
they chose for some reason or other to do so. There are lots
of features and aspects to this issue, part of which you are
addressing in your inquiry.
Q384
Keith Vaz: But, going back to my original question, if the
resident parent digs her heels in—because it would be more likely
to be a woman than man on these issues on the statistics that
we have—there is nothing we can do about it. Even though the
foreword says, "In time it needs to be socially unacceptable
for one parent to impede a child's relationship", it is one
thing saying it should be socially unacceptable, which means
a cultural change, and another thing about government action
to try and do something to prevent this happening?
Margaret
Hodge: The draft legislation, which we are deliberately
putting through pre-legislative scrutiny so that people have
an opportunity to consider it properly, is largely
about the additional enforcement powers that we wish to give
the courts to ensure that there is greater contact between children
and the non-resident parent.
Baroness
Ashton of Upholland: And at speed.
Q385
Chairman: Would you like briefly to describe those for us:
the new powers that you are intending to introduce in the new
Bill?
Margaret
Hodge: What will be in the Bill?
Q386
Chairman: On this particular point: enforcement?
Margaret
Hodge: I think I am in some difficulty. I am never quite
sure about the protocols about this issue.
Chairman:
You gave an indication, certainly ministers on the radio
this morning gave an indication, that there would be powers
of enforcement, and I think we are therefore entitled to know
what they are.
Q387
Ross Cranston: It is at paragraph 98 of the document.
Baroness
Ashton of Upholland: As you will know, it is quite difficult
when you look at enforcement to ensure that in doing enforcement
you do not, in a sense, act against a child's interests, so
we have considered issues to do with whether you had a custodial
sentence or whether you fined a parent. In the end those are
questionable in terms of whether they are acts for the child,
so the areas we are examining are the question of community
service, looking at whether we can make parents go into parenting
classes to understand the implications of what they are doing,
and to look at areas such as curfew, because one of the things
that is raised is that there will be a dispute between—. Let
us put mum and dad in the stereo typical view. Dad turns up
for a visit. Mum does not answer the doorbell. Dad goes back
to court. Mum says he never came. He says, "I came, but you
were not in", and so it goes on, so trying to enforce the person
being in the house available for when the child goes on the
visit. Those are examples of the areas that we want to look
at in pre-legislative scrutiny.
Q388
Chairman: You have not quite decided yet whether you want
to take these powers?
Baroness
Ashton of Upholland: We are going to take powers. The
issue in terms of the pre-legislative scrutiny is are these
the most appropriate enforcement opportunities to give the courts
a range of possibilities, again, so they can look case by case
and try and enforce it? I do not want in any way to suggest
that the cultural change is not what I think ultimately has
to happen, but I would not want Mr Vaz, in particular, to feel
that we are not also backing that up by saying it is unacceptable.
The other question is the speed with which it comes back to
the court: because one of the issues around delay is that if
months and months go by and dad does not see the child, the
status quo in a sense is that the child has not seen
him, and if the child is quite young it is a long time in the
child's life.
Q389
Keith Vaz: Yes, but, as the Chairman as said, it is not
just about contact: because you can get these orders, but if
they are not enforced— I have had many examples of fathers in
particular who have come to my surgery to complain exactly describing
the situation that you have described. We also had the President
giving evidence to us telling us that she felt it was wrong
for people to clock-watch, but I have some fathers who come
and plead with me and they say, "She did not open the door for
10 minutes, so I have lost 10 minutes." Those 10 minutes, if
it is one visit every fortnight, are absolutely crucial, and
unless parents believe the courts are going to act to enforce,
since there are no other measures that we can adopt to increase
contact if there is not an order, then there is going to be
no confidence in the system?
Margaret
Hodge: Cathy has mentioned a range of the community
service based orders. There are others. I can give you another
instance. There is something about a big heavy fine on a poor
mother which seems inappropriate, does not appear to serve the
interest of the child. However, for example, fining a mother
for the cost of the travel. If the father travelled and was
not able to see his child, fining for the cost of a holiday
that did not happen. Those sorts of things are the community-based
orders we are looking at. Can I make another point? This is
a CAFCASS point. If a court makes an order, at the moment nobody
does anything, and, if the order does not work, one of the parties
has to come back to the court. What we would like to see CAFCASS
doing over time, and it is clearly part of this refocusing and
reconfiguring of their work, is part of their job ought to be
that the order is implemented; so you ring up.
Q390
Keith Vaz: But some of them are very proactive; they actually
check whether the access has taken place. They ring up on a
Monday morning?
Margaret
Hodge: Quite. The earlier you intervene the better you
can do it, the more you can conciliate, the more you can mediate.
Q391
Peter Bottomley: Early intervention is a good idea?
Margaret
Hodge: Early intervention is a good idea. I have to
say to Mr Bottomley—that might have been said in facetious way—we
have always said early intervention is a good idea.
Baroness
Ashton of Upholland: Can I add one other thing to Mr
Bottomley on that? One of the other issues I am sure you have
had from parents in your surgery as a constituency MP is where
children simply refuse to come on an access visit because they
have been told that dad is impossible, and this that and the
other. One of the things we are going to look at—I do not have
any solutions to this, but I did not want you to think that
we have not got this under consideration—is what advice and
support we can give to children in that context so that they
do get impartial support to deal with those issues and not feel,
again, that they are having to make the kinds of choices that
are inappropriate for them to have to make. That is an important
issue as well.
Chairman:
I think Mr Soley wants to come in.
Q392
Mr Soley: One question and part observation. First of all
apologies for missing the earlier part; I had an appointment.
This issue of the perception of fathers, which actually is very
important because the perception is real even if there is not
actually legalistic discrimination, how much have you considered
this: that it is partly the role of the man in our society where
it is almost an expectation, though it is not totally, obviously,
that they get to be the ones who leave the home? The representation
of the issue of the resident parent being in a stronger position
anyway, that is compounded by it. I also ask you this: are we
not under-estimating the feelings of the child on this, because
the child will often be angry or dismayed as a result of the
parent who leaves the home and may also find that more difficult
to cope with in terms of the parent coming back to see them.
Is it not right that the three factors that come together here
that we have to give more attention to is obviously the issue
of delay and clearly also the issue of enforcement, because
that allows manipulation by the resident parent, but the other
factor is the CAFCASS work plan paying more attention to this
very difficult area of the frustration of the child about the
person who has left the home?
Margaret
Hodge: I agree with everything that you have said. I
think one of the reasons that this is an issue that we are all
thinking about at present is the changing nature of the family—and
I do not under-estimate that at all—in two regards: first of
all, that more children are going to experience separation and
divorce of their parents—it is a third now of children who will
go through that, so it is impacting on a large number of children—and,
secondly, there is a change in the role of fathers. In my lifetime,
from when my kids were little to now seeing my grandchildren,
you see a fantastic difference. When I used to go to the primary
school there were not any men there. You now go to a primary
school and there are a growing number of men picking up their
kids. Even as I go round Sure Start centres, which I spent a
lot of time doing, and they did not exist 20 years ago, but
you would not have seen dads there and now you see a growing
number of dads with their very little babies who have care of
the babies. That means that the demands of society and the legislators
and all the agencies working with children and families has
to alter to have regard to that, and I have no doubt—it is one
of the interesting things—we will to return this again over
time as the nature of the family changes. If I look at it now,
I think a sort of legislative framework putting the interests
of the child first, an emphasis on mediation and
conciliation and getting it outside the courts and then a tougher
armoury around the enforcement area is the appropriate response
in society as we know it today, but all the social workers I
talk to, all the CAFCASS workers, all the lawyers, the judges,
all the solicitors are all beginning to think through the changing
nature of the family. If you had gone to a solicitor 20/25 years
ago, they would have said, "Mum will get the child", and actually
that is no longer necessarily true, which is why these allegations
that the courts are gender bias are false. I think over time
that will evolve and it may require a different legislative
settlement in five, 10 years' time.
Baroness
Ashton of Upholland: Can I add to that. One of the issues,
though, again talking about children, is continuity for the
child. What happens in so many families in the tragedy of family
break down is that parents will try and think about keeping
the child with its familiar lifestyle—its home, its school,
its friends, and so on—and that, almost by definition, has an
implication about where the child will stay, not necessarily
with whom, but where, and I think we need to make sure that
we do not lose sight of that as being a critical factor in how
children develop. It is certainly a factor, we know, in what
happens to looked-after children when they not only lose their
family, which may be for very good reasons, but they then get
moved away from the things that they need, which are their family
and their friends, which I think goes back to the point Mr Bottomley
was making about children's homes as well, where children get
moved away and lose all of that and have to start afresh, which
is incredibly difficult if not impossible in some circumstances.
Q393
Mr Soley: But that also compounds the problem for the parent
who has moved away, because all the other things in the child's
life stay constant—school, friends and so on—the one thing that
is not constant is the parent who has gone, man or woman, and
that creates a problem for the child in understanding why that
is and why they cannot come back. We all know the tear-jerking
statements you get in situations like that. I do not think we
draw any grand conclusions about that. I think it is important
to put it in the perspective of understanding why the non-resident
parent is in a much more vulnerable position than the resident
parent in terms of dealing with that stress.
Margaret
Hodge: Yes, and the worst thing for the child is that
the child does not want to get engaged in conflict. It is bad
enough having the separation. If the child is in some way then
asked to take sides or is used as a football in some way in
that relationship, the distress that they are feeling, the difficulty
of relating to the parent who has left the home, is exacerbated.
Baroness
Ashton of Upholland: But there are some wonderful examples
where parents make it work as well, and there are some fantastic
examples where children love having what often turn out to be
two bedrooms, two homes, two stereos, two this, and it can work.
I do not think we should under-estimate that children, given
love and care, will make it work for themselves as well as long
as parents can act in a proper and reasonable manner. There
are lots of children all over the country for whom this works
because parents do it well.
Mr
Soley: I agree with that.
Q394
Ross Cranston: I would like to ask a series of questions
about courts. I, for one, certainly welcome your commitment
in the paper to back improved case management. You mention at
paragraph 76 target times, and I was wondering how they are
going to be developed and what they might look like. Is that
going to be you or the Court Service or the judges?
Baroness
Ashton of Upholland: I am sure you have seen the President's
work this morning as well.
Q395
Ross Cranston: Yes.
Baroness
Ashton of Upholland: What the President is outlining—because
it will be for her to work on it, it will be for the judiciary
in this context—is that we will have first hearings within four
to six week is her ambition, and this deals with the issue,
as has been already noted by the Committee, of delay in getting
that initial hearing in place, and she goes on to talk about
other aspects of the Court Service in terms of continuity of
the judiciary, and so on. So that is the ambition for that.
Q396
Ross Cranston: So it is her statement?
Baroness
Ashton of Upholland: Yes, it is.
Q397
Ross Cranston: Which you are supporting?
Baroness
Ashton of Upholland: Yes.
Q398
Ross Cranston: You also mentioned, and you foreshadowed
this earlier, the improvements in terms of enforcement, and,
again, I for one would welcome that, and you have mentioned
draft legislation. When is that going to be available?
Baroness
Ashton of Upholland: That is for the Department for
Education and Skills.
Margaret
Hodge: Very soon.
Q399
Ross Cranston: Good. We might hold you to that one.
Margaret
Hodge: Yes, do.
Q400 Ross Cranston:
May I just ask you two very specific questions and it may
be that you cannot answer. Just comparing the Next Steps document
published this morning with Making Contact Work in 2001, it
seems to me that there were at least two points which seemed
to be dropped. First of all, there was the power to allow courts
to refer parents to a psychologist or psychiatrist, which was
going to be publicly funded at first instance, and the other
one was to allow courts to have the power to refer a non-resident
parent to a specific education or perpetrator programme. Has
it been a conscious decision to abandon these and, if so, why?
Baroness
Ashton of Upholland: What Lord Justice Wall was talking
about in that particular context was the opportunity to look
at whether one could have a professional assessment. You cannot
make somebody go to a psychiatrist or a psychologist because
that is not the way they work, nor can you have compulsory discussions
with a doctor, it does not work like that. I think they would
find that unacceptable in terms of clinical practice.
Q401
Ross Cranston: So the problem is not the public funding
side?
Baroness
Ashton of Upholland: No, it is not. It is that one would
not be able to refer somebody in that manner without breaching
all of the ways in which we deal with medical good practice.
Q402
Ross Cranston: What about the education programme, the second
aspect?
Margaret
Hodge: It is the point at which there will be a power
to refer either party to particular programmes as part of the
enforcement powers.
Q403
Ross Cranston: The Making Contact Work document suggested
that might come earlier. Could you write to us about that one?
Margaret
Hodge: Yes. I am just trying to think through the compulsion
point. It comes back to the compulsory mediation point and whether
at some point you could say to someone you have got to go to
mediation, you have got to go a parenting class or you have
to go to an anger management class or whatever. I think that
would be difficult.
Baroness
Ashton of Upholland: One of the pieces of work that
we are doing, which is being led by Baroness Scotland, in terms
of the whole question of domestic violence and perpetrators
is to examine where best referrals and perpetrator programmes
might take effect, because critically beyond this discussion
there is an issue about ensuring that those who perpetrate domestic
violence do not continue to do so and there are real issues
about their relationship with their children as well. I will
write to you in that context to set that out because I think
that overlays this in a sense and it is being looked at by a
group of ministers.
Q404
Chairman: On page 25 of the paper there is a passage which
bears the signs of a bit of redrafting. Maybe I am being too
forensic, but it looks as though someone decided at the last
minute that it needed to be changed. It raises the question
about how you are going to deal with the judiciary. It says,
"We will work with the senior judiciary to find out the best
way to strongly to encourage parties to attend mediation." It
looks to me as though somebody changed that sentence at some
point. What does that mean? Is it that you are going to work
with the senior judiciary who are not going to be given a power
of compulsion in circumstances like mediation or the situation
we have just described but they are going to tell you of some
other way in which you can make parties go to mediation?
Margaret
Hodge: I think this is part of things like the Family
Resolutions Pilots where there is an expectation there. The
way that that has been designed is that there is an expectation
that people will participate in mediation and conciliation processes.
We want to see how that works. We want to learn from that and
the evaluation of that scheme as to whether or not there are
other ways that we can use, through directions or expectations
or whatever, to strengthen the trend towards mediation and conciliation.
Q405
Chairman: Are you sure it was not just a vague aspiration,
someone saying, "We'd better tighten this up a bit"?
Margaret
Hodge: No, it is not. All the collaborative law changes,
the in-court conciliation, the changes within CAFCASS, are quite
dramatic changes. We need to evaluate them consistently and
then, if necessary, make further changes to improve the process
more.
Baroness
Ashton of Upholland: We have had conversations with
the judiciary and they are clear that, again bearing in mind
that each case is different, there are critical fault lines
in the process where the judge is able to strongly recommend
things to the parties that might be successful. What that is
suggesting is that we need to think through, in the light of
what the President is doing in terms of the way she is looking
at private law cases and the proposals that she has put out
this morning, how we build on that and inject in to that some
kind of mediation services that might be available. So it is
not just a woolly aspiration. I apologise for the grammar.
Margaret
Hodge: We could look again, if experience tells us to,
at the court rules and see whether or not we need to amend those
in any way. I hope the Committee will continue to keep a vigilant
eye on this area and see how some of these proposals work in
practice.
Q406
Ross Cranston: I think paragraph 51 is in your defence.
I want to take you on to this issue of resources. Our special
advisers dug out the figures for between 1979 and 2004 in terms
of "judge power". The Queen's Bench Division went up from 47
to 74 judges, Chancery went up from 11 to 17, but the Family
Division only went up from 16 to 18, which was a much lesser
increase. You might want to comment on that. In particular,
can you comment on whether you think there is the "judge power"
available, first of all, to implement general case management
and, secondly, the President's framework? Is there an intention
to increase "judge power"? I should say by way of preface that,
having worked on the issues of case management over the years,
I do not believe that "judge power" is necessarily a solution,
but the Family Division increase is certainly much less than
in other divisions of the High Court.
Baroness
Ashton of Upholland: And certainly the President in
her evidence to you was suggesting that there was a need to
increase "judge power". There is a review going on at the moment
involving the senior judiciary looking at whether we have the
right number of judiciary at present but also looking at future
trends as well, because it is quite important to be ready for
that and that will come to some conclusions in the not too distant
future and recommendations to the Lord Chancellor will take
into account these issues. So that is under review. The second
thing I would say is that when one looks at the unified courts
structure that we are examining, as well as some of the proposals
to shift from the crisis management in the sense that that is
the court process to trying to get resolution earlier, the ambition
is that the resources will be used differently as well as the
additional resources coming into play. What we are trying to
do by virtue of the review and also the implementation programme
for this is to see whether we have enough judges in the right
place and whether we have also got the right level of support
being shifted, if that is the right decision, to look at what
happens before people end up in the courtroom.
Q407
Ross Cranston: Have you got any idea when this might report?
Baroness
Ashton of Upholland: It is in the next few weeks or
the next couple of months the review is due to finish. I am
not sure whether it will report formally. It is for the Lord
Chancellor to determine, having looked at this whole thing holistically,
whether the resource is in the right place so that we address
those issues, but certainly the President has made that point
and we listen very carefully to what she says.
Q408
Ross Cranston: We would like to know as soon as any decisions
are made about that because obviously if you do not have the
resources to provide case management and to implement the framework
then you are not going to achieve anything.
Baroness
Ashton of Upholland: If one looks at the framework that
the President has put out, quite a number of those things are
about the best of good practice, they are not necessarily about
new resources.
Q409
Ross Cranston: That is why I made the point that "judge
power" is not necessarily the answer.
Baroness
Ashton of Upholland: But because the President feels
very strongly about these issues they are taken very seriously
by the Department.
Q410
Mr Dawson: Is the quality of our judges good enough? The
President said in evidence to us that if judges ignore issues
of abuse and domestic violence she would consider removing their
ticket from them. There have been some disastrous decisions
in the contact cases made by judges, have there not?
Baroness
Ashton of Upholland: I am not aware of a disastrous
case that has come to my attention.
Q411
Mr Dawson: 29 children have died on contact visits, some
of them ordered by judges against the advice of CAFCASS for
instance.
Baroness
Ashton of Upholland: If one looks at the 29 cases that
have been put forward, the vast majority of those have never
been near a court. There are real issues when one looks underneath
those figures to try and establish where the courts have played
a role and what role that is. We all know from the press reports
we hear about these awful tragedies that sometimes there is
no indication the parent is going to behave in that manner and
murder the children, they are issues often around severe distress
or mental health or other issues. So it is not necessarily the
case that there is any history or any suggestion of violence
in advance. Where the case has gone to court, the President
would always look very carefully at it and it would be for her
to look at what the implications would be in those circumstances.
They are all terrible cases. I simply make the point that not
all of them have been anywhere near a courtroom where the courts
could have intervened if they had been able to.
Q412
Mr Dawson: But any death is completely unacceptable.
Baroness
Ashton of Upholland: I accept that.
Margaret
Hodge: Mr Dawson knows better than anyone that these
professional judgments around what is the appropriate decision
to take in the interests of the child are incredibly difficult
to make and sadly they are not always right, but they are not
always right in the courts, they are not always right by social
services, they are not always right by paediatricians and medical
practitioners as well. Although we have got some very really,
really tragic instances and we have all read that report, I
do not think we should immediately leap from that to questioning
the quality of the judiciary where they are being asked to make
incredibly complex judgments just as social workers, doctors
and others have to do.
Q413
Mr Dawson: I think everyone's judgment is open to question.
Can we be assured that the new President of the Family Division
will keep the actions in these very difficult cases very firmly
under scrutiny?
Baroness
Ashton of Upholland: I am sure the new President will
do a fantastic job. He is a judge with an amazing record in
terms of the work that he has done and I am delighted that he
has been appointed. I think the critical factor in this as well
comes back to making sure that the court, when it is making
a decision, has as much evidence as it possibly can have. We
all know that there is a link between violence to children and
domestic violence. I hope the new forms that we are producing
will play some part in that by being able to work with parents
to ensure that if there are issues around domestic violence,
those are recognised and recognised quickly.
Ross
Cranston: I would just associate myself with your answers
to Mr Dawson's questions and say that Lord Justice Potter is
an outstanding judge and humane person.
Chairman:
This is not a confirmation hearing!
Q414
Ross Cranston: Hilton and I also disagree about the next
issue that I want to ask you about, which is the confidentiality
or secrecy surrounding the courts. The President said that she
thought that the courts ought to be more open. Yes, you would
have to protect the names of children, you might have to protect
certain of the evidence that is given, but in as much as there
was to be more openness, that would have to be a change agreed
to by the Lord Chancellor in terms of some of the rules. First
of all, can you comment on the general principle about openness?
We have had background notes about the situation in other countries.
Secondly, could you say whether or not the Department is prepared
to agree to a change in the rules?
Baroness
Ashton of Upholland: You will know, Mr Cranston, from
the 1992 or 1993 report on this through to the work that Sarah
Harman has done in her reports on Canada, which I know have
come forward to the Committee as well, that there is a huge
amount of interest in this and the President herself has commented
on this. The position of the Department is that we are very
firmly of the view that the anonymity of children must be protected.
I think one of the persons giving evidence to you talked about
their clients, on arriving at court, saying, "This is going
to be in private, isn't it?" and that is because there is a
fear that people have. The issues around if one had a public
presence what kind of public one would get, campaigning groups
able to stand in the gallery and shout, that kind of thing,
these are incredibly difficult circumstances where people are
often in huge distress. What the President and the judiciary
are looking for is to be able to be more open about their judgments
and I think there is a general view that this could be a positive
move and provide greater understanding of the way that the family
courts work. So the proposal that she is looking towards is
that there might be able to be a presence but that the normal
reporting restrictions around children would apply, but there
would be a more general understanding of the way the courts
work. What we have said is that we want to look at this very
carefully so that we address the issues that are coming from
both directions, those of anonymity, those of making sure that
we do not put those who are in court into a more difficult situation
where they feel unable to give the evidence and that we do not
just make this such an open situation that in a sense that risks
justice being done. Justice must be done and justice must be
seen to be done. The position of the Department is that we are
in conversation and dialogue about this and I think the Lord
Chancellor earlier this week said that he was interested to
explore what we might do but within the very strict ground rules
about the protection of children.
Q415
Ross Cranston: So you are going to take the lead from what
the judges say, are you? Is that your approach?
Baroness
Ashton of Upholland: It is not that we will take our
lead from the judges. The judiciary have raised an important
question, others have raised it too and we want to look very
carefully to see how best we address that whilst recognising
that what the judiciary are saying is that this is not about
removing anonymity, this is not about creating a situation where
people feel intimidated by who is in the gallery or anything
like that, but about a greater understanding of how the family
courts work.
Q416
Ross Cranston: Quite apart from that, the utilitarian argument,
to make people understand the system better, there is the principle
that we run our courts on a basis of open justice.
Baroness
Ashton of Upholland: Indeed. There are differences,
as you will know very well, between what happens in the magistrates'
courts and what happens in the county courts and as we move
to a unified courts system we will need to review this in any
event because the two systems are different.
Q417
Ross Cranston: Is there going to be a consultation paper
about this or how are you going to take this forward?
Baroness
Ashton of Upholland: As we move towards a unified courts
system we will need to review the procedures in any event because
we have different procedures. In doing that we will be taking
account of all that has been said and trying to move towards
our proposals on that. It will be for the Lord Chancellor to
decide if he wants to do a formal consultation on that, but
certainly we will consult and listen very carefully to the views
that are being brought forward.
Q418
Chairman: Does that mean that you are going to discourage
the judiciary from taking their own action where they think
it appropriate, as they have done in a number of cases and giving
judgments in open court, for example?
Baroness
Ashton of Upholland: Not at all. That is for them to
decide and it must be for them to decide. What I am merely describing
is that as we move towards the new unified system, if one looks
|
