Q1
Chairman: Sir Mark, you wanted to make an opening statement.
Sir
Mark Potter: If I may. I am grateful for the opportunity to make
this opening statement by way of background. I was of course appointed
just a year ago in succession to Dame Elizabeth Butler-Sloss,
who appeared before this Committee to give oral evidence at its
session for 2004-05. It may well be that particular concerns of
the Committee today are directed to discrete issues to be addressed
largely by way of follow-up to its report and recommendations
at the end of that session. However, a number of them will require
to be considered in the context of the developments over the last
year with which I have largely been preoccupied. These stem from
the ever-present problem of delay in the dispatch of cases and
the limited resources in terms of the judges and courts available
to deal with what is an increasing workload in the field of public
law care proceedings. In May 2005 the senior judiciary accepted
the recommendation of the Judicial Resources Review that within
the new unified administration (now including the magistrates'
courts) it is necessary to introduce a strategy of "cascading
down" within the system in order to relieve the pressure
from the High Court judiciary, whose workload is increasing and
whose numbers are capped; and in turn to relieve the workload
on the judges of the country court. For this purpose, in my first
year I have been focussing on the initial steps to be taken in
a three-year strategy to achieve greater flexibility in distributing
work between family judges in the county court, district judges
and family magistrates in the family proceedings courts (FPCs)
where there is undoubtedly spare capacity. For this purpose it
is necessary to remove a number of obstacles to dispose of the
work lower down the system. So far as the district judges are
concerned, an alteration in the allocation of judiciary directions,
which are already made, will enable them now to hear cases, whereas
they were previously restricted to giving directions. In the case
of the magistrates, a variety of measures are being instituted
to encourage a shift of work to the FPCs. A key requirement in
that respect is that those magistrates who wish to do so should
be allowed to specialise in family work and to sit for longer
periods for the purpose of hearing the more substantial cases,
rather than being required, as hitherto, to give much of their
time to criminal work. If this strategy is successful - and it
will need to be if the delays are to be contained - then consideration
of the workings of family justice will need to concentrate upon
the work of the FPCs as much as on the High Court and county court;
and the work of CAFCASS will have to be similarly expanded. In
this connection may I reiterate the views expressed before you
in your last session by the President and Lord Justice Wall that
the work of CAFCASS is absolutely critical to the successful operation
of the family justice system, not merely for their work as guardians
in public law cases but for their work reporting and acting as
conciliators in the private law system and representing the voice
of the child. Delays and difficulties in the work of CAFCASS resulting
from resource problems are felt and reflected right through the
system. I hasten to say that as a result of having seen the work
of CAFCASS in all parts of the country during my first year of
office, and my regular contacts with Anthony Douglas, the Director
of CAFCASS, I regard them as having made remarkable advances in
the last year. Those advances are largely responsible for considerable
improvement in the disposal of business under the private law
programme as a result of the work done at the first conciliation
hearing in contact cases. This has achieved a success rate as
high as 80% in securing agreements leading to a swift end to contact
disputes. So far as resources are concerned, while I am aware
that these are not directly my province, I would express one particular
concern to the Committee in relation to the work of the FPCs.
Integral to the conduct of this work is the number and expertise
of the legal officers available to advise magistrates. At that
level they are as vital as CAFCASS. I am most concerned that wherever
cuts may fall in Her Majesty's Court Service, in the light of
the recent announcement of the necessity for savings, it should
not be by reduction in the number of legal officers. On the contrary,
there is an urgent need for additional legal officers to be available
to run the specialist FPCs, which I see as critical to the expansion
of their work and a reduction in delays throughout the system.
Q2
Chairman: Thank you, Sir Mark. You will know of course that this
Committee has taken a longstanding interest in CAFCASS, and although
primary responsibility for it has been moved to a different department
and now rests with a different committee, we continue to take
an interest because of its impact on the work of the courts, and
the Family Division in particular.
Sir
Mark Potter: I have found that that is one of the difficulties
in grappling with the system and discussing the need for resources,
as we do with the departments, because when you are dealing with
different budgets, with different responsibilities, it is sometimes
difficult to get co-ordinated effort towards the end that is undoubtedly
required.
Chairman:
You will not find any disagreement around this table on the point.
I hope we can continue to pursue it, along with the other resource
issues that you mention in your statement. Let us turn to the
delay issue.
Q3
Keith Vaz: Sir Mark, one of the reasons why the Committee did
not call you to give evidence soon after your appointment - that
is why it has taken us a year to get you here - was to give you
the opportunity of looking at the situation in the Family Division.
You set out your programme quite clearly, but are you confident
that you are dealing with the large number of outstanding cases
currently in the division?
Sir
Mark Potter: Yes, I am confident that things are very slowly improving,
but I am extremely concerned - and I cannot emphasise this too
strongly - with what appears to be at least a 5% increase in the
public law care proceedings, which are very time-consuming and
are the most difficult and bulky of the cases. The level at which
one can achieve improvements in the delay system overall will
tend to be eaten up by that advance in work; so that if the position
is, as indeed it is, that resources have to be contained and in
some cases cut, the idea that any dramatic achievement will be
achieved right across the board is, I fear, an optimistic one.
Q4
Keith Vaz: What sort of figures do you have for us today? What
is the current level of backlog of the Family Division?
Sir
Mark Potter: One of the difficulties is the criteria by which
the time in which care proceedings should be completed - the terms
in which those criteria are laid down. There is a target period
of 40 weeks, based on what notionally - and I do not know who
decided this - the average care case should take. There is absolutely
no average care case; they are all highly individual. One of the
features that I am satisfied about, without any figures of formal
research to back it up, are that there is an increase in the length
and complication of care cases, not simply because of the notorious
shortage of experts and the time taken in obtaining appropriate
reports, but because of the inherent complication of many of the
cases being dealt with. Many of the cases have medical complications.
Perhaps I can pause there and say that local authorities have
a duty towards children who are found to be in need in their area,
regardless of their source or their difficulties. There is undoubtedly
an increasing number of cases, sometimes of abandoned children
and sometimes of children who are simply found to be in need of
care, arising out of families whose immigration status is uncertain,
who may emerge gradually with claims by members of the family
to look after a child who has initially been taken into care because
of its medical condition or something of that sort. This aspect
is undoubtedly leading to an increase in the complication of cases.
I do not put it all down to that. The fact is, there are unfortunately
an increasing number of cases where children are badly in need,
but where parents will fight, so far as they can, to keep their
children - naturally enough. You asked me what figures I have
for the High Court. The figures I have essentially relate to the
High Court and the Principal Registry of the Family Division,
which together form the London Court Centre. There has been very
little improvement in the last year in the time taken for the
disposition of cases, until very recently, when a number of steps
taken have seemed to work through. The national target for cases
to be disposed of in 40 weeks, which is the criterion by which
it is being judged, is 75%. It had been running at 40% and below
in the London Care Centre. Fortunately, in January and February,
excluding the High Court, which is really dealing with the highest
level of complication, the PRFD figures were substantially improved
at 45% and 52% in January and February respectively, which are
the latest figures I have.
Q5
Keith Vaz: Have you seen the figures that the Law Society produced
in response to its campaign last year to try and find out what
the delays were in the family courts? Ninety% of cases have delays
of more than three months, 58% of which have delays of more than
six months; private children's law cases, 84% of cases have delays
of more than three months, and 45% of those cases have delays
of six months or more. Obviously, this is not an absolute set
of figures, but they are the figures that were produced as a result
of the research they conducted. This is not a good record, is
it?
Sir
Mark Potter: The picture is not good at all, but those are figures
with which I am quite incapable of dealing, because having applied
to the Law Society for details of their statistics, and what those
actual periods of delay were, they have declined to supply the
figures. I suppose that is because they are not ready to produce
the whole study yet.
Q6
Keith Vaz: I am absolutely certain there is somebody from the
Law Society sitting behind you, and they have heard what you have
said. As you leave at the end of the session, they will rush up
and give you the figures.
Sir
Mark Potter: I understand informally that the periods being referred
to are the times it is taking to get an appointment for final
hearing. The figures mentioned in relation to public law cases
are ones which permit of completion of the public law hearing
within the target period of 40 weeks, so that while it is obviously
an unfortunate figure it is within the targets that have been
set. However, as so often happens - and this is the real problem
- when dates like that are fixed and the parties should be ready
to appear with their reports for a final hearing, there are constantly
applications for adjournments because reports are not ready, and
matters of that kind. The court has no control over these things.
They are largely the product of extreme difficulty among the local
authorities in processing this work, with their great difficulties
of resources in relation to continuity and expertise of their
social workers.
Q7
Keith Vaz: One of the points that was made at the time of your
appointment - because you do not have a huge family law background
- was that you were appointed to try and sort out the problems
that clearly had existed over a number of years. You had inherited
a lot of these problems. Surely there must be a role for the judiciary
in all this; it cannot just be a case of judges saying that documents
have not been filed? Should the judges, especially in cases concerning
families and children, take a much more active interest in case
management?
Sir
Mark Potter: We should, and they are, is the answer to that. Certainly
when I came to the system, rather as you indicated it appeared
to be one which was unfortunate and readily amenable to some sort
of prodding. As always happens when one gets into it, the matter
is far more complicated than that. The real problem so far as
delays in fixing hearings is concerned, is simply one of capacity.
The District Registry Family Division has twenty courts, which
are constantly manned. It is far and away the largest care centre
in the whole of England. The figures are that it is 12% of the
total number of public law care and supervision cases - in a jurisdiction
which receives cases from 31 local authorities. The nearest figure
to that is the Manchester conurbation which does 9% of the work
from only 31 local authorities, and all the others are way below.
They are flat out with their judges and their courtrooms are full.
Q8
Keith Vaz: Since you have become President you have either issued
a directive or a practice note, or you have sent a memorandum
to your fellow judges to tell them that they need to manage their
cases better. Something has been done in the last year.
Sir
Mark Potter: It is the constant theme of my conference, what the
Judicial Studies Board teach, and what I say as I go round the
country. Having painted it in those gloomy terms, I am happy to
say that as a result of not only pressure by me but by James Munby
here, we are achieving an improvement in the London area, in that
we have secured resources for the opening of five new courts at
Gee Street, which should begin to be operative in October, which
will considerably ease the burden at the High Court and in the
Principal Registry, and should make something of a difference.
In conjunction with the policy operative within the DCA we have
succeeded in opening two outsourcing courts, as it were, at Barnet
and Kingston, which are already taking work that originates in
their catchment area, and easing the position as well. I would
certainly hope that by the end of the year, with Gee Street operative
and those outsourcing courts active, there will be a substantial
improvement in the figures.
Q9
Keith Vaz: Do you think you need more family judges?
Sir
Mark Potter: Ideally! There is little doubt about it.
Q10
Keith Vaz: Have you had any increase in the last year?
Sir
Mark Potter: Apart from those five judges for which authority
has been given, no.
Q11
Keith Vaz: Have you made any request to the Lord Chancellor for
more resources over the last year?
Sir
Mark Potter: It is one's constant theme, but one is being realistic.
Indeed, the "cascading-down?" policy has been developed
on the assumption that no major resources will be forthcoming.
It is fair to say also that there is spare capacity in the family
proceedings courts, where magistrates are trained to do the work
and eager to do the work, but have not been getting the work for
a variety of reasons. I skated over those by use of collective
terms at the beginning of my opening statement, but there are
a number of factors operating, the first of which is the reluctance
of professionals to be in the family proceedings court rather
than the county court for good economic reasons, in that the remuneration
for solicitors is somewhat higher in the county court than in
the family proceedings court. However, it is also fair to say
that the judicial method is quicker and cases are dealt with at
a higher level of expertise in case management terms, broadly
speaking, than in many parts of the family proceedings courts.
Many of them are quite excellent and some are not so good, but
the real point is that with the specialisation in the magistrates
there is a professional and a judicial reluctance to consign cases
that can be dealt with with more dispatch and a better grip in
terms of case management at that level; but it is a chicken-and-egg
argument.
Q12
Keith Vaz: It is. You paint a very depressing picture for this
Committee. Has the Lord Chancellor not put you in an impossible
situation? He has taken you out of the Court of Appeal; he has
made you President of the Family Division; he has asked you to
sort out the problem; he has not given you any more money; he
has not given you any more judges; there has been a 5% increase
in cases: you are bound to fail in trying to sort out the delays
problem, are you not?
Sir
Mark Potter: This is precisely the situation which, in DCA speak,
is called "challenging"!
Q13
Keith Vaz: You do not have to worry about criticising him because
he is not the head of the judiciary any more!
Sir
Mark Potter: No. I was quite surprised when I came into this jurisdiction
and realised how much sympathy I had with a large number of ministers
and civil servants, in the face of what I understand to be Treasury
policy; and so I do not regard it as a criticism of the Lord Chancellor
or his department formerly; but it is quite plain that there is
a Treasury hand of restraint on all departments, and it certainly
seems that it is fairly heavy in the DCA. The real point and the
difficulty is that with the overspend on the legal aid budget
regularly affected, and last year amounting to some 120 million
overspend, the Treasury is simply requiring the DCA to fund that
deficit out of other areas.
Q14
Keith Vaz: You are finding excuses for politicians, which you
are not supposed to as a judge! In conclusion, before other colleagues
come in, the latest proposals for cuts in the court service which
will directly affect you - your plea is that if these go ahead
it will make it very difficult for you to meet your targets.
Sir
Mark Potter: No question about it.
Q15
Chairman: While we are on the subject of the magistrates' courts
and the family proceedings courts taking a larger role, is there
anything you want to say about that and the challenge?
Audrey
Damazar: I think a key is ensuring that the work is dealt with
at the correct level. Delays are caused by a number of factors:
lack of expertise of social workers, et cetera; and the cases
are taking a longer time. However, from our perspective and from
the magistrates' courts point of view, we would see a number of
cases - and I think the President agrees with this - that are
being dealt with in the higher court that could be dealt with
at the family proceedings court level. Therefore, we are looking
for encouragement for those cases, and directives that those cases
be dealt with at FPC level. We have set up the Barnet specialist
court where we are sitting there together with the judges in the
country court; but one of our fears is, as the President pointed
out, that if there are going to be cuts and we do not increase
the number of legal advisers, or not replace the legal advisers
we have, then we are not going to be able to take on this work,
because we have approximately 6,000 magistrates trained to deal
with family proceedings work, but it is a catch-22 situation because
in a number of FPCs we do not have sufficient work; therefore
the expertise is not there because they have not had the work
to maintain their competence.
Q16
Chairman: Are you ready for a situation in which magistrates dealing
with these cases would need to be taken off some of the other
responsibilities which prevent them in the busier courts from
developing the expertise and experience that the judges seem to
think they need in order to do this?
Audrey
Damazar: First, there is a tension between the criminal jurisdiction
and the family jurisdiction; and there is so much political pressure
in the criminal field that legal advisors and courtroom space
are often used for criminal work rather than family work. We have
to ensure that the pressure is put upon the family proceedings
court and upon the DCA to ensure that there are sufficient resources
available. Going back to expertise, there has been a consultation
paper on specialisation - and the President touched on this -
that magistrates should have the option to specialise in family
proceedings so that they can build up their expertise and so that
the public will then have confidence and therefore will take the
work to the family proceedings court and allow the work to be
dealt with at that level. I think that that is incredibly important.
Sir
Mark Potter: Wells Street is a fine example. It is the one court
centre of magistrates dedicated entirely to family work. It has
a bunch of expert magistrates who dispatch business as well as
it could be dispatched; and they are a very good example of what,
with expertise and specialisation, can be achieved. It is also
right to say that this arises out of the conflict between family
and crime, but there are a substantial number of district judges
and magistrates' courts that spend their entire time dealing with
the criminal list, because they dispatch them very well and quickly.
They were themselves sometimes family practitioners who are well-qualified
to hear family law cases at FPC level, but who are simply not
given the opportunity to do it because of the demands of the criminal
listing.
Deputy
Judge Crichton: I would agree with that, and would like to add
to that. When we are talking about pressure on the courts, the
increase in public law applications at Wells Street this year
is 16%. The effect that that has on social services, on CAFCASS
and on the courts' capacity to process that sort of work is very
considerable, at a time when we are learning of financial constraints
and cuts in all those areas - so there is a real problem there.
I am still, sadly, the only district judge in the magistrates'
courts who sits in family full-time; I would wish very much that
that were not the case. I have 18 colleagues who have come in
from the criminal courts and give six, eight or ten weeks per
year to Wells Street.
Q17
Chairman: This is lay magistrates.
District
Judge Crichton: No, these are district judges. There is nobody
amongst their number who wants to sit in the work full-time, but
there are many solicitors and members of the Bar who appear in
my court regularly who would willingly accept the opportunity,
if such an opportunity existed, to come and sit as deputies at
Wells Street, and hopefully one day seek appointment in a specialist
position. At the moment that is not possible.
Q18
Chairman: What is the bar to that?
District
Judge Crichton: I do not really know. I have been pushing for
it for a long time, but I am told it cannot happen. I do not see
any good reason why it should not happen. There are also the legal
advisers who sit in our court, and particularly at Wells Street
where they are specialists. They are all legally qualified, and
many of them would make excellent deputies and possibly future
appointments; but at the moment we do not seem to be able to get
past that obstacle, which I find very disappointing.
Q19
Mr Tyrie: I wanted to ask about contact orders and the Children
and Adoption Bill. Do you think the Children and Adoption Bill
will reduce the number of contact disputes and help the courts
enforce orders that are made?
Sir
Mark Potter: I hope very much that it will. The courts have lacked
means short of the nuclear option of prison for contempt in order
to bring pressure to bear upon recalcitrant carers. However, it
will very much depend, in my view, on the practicalities of the
arrangements that are made. The ultimate sanction is simply a
work order, and at the moment it is not clear who will arrange
the work, or where suitable work will be available. There appears
to be a kind of assumption that - I understand the intention is
that the probation services would arrange the work. They of course
arrange the work pursuant to community service orders and that
sort of thing. There is often a shortage of work of the right
kind in any event so far as the probation is concerned. You are
not going to be able to have recalcitrant mothers cleaning off
graffiti in the company of persons who have been given a community
service order as an alternative to imprisonment, and I am a little
bit concerned about what the practical arrangements are which
will be made to give teeth so far as these things are concerned.
That is the ultimate punishment for a recalcitrant carer, if you
like.
Q28
Mr Tyrie: What we are trying to do here is frame what those weapons
should be while we have an opportunity to put them into statute,
which is what I am trying to elicit from you, bearing in mind
that we have agreed between ourselves, just in these few minutes,
that what is on the face of the Bill will not crack the problem.
District
Judge Crichton: The power to impose a financial penalty is already
there, just as is the power to impose a sentence of imprisonment,
because somebody who disobeys an order of the court can be found
guilty of contempt. Those are the sanctions that the court has
available to it. However, if we are thinking about what is in
the best interests of a child, sending a mother to prison clearly
is not in the best interests of the child. With most of the families
we are dealing with, they are on Income Support, and to impose
a financial penalty will deprive the mother of the opportunity
to buy the child a pair of shoes.
Q29
Mr Tyrie: Which is why I began with the cases of the two parents
which had means, as a hypothetical example to see how you would
react to that.
District
Judge Crichton: We very rarely see parents with means.
Q30
Mr Tyrie: The current practice would not be to impose a financial
penalty, would it?
District
Judge Crichton: No, it would not.
Mr
Tyrie: Right, and so my first question - and I am still on my
first question really is this: do you think there should be something
on the face of the Bill -----
Chairman:
It is an act.
Q31
Mr Tyrie: You are quite right, but still not implemented.
District
Judge Crichton: But still not implemented. I would welcome any
opportunity. Whether it would work or not remains to be seen,
but I would welcome a wider variety of options. Exactly how it
would work in practice - and it is not yet in practice - remains
to be seen.
Mr
Justice Munby: It should be borne in mind that there are situations
where the threat of imposing a sanction will do the trick. The
difficulty there is that one has to be very, very careful, because
nothing is more counter-productive than making the threat, having
your bluff called, and then backing off.
Q32
Mr Tyrie: So we are in a search for weapons here together, and
we have not managed to find any so far. Earlier you said, rightly
I am sure, that a great concern would be that a child will end
up suffering as a consequence, and everyone nodded their heads
in agreement when we discussed it a minute ago. Is there any merit
in the concept of alienation, that is placing in law some recognition
that a parent may deliberately be trying to alienate a child from
the other parent?
Mr
Justice Munby: My answer to that would be initially a somewhat
defensive response to the terminology.
Q33
Mr Tyrie: I am taking from the US practice.
Mr
Justice Munby: Indeed. Alienation in this context is a term of
art, as you no doubt appreciate, which is used by some but by
no means all experts, and has become something of a slogan in
some quarters. Many people in this country, both judicial and
non-judicial and experts, think the more helpful way of looking
at this is not so much parental alienation - certainly if you
attach to it the word "syndrome" but rather talk about
intransigent parents or parental intransigence, I have no doubt
myself that there are intransigent custodial parents who, for
one reason or another, quite deliberately set out to prevent,
to destroy a relationship between the child and the other parent,
or set out to prevent the resumption of such a relationship. There
is no doubt about the phenomenon.
Q34
Mr Tyrie: The question is what to do about it. I began with the
contact order, and I have now moved on to the more general issue
because we are all agreed that where we are sitting it is inadequate,
unsatisfactory; and I am looking for advice from legislators on
how to improve it, and I have not heard yet.
Mr
Justice Munby: There is no panacea, no one thing that will crack
the problem or do the trick. For my own part, as you are probably
aware, I have held the view for some time that much could be done
in many cases - although not, I emphasise, in the most intransigent
cases - if we got in much sooner, and in particular if we prevented
people getting into the courts system at the outset, and made
much more play with mediation, reconciliation - or call it what
you will. I think in those cases, which I would hope would be
a much smaller number of cases than at present go through the
court system, and do have to go through the court system, one
could adjust the process so that the period in which such cases
last is measured in weeks rather than months, and months rather
than years. I have not the slightest doubt myself that in the
most intransigent case a significant contributory cause to the
eventual problem is the sheer passage of time and the fact that
as a result of that parents become more and more entrenched and
intransigent; and when you are the age, dare I say it, of most
people sitting in this room, three months is not very long; but
if you are a young child three months is a very long time indeed.
Q35
Chairman: A point that the Committee made.
Mr
Justice Munby: Indeed. One of the troubles is that if three months
goes by before a judge gets to grips with it and nothing has happened,
during that time the intransigent parent or the unhelpful parent
is reinforcing messages in the child's mind and the other parent
is not there and is simply unable to counter those messages, and
it gets more and more difficult.
Mr
Tyrie: I realise that I may get a nil return from this as well,
but can I end by asking if you could reflect on this issue and
come back to us in writing with any suggestions you can think
of for better enforcement of contract orders and the related concept
of issues that travel under the name of "alienation".
I am sure a number of us around this table have had cases of this
type in our constituency surgeries, and this is a growing phenomenon,
I suspect. We have to try and find, even though we will not find
a panacea, at least a palliative that can bring some downward
pressure on the number of cases we are getting.
Q36
Chairman: You should give a lecture, Mr Justice Munby, like the
one you gave in October 2005, which gave a valuable spur on the
issue of transparency, to which I want to turn. The Committee
reported on this subject and argued strongly in favour of greater
transparency. Do you think there has been any progress since then,
or has progress been prevented by a feeling that you have to wait
for the law to change?
Sir
Mark Potter: I think progress has been inhibited over the last
few months by our waiting for the Government consultation paper,
which we expected to be with us by now but which is not yet, where
the Government is reviewing the whole question of transparency
for the purpose of issuing a consultation paper, which will then
no doubt receive comments from members of the public as well as
the views of the judiciary. I think there has been progress in
the sense that I, and High Court and Court of Appeal decisions,
have been emphasising the desirability of giving judgments in
open court, subject to anonymity, in cases where issues are raised
which are thought to be of interest or significance to the public.
There are two questions: the question of access to the court;
and reporting and publicity. I studied the conclusions and recommendations
of this Committee. I share entirely the concern about complaints
of secret justice and lack of openness, and sometimes bias against
fathers, which I really believe the public would be assisted in
forming a view about if there were more publicity available. So
far as access is concerned, it would be my inclination to adopt
a solution along the lines of what I understand to have been recently
adopted in New Zealand, and what is essentially applicable in
our own magistrates' courts, which would give the press the right
to attend, subject to the right to exclude it by reference to
defined criteria of the unusual case. So far as members of the
public are concerned, I would restrict admission to those with
an interest in the proceedings such as members of the family and
close friends, the domestic violence support worker and McKenzie
friends. One can think of various categories of persons with a
genuine, legitimate purpose in assisting the progress of the proceedings
or their outcome, but would not extend it to the general public
for all the reasons originally articulated in Scott v. Scott and
still valid as far as the question of the essential nature of
the proceedings, the need for co-operation from witnesses and
for people to come along and give their evidence free from what
one might call prurient or external interests of members of the
public, fellow inhabitants of the council estate coming along
for a good -----
Q37
Chairman: That is a problem the courts face all the time, is it
not? In most aspects of the law it is not considered to be a large
enough problem to preclude open justice. It would be a bit strange
to say to the public, "your only way of knowing what is going
on in the court under transparency would be through the medium
of the press" - which do not attend many of these hearings
of course.
Sir
Mark Potter: I take your point. I pray in aid at this stage the
view that Strasbourg has certainly found us Convention-compliant
in taking the view - which is a view taken in many jurisdictions
in the world - that there should be restricted access to the public
to what are essentially called "truly domestic affairs"
in Scott v. Scott. There is a real public interest in encouraging
frank cooperation by relations, doctors, teachers, et cetera,
able to give frank evidence in private. So far as that is concerned,
I would for my part restrict the admission of the public to what
we broadly call the legitimate interests in the proceedings rather
than those simply with a desire to watch. The rationale of Scott
v. Scott that the public - which of course includes the press
as a section of the public, and a very powerful section - should
be admitted is to see that judges are behaving themselves and
not behaving badly on the bench or adopting methods or procedures
that might cause outrage or concern to the public. So far as access
is concerned, I would certainly have a right in the press - and
the press are ex hypothesi attending the proceedings - to apply
to the judge for liberty to report certain aspects of the case,
or to make disclosure in relation to certain features of it, which
the judge would then be able to rule upon. As I say, I am a Scott
v. Scott man, subject to exceptions. So far as the general public
are concerned, the press seem to me to be the best safeguard of
whether propriety is being observed or not.
Q38
Chairman: Does it not seem a bit strange that you could exclude
from proceedings people who might have a genuine interest in how
justice was operating in this field, who might have prejudices
that could be dispelled by attending the proceedings? Would it
not be sufficient for the court to have the capacity to exclude
people that it thought likely to misuse the proceedings or risk
making disclosures they should not make? Are you confident that
there is a neat division between the press, obviously very broadly
interpreted, and the public, that in some way you think you can
discipline the press but you cannot discipline the public with
respect to disclosures?
Sir
Mark Potter: I think this is a broad question of policy, and it
is one where you have to - you either have to make a decision
whether you are going to allow complete admission to the public
or not; and, if so, then there ought to be criteria set down so
that the public can know what they are. I do regard family proceedings
traditionally in that respect as being prima facie domestic affairs,
which would be quite badly inhibited if persons other than persons
with a legitimate interest in the proceedings, that is the subject
of the proceedings rather than just a general curiosity or interest,
attended.
Q39
Chairman: You have to set that against the belief that quite a
lot of people hold that under this veil of secrecy there is a
pattern of judgments and arguments which is inimical to the point
of view for example of the non-resident parents, and that would
not necessarily be dispelled if the only press reports appearing
were those of a limited number of cases that the press chose to
attend. We all know that many a day in court the press bench will
be empty because the papers have got other things to report.
Sir
Mark Potter: I certainly think that, on any view, there ought
to be a discretion in the court to exclude. I think that it would
be undesirable to have a situation where courts tended to take
a broad view and started making orders excluding the press on
a basis which was not established or laid down but was simply
a view of the court in the particular case that it was unsuitable
for members of the public to be admitted.
Q40
Chairman: It is those sorts of issue that attract quite a bit
of debate. Does Mr Justice Munby want to say anything about that?
Mr
Justice Munby: In a sense I do not have very much to add to what
I said in the lecture I gave last year. My judicial review plans
are set out and I think the judgments I have given are clear enough
and are a matter of public record. If I can put it shortly, even
more so in the present sense when I first became judge of the
division I was an outsider. I had not spent the whole of my professional
life at the family bar. I had done a certain amount of family
work but much of my professional life had been spent in other
divisions where the rule of open justice prevailed. Perhaps for
that reason I have always had a slightly more sceptical view of
this than those who have spent their entire professional lives
steeped in the system. I have come over the years since I began
to sit firmly to the view that the balance which is currently
held between the confidentiality and privacy interests of the
parties and the public interest and open justice is badly skewed,
in the sense that the arguments in favour of confidentiality and
privacy have left what I believe to be a very serious diminution
of public confidence in the system. It seems to me that something
has got to be done to restore confidence in the system. It needs
to be borne in mind that it is not just certain well-known campaigning
groups or pressure groups who voice lack of confidence in the
system. Whatever part of the media you either watch or read, whether
it is the so-called broadsheet press or the tabloid press or weekly
periodicals, there is a pretty relentless catalogue of complaint
and has been now for the last few years about what is fashionable
to call the "secret justice system". That has unfortunately
led to an eroding of public confidence. My own view - and I speak
purely personally, I do not pretend to represent the judges or
express anybody's view other than my own - is that any advantages
which currently can be gained in terms of confidentiality and
privacy proceedings are outweighed, and I believe fairly heavily
outweighed, by the constantly eroding damage to public confidence
in the system. It seems to me - and I made this clear in my lecture
last year - that the starting point has got to be application
across the media of the principle that the media, not just the
print media but also the broadcast media, should have access to
the courts. I am not suggesting that the broadcast media should
be able to broadcast proceedings, that is a different issue for
a different day, but the media, whether the print media or the
broadcast media, in my view, should be entitled, subject to limited
exceptions and obviously exclusion in a particular case, if exclusion
is justified in a particular case, generally speaking, have a
right of access to all family courts. They have that right at
present in the family proceedings court and it strikes me as little
short of bizarre that Mr Rosenberg and Miss Tye (?) sitting over
there can go to Wells Street any day of the week if they wish
to to report what District Judge Crichton is doing but they cannot
come into my court and report what I am doing. Scott v Scott,
as the President has said, is the well-established principle,
now 19 years old, that truly domestic family matters do not stand
in quite the same position as litigation generally. That principle
perhaps in the view of some can be pushed too far and in any event
it breaks down completely in my view when one is concerned with
care cases. There is a debate going on about the extent to which
there should be publicity in relation to money cases but the main
controversy at present in relation to family justice, I suspect,
is in relation to children cases rather than money cases. There
are two different constituencies, two different concerns there.
There is one constituency which is concerned about the privacy
of care proceedings and that is very much wrapped up with concerns
about expert evidence. There is another constituency, which in
many cases is a different constituency, concerned about the privacy
of what we call private law proceedings. So far as public law
care proceedings are concerned, it seems to me - and I made this
point in my lecture and gave the reason for it - indefensible
for such proceedings to be heard in private. They are proceedings
where the state is seeking to take away somebody's child. In many
care proceedings the outcome is an adoption order, so the stakes
in many care cases are higher, I would like to think, than even
in many very serious crown court cases. I have to say it seems
quite indefensible that there should be no access by the media
and no access by the public to what is going on in courts where
judges are day-by-day taking people's children away. The argument
in favour of private law cases is perhaps rather different because
there the state is not involved and it is easier to put forward
the argument that they are truly private domestic matters which
should not be litigated out in public.
Q41
Chairman: Precedents are being set, patterns of dealing with cases
are being set, and these are the things that attract a great deal
of interest outside the court.
Mr
Justice Munby: I began my professional career at the chancery
bar and a large part of my work as a junior barrister for many
years was litigating the ownership of what we used to call the
quasi matrimonial home as between two individuals who were not
married, and although the legal principles were rather different,
the emotional drivers to the litigation were not that different
to what drives ancillary relief litigation. For better or worse,
litigants who were not married were compelled to litigate in open
court in the chancery division whereas those who had chosen to
marry were able to litigate corresponding disputes in private
in the family division. I did not detect that the open justice
which was applied in the chancery division drove people from the
justice seat or led to all the terrible consequences which some
fear will happen if we go into open court. If I could add one
final point, the question of whether there should be public access
I think is a more debatable one. I suspect that is a matter on
which views differ. Although I emphasise I speak entirely for
myself, I would be inclined, as I think I rather hinted in my
lecture last year, perhaps to go somewhat further than present,
but that is a purely personal view.
Mr
Tyrie: Going back to the earlier exchanges where I requested a
piece of work on the issue of contact orders, the Children and
Adoption Bill is in the Commons and no date has been set for report
stage. It is amendable and suggestions that you felt able to make
will be extremely welcome and gratefully received and will arrive
at a very timely moment.
Q42
Chairman: An offer that is hard to refuse, I hope.
District
Judge Crichton: May I just chip in because I think the two contributions
we have just heard show what a difficult issue this is. Routinely
in my court I will allow all members of extended family into the
court because I think it is helpful for members of the extended
family to understand what the difficult issues are and to give
support to distressed parties. As you have heard, the media are
allowed into the family proceedings court, and on the last occasion
that I gave evidence before this Committee I had a flurry of activity
for about three weeks and then it all died away. As far as the
general public are concerned, I think I sit right between those
two contributions because we have got to see it from the point
of view of the children for whom we are making decisions. If we
allow the general public in to listen to deeply personal issues
relating to things that are happening within this child's family,
then we run a serious risk that in the playground tomorrow somebody
is going to be saying, "We know your dad is knocking your
mum about. We know that your mummy is on drugs. We know how she
earns the money to buy the drugs", and that is a risk that
we cannot take. It is as simple as that.
Q43
Mr Tyrie: The same risk would arise in the criminal court.
District
Judge Crichton: The same risk does arise in the criminal court
but the criminal court is not there to deal specifically with
making a decision for a child. We cannot lose the focus on that
issue, in my view.
Q44
David Howarth: On that point, surely the point is not the purpose
but the effect and the effect in a criminal trial would be the
same effect and therefore you might make the same argument. What
I am asking is why is the purpose important?
District
Judge Crichton: Why is ---?
Q45
David Howarth: Why is the purpose of the proceedings important?
Surely it is the effect of the proceedings that is important?
District
Judge Crichton: Perhaps we should stop the general public attending
criminal proceedings if it has a deleterious effect upon children's
lives.
Sir
Mark Potter: The main purpose of children's proceedings is to
protect children and you are to protect their welfare generally.
If the effect of going into court is not to protect them but to
expose them to ridicule and abuse which might not otherwise exist,
it seems to me something that is worthy of an exception from the
publicity point.
Mr
Justice Munby: In a sense the question here may be what the starting
point or what we might call the default position is. I am certainly
not suggesting that either the media or the public should have
an unrestricted right of access in all circumstances to all family
cases, or a system under which a judge is powerless to say for
good cause in a particular case that there are good reasons either
why some section of the public or the media should be excluded
or that even if they are allowed to be in court there should be
restrictions on what is reported.
Q46
David Howarth: Are we assuming that the existence of anonymity,
the power to exclude certain persons if necessary, and the power
to enforce restraint on disclosure whether by the press or indeed
by anybody else have to be taken for granted before we can proceed
with that argument?
Mr
Justice Munby: Indeed, I think everybody, whatever differences
of view they might have, would sign up to those basic points.
It is very curious that if I hear a care case which is concerned
with child brutality, a child who is gravely injured or a child
who is killed, sufficiently grave and where the evidence justifies
criminal proceedings, the same case may be heard on successive
occasions in the very same building. When it is heard in front
of me in the family division nobody is there and effectively nothing
is reported and nothing can be reported. If exactly the same case
comes back in six months' time in the same courtroom in front
of a judge wearing robes in the crown court, everything which
is being said is being reported.
Q47
Chairman: And the public can attend?
Mr
Justice Munby: And the public can attend. I appreciate that because
of the different forms of proceedings the range of evidence which
is likely to be heard in the crown court is narrower than the
very wide range of evidence which is heard in the family court,
but it is nonetheless curious, I put it no higher than that, that
in two sets of proceedings, both of which are concerned with responsibility
for and the consequences of alleged child abuse, that the starting
point in one system should be that everything goes on in private,
some prefer to say in secret, whereas in the other system everything
goes on in public.
Audrey
Damazer: Could I just add one thing. I think very much the focus
in our proceedings is the welfare of the child and the protection
of the child. Some of us have concerns that there will not be
the disclosures that we get now. I think some parties to proceedings,
knowing that the press are there, knowing that the public are
there, may not disclose in relation to areas that they are at
the moment.
Q48
Chairman: But are they not there in your court anyway?
Audrey
Damazer: Yes, the press are allowed in but they never come at
all. They are never there.
Q49
Chairman: Hence my earlier questioning of the President.
Audrey
Damazer: That is right. I think it is more in relation to opening
it to the public as well. That is what I have major concerns about.
Q50
Chairman: The press are alright because they do not come!
Mr
Justice Munby: It would be worth considering, particularly in
terms of public access, whether there might be different parts
of the proceedings to which the public could have access. The
most plausible argument for saying the public should not have
access is either the one which Audrey just mentioned, that it
actually inhibits people from giving evidence, or the one that
District Judge Crichton has mentioned. If the concern is that
having the public in will inhibit people giving evidence, it would
at least be worth considering whether there should be a rule or
a principle or a practice or a discretion to exclude the public
while evidence is being given whereas not necessarily excluding
the public in other parts of the case where evidence is being
read or submissions are being made. It is not necessarily an all-or-nothing
thing.
Q51
Julie Morgan: I am going to ask about domestic violence and contact.
Sir Mark, we have had your letter to the Chairman drawing attention
to Lord Justice Wall's investigation into child homicide which
I think was published last month. We know that was as a result
of the Women's Aid report that highlighted 29 children who were
killed by their fathers some of whom were the subject of contact
orders, and we note the recommendation of Lord Justice Wall's
investigation. Lord Justice Wall indicated that "it is a
non sequitur that a father who is violent to the mother of his
children is at the same time 'a good father'." You do accept
that statement from Lord Justice Wall?
Sir
Mark Potter: As a broad proposition, certainly yes.
Q52
Julie Morgan: Where there have been allegations of domestic violence
made by a mother but there is no evidence the father has ever
been violent towards the children, what, if any, restrictions
do you think should normally be placed on contact?
Sir
Mark Potter: I said as a broad proposition because you may have
a situation where in a very fraught break-up that on occasion,
and away from the presence of the child and not as a matter of
routine, tempers are raised and the husband on one occasion uses
violence, and that seems to me a different situation from one
who habitually uses violence against the mother, even maybe outside
the presence of the child. So I say it as a broad proposition.
What I do think should happen is whenever there is a situation
where there may be violence involved, there should be a risk assessment
in relation to the matter before orders are made, which is essentially
a matter for CAFCASS, again a key aspect of private law proceedings.
So I would not preclude it in every case because there is no doubt
that a child may have a close and loving relationship with the
parent, being ignorant of that violence and in a situation where
there is no reason to think that it would ever be perpetrated
vis-à-vis the child. While I agree with the proposition,
again I do not think it is something that can be applied willy-nilly
to contact or no contact. There must be great caution in relation
to the order which is appropriate and if there is any reason at
all to be concerned about the safety of contact then, at best,
supervised contact would probably be appropriate.
Q53
Julie Morgan: What sort of aspects should a risk assessment look
at?
Sir
Mark Potter: This is a matter which CAFCASS is considering fairly
closely at the moment and Her Majesty's Inspectorate report last
October drew attention to deficiencies in the risk assessment
procedures within CAFCASS. They are a matter for a trained social
worker to interview the parties and of course to contact the police
- and I think routine enquiries are now made by CAFCASS in relation
to these matters of the police and local authorities to see whether
there is a history of violence or a child may appear on a register
or something of that sort - to do an investigation and to interview
the parties in order to come to a view as to what the risks are,
because that is something which should be reported to the court.
It is not something which a judge is able to do on the spot. If
difficulties are presented and issues arise then before contact
is provided for there should be a hearing to establish the facts.
Q54
Julie Morgan: Agencies like Women's Aid do express a great deal
of concern about contact and I have certainly had some experience
of that myself in my constituency, so I think it is very difficult
to make these decisions. To what extent has there been training
in relation to issues of domestic violence in the courts?
Sir
Mark Potter: As far as that is concerned I might just say that
the press release which my office issued in relation to the report
was misleading to the extent that it may have suggested, because
it reported Lord Justice's Walls recommendation that there should
be training, that there is not training and there is. Lord Justice
Wall, I note on revisiting his recommendations, did say, "I
am not aware of what the position is so far as the Judicial Studies
Board is concerned", but certainly there is both in the induction
programme and the continuation programme emphasis on the effects
of domestic violence, not merely as between parties but on the
children. The very matters of concern which you have raised, particularly
the question to what extent can a father who has been guilty of
violence to his partner be regarded as a safe repository for contact,
are raised and discussed in an inter-disciplinary context. For
instance, the 2006 induction programme included a Psychiatric
Overview of the Effects of Domestic Violence as both a written
paper and a lecture by a psychiatrist. There is - and I have seen
it - a really quite remarkable performance by the Geese Theatre,
who are a group of actors who dissect and illustrate the development
of difficulties between parents in that way and how it may affect
children. There is a summary paper circulated which deals with
these matters before they arrive at the training session. It is
right to say that nothing yet has ever been specifically directed
to the question of investigation for the purposes of consent orders,
which is the area highlighted by Lord Justice Wall in the two
cases in which there might have been some grounds for criticism
were mentioned. It is important to emphasise in relation to those
two cases that the judges were aware of the background, did explore
and make enquiry simply to the extent that the parties were before
them, but they did not order any review by CAFCASS or anything
of that sort. I think it is right to say that the guardian or
social worker concerned in one of the cases was actually in support
of the consent order. That is a matter which has been referred,
on the recommendation of Lord Justice Wall, to the Family Justice
Council, which is an inter-disciplinary body with access to the
very best of child psychiatric opinion, and they have already
taken the matter on board and will in due course - and I hope
it will not be too long in due course - issue recommendations
in relation to that question that was highlighted by Lord Justice
Wall and referred to for reference to the Family Justice Council.
Broadly speaking, the proposition remains as you ask me and as
Lord Justice Wall put it, but it has to be acknowledged that there
may be cases where it may be appropriate to order contact I think
the level of enquiry required will receive very close attention
from those members of the Family Justice Council who are concerned
with these things. They have members from CAFCASS, psychiatric
opinion, paediatricians, all kinds of experts in that connection.
Q55
Julie Morgan: In what proportion of contact cases do you believe
domestic violence is an issue?
Sir
Mark Potter: In contact cases where there are difficulties - and
one has to remember that those that come before the courts are
very much the tip of the iceberg, the others have been resolved
- I think in quite a lot of cases. It is a sad fact, as I understand
it (and this is anecdotal but pretty good anecdotal evidence)
that at one stage when the box-ticking exercise had to be conducted
on the form which is required to be filled in for the initiation
of proceedings, the domestic violence box was being ticked in
the belief that this would obtain a quicker hearing before the
court than if there was no allegation of violence, so it may be
that in one or two cases the complaint is either not genuine or
grossly exaggerated but, broadly speaking, I think it is quite
a high proportion of cases.
Q56
Dr Whitehead: You mentioned earlier, Sir Mark, about the question
of whether mediation might be ordered. When we were considering
the question of mediation in our original inquiry and whether
that (with a compulsory preliminary meeting) might be desirable,
we heard of course about the "family resolutions" pilot
scheme which we were informed at the time did indeed have judicial
support.
Sir
Mark Potter: Absolutely.
Q57
Dr Whitehead: What is your view of the outcome of the pilot scheme?
Sir
Mark Potter: I will hand over to Nicholas Crichton on that, if
I may, because he was one of the progenitors of the scheme, saw
it through, and followed it up. Simply speaking the scheme was
not in fact a mediation scheme but really an information scheme
and a scheme whereby parties were certainly encouraged to talk
through and settle their differences. It was not a formal mediation
scheme. The difficulties about ordering mediation are two-fold.
One is the philosophical point that you cannot order people to
mediate; they have got to be willing. I just do not subscribe
to that. If somebody is ordered to attend a first mediation hearing
it is a very peculiar human being indeed who sits there with his
or her arms folded and says, "I'm not going to play"
when an experienced mediator gets to work. The other of course
is the question of means because if the courts are given power
to order mediation as part of the justice system, this is something
to which legal aid would have to extend, and that becomes a resource
problem for the Government, which I know concerns the Government.
Having said that generally, may I hand over to Nicholas Crichton
on that point.
District
Judge Crichton: I think my brief perhaps was to cover not just
the disappointment about the family resolutions pilot but also
the reasons why it was so disappointing, so maybe I will be forgiven
if I take a minute or three over that. We have talked earlier
about enforcement of court orders and the point of the pilot,
like many other such schemes was to try to avoid getting into
the position of having court orders which can be disobeyed. It
is far better for parties to come to an agreement. The family
resolutions pilot was originally called "early intervention"
and that is a phrase that we have also had. One of the difficulties
early on was that, for some reason that was beyond my control,
the name of the project was changed, without consultation, from
"early interventions" to "family resolutions",
which was particularly unfortunate as a public relations exercise
because we had been working with some quite difficult groups who
thought thereby that something completely different was being
tested and so there was quite a lot of opposition to the family
resolutions pilot because they thought that they were being outflanked.
So that was an initial difficulty. The second difficulty was that
we set a date by which it ought to start, and in my very clear
view it was not ready to start when it did start, and I tried
to prevent it starting on the date that it did but I was unsuccessful.
I felt very strongly that there should be a very wide sales pitch,
if you like, to the family law profession, the solicitors and
barristers whose clients would be asked to be coming into this
project, and I did not think that we could successfully proceed
with the project unless we had them on board, and that did not
happen. There was another issue which was more fundamental. In
order to get a public funding certificate to contest a contact
issue in court, solicitors have to take clients through what mediation
means and introduce them to a mediator so that they have an opportunity
to understand that this is an alternative. Those who declined
to make use of that facility, which is a large number, then filed
their application and had the family resolutions pilot discussed
with them and they said, "This is more of the same; we have
already said we do not want it." So a considerable number
of people did not come in for that reason. There was a difficulty
because one of our partners in running the project was Relate
and they take a very purist attitude to domestic violence and
with the slightest hint of any kind of violence, even at the lowest
level - and I do not mean by talking about low levels not to be
taking it seriously; all domestic violence is a serious issue
but there is quite a spectrum - Relate were very reluctant to
allow anybody in who was alleging that there had been any kind
of violence, which made it very difficult to get people in. Finally,
there was the issue that we have already discussed which was that
it was not compulsory, and there are two schools of thought still
that it cannot be compulsory. I completely agree with the President.
I do not see a difficulty in saying to people, "If you want
access to a judge in a courtroom, which is a very expensive facility
and not necessarily the best facility to try to resolve your problems,
you have first of all to try one of a range of options to see
if we can find another solution to your problem", but because
we could not do that we got very significantly less people into
the project than we had hoped for.
Q58
Chairman: 62 instead of 1,000.
District
Judge Crichton: Exactly so. On a positive note, of those who did
come in it was really quite successful. I met a particular couple
from an ethnic minority - and we worried about how the ethnic
minorities would view this sort of project - and they came to
court and said, "We have reached complete agreement. We can
come out of the project. Will you stamp our agreed order? We are
so grateful for the information that we were given about the needs
of our children." The basis of our project was a robust provision
of information about the needs of your children in the middle
of this situation and the need to try to set aside your distress,
your anger, your emotions and focus on the needs of your children.
By and large, for those very few that came in it worked. The big
disappointment was that the Department for Education and Skills
had indicated at the beginning that this was a one-year project
and towards the end of the year, I had a discussion with District
Judge Waller, the Senior District Judge of the principal registry
of the family division, who was very supportive of what we were
trying to do, who said if we could persuade the Department to
extend the project for another year he would encourage his district
judges at the principal registry to send a certain number of cases
to Wells Street to put them into the project, but unfortunately
the Department felt unable to continue with it. That was a disappointment
because we still believe that we have got a project there which
- and there is no one size fits all and you will never have a
scheme that will suit every family - is still a significant way
of working with some families that could produce better results.
Sir
Mark Potter: It has certainly had considerable success in America.
Q59
Dr Whitehead: 6.2% of the suggested target - and I am reluctant
to talk about targets - is pretty wide of the mark, is it not,
really?
District
Judge Crichton: I think the legal aid point is a considerable
one. We do not know, it is anecdotal, but at about the time that
we started trying to run the project, more applications were made
at the Principal Registry and fewer were made in our court, and
we think that there was a general feeling to try to move away
from it because it appeared to them to be more of the same - more
mediation, more conciliation.
Q60
Dr Whitehead: So we understand, as part of the pilot scheme it
did indeed permit people to simply evade having anything to do
with it by issuing proceedings in neighbouring courts?
District
Judge Crichton: It is not the scheme that permitted them to evade
it except for the fact that we could not make it compulsory, but
there is freedom as to where you can come into the system. You
can come into the system either at family proceedings court level
or at county court level so people who would have come into the
family proceedings court appear to have started going to the county
court.
Q61
Chairman: I think they had been so advised.
District
Judge Crichton: Presumably, but that is because we had not been
able to sell it to the practitioners, which I thought was a fundamental
part of what we should have been doing.
Q62
Dr Whitehead: Is there a benefit in trialling a system rather
than piloting a system? I would assume by trialling a system this
would be a general trial and not a pilot in one or two areas,
to have compulsory preliminary meetings with mediators and perhaps
that is it, indeed as envisaged by section 31 of the Family Justice
Act which has not been implemented but could be?
Sir
Mark Potter: I would welcome it but it has resource implications
which I think are really a very substantially inhibiting factor
so far as governmental support is concerned.
Q63
Chairman: So does a growing caseload at the higher reaches of
the judicial system to deal with these cases?
Sir
Mark Potter: I absolutely agree with you. If one is going to be
critical of government thinking broadly in areas associated with
family as well as this, there is a terribly blinkered view that
money spent in this accounting year for which somebody will reap
the benefit in their accounting year later, and probably a different
minister, is a reason not to put a bit of money forward in order
to save a great deal of money later.
Q64
Dr Whitehead: Is there any easily correlatable relationship in
the way you have suggested; the direct relationship of money saved
and money invested? I realise this is a rather unjudicial question.
Sir
Mark Potter: I do not know how it would be costed. I think the
best example is what has happened in the last year simply with
the early conciliation hearing in private law cases now that it
has been largely up and running at county court, principally district
judge level, and it has led to early disposal of up to 80% of
cases in certain areas. That is a situation where it has been
gripped early as soon as it is in the court system. Of course,
some cases do not work. Some where there is violence are not amenable
to it and matters of that sort, but it a quite startling statistic.
We are now in the course of having discussions generally involving
CAFCASS and the magistrates' courts as well as the county courts
to move the scheme forward into the magistrates' courts, but that
is the principle of the thing. It is not mediation properly so-called
but it is an effort to make parties resolve their decisions early
as a result of some well-intentioned and skilled person guiding
them into that sort of agreement.
Dr
Whitehead: Of the 62 people who did take part in the pilot, was
there any correlatable evidence in terms of their outcomes?
Q65
Chairman: 62 couples or ex-couples perhaps.
District
Judge Crichton: It is difficult to answer that question because
I cannot remember the figure - it may have been one-third - pulled
out before they had completed. We do not know why they pulled
out. They may have pulled out because they got the information
that enabled them to resolve their differences themselves. They
may have pulled out because they were not satisfied, but certainly
they were told at the beginning that they could come out at any
time if they felt that they could now resolve their differences.
That was the object of the exercise. I think that is an important
thing to stress because this was not just mediation. This was
two quite intensive information-giving sessions and you did not
attend with the other parent. You attended with a whole lot of
other parents but the other parent of your child went to a different
session and you had two of those sessions before you finally met
together with a CAFCASS officer to try to see if you could find
a resolution to your problems. The other difficulty is that we
had hoped that we would get people through the project within
about eight weeks, but that meant holding enough of those information-giving
sessions for people to be able to come either in the afternoon
or in the evening according to their work or childcare commitments,
and pretty swiftly one after the other. Because we never got the
critical mass of people into the project we were never able to
hold those sessions as frequently as we would like and therefore
the project took just as long as the court proceedings, which
defeated part of the object of the exercise.
Chairman:
Thank you very much indeed. Thank you for giving us such a thorough
analysis which I think will be very helpful in discussing where
we go from here. Sir Mark Potter, Mr Justice Munby, Judge Crichton,
Ms Damazar, thank you very much indeed for your help this afternoon.
