House of Commons Constitutional
Affairs Committee
Family Justice: the operation of the family courts
revisited
Sixth Report of Session 2005–06
Report, together
with formal minutes and oral evidence
Ordered by
The House of Commons to be printed 6 June 2006
HC 1086 Published on 11 June 2006 by authority of the House of
Commons London:
The Stationery Office Limited £9.00
The
Constitutional Affairs Committee
The Constitutional Affairs Committee (previously the Committee
on the Lord
Chancellor’s Department) is appointed by the House of Commons
to examine
the expenditure, administration and policy of the Department for
Constitutional
Affairs and associated public bodies.
Current
membership
Rt Hon Alan Beith MP (Liberal Democrat, Berwick-upon-Tweed) (Chairman)
James Brokenshire MP (Conservative, Hornchurch)
David Howarth MP (Liberal Democrat, Cambridge)
Barbara Keeley MP (Labour, Worsley)
Mr Piara S Khabra MP (Labour, Ealing Southall)
Jessica Morden MP (Labour, Newport East)
Julie Morgan MP (Labour, Cardiff North)
Mr Andrew Tyrie MP (Conservative, Chichester)
Keith Vaz MP (Labour, Leicester East)
Dr Alan Whitehead MP (Labour, Southampton Test)
Jeremy Wright MP (Conservative, Rugby and Kenilworth)
Powers
The Committee is one of the departmental select committees, the
powers of
which are set out in House of Commons Standing Orders, principally
in SO No
152. These are available on the Internet via www.parliament.uk
Publications
The Reports and evidence of the Committee are published by The
Stationery
Office by Order of the House.
All publications of the Committee (including press notices) are
on the internet at
www.parliament.uk/conaffcom
Committee
staff
The current staff of the Committee are Roger Phillips (Clerk),
Dr John Gearson
(Second Clerk), Richard Poureshagh (Committee Assistant), Alexander
Horne
(Legal Specialist), Anne Woolhouse (Secretary), Tes Stranger (Senior
Office Clerk)
and Jessica Bridges-Palmer (Committee Media Officer).
Contacts
Correspondence should be addressed to the Clerk of the Constitutional
Affairs
Committee, House of Commons, 7 Millbank, London SW1P 3JA. The
telephone
number for general enquiries is 020 7219 8196 and the email address
is
conaffcom@parliament.uk
Media enquiries can be addressed to Jessica Bridges-Palmer, Committee
Media
Officer, House of Commons, 7 Millbank, London SW1P 3JA. Telephone
number
020 7219 0724 and email address bridgespalmerj@parliament.uk
Contents
Introduction - Background
Delays and resource issues
Transparency in the Family Courts
Mediation and the Family Resolutions Pilot Project
Conclusion
Appendices
Formal minutes
Witnesses
Reports from the Constitutional Affairs Committee
Introduction
- Background
1. Between September 2004 and March 2005, the Constitutional Affairs
Select Committee in the last Parliament conducted a comprehensive
inquiry into the workings of the family justice system, focusing
on issues relating to child contact and produced a report entitled
Family Justice: the operation of the family courts.1 Particular
concerns included the delays inherent in the family court system,
the lack of transparency of the family courts and the need to
move people away from the adversarial court system and into mediation
or educational programmes to resolve their differences.
2. The Government responded
to the Committee’s report in March 2005 and legislation
relating to the enforcement of child contact (The Children and
Adoption Bill) was
introduced into the House of Commons in November 2005.
3. We decided to take
evidence on some of the recent developments in areas which had
been examined by the Constitutional Affairs Committee in the last
Parliament from
Rt Hon Sir Mark Potter, the President of the Family Division.
An oral evidence session was held on 2 May 2006, and Sir Mark
was accompanied by Hon Mr Justice Munby, District Judge Nicholas
Crichton and Audrey Damazer from the Justices’ Clerks Society.
Following that evidence session, the Committee decided to produce
a short report to review the evidence given and consider what
progress has been made. Relevant correspondence between the Committee,
the judiciary and the Department is appended to this report.
Delays and resource issues
4. The Committee raised with the judiciary the continuing problem
of delays in the family
courts and the extent to which such delays were due to a lack
of adequate resources. Prior to the evidence session, the Law
Society wrote to the Committee indicating that, in its view, delays
were still a significant problem, particularly in the Principal
Registry of the Family Division. Sir Mark Potter informed the
Committee that in the light of difficulties in
obtaining additional resources, a decision had been taken to “cascade”
cases down to the Family Proceedings Courts (FPCs). He said:
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 county court. For this purpose,
in my first year I have been focusing 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.
5. He went on to add
that:
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 […] 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.
6. Sir Mark reiterated
the difficulties in respect of FPCs a number of times in his evidence,
while Audrey Damazer went on to say that:
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.
7. In response to the
concerns expressed by the judiciary, the Chairman of the Committee
wrote to the Lord Chancellor, indicating that any reduction in
the number of legal advisers would be unacceptable and that every
effort should be made to facilitate the “cascading”
scheme promoted by the judiciary. The correspondence can be found
at the Appendix
8. In its report in
the last Parliament, the Committee observed that “District
Judge
Nicholas Crichton is the only full time Family Proceedings Court
district judge in England
and Wales who is designated to sit 100% on family cases […]
The benefit to the parties […] of having a full time district
judge holding the case are equally plain to see. There should
be recruitment or allocation of far more full time specialist
‘family’ district judges (magistrates court) to this
work.”
9. In oral evidence
to the Committee, District Judge Crichton informed us that:
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 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.
10. We are disappointed that it appears that the Department’s
continuing difficulties
with resources seem to be preventing the judiciary from reducing
the delays in the
family court system. The move towards “cascading down”
cases to the Family
Proceeding Courts seems a sensible use of existing resources and
we trust that the
Department will not hinder this scheme by reducing the number
of legal advisers
provided to the Family Proceedings Courts, or by failing to fill
posts that become
vacant.
11. We are also surprised
that there has been no movement in increasing the number of
District Judges (Magistrates Court) sitting full time in the Family
Proceedings Courts.
This would seem a sensible course, ensuring judicial continuity
and specialisation in
family cases. We hope the Department will investigate the current
obstacles to further
such appointments.
3 Transparency in the Family Courts
12. Following the publication of the Committee’s report
in the last Parliament, which
recommended increasing transparency in the family courts by allowing
access by the press and the public, the Government indicated that:
The Government recognises
that there is a growing consensus that the family courts lack
transparency […] As the situation currently stands, the
system is open to criticism, and the privacy of proceedings
fuels the criticism further because
accusations cannot be easily refuted.
13. Subsequently, the
Department undertook to perform a consultation exercise in the
early spring of 2006. The consultation paper was due to be published
in March 2006, but it
has been delayed.
14. Rt Hon Harriet
Harman MP, the Minister of State at the Department, has recently
taken charge of the proposals. In an interview, the Minister said:
There's been a concern
that public confidence in the courts has been undermined
and that we need to strike a new balance which continues to
protect personal
privacy, which protects the anonymity of children but which
also makes the courts
open. That is something which they've managed in other countries.
There's a lot of international experience that can be drawn
on, so I'm confident that we can get a new balance and that's
what we'll do.
15. At the oral evidence
session, views on how transparency could be improved were
mixed. Sir Mark Potter indicated that:
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 for 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 I would not extend
access to the general public.
16. Mr Justice Munby
said:
When I first became
a 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
in 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 […]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
[…]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
the president, but that is a purely personal view.
17. He went on to add
that “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.”
18. We reiterate the
point which was made in the report by the Constitutional Affairs
Committee in the last Parliament, that an obvious move to improve
transparency in the
family court would be to allow the press and public into the family
court under
appropriate reporting restrictions, subject to the judge’s
discretion to exclude the
public. We are pleased that the Department for Constitutional
Affairs has undertaken
to consult on the issue of transparency and expect that moves
towards open justice in
the family court will quickly follow.
4
Mediation and the Family Resolutions Pilot
Project
19. In its report in the last Parliament, the Constitutional Affairs
Committee stressed the
fact that adversarial court proceedings were not the best way
to resolve complex family
disputes. In particular, the Committee was keen to evaluate the
Family Resolutions Pilot
Project (FRPP), which had just been launched. The Committee recognised
concerns
expressed by a number of contributors that since the pilot would
not be compulsory it
would be difficult to achieve the success attributed to the “Florida
model” of early interventions.
20. The Committee
also recommended that greater efforts should be made to promote
mediation and concluded that this could best be done through a
compulsory preliminary
meeting with a mediator, prior to entering the court process.
21. The Government,
in its response, did not support even this limited element of
compulsion, claiming that it was not appropriate since “mediation
is only effective when
both parties enter the process freely and willingly”.
22. The Government
did not address the inconsistency which was raised in the earlier
report that while those seeking to obtain legal aid are obliged
to consider mediation, those who fund their case privately are
not.
23. In relation to
the FRPP, the Government said that:
The Early Interventions
(EIP) proposals were taken into account when the FRPP was designed,
with relevant aspects of the experience of other jurisdictions,
including Florida’s, informing the design of the FRPP.
In particular, the aspects of compulsion and prescription that
are the features of some other jurisdictions were felt not to
be suitable in this jurisdiction.
24. These issues were
put to the judiciary, who reached a rather different conclusion.
In
respect of mediation, Sir Mark Potter stated that:
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.
25. Measured by participation
level, the FRPP was a failure. The originators had hoped to
get 1000 couples to participate in the scheme, however, only 62
couples did so. District
Judge Crichton set out a number of reasons for this including:
[The fact that] it
was not ready to start when it did start […] 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.
26. It was also suggested
that people may have sought to evade entering into the scheme
by using courts at which the project was not being piloted, although
this is challenged by an academic evaluation sponsored by the
Department for Education and Skills (see below). District Judge
Crichton acknowledged that the scheme had not been compulsory
and went on to say that:
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.
27. As mentioned above,
the Department for Education and Skills commissioned its own
academic evaluation of the FRPP. Its authors concluded, inter
alia, that:
The pilot was a mixed
success, with some of the innovative elements, particularly
the group work stage, showing real promise, although referrals
and completions were clearly disappointing. The pilot has not
produced a clear blue print for the future development of services,
but it has provided a number of important pointers for future
developments within the family justice system and beyond. In
particular, the pilot has underlined the potential of interventions
designed to help parents focus on the needs of children and
to support effective co-parenting.
The authors highlighted
the fact that that:
There was, however,
one critical advantage with the pilot over and above existing
interventions. Parents who had completed the pilot were significantly
more likely to report that the parental relationship had improved
than: (a) parents who did not
complete the pilot; and, (b) parents who had just attended in-court
conciliation, i.e. existing interventions. This is a very important
finding given that the level and
nature of parental conflict is one of the most important influences
on how children
adjust to separation or divorce. It is particularly important
given that two recent
studies of mediation and conciliation reported little impact
on improving the
parental relationship. Even so a third of parents who completed
the pilot reported no change in relationships and the qualitative
data suggested that the intervention was most effective with
what were probably the easier cases. The pilot cannot, therefore,
be seen as a magic bullet that is likely to work in all cases.
28. The results of
the Family Resolutions Pilot Project (FRPP) appear to support
the
view that if more people are to be diverted out of the court system,
a degree of
compulsion may have to be used. In its report in the last Parliament,
the Constitutional
Affairs Committee recommended a compulsory preliminary meeting
with a mediator.
This is not the same as compulsory mediation, but would allow
people to see whether
mediation is suitable for them. We believe that it would be advantageous
if the
Government were to conduct a trial of this scheme. We note that
where people are
seeking legal aid they are already expected to consider mediation
first. We do not see
why this type of compulsion is good for some parents but not others.
Part of the role of
family law practitioners should be to prepare their clients for
this as a normal part of
the family proceedings process.
29. Measured by participation
level, the FRPP was a failure. The main difficulty seems
to have been convincing people to enter into the scheme in the
first place. We recognise
that the judiciary continue to support the scheme. However, if
resources are to be
dedicated to it, we believe that it should be run on a compulsory
basis
Conclusion
30. Following the Constitutional Affairs Committee’s report
into the family justice system
in the last Parliament, we are pleased that there appears to be
some movement on the issue of transparency in the family courts,
both from the Department for Constitutional Affairs and the judiciary.
We await the publication of a consultation paper by the Department
on this issue with interest.
31. In respect of the
question of delay, it seems plain that funding difficulties are
holding
back the judiciary from improving the service that it can offer.
We trust that the
Department will ensure that any short term difficulties in finance
do not impact upon the
provision of vital services that the family courts provide. In
particular, we hope that the
Department will facilitate the “cascading down” of
cases to the Family Proceedings Courts, as suggested by the judiciary.
To do this, it needs to provide sufficient legal advisers, ensure
that any vacancies continue to be filled and remedy the lack of
additional District Judges (Magistrates Court) working full time
on family cases.
32. Finally, in relation
to the issue of diverting parents away from the courts, we believe
that the Department needs to think again about the question of
compulsion. In terms of
the numbers participating, the Family Resolutions Pilot Project
was a failure. It seems plain that without an element of compulsion,
projects like the Family Resolutions Pilot Project will not succeed.
In particular, the Department should introduce a compulsory preliminary
meeting with a mediator. There is no reason why this is acceptable
for those seeking legal aid, but not for other couples.
Appendices
Appendix
1
Letter from Rt Hon Alan Beith MP, Chairman,
Constitutional Affairs
Committee to Rt Hon Lord Falconer of Thoroton, Lord Chancellor
and
Secretary of State for Constitutional Affairs
The
Provision of Legal Advisers in Family Proceedings Courts
Following receipt of
a letter from Alex Allan about DCA resourcing and our recent
evidence session on 2 May 2006 with several family court judges,
including Sir Mark
Potter, I am writing to you in respect of the provision of legal
officers in Family
Proceedings Courts (FPCs).
It was made plain by
the judiciary that in order for cases to be cascaded down to the
Family Proceedings Courts (where we understand that there is spare
capacity) it will be
necessary for sufficient legal officers to be made available.
Whilst we appreciate
the resource limitations that the Department is currently operating
under, it would appear short-sighted if unnecessary pressure was
placed on the High
Court or Principal Registry of the Family Division by a failure
to provide sufficient legal
officers.
In those circumstances,
I hope that you are in a position to be able to assure the
Committee that the Department will use its best endeavours to
secure an increase in the
number of legal officers available to the FPCs and that in any
event, there will be no
reduction in the numbers of those officers.
I have copied this
letter to Rt Hon Sir Mark Potter, the President of the Family
Division.
9 May 2006
Appendix
2
Letter from Rt Hon Lord Falconer of Thoroton, Lord Chancellor
and
Secretary of State for Constitutional Affairs to Rt Hon Alan Beith
MP,
Chairman, Constitutional Affairs Committee
Thank you for your
letter of 9 May about the provision of Legal Advisers in Family
Proceedings Courts. You asked for reassurances about our commitment
to maintaining,
and if possible increasing, the numbers of legal officers available
in the FPCs.
On the creation of
HMCS, the HMCS Board set up ‘The Justices’ Clerks
and Legal
Advisers Working Group’ to consider issues relating to recruitment,
retention, career
path and management structures for lawyers employed by HMCS and
their relationship
with other lawyers within the Government Legal Service.
A major work stream
of the Working Group is the development of a National Legal
Adviser Recruitment and Retention Policy. The creation of this
policy should address
the long term succession planning to take place with regard to
the ongoing recruitment
of Legal Advisers to ensure sufficient establishment levels to
adequately run the criminal
and family courts within HMCS. Work is on-going with the Human
Resources
Department to develop this policy.
Within the work on developing a proposed new career structure
for Legal Advisers, it is
recognised that an important area of career progression and development
is within the
area of Family Law.
HMCS has many very
dedicated Legal Advisers who work in the Family Proceedings
Courts. It is anticipated that the proposed new career structure
will be developed to
offer two strands of career progression for those Legal Advisers
who undertake or wish
to undertake family work.
Firstly, the route
where a Legal Adviser would undertake family work in the Family
Proceedings Court, whilst also undertaking the full range of criminal
and civil courts in
the Magistrates’ Courts.
Secondly, the route
of a Legal Adviser who may wish to become a ‘Family Specialist’
and
work predominately in the specified family courts (as currently
happens now in London
and in the longer term may be rolled out elsewhere in the country.)
Whilst accepting the
resource limitations currently in place, HMCS is committed to
the
efficient and effective delivery of front-line services of which
the provision of Family
Proceedings Courts to deal with Public Law Care cases is a priority.
I have copied this
letter to Sir Mark Potter, President of the Family Division.
19 May 2006
Appendix
3
Letter from Sir Mark Potter, President of the Family Division
to Rt
Hon Alan Beith MP, Chairman, Constitutional Affairs Committee
Having received an
invitation to comment further on certain matters referred to in
the
letter from Alexander Horne dated 18th May 2006, I take the opportunity
to add the
following observations.
Concerns
relating to Children & Adoption Bill
The concerns which I aired to the Committee in headline terms
related to the following:
1. The nature of the
proposed contact activity directions and contact activity
conditions which the court may impose at interim and final order
stage.
I understand that activities
to be provided will be commissioned by CAFCASS from
existing providers such as Relate. At present, possible providers
are scattered
throughout the country. CAFCASS will be carrying out a scoping
project to see what
programmes are in existence and what the likely need for them
will be. The cost of
securing adequate provision is as yet unknown.
2. Post-order monitoring
CAFCASS and the judiciary
will need to establish a detailed protocol to clarify how
monitoring will be effected. At one level, it may simply involve
an administrative followup,
for example a telephone call to confirm that contact took place
as ordered. In other
cases, it may be more difficult to clarify reasons for failure,
and CAFCASS will need to
be sure what judges expect from them.
In this connection
the active participation of CAFCASS in the facilitation and
enforcement of contact orders is crucial to the success of the
measures in the Bill and
CAFCASS will need to be properly funded to do the work.
3. Enforcement orders/unpaid
work requirement
The expectation is
that this requirement will be provided by the Probation service.
It is
said that, as numbers of orders are likely to be fairly low, there
will be little or no
additional cost. However, the court will want the type of work
ordered to meet
the aims and aspirations of the Bill, i.e. to secure the person’s
compliance with the
contact order. The Probation service will need to provide appropriate
work in all court
areas, risk assessments will need to be undertaken and work provided
which does not
involve mixing with criminal offenders. In cases where there are
young children, the
practicalities of sole carers being available to perform the work
may prove a limiting
factor.
Powers
to resolve contact disputes
I would first refer you to the recommendations of the Children
Act Sub-Committee,
dated March 2001, following the consultation paper, “Making
Contact Work”; see pages
119-121, paras 25-29. These pages are attached. I would endorse
the recommendations.
Some of the proposals have not been taken forward by the government.
In this
connection it was particularly disappointing to see omitted a
power of the court to refer
an intransigent parent to a psychiatrist or psychologist.
When my team gave evidence
to the Select Committee, we were asked whether we
thought the use of financial penalties for failure to comply with
contact orders might
assist the courts. I, Munby J. and DJ Crichton all gave evidence
on this point, setting out
the reservations that we have regarding the utility of imposing
financial penalties for
non-compliance where children are involved. When pressed on the
subject, we agreed
that financial penalties might be an option in the very small
number of cases where the
defaulting party has substantial means. That remains our position.
However, in this connection
please note that, when replying to question 28, DJ Crichton
drew attention that the courts can already fine or imprison for
contempt of court. The
Children and Adoption Bill, Clause 4, creating new Section 11J(13)
in the Children Act
1989, specifically retains Section 63(3) Magistrates’ Courts
Act 1989 as it applies in
relation to contact orders. In cases where the aggrieved parent
makes an application
under Section 63, the court is empowered to impose a financial
penalty in respect of the
failure to comply with an order of the court.
Transparency
This matter was addressed at some length in the evidence of my
team on 2nd May.
Broadly speaking, I accept and endorse the principle of openness.
It is vital that the
public have confidence in the family courts. In our evidence,
you will note reservations
which need consideration, particularly in relation to allowing
members of the general
public into the courtroom. We also drew attention to the distinction
between cases
which are essentially private cases, and those where the public
has a greater interest, i.e.
care proceedings, where the state is interfering in the life of
a family and children may
be removed permanently from their parents. You will be aware of
the attached article
entitled “Access to and reporting of Family Proceedings”
by Munby J. and reported in
the December 2005 edition of Family Law at page 945.
It is necessary, however,
to sound four notes of caution in relation to the views
expressed by the senior judiciary.
1. Their views are
not likely to be reflected at levels below the High Court amongst
those concerned “at the coalface” with the practicalities
of conducting children act
proceedings in local courts, particularly in relation to the right
of the public (as distinct
from the press) to be present.
2. Even less are they
likely to be shared by care professionals who are concerned
not only for the welfare of children (in relation to gossip, teasing
and bullying in their
every day lives), but the willingness of witnesses to become involved
and, in a number of
cases, the harassment of professionals by precisely those pressure
groups that wish to
attend as members of the public in cases involving their members
or issues of particular
interest to them.
3. There is a strong
feeling among the judges that, quite apart from proper welfare
concerns for the child, a rule or presumption of a public right
to access, with the
discretion to the judge to consider exclusion of any particular
member(s) of the public
would be burdensome, difficult to police, and likely to add to
the length of the
proceedings. In particular, it would raise considerable difficulties
in identifying and
challenging “undesirables” as well as giving rise
to inhibition (and on occasion
intimidation) of parties and witnesses, with consequent adverse
effects on the outcome
of the hearing. Those legitimate concerns explain why I favour
the proposal to restrict
access to those with a genuine interest in the case, for example,
lay advocates to assist
parents with learning difficulties and members of the family or
others who will support
the parties through the hearing and in dealing with the outcome
of the hearing.
4. There are a number
of logistical objections and difficulties. For instance, in local
County Courts, District Judges who deal with the vast majority
of children cases, often
occupy rooms in which cases are heard which can barely accommodate
the parties, their
advisors and care workers, let alone interested members of the
public.
The government is shortly
to publish its consultation document on transparency, and I
would expect a wide range of interest groups to respond. This
issue is high on the
agenda of the Family Justice Council which is a senior body representing
agencies across the family Justice System. Representations from
this quarter will merit careful
consideration.
Finally, I welcome
the indication that government is looking at other jurisdictions,
including New Zealand, in order to learn from their experiences.
Resources
Provided to the FPC
As stated to the Committee on 2nd May, a key element in the success
of my strategy of
“cascading down” work within the system is the number,
role and expertise of Legal
Advisers. The Protocol for Judicial Case Management in Public
Law Children Act Cases
emphasises the benefits of judicial continuity and the need for
expert and proactive case
management prior to the hearing. This requirement will intensify
with
the implementation of the recommendations in the recent Child
Care Proceedings
Review.
In the FPCs, this function
is discharged by the Legal Advisers amongst whom there is a
pressing need for additional specialist family advisers across
the Country, not only in connection with public law work, but
also in private law proceedings where, again,
the Legal Advisers (rather than the Magistrates) perform an essential
role in facilitating
in-court conciliation in conjunction with CAFCASS.
If more family work
is to be retained by and passed down to the FPCs, the career
structure and training of Legal Advisers in family is a key issue.
Their career
opportunities have historically been compromised by the priority
given to criminal
work, advancement being tied to their services in that area. In
relation to training, the
Judicial Studies Board is in the process of providing a suitable
training module, which
will support those legal advisers who wish to choose the option
of specialising in family,
without it being detrimental to their career. The joint combination
of experienced
family legal advisers sitting with competent Magistrates is crucial.
I would draw to the
Committee’s attention the Justices’ Clerks’
Society’s excellent position paper on ‘Legal
Advisers in the Family Proceedings Courts’ which sets out
the functions of Legal
Advisers and their views on specialism (the summary and conclusions
in that paper
appear at page 5).
25 May 2006
Formal
minutes
Tuesday 6 June 2006
Members present:
Mr Alan Beith, in the Chair
David Howarth
Barbara Keeley
Mr Piara S Khabra
Julie Morgan
Andrew Tyrie
Keith Vaz
Dr Alan Whitehead
Draft Report [Family
Justice: the operation of the family courts revisited], proposed
by the
Chairman, brought up and read.
Ordered, That the Chairman’s
draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 32
read and agreed to.
Resolved, That the
Report be the Sixth Report of the Committee to the House.
Ordered, That the Chairman
do make the Report to the House.
Three papers were ordered
to be appended to the Report.
Ordered, That the Appendices
to the Report be reported to the House.
Ordered, That the provisions
of Standing Order No 134 (Select Committees (Reports)) be
applied to the Report.
[Adjourned till Tuesday
13 June at 4.00pm
