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The Operation of the Family Courts

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The Operation of the Family Courts House of Commons Constitutional Affairs Committee Family Justice: the operation of the family courts Fourth Report of Session 2004–05 Volume II Oral and written evidence Ordered by The House of Commons to be printed 23 February 2005 HC 116-II [Incorporating HC 1247-i, Session 2003-04 and HC 116-i to iv] Published on 2 March 2005 by authority of the House of Commons London: The Stationery Office Limited £20.50 Witnesses Tuesday 9 November 2004 Rt Hon Dame Elizabeth Butler-Sloss DBE, President, High Court, Family Division, Rt Hon Lord Justice Wall Hon Mr Justice Munby Ev 1 His Honour Judge Meston QC District Judge Michael Walker District Judge Nicholas Crichton Ev 14 Tuesday 7 December 2004 Christina Blacklaws and Hilary Lloyd, The Law Society Kim Beatson and Christopher Goulden, The Solicitors Family Law Association Philip Moor QC, The Family Law Bar Association Ev 22 Tuesday 14 December 2004 Hilary Saunders, Women’s Aid Ruth Aitken, Refuge Phillip Noyes and Barbara Esam, NSPCC Ev 34 Mavis Maclean CBE and John Eekelaar, Oxford University Ev 40 Anthony Douglas and Baroness Pitkeathley OBE, CAFCASS Ev 44 Tuesday 11 January 2005 Caroline Abrahams and Susannah Weekes, NCH Margaret Pendlebury, National Family Mediation Ev 49 Tony Coe, Equal Parenting Council John Baker, Families Need Fathers Celia Conrad, former law practitioner and a legal consultant Ev 54 Tuesday 18 January 2005 Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, Department for Constitutional Affairs Rt Hon Margaret Hodge MBE MP, Minister of State for Children, Young People and Families, Department for Education and Skills Ev 64 List of written evidence Rt Hon Dame Elizabeth Butler-Sloss DBE, President, High Court, Family Division Ev 80 District Judge (Magistrates Courts) Nicholas Crichton Ev 88 Mrs Justice Bracewell Ev 90 Hon Mr Justice Ryder Ev 91 Hon Judge Meston QC Ev 94 The Association of District Judges Ev 97 Greater London Family Panel Ev 99 The Magistrates’ Association Ev 101 CAFCASS Ev 103 HM Magistrates’ Court Service Inspectorate (MCSI) Ev 109 Napo Ev 112 The Family Law Bar Association Ev 118 The Law Society Ev 121 Solicitors Family Law Association Ev 123 Celia Conrad, Freelance Legal Consultant Ev 127 Tony Coe, President, Equal Parenting Council Ev 134 Families Need Fathers Ev 140 National Family Mediation Ev 143 Refuge (executive summary only) Ev 144 NCH Ev 146 Women’s Aid Federation of England Ev 148 Fathers4Justice Ev 161 Mavis Maclean CBE, Joint Director, Oxford Centre for Family Law and Family Policy Ev 162 John Eekelaar, Oxford Centre for Law, Policy and the Family Ev 165 Sarah Harman, Solicitor Ev 167 Department for Constitutional Affairs Ev 168 Joshua Rozenberg, Legal Editor, The Daily Telegraph Ev 199 John Sweeney, BBC Reporter Ev 200 Memoranda Due to the number and volume of submissions received during this inquiry the following memoranda have been Reported to the House and made available in the Library of the House of Commons and the Public Records Office. They are also available on the Reports and Publications page of the Committee’s website: www.parliament.uk/conaffcom Joan Hunt, Oxford Centre for Family Law and Policy Elizabeth Walsh, editor of journals Family Law and International Family Law Ruth Smallacombe, Family Law In Partnership Trevor Jones Dispute Resolution Consultancy Oliver Cryiax, New Approaches to Contact (NATC) National Youth Advocacy Service (NYAS) A Parent Bridget Lindley, solicitor, researcher and family mediator Rose Dagoo, children’s guardian Unity Injustice Dr Tim Hughes, medical practitioner Office of the Chief Rabbi Robert Whiston The Newspaper Society Dr L F Lowenstein, Educational, Clinical and Forensic Psychological Consultant Tony Hobbs, School and Department of Law, Keele University, Staffordshire Dr A J Munro FLINT Antony Green, guardian ad litem Alan Kelsall Relate JUMP (Jewish Unity for Multiple Parenting) David Edwards Peter Cuckson and Chris Thomas Tony Coe, President, Equal Parenting Council Refuge Barry Worral, The Cheltenham Group Families Need Fathers Ev 1 Oral evidence Taken before the Constitutional Affairs Committee on Tuesday 9 November 2004 Members present: Mr A J Beith, in the Chair Peter Bottomley Mr Clive Soley Mr James Clappison Keith Vaz Ross Cranston Dr Alan Whitehead Mr Hilton Dawson Witnesses: Rt Hon Dame Elizabeth Butler-Sloss DBE, President, High Court, Family Division, Rt Hon Lord Justice Wall and Hon Mr Justice Munby, examined. Chairman: Good morning, Dame Elizabeth, and continue to fight the fact that they have not welcome back, in your case, and we are particularly resolved the conflicts of that breakdown. Of course glad to have you back. May I just first make sure an obvious one is that one party sees himself or that we declare any relevant interests around the herself as winning and the other is losing, which is table. inevitable. We do not, I think, engage yet enough Mr Clappison: I am a non-practising barrister. in catching people before they ever get to court Ross Cranston: I am a barrister and recorder. which I think is perhaps the most important thing. Peter Bottomley: My wife implemented the Secondly, we need to catch them at every stage in Children Act. the court procedure to make them settle and we Keith Vaz: I am a non-practising barrister. have not yet got suYcient resources or suYcient arrangements for that. I think we may be to some Q1 Chairman: You will know that the scope of extent guilty of concentrating on the public law Y both our current work and of the Committee itself cases to the detriment of giving perhaps su cient is focused primarily on the responsibilities of the attention to private law. This has all really come to Department of Constitutional AVairs for the a head in the last perhaps four years. We have courts, but also the Department’s involvement as a created, thanks particularly to James Munby and Y shared policy department with the Department for two other of my High Court judges, a very e cient Education and Skills and the Children’s Minister in protocol for judicial case management in public law this area. When we were considering CAFCASS cases. We have now begun to put forward a similar, and produced a very critical report about the rather simpler framework for private law cases and limitations and failings of that organisation, which I think a real, genuine criticism of the system, we now hope is on a much better course, I think which was highlighted of course in the case that we became aware of some of the problems in the James Munby gave which got a lot of publicity, was courts and the problems faced by the courts and that there was not suYcient judicial continuity. We thought we would like to look at them further. have not been able to enforce orders because we do Needless to say, Members of Parliament generally not have the powers to do it. We do not always become particularly aware of some of the points of have suYcient judges for continuity and we have of greatest diYculty through their own constituency course given a preference to continuity on the work and the people who approach them. Perhaps public law work and when you are looking at the a helpful starting point would be to put to you that judiciary, who are the people available to do it, they the levels of recorded dissatisfaction amongst court are the same people largely doing the same sort of users are much higher in relation to family courts work, but the majority of private law family work in disputed contact cases than they are generally, is actually being done by the district judges, two of and although there are certain obvious whom of course are going to give evidence to you explanations for this and it is also the case that in shortly, and it is, I think, very important that they almost any action somebody might have cause to provide the backbone of the judicial continuity. I be dissatisfied, why is there this higher level of am wondering whether either Nicholas or James dissatisfaction? might like to add to that. Dame Elizabeth Butler-Sloss: Well, I think there are Lord Justice Wall: I think I would add to that that a number of reasons. We are dealing with very you must remember where we start from. The fraught emotional situations with the breakdown of overwhelming majority of parents are able to relationships and in the old days in divorce cases, resolve their diVerences before they come to court which were fought, everybody fought out their and we get the 20% or so who cannot and the emotional anxieties in the breakdown in the disputes are often very diYcult, very intractable divorce. Nowadays, we notice in money cases after and very high emotions are involved. People come divorce and in children cases, a great many families into contact in particular with all the baggage of Ev 2 9 November 2004 Rt Hon Dame Elizabeth Butler-Sloss DBE, Rt Hon Lord Justice Wall and Hon Mr Justice Munby the relationship with them and very frequently, I worked, then you would catch the people before am afraid, a contact application is a means of they ever got to court at all, and that is an continuing the power struggle that existed within admirable scheme. the family and the child becomes the ammunition. Chairman: We shall ask you about that later. We are at the forefront of recognising that the court structure is not the best place to deal with Q4 Mr Soley: I think this brings out an issue that that process and it is much better dealt with by I have struggled with for years actually, that it mediation or by conciliation or by out-of-court seems to me that the current adversarial system settlement.
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