Select Committee on Constitutional Affairs


Minutes of Evidence


Inquiry focused on the way in which the courts dealt with child residence and contact cases, covering a number of key issues, namely :


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


Examination of Witnesses (Questions 20-39)



Q20 Ross Cranston: In the DCA White Paper, the statement is made that cases currently take 36 weeks to complete, on average. What is a reasonable target if 36 weeks is not acceptable?

Dame Elizabeth Butler-Sloss: You cannot treat a private law case like a public law case. A public law case has to go through to its conclusion if the evidence shows that the child is seriously at risk. In the private law cases, I do not think there should be a target because I think we should be trying to stop them coming back at every single moment, so it is really impossible. I do not know where the DCA got those figures from, they certainly did not get them from the judges. I do not think that we ought to be looking at targets because if the case is easy, it is resolvable quickly and if it is difficult, it would take possibly years. What is happening is that because, as James Munby says, we are having to concentrate at each level, and this is the important thing, that the circuit judges and the High Court judges with different degrees of difficulty are doing the same work, we are having to concentrate in getting the public law cases out which means that we cannot always or cannot generally get the private law cases back in quickly enough.

Q21 Ross Cranston: There is a lot of talk about the effect of legal aid and one line of criticism is that legally aided parties spin the cases out. Now, I am not sure that is supported by the empirical evidence. Lord Justice Wall referred to Professor Eekelaar's study which did not actually support that, but what is your view of this?

Dame Elizabeth Butler-Sloss: I do not think that is true. So long as you have the specialist Bar and the specialist solicitors, and I am talking about the Solicitors Family Law Association, the Family Law Committee of the Law Society and those who support it, they have that protocol as to how to behave and they, by and large, obey it. The Family Law Bar Association also has very much at the forefront the welfare of the children and the needs of the parties to settle. We do get of course people in who do not belong to those associations, but if there is the slightest view by the judiciary that this is someone trying to spin it out, then if you are any good as a judge you are going to stop it, and I do hope most of us are competent to do it. The three of us are deeply into proactive case management. What we have got to be sure of is that at every level people realise that they must avoid unnecessary information. If someone wants to tell me about the fact that the wife committed adultery five years before they got married, I will not listen to it. It was said to me not so long ago, "Well, I'll appeal you", and I said, "Great, but see what the Court of Appeal says about that sort of allegation". We are not going to listen to it.

Q22 Mr Dawson: We have already heard a lot of information about CAFCASS and about the way that their role could be developed in relation to separate representation and to supporting contact, and the Government wanted them to do more in terms of mediation and in terms of developing the role of family assistance orders. Presuming that the judges would want CAFCASS to develop their role, but plainly you are aware of their very limited resources, is there more that you could do to ensure that CAFCASS produced tighter, more focused, fewer reports, and is there something that CAFCASS could do to amend their practices as well?

Dame Elizabeth Butler-Sloss: The answer is yes and yes. Yes to the first one, that we must be requiring particularly the district judge at the first appointment. If the case is not settled at the first appointment with the help of CAFCASS, then I am hoping right across the country in every area where there are applications for contact and residence, the CAFCASS officer will be present at the court and the district judge will send the case to the CAFCASS officer. If the CAFCASS officer cannot settle it, the district judge will do a very carefully drafted order which includes setting out what the issues are. This is happening in a large number of places in the country and it has got to happen everywhere. The district judge will then say that the CAFCASS officer must deal with staying in contact, and that is the only real issue between them. The CAFCASS officer will then be expected to produce within a much shorter period, than anything from 12 to 20 or 30 weeks, which is one of the problems that it is sometimes six months before they can provide a report, and not their fault, but a lack of people, they must produce a report quickly of five pages, not 20 or 50, on the issue that matters. It is up to the judges to require CAFCASS to write focused reports and short ones and why not e-mail? Why does everything have to be done on a sort of template and handed in on hard copy? E-mail everybody and save time. Secondly, the CAFCASS officers must accept that this is the right sort of report because there are a lot of CAFCASS officers who think it is their duty to set the whole case out in detail. All of us are guilty of writing things that are too long, but we do want to encourage CAFCASS to save time, and it may not be necessary to have guardians in every case. If CAFCASS can have a support service in relation to families, it may meet a large number of cases without using guardians at all.

Lord Justice Wall: May I add to that that I regard CAFCASS as absolutely critical to the successful operation of the family justice system, and in the report we received enthusiastic support from CAFCASS for that. Historically, CAFCASS, the old court welfare service, was largely used for report-writing and clearly what is required is that CAFCASS is going to be part of the information-providing stage at the very outset, it is going to have to be part of the conciliation stage, it is going of course to go on writing reports, but we want CAFCASS officers to have more time to work with the children, to work with the family in the way the President has just indicated and if they can take that proactive role in assisting us, that, we think, would be absolutely essential to a successful outcome, but it does mean that CAFCASS has to expand and to meet the various roles we would like.

Q23 Keith Vaz: Dame Elizabeth, there is a perception that the family court system is biased against fathers. What is your view on that?

Dame Elizabeth Butler-Sloss: Well, it is untrue for a number of reasons. First of all, the Children Act requires us to treat spouses equally and parents equally, and my experience is that we do. I must have found, like both my brethren, for fathers on many, many occasions, but the situation is basically that when parents separate, the vast majority of children stay with mother and for the minority who stay with father, at the end of the day probably what we call the status quo is the situation which occurs because the child is settled there, and in cases where father is caring for the children, that is where the children are likely to stay. I have not come across in recent years, certainly in the Court of Appeal when I was there or now as President sitting both in the Court of Appeal and the High Court, cases where I have come across any bias in favour of mother or prejudice against father. I think one of the problems is that the public do not know what we are saying and I feel quite strongly, and what I had to say was endorsed and repeated by James Munby in the judgment that hit the headlines, that we ought to be giving our judgments to a far greater extent in public, and I think if we did that, whether we would dispel the perceptions, I do not know, but at least those who wanted to read them would know what was actually going on, but it is not true.

Q24 Keith Vaz: Nevertheless, when I practised family law 20 years ago, I cannot remember a circumstance and a time when so much direct action was being taken by a particular group. We have had items being thrown at the Prime Minister, Batman going into Buckingham Palace, Spiderman at the top of the London Eye—

Dame Elizabeth Butler-Sloss: And a lot at me too, I have to tell you!

Q25 Keith Vaz: I was just coming to that! Do you not think there is anything in it, that these are just people who are upset about individual cases rather than the principle? Is there absolutely nothing in this?

Dame Elizabeth Butler-Sloss: So far as the principle is concerned, there is nothing in it at all. There is absolutely nothing in the law that leaves the courts to choose one parent rather than another. We look at the cases on the basis of which is the better parent because the welfare of the child is paramount, but all judges are human. It may be that some judges will, I do not know, I have not come across it, but it is possible.

Q26 Keith Vaz: The Solicitors Family Law Association has suggested that one way of dealing with this perception is if we have a presumption that there should be post-separation contact for both parents. Would that presumption help deal with the situation?

Dame Elizabeth Butler-Sloss: No, and I will tell you why: because we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which takes precedence? As you know, if I may say so, Mr Vaz, as a lawyer, the word "presumption" is different in the law than perhaps it is for the public. If you have a legal presumption, you have to apply it, except in exceptional circumstances. The legal presumption is the welfare of the child. I can see a case for something slightly less, such as that the court should have regard to the importance of a relationship between the children and a non-residential parent.

Q27 Keith Vaz: So there is scope?

Dame Elizabeth Butler-Sloss: I think there is scope.

Q28 Keith Vaz: We can have Section 1 of the Children Act—

Dame Elizabeth Butler-Sloss: Section 1(3) could have something to that effect. I have not consulted James Munby, and I did consult actually Nicholas Wall yesterday and I think you would agree that that would recognise what we see as the situation anyway.

Lord Justice Wall: Yes. The danger is that the more you define, the more you are open to argument and that is the problem. If you then put in something along the lines the President just suggested, no doubt the women's movements quite reasonably would say, "Well, what about domestic violence? What about the safety? If you are adding in this proviso, what about X, Y and Z?", and that is the danger of it, I think. I think the point I principally agree with the President about, and I think this is something shared by all three of us, is that the perception exists largely because most of our work is done in private. It so happens that of the last three cases I tried at first instance, in two of them I took children away from their mother and gave them to their father because their mother was obstructing contact, and in a third a father withdrew his application and the reason he withdrew it, I found, was because his conduct had made it impossible to have contact with his child. All these cases are different. I went out of my way in that case in public to say that there is no presumption, and it is in the paper which I submitted to this Committee, I said in terms that there is no gender bias and we decide each case under Section 1 of the Children Act, and I think we have to keep the focus on Section 1. I am quite happy to see an expansion of it, but we must be very careful in our drafting because it could be seized on.

Q29 Keith Vaz: I have had people come to my surgery and I think they have also written to this committee, as we see in the evidence which is produced to this committee, fathers complaining bitterly about the fact that they cannot get access. Do you think that if we had an interim order being made right at the start of the proceedings so that the contact issue was taken out of the game and everyone was very clear that contact would not be used by one party or the other as opposed to the residency issue, that would help resolve the situation, that both parents would get contact on an interim basis and then you would proceed with the rest of the case?

Dame Elizabeth Butler-Sloss: The trouble is that if the mother says that the father has been guilty of domestic violence or is not suitable to care for the child, you have got to deal with it and, therefore, you cannot make an interim order until you have dealt with it. On the whole, I think that the problems of contact are greater than the problems of residence because residence does on the whole resolve itself, subject to the question as to whether it should be joint residence or shared residence, about which I know fathers' organisations feel very strongly, but subject to that, yes, I would want the parties to agree the contact before they ever come to court, which means they would not come.

Q30 Keith Vaz: Do you think what we have got, at the moment, is a situation where the courts are being unfairly blamed for the failure of politicians Government to be very clear as to what they think parental responsibility should be and that if the Government came out and Parliament came out with a clear statement it would be much easier for you to interpret that statement? At the moment it is all being thrown back on the poor old judges.

Dame Elizabeth Butler-Sloss: Yes, judges are being unfairly blamed, there is no doubt about that. We are bearing quite an interesting burden of blame, which I have never come across before. I have been on the bench now since 1970, in one capacity or another, and I have never known a period when the judges have been, in our part, so much blamed. I do not, for a moment, think it is the fault of politicians. I think the relationship breakdown paper is excellent. However, politicians cannot make the parties be sensible.

Q31 Keith Vaz: True.

Dame Elizabeth Butler-Sloss: The law seems to me, on the whole, since the Children Act, to be reasonably good. I think we need to improve the management by judges; we need to have enough judges—and enough courts. When I was out of London recently I found district judges did not have courts to try cases. District judges cannot be expected to sit in rooms because we have violence from time to time by parents where their fraught emotions just completely overwhelm them. There was a grandmother who was not going to see her grandchild again; she absolutely went berserk in a district judge's court in London and she wrecked the court. Fortunately, that district judge was sitting in a proper court; if it had been in a room—it is just not safe. So we have a lack of courtrooms, too.

Q32 Keith Vaz: Lord Justice Ormrod has said that there are some cases that are insoluble—as you have said today—and even the greatest judge in the world is never going to be able to solve those cases. What do we do about those cases?

Dame Elizabeth Butler-Sloss: The personality problems are sometimes of both parents. Fathers complain that they have come to court a hundred times but they do not explain why they have come to court a hundred times. I think we have to try. We have put in evidence a number of decisions of the Court of Appeal and of the High Court judges. Unfortunately, at the level below the High Court very seldom are judgments recorded. I did try to get some so you have a broader flavour, but I could not find them, just to give you a feel of the intractability of some of the cases and how we try to approach them. Yes, I think we have to try as far as we can go and then we occasionally give up. I remember a case in the Court of Appeal, when I was quite a junior Court of Appeal judge, where the then Master of the Rolls, Lord Donaldson, was very shocked to find that the circuit judge had given up in Bristol—a very experienced circuit judge—but the mother went to court on every occasion with her suitcase packed. Why? Because she expected to go to prison; she was quite prepared to go to prison; she was not going to let the child see the father. The child had never seen the father, so, in fact, the child could not go to the father as the alternative parent. We have no hesitation in moving children from unreasonable mothers to reasonable fathers (or the other way round) but if the child has never met the father, what do you do? How long do you put them inside for? Two years is the maximum for contempt.

Q33 Keith Vaz: I realise that this not Kramer v Kramer and there is not the kind of emotional background that would enable us to solve this on a sentimental basis, but have you or your colleagues met with the Fathers4Justice campaign or any of these other, campaigning organisations that are seeking to put forward in a sensible way, as opposed to the rather dramatic and unacceptable way—

  Dame Elizabeth Butler-Sloss: May I say, I think we all have. Fathers Direct and Families Need Fathers I have had quite a lot of contact with. I was chairing a conference which was disrupted by Fathers4Justice at the very moment that the Chairman of Families Need Fathers was giving a paper in which he was putting forward extremely well the father's point of view.

Q34 Keith Vaz: So there is a schism within the fathers' movement?

Dame Elizabeth Butler-Sloss: Fathers4Justice chose to disrupt this and put a flare into the conference room so the smoke detectors went off, we could not see, and we had the father actually giving a very good paper. Eventually we got back and he continued his paper.

Q35 Chairman: That is why we had to make arrangements today different from the ones the Committee normally has because we did want to hear from you and from other witnesses in conditions in which you could express yourselves freely.

Dame Elizabeth Butler-Sloss: We are enormously grateful to you, Chairman, for the care you have taken for us, because we have no problem in meeting fathers or mothers. We have to bear in mind that the mothers' groups have a point as well as fathers' groups, and it is the fathers' groups which are being heard at the moment. Yes, of course we meet them and you meet them.

Lord Justice Wall: A few years ago I went to address the annual general meeting of Families Need Fathers and I was actually very impressed by the strength of their feelings and their emotions. The message I gave them—and I was not the only one doing it—was that the way to succeed, the way to get into the system, is not to sloganise but actually to get on the committees, get in with government where there is lots going on and people want to consult you, and respond to Making Contact Work. We had an excellent response from Families Need Fathers, part of which we incorporated, and I think Families Need Fathers has become a key player in the debate about on-going contact and joint residence. We make progress with rational argument; we do not make progress by sloganising.

Dame Elizabeth Butler-Sloss: I cannot meet Fathers4Justice because they are not being sensible. As long as they throw condoms with purple powder and send a double-decker bus with a loudspeaker outside my private house in the West Country there is no point in talking to them; they are not going to talk, they are going to tell me.

Q36 Dr Whitehead: One of the arguments that has certainly been put to me sometimes in my constituency surgery about the issue relates to what is seen by some people as the impotence of enforcement and the issue, for example, as has been mentioned this morning, of imprisonment. Indeed, Sir Nicholas, I think, in your recent paper you described imprisonment as an extraordinarily crude weapon. I think you also cast some concerns about fining mothers who already were on benefit. You have identified, Sir Nicholas, a number of alternative routes of enforcement. Do you think those would actually, as it were, make for open water, as far as enforcement is concerned?

Lord Justice Wall: Yes, I do, and I am very pleased to see that in the Green Paper the Government has adopted most of the proposals we put forward in Making Contact Work. May I just say that I do not see this as simply an enforcement or punishment issue. If a contact order is not working what I want to have is a mechanism which will help it work. Contempt of Court is designed to be partly punishment for disobeying the Court order and partly deterrence not to do it again. In the very sensitive family field I have not found, in contact and residence disputes, putting people in prison operates. Indeed, in the case of Re D, in which James gave judgment, I think imprisonment had taken place and it still did not work. So what I want and what the Government seems to have accepted, and what we put forward in Making Contact Work, is a raft of proposals which would, in the first instance, be facilitative; so if an order is not working you want to send someone off—whichever parent it is—to a resource which can address that particular issue (whether it is a parenting class or a programme or what-have-you). It is only if that does not work that you then move into the punitive, and the punitive could include community sentences and so on. However, the idea behind our thinking is that if we are trying to make an order work we need a range of facilities and, ultimately, maybe, in a particular case, imprisonment is a method which will work. I am very sceptical about it but it can do. So we call it enforcement, but I would prefer to see it as a wider form of facilitation.

Q37 Dr Whitehead: I notice you have suggested, and the Government has placed it in its Green Paper, awarding financial compensation where, say, a holiday has been frustrated. Have you looked at or thought about the idea of compensatory contact where, perhaps, a non-resident parent might be given additional contact where contact had previously been frustrated?

Lord Justice Wall: That, as a matter of practice, happens. That is a regular order that would be made. Yes, absolutely. If contact is frustrated on a particular occasion the court will almost invariably seek to make it up in some way or another.

Dame Elizabeth Butler-Sloss: I will tell you where the problem arises. Mother brings a child late to contact by half-an-hour; father then requires an extra half-hour the next week. This is getting silly. If, in fact, the father does not see the child at all, of course he should see the child on another occasion, but there are fathers who actually add up the minutes and produce it and say "Now I should have so much more contact because I lost five minutes last week and 10 minutes the week before". It is difficult to deal with that sort of thing. I will tell you one area about which I am very concerned: if we should be sending to mediation, or anger management, or counselling—or whatever it may be—at every stage, including the so-called enforcement stage—the trouble with mediation is it is means-tested, so if you are on Legal Aid you get it free but if the other parent is not legally aided, and quite often father is not, he is going to have to pay several hundred pounds to go to mediation, and if he is not very keen it is not really an encouragement for him to do it. We live in a resource-restricted world, but if we are to make mediation work, at whichever stage, to have a money barrier to getting people to save money in the courts may not be the best use of money.

Q38 Chairman: I get a bit worried at this point, where compensatory time is discussed, about the position of the child. Surely that becomes extremely relevant at this point because the child may have quite strong views about which group of friends in which place it wants to play with that weekend, or which organisations—whether it is the ballet class or the football team—it wants to be with on Saturday. If it becomes a time negotiation the child is omitted from this process.

Dame Elizabeth Butler-Sloss: Last week I was sitting in Nottingham and I had three contact cases, as it happened. In each of them I found out what the child did at the weekend and I said to the father—because the child was having football classes—"You must take him to football. Don't expect contact instead of football; you go there, you watch him play, you take him away and give him a meal and send him home."

Lord Justice Wall: I think the Chairman has identified a genuine tension because the order of the court has to be an order and it has to be devised. So you tend to say "10 to 4" in the court order, whereas the best form of contact is that which is entirely flexible. If the child is thoroughly enjoying him/herself the child can come back at half-past five, six o'clock or seven o'clock—what-have-you—but that is not the way it works in the context of a court order, unless the parents are flexible—and if they are prepared to be flexible they do not need an order. So you go round in a circle.

Q39 Mr Soley: I understand in some other countries they do make a financial contribution to the other party if they do not keep the arrangement. I wonder if you have any thoughts about that, and, also, whether, if you were to go down that road, you could not make the financial contribution to the child in terms of a held fund of some sort. It actually does indicate then that it is the child that is losing out.

Dame Elizabeth Butler-Sloss: I would be delighted, but we live in a world where almost everybody does not have any money and the woman who is looking after the child may be having a problem in managing, and to fine her, in effect—