Meeting Summaries
Family Justice Council Conference
07 & 08 October 2004
Report from the acting Executive Committee
The Deputy Chairman reminded members that at its inaugural meeting in July it had been agreed that an acting Executive Committee be formed which would produce a paper for the conference on the structure of the local Family Justice Councils (FJCs).
Local FJC Areas
The majority of respondents to the Lord Chancellor's Department's 2002 Consultation Paper "Promoting inter-agency working in the family justice system" favoured a network of local committees based at care centres directly linked to the Council. However, since then the Courts Act 2003 has been passed and this provides for the division of England and Wales into administrative areas each of which will have responsibility for the county courts and magistrates' courts in its area. There are to be 42 such areas.
The Deputy Chairman reported that the Acting Executive Committee recommends that the local FJCs match, so far as is possible, the unified courts areas but that this must be introduced sensitively and without imposing a 'one size fits all' solution.
The ensuing discussion was facilitated by Malcolm Richardson and reached the following conclusions:
- Local FJCs should be based upon the unified courts areas where possible.
- Local FJCs need not be chaired by the Designated Family Judge. However, there should continue to be Business Committees chaired by the Designated Family Judge. These committees would report to the local FJC and their work would include monitoring the performance of the courts in their area.
It was observed that where the area of a local FJC embraced more than one care centre, this would not preclude both Designated Family Judges from having a role with the local FJC.
The Deputy Chairman highlighted other issues including funding, core membership and the relationship between local FJCs and the national Council.
Baroness Catherine Ashton of Upholland Parliamentary Secretary at the Department for Constitutional Affairs
On behalf of the Council, the Chairman welcomed the Minister.
The Minister welcomed the creation of the Family Justice Council and thanked members for inviting her to their conference. She paid tribute, in particular, to the work of Lord Justice Thorpe in establishing the Council.
The minister mentioned that as a former minister at the Department for Education & Skills she has had an involvement in policy relating to family and children. The family justice system engages with people at times of crisis in their lives. The government is aware that outcomes for children are influenced by family background. Measures continue to be taken to address the problems experienced by some children e.g. poverty and lack of education, and the Minister acknowledged the need for joined up services to help alleviate the problems (physical and mental) faced by many children.
The minister identified the following aims for professionals in the family justice system to address:
- Timely decisions for children at risk
- Speedy resolution of adoption
- Action on domestic violence and victim support and dealing with issues regarding perpetrators of such violence
- Reducing acrimony between separating parents
The backdrop to the Government's priorities is the Victoria Climbie case and the subsequent report of Lord Laming which emphasised how essential it is for agencies to work together across boundaries and for early identification of problems.
The Minister said that on the ground local FJCs will be very important. Ideas put forward that have the potential to produce better outcomes for children and families will be well received and while there is not unlimited funding available, the Minister will act as an advocate within Government if a case is made for local funding.
The Chairman expressed her welcome for the Minister's specific support. She added that as a new advisory body the Council will need to proceed cautiously and she hoped that the Government's immediate expectations were no too high.
The Minister invited comments and questions from members.
Terry Grange mentioned that local criminal justice boards were established two years ago and were allocated funds. He found it odd that local FJCs have not been allocated funds but need instead to make a business case. The Minister thought it better that local FJCs identify what they really need to function effectively and for a case to be put for those needs to be resourced accordingly rather than to distribute an arbitrary sum without any regard as to what it might be used for.
The Minister is conscious that support for the criminal and civil justice systems are not balanced and her ambition is that there should be a better balance. She agreed that a failure to invest in targeted support for children and families can have the consequence of greater expenditure being needed in the criminal justice system e.g. more prisons.
Judith Masson observed that the work of the family justice system goes beyond family support. It deals with conflict between families and the state and between family members themselves. At present there is not a consensus on what is fair so we are not yet in a position to reduce acrimony. However, the Minister considered that where there is an irreconcilable dispute between family members, a system of resolving such disputes by the court still constitutes support for families.
Paul Clark asked whether the Government sees links between the Family Justice Council and the Local Safeguarding Children Boards being introduced under the provisions of the Children Bill or are they proceeding down parallel tracks. The Minister responded that while her instinct is to remove borders between agencies, the question arises whether too much integration can lead to dilution. The issue perhaps needs to be looked at from the perspective of the real person who needs to cross borders from one agency or service to another.
A number of points were made by members regarding resources.
Her Honour Judge Newton, whilst confirming the enthusiasm locally for interdisciplinarity, emphasised that to reach out to the wide range of people whose work benefits the family justice system e.g. foster parents, it is necessary to include them in local events, the promotion of which requires resources.
District Judge Mornington drew attention to the costs to the state of the consequences of domestic violence and how that cost might be reduced by greater investment in, for example, contact centres and the greater availability of perpetrator programme courses and other forms of therapy.
Danya Glaser added that resources are also required after a case has passed through the family justice system. The family justice process becomes hollow if a court order cannot be acted upon for want of resources.
The Chairman said that, although sponsored by the DCA, the Family Justice Council was created by Government as a whole. In order to achieve its potential, its worth needs to be recognised beyond the DCA. She welcomed the participation on the Council of representatives from the Department for Education & Skills, the Department of Health and the Foreign & Commonwealth Office.
The Minister viewed the question of resources on 2 levels. First, resources for the FJC itself to function and secondly, broader support across government.
(i) Proposals for local FJC funding may be brought to her through Mark Ormerod.
(ii) On the broader front, the Minister felt sure the quality and clarity of thought of the Council would place its work at centre stage beyond the DCA and she invited the Council to come forward with proposals that she might take to government colleagues.
On behalf of members the Chairman thanked the Minister for attending to speak to the Council and for staying on to answer questions.
Draft businessRAFT BUSINESS PLAN
Objectives
The Council identified its primary objective as being to establish the network of local FJCs.
Its broader objectives will relate to the following subject areas:
Delay in care cases (including experts)
Dispute resolution for parents (contact)
Domestic violence
Additionally, the Council identified the following areas of work (in no particular order of priority) in which it has an interest and in respect of which it will formulate longer-term objectives:
- The elderly and vulnerable
- Children (including needs, voice and participation)
- Parents
- International (kidnap; forced marriage)
- Patients
- Dispute resolution
- Experts
- Domestic violence
- Responding to government initiatives (advising government)
- Education and training
- Cohabitees
- To improve the court process and to make sure outcomes are better for court users and to evaluate the whole process of family justice
Local FJCs
Further to the previous day’s discussion the following conclusions were reached regarding local FJCs:
(i) Structure
Local FJCs to be based where possible on the 42 Unified Courts Areas
Family Division Liaison Judges to be consulted.
Each Designated Family Judge to be informed of the Council's intention. It is acknowledged that it will take time and a sensitive approach to bring the number of local FJCs down to 42. Elaine Laken suggested that we work towards establishing all 42 local FJC s by 1st April 2005, which is when HM Courts Service officially comes into operation.
(ii) Funds
The letter to be sent to the Designated Family Judges should invite them to identify what would be needed by way of funding to set up and run a local FJC.
(iii) Core membership
After discussion, the Council agreed that the core membership of local FJCs should consist of:
a member of the judiciary
a magistrate or justices' clerk
HM Court Service
CAFCASS
Local Authority - Children's Department
Police representative
Health representative
Legal Practitioner
Peter Clarke stressed, and members agreed, that within the local membership structure there must be a mechanism for the voice of the child to be incorporated. It was emphasised that, beyond the core, membership was not prescriptive. A wider range of members from varying disciplines would be expected in addition to core members. Local FJCs would also be free to co-opt additional members for specific pieces of work.
(iv) Terms of reference for local FJCs
Local FJCs should hold 4 meetings a year, the minutes of which to be submitted to the FJC's secretariat. They should produce an annual report to the FJC including a mapping exercise identifying interdisciplinary bodies and projects in their area. Their objectives should mirror those of the national Council but on a wider or narrower basis depending on local circumstances.
(v) National FJC involvement in local FJCs
It was agreed that members on the Council will promote interdisciplinarity and ensure representation on local FJCs through their respective professional Associations.
The national Council will act as a provider of information to local FJCs.
Members with particular roots in a region might take responsibility for promoting the FJC and raising awareness of it in their region.
Executive Committee
Members were grateful for the work done by the Acting Executive Committee in preparation for this conference. The membership of an Executive Committee was formally agreed.
Lord Justice Thorpe (Chairman)
Sheridan Greenland
Jane Booth
Rosalyn Proops
Her Honour Judge Newton
Elaine Laken
Khatun Sapnara
Paul Clark/Terry Grange
Laura Russell (Secretary)
FJC's relationship with its advisory committees
The Deputy Chairman informed members that the Ancillary Relief, International and Interdisciplinary Committees, which have been adopted by the FJC as advisory committees, all meet in November. It will be necessary to inform members of the Committees at those meetings what the FJC envisages as their future role.
The Chairman added that her Adoption Committee is taking forward consideration of new Adoption Rules and once the Adoption and Children Act 2002 has been fully implemented in September 2005, it is proposed that the FJC adopt that Committee as an advisory committee also.
The Committees are in a position to serve the Council immediately. They have a history of achievement and a distinguished membership of experts in each particular field. The Deputy Chairman suggested that the Committees continue in their present form for one year and then each of them report back to the Council in October 2005 with their view of their future role.
Members of the Council are welcome to join any of the Committees in which they have a particular interest and the Deputy Chairman invited members to inform him if they wished to do so.
Family Procedure Rule Committee
The Chairman said that she and Lord Justice Wall would consider the relationship that the new Family Procedure Rule Committee might have with the Council and, in particular, with the Ancillary Relief Advisory Committee, which has been heavily involved in initiating rule amendments.
Criminal/Family Interface Committee
Elaine Laken undertook to produce a note on the work of the Criminal/Family Interface Committee by the next meeting.
Child Contact Centre Working Party
Bruce Clark flagged up the possibility of a relationship that the FJC might have with the Child Contact Centre Working Party. Vicky Leach and he are members of the latter body which meets next month.
Judicial Studies Board
The Chairman said it was also necessary to establish links with the Judicial Studies Board.
CREATION OF AN ADVISORY RESEARCH COMMITTEE
Corinne May - Chahal considered that before creating a separate committee, the Council should establish what research exists now. Judith Masson agreed that the issue should be a standing item on the agenda for meetings of the Council, rather than be the subject of an advisory committee. In the event of a piece of research being commissioned an ad hoc group could meet.
Voice of the Child
The Chairman agreed with Peter Clarke's call for the Council to produce a recommendation for the establishment of a standing working party to get children's view, but suggested we await the appointment of the Consumer (Parental View) member of the Council, from whom it would be important to seek advice. The Council was subsequently pleased to learn that Mary MacLeod, Chief Executive of the National Family & Parent Institute had been appointed as the Consumer (parental view) representative.
Expert witnesses
Appointment of experts
The Chairman identified those types of cases where experts in differing fields are required, and then opened the discussion by questioning why experts are being appointed in cases where it would seem that social work assessment should be sufficient.
Paul Clark said that there is a high turnover of social workers. Fewer people are applying for vacant posts, deterred by the salary. Many people doing social work have portfolios and don't wish to work as employees of a local authority. He also expressed dissatisfaction with social work training at some universities, with the result that local authorities were having to take recruits through fairly basic training. Another consequence was that local authority legal departments' budgets were being stretched as a result of social workers not doing all that they ideally should. Nevertheless, he agreed with the chairman that expert evidence was called for in cases where competent evidentially based reports from social workers should be sufficient. The ordering of expert evidence adds costs and does not necessarily improve the quality of outcome.
The following points were also made in the discussion:
- Appointing experts appears to have become the norm. Judges who don't hear children's cases on a regular basis may not have the confidence to say an expert is not needed. Judicial continuity is an issue. A judge who will not be dealing with the final hearing may err on the side of caution by ordering the appointment of an expert even though he thinks one might not be necessary. Article 6 of the ECHR (right to a fair trial) has also been a factor in the appointment of experts. (District Judge Crichton)
- There is an overuse of experts. But there is also a need for clarity as to when experts are needed and a less subjective approach. (Dr Danya Glaser)
- There are occasions when local authorities say they do not have anyone available to compile a report and therefore experts are appointed in order to dispose of the case more quickly. (Her Honour Judge Newton)
- In private law cases local authority and/or Cafcass may not be able to produce a report within a reasonable timescale because of the priority they are required to give to public law cases. (District Judge Mornington)
- The Protocol for Judicial Case Management in Public Law Children Act Cases ('The Protocol') requires a judge to examine carefully what expertise, if any, is needed. In civil proceedings where a single joint expert has been appointed a procedure of questioning and seeking clarification from that expert must be gone through before there is any question of appointing a further expert. (Stephen Cobb)
- In addition to the cost of expert witnesses that takes scarce resources away from others, there is a concern over the welfare of children who are subjected to repeated examination. (Angela Lake-Carroll)
Shortage of experts
The Deputy Chairman recited the history of the problem of a shortage of experts willing to do family court work. A crisis was predicted in 1999. A conference was held which was attended by judges, representatives of social services departments and royal colleges and examined steps that could be taken to encourage new recruits. A mini-pupillage scheme was established with trainee mental health specialists shadowing judges. A second conference was held in 2001.
Following recent court cases and the attendant publicity, pressure has been put on medical experts, particularly paediatricians, and last year the President received a letter from Helen Carty, Professor of Paediatric Radiology at the Royal Liverpool Children's NHS Trust, warning about the potentially extreme shortage of expert witnesses in child abuse cases. A meeting was subsequently arranged that was attended by both the President and Sir Liam Donaldson, Chief Medical Officer.
The Conference was informed that Georgina Fletcher-Cooke is taking the matter forward on behalf of the Chief Medical Officer. Issues that have been identified include NHS contracts, the competence of experts and negative media coverage. Ms Fletcher-Cooke is keen to speak to key stakeholders to see if there is a consensus on what the issues are and how they might be tackled.
Members' views were sought on the issue.
- It is important to match the specific expertise required in a particular case to the right expert. So, before commissioning a report the parties need to establish exactly what points are at issue - Dr Rosalyn Proops The Chairman agreed and commended the guide for Legal and Health Professionals in Norfolk that Dr Proops was instrumental in producing.
- Often only when an expert's report is submitted is it realised that the appropriate expert had not been appointed. Importance of letter of instruction emphasised - Khatun Sapnara
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- Advocates, using article 6 of the ECHR as a pretext, apply for the appointment of an expert where one might not be necessary. There is a lack of choice of experts available and self-interest leads some (not all) experts to take on a case rather than suggest (i) that someone else be approached because their own particular expertise does not match the issue that has been raised or, (ii) that no expert is needed at all. The commissioning and supply of experts is separate from their funding. There is a need to bring these elements together. - Bruce Clark
- A quality assurance audit is needed. Members will be aware of the forthcoming amendment to the Children Act regarding the definition of 'harm'. There are people putting themselves forward as 'domestic violence experts' who are not appropriately qualified. - Angela Lake-Carroll
- A judge is given no input into the identity of the expert (nor would he necessarily have the knowledge to make such an input) and will only have an input on a letter of instruction if there is a dispute between the parties. - Mrs Justice Baron
- The Northern Circuit produced an experts' directory but if the entries are not updated its value as a tool is reduced. - Her Honour Judge Newton
- There is no mechanism for vetting entries in a directory. The view of the Royal Colleges is that any consultant is an expert. However, there is now a working party looking at establishing core competences. - Dr Danya Glaser
The Deputy Chairman identified three distinct stages.
(i) Pre-consultant - Collaboration with the Royal Colleges depends on the person heading the training committee. He would like the FJC to establish a relationship with the director heading the training committee of the respective Royal Colleges at any particular time.
(ii) Consultant - The only problem at this stage is the lack of time for a consultant to do court work.
(iii) Post consultant - There is still a contribution that can be made by retired consultants, if systems can be developed with the Colleges to ensure that individuals remain 'up to speed'.
Dartington Conference 2005
The Deputy Chairman informed members that previous Dartington Conferences have been organised by the President’s Interdisciplinary Committee. The conference is held every other year in the last week of September and he sought the Council's permission to delegate organisation of the 2005 Conference to the Interdisciplinary Committee.
The Deputy Chairman observed that the cost of the conference should not fall exclusively on the DCA or the Council. DfES and DH have an interest and it is hoped that this issue will be resolved interdepartmentally.
Dartington Fellows Conference
The Deputy Chairman drew members' attention to a letter from Professor Mervyn Murch inviting members of the Family Justice Council to a conference being held on the 29th and 30th November 2004 to consider ways of implementing the interdisciplinary curriculum created by the Education and Training sub-Committee. The Deputy Chairman informed members of the work that had been put into this initiative particularly by Professor June Thoburn culminating in a conference at the Nuffield Institute last March.
Remuneration of mediatiors
The Deputy Chairman, referring to the Green Paper "Parental Separation; Children's needs and parents' responsibilities", said it is proposed that in every case there shall be a first hearing dispute resolution appointment at which the judge may direct that the family should be referred to locally available resolution services.
Therefore, a burden will be placed on mediators. Having recently met a number of mediators the Deputy Chairman was dismayed to learn that they were in ignorance of the existence of the FJC. There also appeared to be some discontent about levels of remuneration and, although he could not become involved with that, he said that the FJC needs to recognise the demands placed on mediators and support their status as players in the family justice system.
Explaining the role of the Family Justice System
Judith Masson drew members' attention to the paper tabled at the meeting.
Judith argued that the role of the family justice system is misunderstood by the wider public and in the light of media criticism of parts of the system, she suggested the FJC could articulate the role of the family justice system in different ways to different audiences, perhaps through the Council's website.
Jane Booth agreed and said that the CAFCASS website has information set up for different audiences.
There have been calls for greater openness in the family courts and Stephen Cobb questioned whether the Council should urge that proceedings be more public, at least to the extent of judgments being given in open court. The Chairman said that she was in favour of judgments being anonymised but made public. The Deputy Chairman observed that the Court of Appeal sits in open court and anonymity is the exception rather than the rule.