Family Courts

John Hemming Excerpts

Thursday 24th May 2012 Westminster Hall

[John Hemming (Birmingham, Yardley) (LD)]

I was pleased to hear my right hon. Friend’s speech, and to read his Committee’s report, but there are areas where we are still getting things badly wrong, and perhaps the direction of Government policy is making things worse rather than better. I declare an interest. I am involved in Justice for Families, which looks at public family law in the English and Welsh jurisdiction, although people from outside that jurisdiction also contact us. Parents are involved, not surprisingly, but we are also contacted by teenagers who are trapped in the care system and want to escape, but cannot find a way of doing so.

Recently, I worked with a number of care leavers to form an organisation called Care Leavers Voice. People tend to think of care leavers as those in their teens or 20s, but I am talking about professional people in their 40s and 50s. Having perhaps the best perspective of what it is like to be a child in care, and having gone on to have a professional career and the confidence to speak out, they feel that their voice is not being heard. The family justice review was dreadful because it consisted only of people who operated the system; no one on the panel represented the people who went through the system.

I hope that my right hon. Friend does not mind me being mildly critical. Although his Committee’s report is more balanced than the family justice review, it is not as balanced as the report of the Select Committee on Education, which took evidence from a much wider range of people on the operation of the child protection system. Whichever way we look at the matter, it is necessary to listen to both sides—not just those who earn money from operating the system, but those who go through the system and have personal experience. A great difficulty with a secret system is that there may be a bit of data about what is going on, but unless people are like me and have seen lots of individual cases, they do not know precisely what is going on.

I am also associated with the Grandparents’ Association, which is very good, and has said that grandparents find the system traumatic. I deal with grandparents who operate the system. If a grandparent wants to express their voice directly to the judge in a case, that is a challenge. They can apply to be a party, but if they want to use a lawyer to do so, they do not receive non-means-tested legal aid, and probably do not receive legal aid at all. It costs £5,000 to £10,000 just to try to be a party. My organisation and my contacts help people to be litigants in person so that the grandparent can go to court and talk to the judge. Grandparents will give evidence about what is going on to whoever is interested in listening to them, but if they are unable to speak directly to the forum where a decision is being made, they are excluded. Great-grandparents such as Phil Thompson are irate about how they and their families have been treated, but the system does not listen to them, because they are excluded from evidence sessions, and panels such as the family justice review take no account of them.

A group of adoptive parents who have encountered difficulties with the unresponsiveness of the system are working with Justice for Families. They have a slightly different problem, which has been reported recently in the Sunday Express by Ted Jerry, who is a very good journalist and specialises in this area. We must listen to the people who go through the system, as well as to those who earn money to operate it. As I said, the Select Committee report is more balanced than the family justice review, which might as well not have been started.

The integrity and scrutiny—and secrecy—of the system are a key part of the matter. One assessment is that about 1,000 children are adopted each year who should not be adopted. For example, a woman had 10 children taken away from her in one area, but had a child in another area, and when she was sent home a social worker’s assessment was that there was no risk whatever. She is doing quite well with that child, but why was the state spending £250,000 per child on having them adopted in one local authority area, when she went home with a child in another local authority area. Other than the local authority being responsible for the decision making, is the system sufficiently robust when something substantially different occurs? Is there any quality control on decision making? Clearly, there is not.

Although the Family Proceedings (Amendment)(No. 2) Rules 2009 were generally good, the part relating to journalists with a National Union of Journalists card in the court was futile because they were not allowed to report anything. Further, the reversal in 2010 of Clayton v. Clayton was completely garbled and a mistake. However, that does not mean there is no merit in greater public scrutiny, which is important in two areas. First, academic scrutiny is key. We have had only one report so far, by Professor Jane Ireland, who found that about two thirds of the psychologists’ reports that she encountered were rubbish: if the judge had relied on them, the decision would have been unreliable and should have been challenged through the appellant system. We have only one report because they must be authorised, but there is no reason why academic researchers should not have de facto, anonymous access to expert evidence in the family courts.

I was lucky to be drawn sixth in the private Member’s Bills ballot, and one proposal in my Bill will be to allow academic access to secret proceedings, so that in both the family courts and the Court of Protection, which is really a family court, expert evidence can be challenged. The Daubert procedure in the US is used to appeal expert opinion to experts, and that is a good process. Professor Ireland, with other professors, has recommended that for the UK. It would be one way of starting to get some quality into the decision making based on expert opinion, but we are some distance away from that.

A good example, published recently in the Daily Mail, is Lucy Allan. The same psychologist produced two reports on her. One, without seeing her, was for the local authority; in another, having seen her, she said completely contradictory things about the same person. In one she said, without seeing her, that the mother was a great danger to her child; in the other, she said that the mother was perfectly okay—that was because she was being paid to say that. Information from that psychologist was used to make a life-changing decision, and that is an absolute scandal.

Academic access to expert reports should not be subject to a complex and expensive approval process. It should happen almost de facto. Our care system does not do well, and other countries’ care systems do far better. Our system does not do well because of lack of accountability—not just public accountability, but academic accountability.

There is also merit in allowing retrospective review of the proceedings of family court cases. In one case, a mother was deemed to be a bad mother because she fed her baby on demand, instead of in a routine, so the baby was adopted. We should be able to talk about that. It is absurd that psychologists can reach conclusions about people and their merits as parents without even seeing them. I see a hell of a lot of such cases, and they are not acceptable. Such things need to be considered publicly, which fits with the evidence provided in the family court report. This is not about identifying people; it is about knowing what is going on and what is being done in our name. If we believe in parliamentary sovereignty we must know what is going on, even if we do not know precisely to whom it happened. That is important.

There is a rule in Parliament that a Member cannot criticise a named judge without having tabled a motion in their name. There is, however, no rule to say that one cannot praise a named judge, so I wish to praise Nicholas Mostyn and recommend that people read the published judgment of A County Council v. M and F [2011] EWHC 1804 (Fam). We do not know who M and F are or which is the county council, but under the circumstances, we do not need to know. By looking at that case, however, we see the challenges faced by the judges when dealing with expert evidence, particularly when that evidence is contradictory. The case I have mentioned shows an excellent judgment that all judges should read and consider because it goes into some really difficult issues.

I know of eight cases involving the issue of expert evidence and vitamin D, and I am working with the excellent solicitors Brendan Fleming in Birmingham to look at those. Again, the issue is scrutiny of expert evidence. In the Wray case in London, Jayden Wray sadly died from a mixture of shaken baby syndrome—SBS—and metaphyseal fractures as a consequence of vitamin D deficiency. In that case, it was proven that the triad of symptoms occurred not under the care of the parents but at a later stage, and that is critical. There have been many SBS cases, including that of Keran Henderson, which was a criminal case and is reasonably well known as it attracted quite a bit of publicity. It is an interesting area, but because these things have gone on in secret, we do not know about them. Recently, I have put pressure on the Government to review those cases that involve vitamin D deficiency. They have avoided the question, but we will see where it goes in the future.

I encounter quite a bit of private law because public law and private law can interrupt each other. My hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) spoke for the Liberal Democrats on this issue some time ago, and we are pleased to see her back in Parliament. She proposed that before anyone goes to court, the default position should be that if parents split up they do not have to go to court to establish a court order for residency. Delay is one of the difficulties—that is where the report is entirely right—and causes a problem. If we start with a default position that places a duty on both parents to keep in contact with the child—except in really exceptional circumstances, which do occur from time to time—we would be in a much better situation than we are at the moment where people first have to apply for a court order.

One difficulty of mediation is that if people can get a better deal by waiting for the adversarial approach, why would they bother with the mediation and take it seriously? There must be something for parents to agree on during mediation, and the recent work on encouraging mediation by the Child Maintenance and Enforcement Commission was important. It is a mistake always to separate issues of finance and of the child in question. From the parents’ point of view, those things are not separate and indeed are associated. Often, the mother gets residency of the children and the father goes into a mood and says, “Well, I’m not going to pay if I don’t get contact”, and people get into a massive row. If we managed to bring those things together, that would be far better.

We are trying to do something therapeutic and, particularly in public family law—although it is the same in private family law—we have the therapeutic objective of trying to do what is best for the child or children under the circumstances. That is not best handled through an adversarial family court system where everything gets piled up and there are hundreds of sheets of paper. Anyone who has seen one of those cases will know the absurd amount of paperwork involved, which often merely repeats things from other documents. That does not help.

The report referred to the family group conferencing approach, which is far better. We need to strengthen case conferences so that the procedure is not abused by the practitioners. The Webster/Hardingham case from Norfolk is well known as a miscarriage of justice, but it started out as an abuse of process and procedure in the case conference at Norfolk county council. If that abuse had been picked up at that point, three children would probably not have been wrongfully adopted. It was a case where one of the family went off to Ireland—I think it was in about 2006. The case went to the Court of Appeal, which effectively accepted the likelihood that there had been a miscarriage of justice.

We must analyse where decisions are taken. Although rubber-stamped by the courts, often decisions are taken initially in the local authority during the case conference or adoption panel, or whatever. If we can improve the decision-making process at that stage, and provide a more therapeutic environment in which one can bring the grandparents without them having to pay £5,000 or £10,000 to get along in the first instance, we can start trying to work things out. That would be far better than the current system, which is dreadfully remote.

One care leaver who is in his 40s told me that when he was a child in care, he used to try and find out who was taking the dreadful decisions that affected him. He never could find that information, however, which is one of the difficulties in the system. The people to whom things are being done have no idea how the random decisions that affect them are being made. Early intervention is great, but we need to know what and how that is done, and ensure that it achieves positive things. A lot of this is an issue of detail, which is crucial.

Let me turn to the Children and Family Court Advisory and Support Service because I have some difficulty in public law proceedings with working out the added value of the guardian ad litem. A Gillick-competent child should have a solicitor and the guardian should fall away, although in practice that does not always happen. I was pleased to see that Julia Brophy gave evidence to the Committee. If we look at her work, there is an argument for what happens in Ireland where an independent social worker report is commissioned, rather than having the entire panoply of the guardian operation. That raises a question about private family law proceedings, in which I think it would not be a bad idea to do much the same.

We have got to the stage where CAFCASS is so over-worked that we are not getting a lot of continuity. Government policy is going the wrong way in trying to reduce the use of independent social workers; perhaps we should be getting rid of CAFCASS and using independent social reports instead. Given the cost of CAFCASS, that would make the Treasury happy. One difficulty with trying to speed up a machine for miscarriages of justice—which is what the system is doing at the moment—is that although it makes it run faster, it does not get any better, and there is great difficulty with that. We should be able to get better decisions taken at case conference level, and not have to worry so much about everything being done on paper.

Judicial continuity is an interesting question. Someone told me recently about one person involved in a vitamin D miscarriage of justice who was warned by her barrister that if she appealed to the Court of First Instance, that would upset the judge in her case and he might not look favourably on her in the future. There are questions about whether judicial continuity undermines the appellant process. If someone’s barrister says that they should not appeal a case because the judge will be upset, and they then have to go back in front of the same person, that raises an issue. In fact an application was put to the European Court of Human Rights, about whether that prejudges a situation. Again, a difficulty is that we are trying to do therapeutic work, where continuity is crucial, in a legalistic environment in which an attempt is being made to work out whether what is being done is within what has historically been called the margin of appreciation—or, these days, the procedural protections of the European Court of Human Rights. The idea of the margin of appreciation seems to be coming back to a certain extent. As to what the courts should be trying to work out, my ideal solution would be akin to the Swedish one, which is driven by a case-conference-type mechanism—very much a therapeutic environment—which is subject to judicial review, rather than bunging a case in front of the magistrates, who generally just rubber-stamp what the local authority says.

The point about rubber-stamping is important. There are statistics on the outcomes of cases, and they almost always go the local authority’s way. We can take it two ways: we can say, “Well, actually, social workers and care professionals are so much better than the Crown Prosecution Service in their judgments that it is not surprising that things almost always go the way of the local authority.” When the CPS thinks that there is evidence in criminal proceedings to support a verdict beyond reasonable doubt, perhaps half the verdicts in contested cases will be guilty, and half not guilty. In care proceedings there are different outcomes; a care order is sometimes given, or no order may be given, but the local authority’s thesis is rejected in only about 0.27% of cases, on, I think, the 2007 figures. That is a bit of an exaggeration, because other things can happen. The local authority can withdraw the application, as happens in many cases. If the local authority thinks things are going badly, it might withdraw.

We need, also, to consider section 38 of the Children Act 1989. It does not require evidence so much as reasonable grounds to believe that a child may be at risk; given that once an interim care order is given, a final care order is very likely, is that threshold acceptable? Should it not be changed to require an evidence test at some earlier stage? As to delay and its effect on children, the point is what happens if we have a system which, for all that it matters, is much cheaper and much the same in outcomes as rubber-stamping what the local authority wants, which is what happens most of the time. That has an effect on the child. If, say, a newborn baby is taken from the mother and put into foster care, that has a real impact. The work of Professor Michael Rutter is crucial in that area. He looked on the period between six and 18 months as the golden period for a baby. A large proportion of babies taken into care are taken into care well before then. If they get reactive attachment disorder, as many of them do, it is not caused by bad parenting initially but by what the state does—simply on the basis of the timing.

There is a long way to go. I congratulate the Committee on obtaining some representations from people affected by the system, but for this debate I would emphasise that in future, the Government and Select Committees—and I congratulate the Select Committee on Education—should, please, listen to the people to whom things are done, and not just those who earn money doing things to people.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

There have been relatively few speakers this afternoon, but the speeches have been of a very high quality. I congratulate the Justice Committee and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing the debate. I am grateful to all right hon. and hon. Members for their valuable contributions. The Government recognise that it is simply unacceptable that some children wait more than a year for a decision to be made about their future and that some parents can use the court process to inflame further conflict with their former partners. The hon. Member for Hammersmith (Mr Slaughter) referred, rightly, to the terrifying consequences that can arise. That is why our programme of reform, underpinned by the findings of the Justice Committee’s report and the family justice review, is so important.

I shall deal first with the points made by my hon. Friend the Member for Birmingham, Yardley (John Hemming). He made a significant contribution on a topic in which he has consistently shown significant interest. To take up his concern about the FJR’s legitimacy, I can tell him that it did have cross-party support, having been initiated by the previous Government and continued by the current Government. David Norgrove consulted very widely here and in other jurisdictions. The Grandparents’ Association, which was the example that my hon. Friend gave, submitted evidence and that was certainly considered. I simply cannot accept that the FJR was constrained in the evidence that it sought or considered.

[John Hemming]

My argument is that the panel itself did not have someone from Families Need Fathers, the Grandparents’ Association, Justice for Families or any other of the organisations that represent those people to whom things are done.

[Mr Djanogly]

My hon. Friend makes his point. He will appreciate that, on that basis, many hundreds of organisations could have been included in the body.

Two key pieces of legislation will support our proposals for system change. The children and families Bill, announced in the Queen’s speech, will help to deliver the Government’s commitment to supporting children and families by making it easier for parents to share caring responsibilities and by supporting some of the most vulnerable children, including those in care or whose parents have separated.

[John Hemming]

I thank the Minister for giving way again. Will the Government consider the proposal from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) of having a default position in the children and families Bill so that there is no need to go to court to establish a default position?

[Mr Djanogly]

I will come on to that.

The Crime and Courts Bill, introduced on 10 May, contains provisions that will establish a single family court. That is a direct response to a recommendation made by the family justice review. The creation of a single family court will simplify the court process and make it more accessible for families using the system. It will be more transparent and will facilitate the allocation of family law cases in the most effective and efficient way.

In the area of public law, we have already made a commitment to implement many of the review’s recommendations. Where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay. That is why we intend to introduce a six-month time limit for all bar exceptional cases. I can confirm to my right hon. Friend the Member for Berwick-upon-Tweed that that is a limit, not a goal. Where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the children and families Bill.

To answer my right hon. Friend, who mentioned time limit delays, the judge will have to give reasons for the delay in open court. In that way, a picture of performance and weaknesses in particular parts of the country will become apparent and will build up over time, which will mean that action can be taken to address a particular problem in a particular area. There are a number of steps to support that.

The Justice Committee and the family justice review, and my hon. Friend the Member for Birmingham, Yardley, highlighted the need to cut the number of expert reports used in court proceedings.

[John Hemming]

rose—

[Mr Djanogly]

Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

[John Hemming]

I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS.

[Mr Djanogly]

I will come on to CAFCASS in due course.

My hon. Friend said that a default residence contact position would avoid the need for court orders. The problem with that is that it is a one-size-fits-all approach; it would not focus on what the child needs. A very young child may have quite different needs from an older child, for example. If parents are in dispute about child arrangements, and the matter requires a court decision, it is right to focus on the child’s needs at that point. That is the current position and we intend to retain it.

[John Hemming]

The point is not that we should have an unchangeable default position, but that we should start from a position whereby it is the duty of both parents when they separate to maintain contact with the child. The difficulty is that the current position often creates a de facto situation; basically, residence moves with the child and the legal process takes some time to catch up, but in the meantime, in very traumatic circumstances, the relationship between the child and one of the parents has decayed. It is not that the solution is inflexible, but that we start from a minimum position that could be varied.

[Mr Djanogly]

I hear what my hon. Friend says, and I am not entirely sure that it is incompatible with what I said. I will take a further look at that.

We must improve the quality of the submissions made to courts by local authorities. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. We will strip out bureaucracy and duplication. On care planning, we will introduce legislation through the children and families Bill to make it explicit that the court should focus only on issues essential to its deliberations. We will also remove the bureaucratic processes connected with the renewal of interim care orders and interim supervision orders. Where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.

That work is supported by Her Majesty’s Courts and Tribunals Service, which has allocated a further 4,000 sitting days to the county court exclusively for family work, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out. That is an increase of 8,000 extra county court sitting days compared with 2009-10 and a major increase in family court capacity. That somewhat disproves what the hon. Member for Hammersmith said about Government cuts. We have not been cutting the service, but have been significantly increasing the resources added to it. Her Majesty’s Courts and Tribunals Service has ring-fenced the family allocation in the magistrates courts, ensuring that days intended for families are not lost on criminal hearings.

All right hon. and hon. Members will agree that simply allocating more court days will not solve the long-term issues identified by the family justice review. All the work will be underpinned by more robust data, an issue highlighted by the Justice Committee last year, as my right hon. Friend pointed out. I agree that it is key. Without figures, we can only reform by way of anecdote based on single issues. That is not an adequate position.

With judicial support, Her Majesty’s Courts and Tribunals Service is rolling out a new management information tool. For the first time, it will track the care case process from start to finish at court level. Although it applies only to those cases entering the system from 1 April, it will provide important data about where delays are currently occurring in the system and why they have arisen. Importantly, the tool will drive changes in behaviour by allowing local areas access to their own data, so that information can be used to identify performance barriers.

[John Hemming]

That would be an excellent tool. Will the tracking system track the release of the printed judgment to the parents, who often do not receive a judgment on which they can appeal?

[Mr Djanogly]

I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.