THURSDAY 24 FEBRUARY 2005

Dame Elizabeth Butler-Sloss and Mrs Justice Bracewell

  Q60  Baroness Gould of Potternewton: I would like to pick up a point made by Mrs Justice Bracewell in respect of when violence has taken place. This might be a simple question, but I am not sure. Do you think that the Bill as it stands is sufficiently robust to take into account the abuse and violence that has taken place in the 2 per cent of cases where it does occur?

  Dame Elizabeth Butler-Sloss: You would not do this, you see: you are not going to enforce an order for contact. You will not make an order for contact unless you are quite satisfied that the allegation of violence is either not proved, or alternatively it is the sort of violence that has absolutely no effect on the welfare of the children. If a father has been consistently violent—and the majority are fathers, although there are some mothers I have to say—to the mother in the presence of the child, the contact arrangements have to be extremely carefully organised, and it may well be the father does not get contact. I had one case where the father nearly cut the mother's thumb off, and there was blood everywhere in the kitchen; and although it was a one-off, and he was otherwise a good father but he went completely berserk on one occasion, the child could not take it because she could remember her mother covered in blood; so that child did not see the father.

  Q61  Baroness Gould of Potternewton: I agree obviously that that should be the position, but I ask the question because there is evidence that that is not necessarily the position today. I am suggesting that—

  Dame Elizabeth Butler-Sloss: We have not come across this evidence. We are told by various women's organisations anecdotally of situations where perhaps a judge has made an order in relation to contact. We are asking for the details, because I will go round and ask the judges myself, "Why did you make such an order?". We cannot pin down a single case. If we could, I will deal with it.

  Q62  Baroness Gould of Potternewton: That is very helpful. Thank you very much.

  Mrs Justice Bracewell: We have provision for fact-finding in these cases, so we know the basis on which we are judging whether or not contact is for the welfare of the child.

  Q63  Baroness Howarth of Breckland: We are talking about whether the child's welfare is paramount, and I know from sitting in many of the courts that that is very much the focus. Clause 11G(9) inserted by the draft Bill apparently attaches lesser importance to a child's welfare in the current provision of the Children Act, by requiring the court just to take into account the welfare of the child concerned. Do you think there is a conflict?

  Mrs Justice Bracewell: I do not, because there is a public policy element. Once an order has been made, then the court has a public interest in seeing that that order is enforced. Obviously, you do take into account the welfare of the child, but not to be paramount, and there are many occasions, many other applications in which welfare is not the paramount consideration, so I personally do not have a problem with that.

  Q64  Baroness Howarth of Breckland: Can you give an example?

  Mrs Justice Bracewell: Something that does not involve the upbringing of a child, whether somebody should be joined as a party to a particular set of proceedings. Welfare is not the paramount consideration.

  Dame Elizabeth Butler-Sloss: It is very important to bear in mind that if we are making an enforcement order, that means that there has been a breach of a court order. We really cannot allow breaches of court orders just to be disregarded. It is actually between the contemnor and the judge as well as the question of the welfare of the child. We would not make an order to deal with contempt that was to the detriment of the child, but having said that, there are two issues here. One is the welfare of the child and the other is how you deal with somebody who has deliberately flouted a court order.

  Q65  Baroness Howarth of Breckland: So you see no conflict.

  Dame Elizabeth Butler-Sloss: No, like the Bar—we see no conflict. Interestingly of course, Silks sit as Deputy High Court Judges, so they would have this experience as well.

  Q66  Ann Coffey: When relationships break down it is a long way before they go to court or see a solicitor, and often, in the aftermath of that immediate break-up, attitudes are taken. Children witness that break-up and attitudes are set. Do you feel more should be done, if we are really talking about early interventions rather than relying on getting a change of culture when we get into the court of providing resources for parents in the week after or days after a break-up, to be able to speak to somebody? How do you think that could work?

  Dame Elizabeth Butler-Sloss: Yes, in principle, but how do you get to them?

  Mrs Justice Bracewell: It is not a matter for the courts; they are not before the courts.

  Q67  Baroness Howarth of Breckland: That is the point I am making.

  Dame Elizabeth Butler-Sloss: If the agencies know about it, or any of them—and Relate is an obvious example referred to earlier—that is great, and there are various organisations like One Plus One, and I very recently went to speak at another wonderful organisation/charity "Time in Families" trying to save relationships. I think we ought perhaps to be selling, whether it is in the public library or in the Job Seekers or in social security, the idea that there is information available out there, and there are people to whom you could turn if the marriage or the partnership has broken down—but this requires resources. I do think we should be offering to the public something to prevent them ever coming to court. I am totally in agreement, but how you do it is tricky, and it will have a real cost implication if you are using people rather than just information. I am not sure that those who are in distress are very good at reading information; they need somebody who is able to talk to them and talk it through. The first thing a parent needs to be told is that the child loves the other parent; they do not believe it. Any parent who cannot stand the other parent has a real problem in realising the child should see the other parent: it is the actually up-front most difficult problem.

  Q68  Virginia Bottomley: We are all talking about children whose worlds are coming to an end through bitterness and unhappiness, and there are two needy and bitter parents; but there is no mention in the Bill of grandparents. Is there any way in which our learned legal witnesses can think that grandparents could have any mention, because the truth is that when both parents are falling apart—

  Dame Elizabeth Butler-Sloss: Well, we are both grandmothers!

  Q69  Virginia Bottomley: I did also want to say that this is part of seeing the world through a different telescope as one gets older.

  Dame Elizabeth Butler-Sloss: I have to say that some grandmothers are incredibly helpful, and others are incredibly destructive.

  Mrs Justice Bracewell: And others are part of the problem, not part of the solution.

  Dame Elizabeth Butler-Sloss: Some of them, in certain communities, create the problem.

  Q70  Chairman: Is part of the problem that in a child's life, particularly when their parents are having a difficult break-up, there can be other significant people around that relationship that are very important to the child? I suppose that in a way what underlies this issue about grandmothers is whether you feel the court has sufficient powers and influence to bring on board other significant people in that child's life when dealing with it. It is not just grandmothers.

  Dame Elizabeth Butler-Sloss: Section 10 of the Children Act gives the power to the court, of its own motion and not only on application, to make somebody else in the family or not even a person in the family a party. They have got to have permission. If we find the grandmother is the right person to come in—maybe the grandmother should take over the care of the child for a while.

  Q71  Chairman: You have sufficient powers in that, be it a grandmother or grandfather or—

  Mrs Justice Bracewell: As a matter of routine, the CAFCASS officer will draw your attention to the position of members of the family, and the part that they play or do not in the life of the child.

  Q72  Chairman: Before moving on to the enforcement issue, everyone is agreed, as you indicated in your early comments, that we all know where we want to get to on this. We want less of the adversarial system and more on the mediation, conflict resolution and problem-solving approach. How confident are you that the Bill will achieve this?

  Dame Elizabeth Butler-Sloss: It is not intended, as far as I can see, to be at the beginning stage, but I do think at the middle stage. If my framework works, every single family who are in dispute will be obliged to go through an in-court conciliation session with the district judge and the CAFCASS officer—that is what CAFCASS has signed up to—wherever they are able to provide the CAFCASS officer—and they are doing it on a rolling-out process across the country. Everybody will have been through that, but those who do not agree then come in to the second part of it, which is having their case heard. Some of those parents will accept an order. They cannot make it themselves, but if a judge or district judge or magistrates say, "this is what you will do", they will go away and do it. For the ones that will not, that is the point at which we can put them under this Bill into the information sessions, to the therapy and possibly the very difficult parents to an anger management course—if it is available, for goodness sake—and whatever else may be available locally. That is the point where this Bill could help in conciliating, by focusing on where the problem is with one or sometimes both members of the family, because a lot of these people have psychological problems, maybe created by the breakdown, or perhaps it is why there was the breakdown of the relationship. We are not talking about easy people. The ordinary decent, 85-90 per cent of parents, settle it themselves. We deal with 10 per cent at most.

  Chairman: We acknowledge that we are dealing with people who are finding it incredibly difficult to resolve the problem in a way that is not damaging to the child. We will turn to enforcement now.

  Q73  Jonathan Shaw: Picking up your point about resources, Dame Elizabeth, I understand that the inspection regime for the standards of CAFCASS is the Magistrates' Court Inspection Service.

  Dame Elizabeth Butler-Sloss: Yes.

  Q74  Jonathan Shaw: Do you think that this service should come under the auspices of the Social Care Commission, particularly when you consider the Government's drive for integrated children's services for the new Children Act and Every Child Matters?

  Dame Elizabeth Butler-Sloss: I have absolutely no idea. It is not a question you have asked in adizna. It is not something that is within my knowledge.

  Mrs Justice Bracewell: I have no knowledge.

  Q75  Jonathan Shaw: Perhaps that is something for the Committee to consider.

  Dame Elizabeth Butler-Sloss: I do not know whether Arran Poyser[1], or his boss, are being called on this. They certainly spoke to the other select committee.

  Q76  Jonathan Shaw: The point I am making is that your very valid point about whether services and resources are going to be available for the menu of options that the courts may have available to them if someone is not complying, is very important, because we could find ourselves heading towards the more punitive end earlier than we might have hoped.

  Dame Elizabeth Butler-Sloss: I do not agree with that. I do not believe that we would be muddling up—that is what you are talking about—the punitive end, and the information and effort-to-conciliate end. I really do not see that, not as a judge.

  Q77  Jonathan Shaw: Do you not agree that if the therapeutic services and counselling services are weak and inefficient in an area, then you may well find that that work cannot happen, and so then you are more likely to end up at the more punitive end?

  Dame Elizabeth Butler-Sloss: I suppose it is possible, but I certainly would hesitate very strongly to go to the enforcement end until I was pushed into it. I do believe that this is a point at which I probably would go to the CAFCASS officer, for whom I have enormous respect, and say, "what can you do on that?"

  Q78  Chairman: I do think it is an important question, but it is one probably for the Minister, in terms of the resources available, although the answer you have given us is useful because you are almost indicating to Mr Shaw that you could deliver this outcome now. Is that right? The outcome that you are seeking is to make use of the services.

  Dame Elizabeth Butler-Sloss: At the moment, certainly in the cases I try, if I have confidence in the CAFCASS officer, which I do, I would do it under a review. I would say, "In six months' time we will have a review and would the CAFCASS officer stay in and see what can be done?".

  Mrs Justice Bracewell: Could I add that I do think we need another option on the menu, and that is to reform the Family Assistance Order under section 16 of the Children Act. It has not worked and never has worked, because it has never been funded. Every party has to consent, and it is limited to six months; and it is allocated to the local authorities, which have no real interest and give it very low priority, and quite often refuse to do any work. If it was the CAFCASS officer who was given a family assistance order, irrespective of whether the parties consented, with the flexibility of time suited to the particular case, I think that that could be very valuable indeed.

  Q79  Mr Chidgey: On the question of the other measures that you can take, which we have discussed at some length, have you been consulted, Dame Elizabeth, or have you expressed views on the confidence you have that the resources will be available to administer the orders that you put in place as a judge? I am thinking particularly now where you decide that basically a community service order is appropriate. Normally, that would be administered by the probation service or the probation officers.

  Dame Elizabeth Butler-Sloss: Yes, that is what we understand.