THURSDAY 24 FEBRUARY 2005

Dame Elizabeth Butler-Sloss and Mrs Justice Bracewell

  Q80  Mr Chidgey: Rather than a CAFCASS officer, although they may be trained as both, of course, given the history of the development of the service. Of course, the whole thing falls apart. We have already heard of the delays in the process anyway because of lack of resources, and this is just not going to happen if resources are not there.

  Dame Elizabeth Butler-Sloss: Can I take the example of Australia, because through my legal secretary I have been getting some information about how it is working there. Quite simply, where they have resources, which they have in Sydney, it works; and in other places, where they do not have resources, it does not work. That is the absolute bottom line. I would not want to put anybody on to community service if I could avoid it. I do think the threat would be extremely useful, because I would be prepared to do it. But there is no point in having a community service order in six months' time; so if the person cannot be put onto that particular graffiti cleaning down the underpass, then we cannot really make an order. I understand that these orders would really be the responsibility of CAFCASS to work out with the local probation service, but we have got to have the place to do it.

  Q81  Jonathan Shaw: Taking Mrs Justice Bracewell's point about sorting out the front end rather than the back end, at the front end you might be using these threats—

  Dame Elizabeth Butler-Sloss: "You will go to an information session"—

  Q82  Jonathan Shaw: Yes, "otherwise you are going to be clearing up the dog poo on the common".

  Dame Elizabeth Butler-Sloss: Yes. I would like that in at a very early stage. "You do realise I have the power to send you to clean the graffiti on every Saturday afternoon for three months, when I know you want to go and do something which you would enjoy doing, like shopping." I think it is a very valuable threat. I am quite keen on the curfew, but not only for the reasons given by the Bar. I think the curfew would be very useful to make sure that mother is there and has not taken the child off to the football match; but if she really refuses, why should she not have to spend the whole of Saturday afternoon at home instead of going shopping?

  Q83  Jonathan Shaw: You see it as a punishment.

  Dame Elizabeth Butler-Sloss: I see it as a punishment.

  Q84  Jonathan Shaw: Not just to facilitate contact.

  Dame Elizabeth Butler-Sloss: I think it should be both. You should be capable of using it for both—and why not? But I would not want to use it for seven days; I would use it for two hours or four hours. What we are able to do under this Bill is make it more onerous, so I would say, "you cannot leave between two and four, and if you do not behave I will make it between ten and six".

  Q85  Jonathan Shaw: In the draft Bill, Dame Elizabeth, it says that an enforcement order is proposed if necessary to secure the person's compliance with the contact order.

  Dame Elizabeth Butler-Sloss: Yes.

  Q86  Jonathan Shaw: So you think that by imposing a punishment like a curfew, you may well achieve that.

  Dame Elizabeth Butler-Sloss: Well, prison will not affect contact directly, but it does affect compliance, or it may do, except that there are the mothers who pack their bags every day they go to court. They are waiting to be sent inside, and there is no point putting someone inside who has already packed their bag!

  Q87  Earl of Dundee: Dame Elizabeth, you talked about Australia. I gather that the Canadians too are evolving good practice. How can we then benefit from the examples of Australia and Canada?

  Dame Elizabeth Butler-Sloss: I do not know about the Canadians. That is a fault on my part, because I know Australia better than I know Canada. The Australians have not really quite got their act together, as I understand it, but where they have the resources and they put people to it, it is working well. This is not at the enforcement end so much as at the information session, therapy, anger management courses and so on. I think that is right.

  Mrs Justice Bracewell: Yes.

  Q88  Earl of Dundee: Your point is that we need more money to do the same, and it is almost as simple as that.

  Dame Elizabeth Butler-Sloss: Absolutely; it is resources. May I just make the point that I would be very much opposed to tagging.

  Q89  Chairman: I was going to ask you about that. You would be strongly opposed to that, would you?

  Mrs Justice Bracewell: I cannot see any place for tagging in these disputes.

  Q90  Chairman: Do you think that most of your colleagues would agree with that?

  Dame Elizabeth Butler-Sloss: I think we totally agree with it. That is one step too far.

  Q91  Chairman: The reason for that is literally that it is just too much of a punishment or because you cannot see a use for it.

  Dame Elizabeth Butler-Sloss: I cannot see it as appropriate for parents. I can see that, rather than putting a parent into prison, to ask her to clean the underpass is a perfectly reasonable, sensible alternative. Tagging seems to me—

  Q92  Ann Coffey: If the difficulty in the past has been that because it is so difficult to send a parent to prison that there is not really a proper menu of enforcement, is not the argument that tagging curtails somebody's liberty and is inconvenient and would therefore offer something other than prison which was also uncomfortable and inconvenient, and the person involved thought was humiliating or difficult for them?

  Dame Elizabeth Butler-Sloss: Yes, put that way I agree with you. However, I do think that we can achieve it in a slightly less unattractive way by saying, "you will be obliged to stay in" or "you will be obliged at the last resort to go and do something that you would find unpleasant", rather than putting somebody into prison which deprives the child of, say, the mother overnight. It is less detrimental to the child to have the mother on a weekday, when the child is at school, going off to do community service; and also the child will not be seeing the mother doing all that, whereas the child would see the mother tagged. I think it is difficult.

  Q93  Mr Chidgey: Dame Elizabeth, is it not the case that if one is going to impose a curfew requirement, recognising the limitation on human resources, it is inevitable that you will need an electronic device to ensure that that curfew is maintained—unless we have a policeman standing outside the garden gate?

  Dame Elizabeth Butler-Sloss: Not necessarily, because the other parent will arrive at the house, and despite the order for the curfew, the child will not be there—mother will have taken the child out for the afternoon.

  Q94  Mr Chidgey: That is not the case when it is being used for contact, rather than as a punishment; but you have made the point that it could be both.

  Dame Elizabeth Butler-Sloss: Yes. I would like to use curfew as a realistic way of ensuring that the child goes to the father or to the mother, but I would like it to be seen by the parent as punishment.

  Q95  Mr Chidgey: Which would mean you would need to tag, if it is going to be that.

  Dame Elizabeth Butler-Sloss: If the child is not there for the father to collect, then you put the mother inside as the next stage, I suspect. You do send the mother into prison.

  Q96  Chairman: Then you get into a difficult area of whether you have a criminal punishment, in effect.

  Dame Elizabeth Butler-Sloss: Yes. I am not quite sure what the ultimate punishment for a refusal to comply with enforcement is. I assume it comes back to imprisonment.

  Q97  Chairman: It must do, must it not, in a sense? It is like any other non-compliance with any court order, as I understand it as a non-lawyer. That must always be the end game.

  Dame Elizabeth Butler-Sloss: Might I raise one matter that the judiciary are worried about, and that is the compensation for loss of money. We are very much in favour of compensation. There is one case quite recently—I was not in it—where a father was going to take the child on a ski-ing holiday and mother made it impossible for the child to go. All that money is wasted, and it was quite unreasonable.

  Q98  Mr Chidgey: So you are in favour of that.

  Dame Elizabeth Butler-Sloss: Yes, but it is going to be dealt with as a civil debt.

  Q99  Mr Chidgey: And you think that is not realistic.

  Dame Elizabeth Butler-Sloss: Not realistic.