2.1. This year saw the completion of the final evaluation report on the Information Meetings pilot exercises by Professor Janet Walker from the Centre for Family Studies at the University of Newcastle. A summary of the key findings of Information Meetings and Associated Provisions within the Family Law Act 1996 is included as Annex C of this report. The Board considered the draft research findings prior to their submission to the Lord Chancellor. It was clear from the research that information was valued and appreciated by those attending the information meetings. It was also clear that people required a hybrid service, a mixture of information, guidance and advice, and that the balance between these three elements changed during the course of the divorce process.
2.2. The research indicated that it was unlikely that a rigidly structured information meeting would suit all circumstances and that people required a flexible format tailored to their personal situation. The research had concentrated on finding the best possible model of information meeting for implementation, and had not been requested initially to test the longer term effects of information on people's behaviour. None of the models of information meeting tested in the pilot exercises had themselves been good enough for implementation, but it was possible to deduce from them a model which would be suitable.
2.3. Professor Walker's final report included a suggestion for a new model of information meeting, which the Board considered could form the basis for the implementation of a national system of information provision. The Board believed that this new model should be piloted before full implementation, but that such testing need not cause undue delay.
2.4. It appeared from the evaluation of the meeting with a marriage counsellor that up to 5% of those attending information meetings might not go on immediately to divorce, although it was not possible to tell, during the timescale of the study, whether the outcome was that the marriage was saved in the long run. Although this could be the result of a number of factors it was in line with the original expectations when the Family Law Act was passed.
2.5. The meeting with a marriage counsellor enabled people to reflect on their current situation and to be able to move forward, whether it be to work on saving their marriage or to end it. The meeting was particularly helpful for people who were uncertain about what to do next. Overall, the meeting with a marriage counsellor reduced the likelihood of divorce for those who did not want a divorce and for those who were uncertain. It offered a gateway into counselling to people who would not have entered by the traditional route and helped people to view counselling as a positive intervention. There is also evidence that it improved the quality of relationships between spouses irrespective of whether they made the decision to divorce.
2.6. The Board met the Lord Chancellor in July 2000 to provide advice on the way forward in respect of Part II in the light of the draft final research findings. The Board informed the Lord Chancellor that in their view Professor Walker had undertaken a thorough and detailed evaluation of the information meetings pilots and had provided an impressive analysis. The evaluation from the research had identified a good enough model of information meeting to support implementation of Part II, and there should be a feasibility test of the effectiveness of the proposed model prior to rolling out. The Board felt that an individual one-to-one information meeting was the best way of providing knowledge and information to people, although leaflets, videos and CD-ROMs could also be useful. It was felt that the information meetings were of particular benefit to people with children.
2.7. From the information available, the Board considered that the costs of providing an implemented information meeting service would not be prohibitive. There was not felt to be any great benefit in modifying the information meeting to promote mediation and marriage support more directly. Information meetings were not suitable for this purpose and in any event there was no evidence that such weighting of the information meetings would produce significant changes in people's behaviour.
2.8. The Board advised the Lord Chancellor that the meeting with a marriage counsellor was a suitable intervention for people who wished to explore the possibility of saving their marriages, and indeed some marriages were being saved as expected. Although comparatively small in number, the number of marriages potentially which could be saved was in line with original expectations.
2.9. Family mediation was being implemented and was developing as had been expected. It was likely to remain a minority choice, but there were still substantial benefits to be gained from it. The rules which would underlie Part II would have to be considered carefully, but it ought to be possible to frame rules to allow the new divorce procedures to be implemented. Whilst there were some inadequacies in Section 11 of the Act, relating to the assessment of the arrangements couples proposed for their children, the Board did not believe that these would present a reason for not implementing Part II.
2.10. The time limits imposed by the procedures in Part II reflected the intentions of Parliament when the Act was passed, and again the Board did not consider that they would constitute a reason not to proceed with implementation.
2.11. The Board felt on balance that it was unnecessary to seek to amend the Family Law Act in Parliament before implementation; in their view, it did not appear that any of the shortcomings in Part II of the Act were sufficient to justify re-opening the whole discussion in Parliament. Also, there did not appear to be any argument in favour of seeking further research data in relation to facets of the Act. The Board therefore recommended that there was no reason why the Lord Chancellor should not proceed to a decision to implement the new divorce procedures in the fairly near future.
2.12. The Lord Chancellor indicated to the Board that he would wish to consider the research, and evaluation of the information meetings pilots, together with the advice provided by the Advisory Board and others, before deciding how to proceed. In particular he indicated that he would have to consider whether the quality of outcomes for both adults and children would meet the principles in Part I of the Family Law Act and whether the likely outcomes from Part II were the best that could be achieved for the resources required.
2.13. The final research report was submitted to the Lord Chancellor in September 2000. On 16 January 2001 the Lord Chancellor announced that the Government was not satisfied that it would be right to proceed with the implementation of Part II and that it proposed to invite Parliament to repeal the relevant sections of the Family Law Act once a suitable legislative opportunity arose. The Final Evaluation Report was published on the same day, with a summary and a short document setting out key findings. Members of the Advisory Board met the Parliamentary Secretary to be informed of the decision on the day of the announcement.
2.14. While recognising that this was a decision for the Lord Chancellor to take, the Board was deeply disappointed. Board Members do not believe that the objectives outlined in Part 1 of the Act can be successfully achieved under the Matrimonial Causes Act 1973 and other legislation currently in force.
2.15. The Legal Services Commission have now completed the implementation of the provision of publicly funded family mediation in family proceedings under the arrangements originally contained in Part III of the Family Law Act. (Part III itself was repealed in the Access to Justice Act 1999, but its effect was continued in the Legal Services Commission's Funding Code, and it is convenient to continue to refer to the relevant provisions as Part III and Section 29 although this is technically incorrect.) Over 300 suppliers throughout the country have now concluded contracts with the Commission to provide quality assured family mediation throughout England and Wales. In addition, the requirements of Section 29, whereby people seeking public funding for family proceedings have first to consider whether mediation might be suitable, have also been implemented throughout England and Wales. The project to implement Part III of the Family Law Act has been successfully completed, and the message about the development of family mediation arising from the implementation of Part III was a positive one.
2.16. The Board noted that mediation may be attractive only to a comparatively small proportion of the divorcing population, and that there are unlikely to be significant cost savings in respect of public funding. The Legal Services Commission felt also that it was unlikely that 'a hard sell' to promote mediation in the information meetings would be effective in persuading more people to use mediation. However, the Board believed that the fact that up to 10% of the divorcing population would use mediation was still a good thing. A significant number of people would be using mediation and be helped to resolve their disputes themselves in a non- adversarial way. It was also clear that there could be savings for some individuals concerned, as their overall costs could be reduced.
2.17. It was reported that many mediation providers, particularly those in the 'not for profit' sector, were finding the administrative requirements of the Legal Services Commission franchises extremely onerous. The Legal Services Commission reported that to some extent the additional work was caused by the fact that these were pilot operations, and this would reduce once substantive franchises were in place. Many mediation services had had to deal with management requirements and quality assurance provisions for the first time. The Legal Services Commission had provided some assistance to enable services to improve their managerial and administrative support, and efforts were being made to minimise the bureaucracy.
2.18. The final research report by Professor Gwynn Davis of the University of Bristol on the operation of the pilot contracts for the provision of publicly funded family mediation was published on 20 December 2000. A summary of the main findings of the study Monitoring Publicly Funded Family Mediation is included at Annex D.
2.19. In the Board's view, it is not possible to draw conclusions about the long-term impacts of following the different procedure laid down in Part III of the Family Law Act from the research that was carried out. On the whole, the people included in the study reported finding their solicitors more helpful and better able to understand the problems than their mediators. Agreements negotiated through solicitors were also thought to be able to be modified slightly more than mediated agreements. However, those agreements reached through mediation were felt to be more in the child's or children's interests than those reached through other means.
2.20. The Board noted that the research demonstrated that solicitors and mediators offer complementary services, which may both be needed to a greater or lesser extent by individuals or couples, depending on their individual circumstances. At different stages in the process, depending on those circumstances, both professions could have a part to play in promoting a more conciliatory approach to divorce, and the policy objective of promoting the principles of Part I of the Act was best served by emphasising the need for a co-operative, rather than a competitive, relationship between mediators and solicitors.
2.21. The research also demonstrated that the provisions of Section 29 of the Family Law Act were not proving to be an effective means of encouraging people to use mediation as currently operated. The Board had always been concerned that Section 29, as a compulsory gateway to mediation, came at the wrong stage of proceedings to be really effective in many cases, and that it was necessary to create other broader paths to family mediation.
2.22. Following the publication of the research and discussions with the Department, the Legal Services Commission produced various proposals for changes to the CLS Funding Code regarding the operation of Section 29 in the light of the research findings. The proposed changes were set out in a consultation document published in February 2001 and the changes were implemented in May 2001.
2.23. One of the main changes proposed was that there should be a willingness test, so that if it were clear that the second party was not willing to be engaged in mediation, it would be possible to exempt the case from the Section 29 procedure. This would reduce the number of mediation intake meetings held. Although this would reduce income for some mediation services, there was a general feeling among the mediation organisations that the conduct of abortive intake meetings was an unnecessary burden. The Board was informed that the Legal Services Commission intended to provide funding for not for profit mediation services to assist them during the period of transition. It was also reported that it was intended to extend the scope of the Section 29 procedure to include grandparents seeking contact or residence orders.
2.24. Concern was expressed that the relatively low profile of family mediation might be caused by the absence of a single governing body with a statutory basis for the regulation of the profession. The Legal Services Commission reported that they were working with the Law Society, the UK College of Family Mediators and the major mediation organisations to ensure that there was a shared common view of standards and approach to family mediation, even though there was not one single governing body.
2.25. The Board was pleased to note that following their advice that there should be a publicity campaign to raise public awareness of the benefits of family mediation, the Government had provided funding for a campaign, which began in January 2001. The campaign included advertisements in national newspapers and magazines and the distribution of leaflets providing information on family mediation to callers to the Community Legal Service Directory Helpline. The leaflet was also sent to all Community Legal Service providers and other information points including health clinics, Social Services Departments, register offices, courts and court welfare services.
2.26. The Department confirmed that the primary objective of the campaign was to raise public awareness generally of the benefits of family mediation, rather than directly to promote referrals to mediation or to promote individual types of mediation provider. Many people would not need to use mediation immediately but it was hoped that they would be made aware of the benefits of mediation should they need to use it later. It is too early to say if the publicity campaign has been effective. The Board hopes that the Lord Chancellor's Department and the Legal Services Commission will continue to pursue the objective of making the mediation process better understood among the general population.
2.27. One of the consequences of the decision not to implement Part II of the Family Law Act was the loss of the provisions of Section 9(3) and 9(4) of the Act relating to religious divorces, and enabling a judge to withhold a civil divorce in cases where steps had not been taken to obtain a religious divorce. This was intended to deal with the hardship caused to some women in the Orthodox Jewish community, who have been civilly divorced, but cannot remarry in a religious ceremony because their husbands refuse to grant them a religious divorce. The husbands themselves are generally free to remarry. These provisions of Section 9 were tied into the new divorce procedure envisaged by part II and could not be implemented independently.
2.28. The Board noted that Lord Lester of Herne Hill QC had introduced a private member's Bill in June 2000 to mirror the provisions of Section 9 (3) and (4) within the existing divorce law. The Government had supported the Bill and it had completed its passage through the House of Lords but was unable to complete its passage through Parliament before the end of the Session. Mr Andrew Dismore MP introduced an almost identical Bill in the House of Commons in January 2001 as a Private Member's Bill with Government support.
2.29. The Board were made aware of concerns raised by the Solicitors' Family Law Association (SFLA) about the proposed changes to The Child Support Act in the Child Support, Pensions and Social Security Bill. The SFLA had several criticisms of the new scheme. One of their criticisms was that under the proposed changes a couple could no longer opt out of the Child Support Act by agreeing the level of child maintenance and incorporating it in a court order, as after 14 months either parent could apply to the Child Support Agency for that order to be reviewed. This made it impossible for a couple to reach an overall settlement when one part of it could be varied according to a set formula, with no regard to the rest of the settlement. Also, provisions in the Bill for reducing maintenance proportionately in relation to overnight contact with the absent parent could potentially cause problems including denial of contact and arguments about the number of nights spent with one parent or the other. The Board felt that these provisions could have the effect of increasing acrimony between the parties. The Board supported the SFLA's view that there should be a ceiling on the level of maintenance orders. The Board therefore drew the Lord Chancellor's attention to these perceived difficulties with the Child Support proposals.
2.30. A paper was received from His Honour Judge Bradbury and His Honour Judge Hornby setting out practical difficulties with the operation of Part IV of the Family Law Act, particularly in relation to the powers of arrest contained in the Act. It was agreed that the paper should be circulated to the Designated Family Judges asking them to take soundings among the judiciary about the extent of the difficulties encountered, and that the Chairman of the Association of District Judges should be asked to request similar information from the District Judges.
2.31. The responses indicated that there were particular problems at some courts, whilst in other courts the operation of Part IV did not pose major difficulties. The Board is grateful to all those who responded to the paper. The Board's conclusion was that there was no need to amend Part IV but that the logistical issues would have to be addressed and it requested the Department to liaise with the Court Service, the Judicial Studies Board and others to consider the steps that should be taken. The Board also advised that consideration could usefully be given to whether wider powers should be available to the judiciary for dealing with a contempt of court, for example for referrals to anger management courses, although it acknowledged that this raised much broader issues which would require a substantial review.
2.32. During the year, it was reported that the Department would be taking forward proposals to consult on an integrated national interdisciplinary structure for family matters. This followed from the report from the National Interdisciplinary Forum established in connection with the information meetings pilots. The Department said that they were considering a structure of a national committee and local committees similar to that which existed in the criminal justice system. The Board was concerned that any proposals should be clear about the role of the interdisciplinary structures, and whether their function was primarily to provide advice to Government on policy matters or to encourage members of various disciplines to meet and work in co-operation.
2.33. The Board is pleased that it was recognised that the important work carried out by its Children Act Sub-Committee should be incorporated into the interdisciplinary structure. There is also the question of how to improve the quality of the family court forums, as experience had shown that it was difficult to maintain the interest of participants representing such a wide spectrum of professional concerns. The Board hopes that these issues will be properly addressed within any new structure which is developed.
2.34. Professor Mervyn Murch provided the Board with a brief overview of his recent work following Safeguarding Children's Welfare in Uncontentious Divorce, his major study of the operation of Section 41 of the Matrimonial Causes Act, which provides for the courts to consider the arrangements being made for children by divorcing couples and, in exceptional cases, to postpone the granting of a decree absolute. Dr Lesley Scanlan reported on her recent work for the Economic and Social Research Council [Endnote 1]. These two studies supported the general thrust of the conclusions from the Rowntree Foundation Seminar on Listening to Children [Endnote 2] and highlighted that children needed on-going provision of information during the divorce process. They frequently did not receive adequate information from their parents, who in many cases were trying to protect them. Yet the importance of adults, particularly parents, genuinely communicating with children was stressed. Parents may need help and support to be able to do this.
2.35. Children needed to feel involved in the decisions made in the divorce process. They wanted their views to be known, particularly in relation to arrangements affecting them, but they did not wish to be put in a position where they had to make the final decision, as this would require them having to choose between their parents. The presentation of the children's views to the court by family court welfare officers was not always felt to be accurate by the children themselves. Children who are involved in legal proceedings may need professional help, therefore, to enable them to say what they want.
2.36. The Board agreed that there was clearly a need for support for children during the divorce process. Whether such information and support should be provided through the Children and Family Court Advisory and Support Service (CAFCASS) would have to be considered.
2.37. The Board also considered the proposals put forward by the Working Group on Section 41 of the Matrimonial Causes Act 1973, which had been asked by the Lord Chancellor to consider how Section 41 could be made to operate more effectively in order to protect the interests of children.
2.38. The Board had concerns about the approach proposed by the Working Group. The amount and type of information to be gathered and presented to the court might not be helpful in determining beneficial arrangements for the children, and in the Board's view could lead to increased difficulties and delays in settling arrangements. The Board was particularly concerned about the proposal that a proforma requesting a report on the child's behaviour and general development be sent to the child's school or nursery in all cases. This potentially raised human rights issues concerning privacy, and staff might not have the necessary expertise or time to make the assessments required.
2.39. The Board invited Christopher Clulow, the Director of the Tavistock Marital Studies Institute, and Penny Mansfield, the Director of One Plus One, to talk about research and developments with which they were involved in the field of marriage and relationship support.
2.40. Although the provision of funding for research does not fall directly within its remit, the Board was grateful to have the opportunity to be updated about developments in the area of marriage and relationship support and is glad that the Government is now giving greater emphasis to research and other initiatives in this area following the publication of Sir Graham Hart's report.
2.41. On 21 March 2000, the Court of Appeal began hearing four appeals, in each of which domestic violence had occurred, and in each of which the court of first instance had declined to make an order for contact. With the agreement of the Lord Chancellor, we made copies of the Report available, in advance of its publication, to the President of the Family Division, and to the other members of the Court (Lords Justices Waller and Thorpe), as well as to the counsel and solicitors instructed by the parties to the appeals, and to the Official Solicitor, who had been invited by the Court to act as amicus curiae (friend of the court).
2.42. In addition to considering the CASC report, the Court of Appeal had before it a report commissioned by the Official Solicitor from two child and adolescent psychiatrists, Dr. Claire Sturge and Dr. Danya Glaser, which has subsequently been published in the journal Family Law (Family Law, 2000, vol. 30 p. 615). The Sturge / Glaser report contains an extremely helpful psychiatric overview of contact, with particular reference to the effects of domestic violence on children and on adult victims.
2.43. On 19 June 2000, the Court of Appeal dismissed all four appeals. The judgments are reported in the Law Reports as Re L, V, M and H (Contact: domestic violence) [2001] 2 WLR 339, [2000] 2 FLR 334. CASC is of the view that these are highly significant judgments, which are binding on all inferior courts and which must be followed by all judges and magistrates dealing with contact cases involving domestic violence.
2.44. CASC was pleased to note that its Report was cited with approval in the judgments, and that the President specifically incorporated some parts of the Guidelines for Good Practice contained in section 5 of the Report into her judgment.
2.45. We were also pleased to note that in an answer to a Parliamentary Question on 6 March 2001, the Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy) also specifically endorsed the report.
2.46. CASC has been advised by the President that she has written an article to be published in the journal Family Law, endorsing the Guidelines, and advising all judges and magistrates to read or re-read them and to take to heart all the points raised in them. We also understand that they will be part of the training material used by the Judicial Studies Board and by Magistrates.
2.47. The Department has also put in hand proposals to implement paragraphs 4.5 and 4.6 of our report, namely our recommendation that the operation of the Guidelines should be carefully monitored over a defined period by the Department; and that there should be longitudinal research aimed at informing all the professionals working within the Family Justice System about the effects of domestic violence on children and residential parents, and the impact of different orders on children and their parents.
2.48. We regard all these developments as extremely positive. We hope very much that the Guidelines, which now have the endorsement of both the President and Lord Chancellor, will be embraced by the judiciary as a whole, and put into effect.
2.49. CASC will not, of course, be in a position to oversee the operation of the Guidelines, nor will it be in a position to assess either the monitoring exercise to be carried out by the Department or the research which the Department will commission. These are functions which, we hope, will be undertaken by whatever body succeeds CASC.
2.50. In last year's annual report CASC stated its intention to examine the issue of the enforcement of contact, and anticipated that a consultation paper would be published in the late summer or early autumn of 2000, in time for CASC to report to the full Board and to the Lord Chancellor before the publication of this annual report.
2.51. Self-evidently, this timetable has slipped. The principal reason for this is that when CASC came to examine the question of enforcement in detail, our discussion led us to the view that enforcement was only one question amongst many which needed to be asked about contact. We therefore decided to expand the scope of our enquiry to include the broad question encapsulated by the phrase "the facilitation of contact" - that is to say, how agreements between parents as well as orders of the court for contact can be best achieved, made to work and sustained over time.
2.52. The Consultation Paper, which was published on 22 March 2001, examines and invites comment on the issues set out in the preceding two paragraphs; and, as originally intended, it examines the issue of enforcement. It asks, amongst other questions, whether committal to prison or the imposition of fines for contempt of court should be retained as a means of enforcing contact orders; and if it is, whether the court should be given wider powers to require parents to undertake community orders, or attend parenting classes. There is also a section with deals with how other countries approach these issues.
2.53. We intend to produce a report to the Lord Chancellor, which will be published early in 2002. We also hope very much that the Consultation Paper will have as wide a distribution as its predecessor, and that the responses to it will be as informed and of a similar quality.
2.54. CASC continued to address the issues raised by this case both with the Tipstaff and the Home Office. The result was a memorandum which summarised our views and recommendations and which we reproduce as Annex E. Once again, we hope very much that the issues we have identified will be the subject of further inter-disciplinary work and discussion by those directly engaged in them.
2.55. As the Memorandum demonstrates, the principal message which emerges from the case is the need for the criminal and family justice systems not merely to co-operate, but to develop an integrated approach to the issue of domestic violence.
2.56. Plainly no system, however watertight, can legislate completely against the tragic cases in which deeply disturbed parents, or parents motivated by hate or revenge take the lives of their children, their former partners and sometimes their own. What the Family Justice System must aspire to is to ensure that in every case where it arises, the question of domestic violence is properly addressed; that the effect of domestic violence on the victim and the children concerned is properly understood and taken into account; that the risk of harm to children and residential parents is reduced to an absolute minimum by a rigorous assessment of the facts of the case, and by the refusal of contact to the non-residential parent where violence poses an unacceptable risk of harm.
2.57. CASC's consideration of the role of the Tipstaff arose for two reasons. The first was his participation in the Georgina McCarthy case. The Tipstaff was responsible for the service of a 'search and locate' order relating to the child of the marriage directed to him by the High Court, and made on the application of the child's father. There was concern that this process had either enabled the father to identify the whereabouts of Ms McCarthy or helped him do so. Detailed enquiries demonstrated that this was not the case, and that the Tipstaff's conduct throughout had been above criticism.
2.58. The second reason was a specific request from the President of the Family Division, who was concerned about (1) the fact that the role of the Tipstaff was not properly understood by the police and court staff out of London; (2) the wording of the orders which the Tipstaff was required to enforce; and (3) the facilities available to the Tipstaff.
2.59. As part of our enquiries, we invited the Deputy Tipstaff, Mr. Richard Cheesley (in the temporary absence of the Tipstaff, Mr. Robert Emery) to one of our meetings; and at a subsequent meeting Mr. John Selch, the Deputy Director of the Supreme Court Group at the Royal Courts of Justice, helpfully produced a background paper and answered questions.
2.60. As far as the issue of making the role of the Tipstaff better known was concerned, we were pleased to note as a first step that one of the Assistant Tipstaffs, Sue Collins, had produced a Tipstaff's Handbook, which contained a great deal of information about the Tipstaff.
2.61. There was general agreement that the role of the Tipstaff was not sufficiently understood, and a number of initiatives were suggested to remedy this. There was a feeling amongst some members of the Committee that the name itself was anachronistic and gave no indication of the role and function of the office.
2.62. In addition, we were made aware that the President, as a consequence of the concern set out in paragraph 2.60, had invited Mr. Justice Wilson to re-draft the orders directed by the High Court Judges to the Tipstaff. It is clear that this process will require increased co-operation by the police and a clear understanding of what is required of them.
2.63. Fortunately, two senior representative of the Home Office attended the meeting which was addressed by Mr. Selch, and we understand that there will be ongoing discussions between the Lord Chancellor's Department and the Home Office on the question of instructing the police about the role of the Tipstaff and about the role of the police in implementing orders of the High Court addressed to the Tipstaff.
2.64. We also understood from Mr. Selch that the organisation and structure of the Office of the Tipstaff was currently the subject of an internal review, and that the Department was committed to the need for a modern, efficient organisation to support the Tipstaff in what is universally recognised as a very demanding and at times thankless task.
2.65. Difficulties in this area were drawn to CASC's attention by the West Yorkshire Family Court Welfare Service. The point was made that whereas the Court Service provided interpreters free of charge in criminal proceedings, and signers in cases where one of the parties or a witness was deaf, they did not do so in Family Proceedings, where the parties were left to their own devices.
2.66. The Chairman wrote to the Lord Chancellor on what seemed to CASC to be a wholly unsatisfactory state of affairs. We pointed out that the result of this approach was that parties whose first language is not English were often relying on unqualified interpreters, or even family members, to explain what is happening in court. Frequently, it appeared that parties tried to manage without interpreters; and with a limited grasp of English, were reluctant to admit in court to their uncertain grasp of what was going on. The fact that in some areas, the Family Court Welfare Service was making significant use of interpreters during the preparation of welfare reports, pointed up the likelihood that this need exists during the court proceedings themselves.
2.67. We further pointed out that in cases involving the lives of children, their interests should be the central concern of all involved. To achieve this, the court must have a responsibility to ensure that its proceedings and outcomes are fully understood. It was not acceptable therefore, to leave the responsibility for interpretation and its quality to the adult parties. This responsibility on the court must be weightier still in public family law proceedings. We stated our belief that arrangements were needed, whereby the Court Service can call on and pay for the use of suitably qualified - and preferably accredited - interpreters where the first language of one or more parties is not English.
2.68. We also pointed out that within the planning for CAFCASS and in consultation on the separate representation of children, there was a widespread acceptance that it was inadequate to rely on the legal aid entitlement of parties to fund expert advice.
2.69. CASC was unable to see the case for distinguishing between the communication needs of the hearing impaired and those of people for whom English is not their first language, especially in the context of the Human Rights Act. Whilst expressing its admiration for the commitment of the Lord Chancellor's Department to improve the standard of public service interpreting in the criminal courts, CASC expressed its strong belief that this commitment should also apply to the family courts.
2.70. CASC recognised that there may need to be a scoping study to identify the costs and practical arrangements required from the extension of the arrangements for the hearing impaired to include parties who need an interpreter. It pointed out, however, that CAFCASS will in any event need to make budgetary provision for the payment of interpreters needed during report preparation, and provision to support the training of competent interpreters in this delicate work. CASC did not believe that the costs of addressing this problem would be prohibitive, and pointed out that given the delays and confusion that can result from inadequate or incorrect interpretation, the efficiency gains that would be achieved by the provision of a professional service may well make it self-funding.
2.71. CASC is pleased to report that whilst the initial response of the Court Service to our enquiries was disappointing, we were advised at our meeting on 15 March 2001 that, on further reflection, the arguments advanced in our letter to the Lord Chancellor were, in principle, accepted by the Court Service. Thus the approach would be on the basis of applying the same principles of service delivery in cases involving language need as is currently in place for those with hearing disabilities. We were also told that work was underway within CAFCASS to establish principles of good practice in the use of interpreters.
2.72. We very much welcome these developments.
2.73. CASC's opinion on this issue was invited by HH Judge Fricker, who had presented a paper on the topic to the York Family Court Business Committee. We were also aware that the issue was being addressed with the various groups preparing for CAFCASS.
2.74. After detailed discussion at several meetings, CASC's views were distilled into a paper on the subject which was approved at our meeting on 15 March. Although the very tight timescale for CAFCASS made it impossible for any of our suggestions to be incorporated within the amendments to the Family Proceedings Rules required for CAFCASS we nonetheless made the paper available to all interested parties within CAFCASS, and a copy of the paper is produced at Annex F.
2.75. In the Annual Report for the year 1999-2000, CASC made a number of points relating to CAFCASS:
we expressed the firm view that the creation of a unified court support service should be an extremely beneficial development;
we considered that there needed to be a clear vision for the future service; that it needed to be more than an administrative 'tidying-up' of existing services; that its objective must be to improve the service to families and children involved in relationship breakdown and family proceedings; that it offered the opportunity, for the first time, to create a coherent and integrated service for such families and children;
we saw CAFCASS as having a range of functions, including the provision of the ongoing training for all staff to which we referred in our report on domestic violence and contact; we saw it as the opportunity to provide children and their parents with a service offering information and advice; as facilitating access to a range of other relevant services, including contact centres, mediation, programmes for victims and perpetrators of domestic violence and abuse, as well as other child and family based services available locally;
we recognised that the purely administrative task of getting CAFCASS up and running by 1 April 2001 was enormous, and expressed our concern that unless the whole range of facilities which CAFCASS could offer is built in to its basic structure, the opportunity to provide those services may be lost;
in relation to contact centres, we made it clear that in our view they would need to be an integral part of the comprehensive court based service for children and families which we envisaged CAFCASS as being. We envisaged that CAFCASS would need to make substantial use of contact centres and that funding will need to be provided to enable this to be done.
2.76. CAFCASS has been on the agenda of every meeting of CASC in 2000 and 2001. We are aware that a vast amount of work has been undertaken by officials and others to get CAFCASS up and running in time. We were, however, left with a strong sense of disappointment when, at our meeting on 15 March 2001, less than three weeks before CAFCASS was due to come into being, we were told that there was no agreement between CAFCASS and the self-employed guardians ad litem over their contracts, and that the guardians ad litem were strongly opposed to a system for the payment of fixed but graduated fees dependent upon the perceived complexity of the case.
2.77. It has to be said that this issue was but the latest in a series of complaints which CASC had received from court welfare officers and guardians ad litem over the lack of firm information until very close to the time when the service was to commence both about the structure of the service and about the terms and conditions of employment.
2.78. We cannot but be critical of the extremely tight timetable which was imposed for the creation of CAFCASS, and which, we understand, was dependent upon the reorganisation of the Probation Service. We find it extraordinary that a development as important as CAFCASS was treated in this way, and we are left with an overriding concern that the aspirations for the service which we expressed in our previous report may have been lost in the rush to ensure that the service is in place by the given date, and that the funding required to meet the aspirations we have for CAFCASS may not be available.
2.79. We have no wish to put in issue the good faith of those officials who have been working so hard to ensure that CAFCASS was up and running on 1 April. It is, however, a matter of considerable regret to us that we will not be in a position to monitor CAFCASS's progress, or to make enquiries into whether or not the aspirations which we have for it are being put in place or not.
2.80. We adhere strongly to the aspirations we have expressed for CAFCASS. In particular, whilst we recognise the need for economy, we regard it as imperative that CAFCASS is properly funded. We also hope that the transfer of the children work of the Official Solicitor into CAFCASS will not mean a diminution of the expertise available in international and other complex cases.
2.81. At a number of its meetings, CASC has considered the provision of services for children and adolescents, and the means whereby such services can be accessed. We regarded these matters as being of considerable importance in the context of the White Paper Reforming the Mental Health Act, which has a short section on children and young people.
2.82. With considerable regret, CASC came to the view that the work it had proposed for itself, namely the use of the Children Act in cases where children either required treatment or where there was an issue about consent was too complex to be completed within the time-scale remaining to CASC.
2.83. At the meeting on 15 March 2001 it was, accordingly, agreed that the Chairman should invite the President's Inter-disciplinary Committee to consider the matter at its next meeting, with a view to taking over the work done by CASC. This invitation has been accepted.
2.84. CASC maintained an overview on the Department's study of the Children Act, and also commented on the Prime Minister's Review of Adoption, making the point from its Children Act perspective that a critical factor was early and coherent planning for children in care, with the plans being regularly reviewed to avoid drift. CASC commented in particular on the need in case of emotional neglect to ensure that early decisions were made on plans for the children, so that in particular children were not allowed to remain long term in abusive or neglectful households with the consequence that when proceedings were taken, the children were so damaged as to be very difficult if not impossible to place.
2.85. Our advice was also sought by the Women's Aid Federation about the possible use of section 91(14) of the Children Act, which allows the court to order that no application for an order under the Act may be made without the leave of the court, as a means of preventing applications to the court by abusive non-residential parents. CASC pointed out that whilst a wide discretion was given to the courts to prevent oppressive repeat applications which were not in the interests of the child, the section could not work prospectively to prevent an initial application, as it only operated "on disposing of an application for an order".
2.86. Other matters, such as the Working Group on Section 41 of the Children Act and Part IV of the Family Law Act 1996 were referred by CASC to the Main Board and are covered elsewhere in this report.
2.87. The Board believes that, whilst CASC has played a useful role since its inception, important issues relating to both Family Law in general and to children in particular fell outside its narrow remit. From its own work and from the work of CASC, the Board is in no doubt that what the Family Justice System requires is a national inter-disciplinary structure, with a central committee and local groups throughout the country, which can address issues arising in every part of the Family Justice System, set standards of good practice and advise on issues of both policy and practice.
2.88. The Board therefore welcomes the Consultation Paper on an Inter-disciplinary structure issued by the Department: it hopes that everybody working within the Family Justice System will respond to it, and urges the Government to put such a structure in place as soon as possible.
Children's Perspectives and Experience of Divorce. ESRC Research Briefing 21, December 2000. Part of the ESRC's research programme on Children 5-16: Growing into the 21st Century.
Ann O Quigley Listening to Children Views: the findings and recommendations of recent research. March 2000