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An Interview with Sir Mark Potter

David Chaplin, publisher of Family Law Week, speaks to Sir Mark Potter, the President of the Family Division, about his views on media access, funding and the voice of the child. The interview took place before the Government's long awaited response to the issue of media access in family courts was published.

I recently had the pleasure of meeting Sir Mark Potter, the President of the Family Division in his chambers at the RCJ. I wanted to discuss his views on some of the issues currently swirling round the family courts and the family justice system at the end of year that has seen high profile campaigns against perceived injustices, undoubted tragedies, celebrity divorces and a continued crunch on Government spending: the latter being a theme that recurred throughout most of our discussion.

We started on the long debated issue of transparency and media access. At the time of my interview, the statement of the Government’s position was overdue and the President could not provide any further news on progress except for a hint in the Queen speech. So I asked him what he would like to see come out of any imminent announcement.

“I think if the media are to attend (which I have long advocated) you need to make clear what the default position is. I consider the media should have a prima facie right to attend but always subject to the judge’s discretion. Any objection should come from one of the parties or, especially given the increase in litigants in person, by the judge of his own motion. However the judge should always give brief reasons as to why the press is being excluded.”

But he was clear that allowing press access would not prevent future miscarriages of justice

“I must say that there has been a misguided suggestion by the press that in some magical way a number of the miscarriages of justice that have occurred would have been avoided.  Of course they would not. The right to report certainly gives the press the right to see whether proceedings are handled fairly. But, if the evidence of an expert witness who is later found to have misled the court, convinces the court at the time, the presence of the press would be unlikely to lead to any different result.

Of course by being present they would be able to see if the judges are doing their jobs properly and I would welcome that as it is my belief that is what judges do. I also find it rather surprising that at least one columnist, who has written articles critical of the judiciary and whose concern ought to be simply with the fairness of the procedures, has declined the opportunity to attend court proceedings when offered”

So should any new initiatives encompass private law proceedings as well?

“The whole rationale for allowing entry of the press is for justice to be seen to be done and to preserve confidence in the justice system. In the private law field where publicity may be damaging to the welfare of the child or where there could be lurid allegations which are only of interest out of prurience, it would be unfortunate to discourage parties from coming to court to litigate genuine differences. In a celebrity dispute an order for anonymity may be self defeating, as everyone would know who is being referred to. In such a case, the judge may decide not to let the press in at all.”

“I do not advocate uncontrolled openness: there must always be a discretion for the judge to control the publicity accorded to private disputes. I do not understand the Government to advocate total openness. They will recognise that the judge must have discretion where it involves the interest of the children or the privacy of the parties to require anonymity or limitation of their reports to certain parts of the proceedings”

We then moved on to an initiative that the President has taken to heart since his appointment, that of getting the voice of the child heard more clearly in court proceedings. Earlier this year he made a well-publicised speech on the matter at Resolution’s inaugural Annual Lecture. This may have raised expectations of some further progress so I asked him what he considered the next step should be.

“The real difficulty is resources. The next step will be, within the resources available to CAFCASS, that there will be greater time and attention devoted not merely to ascertaining the wishes of the child but as to whether contact with the judge may be desirable from the viewpoint of child’s well-being. Any child of suitable age and intelligence may well feel that they would like to speak to the individual who is going to decide their fate.”

He made the point that fears that listening to children would derail and delay proceedings were not likely to be such a significant problem in practice. In his experience most children who are old enough to hold views simply want “the whole thing to go away and just want their parents to agree”. On the other hand where children do express a wish to speak directly to the judge, this should be encouraged, though not at the risk of creating expectations that the child’s wishes will necessarily be observed. What is important though is that the child should hear an explanation from someone either the judge themselves, the CAFCASS officer, their lawyers if they are fortunate enough to have separate representation, or a parent “if they can be trusted” to do this fairly in the eyes of the judge.

But implementing this change of attitude will take time. He harked back to a time 20-30 years ago when it was quite common for judges to talk directly to children in wardship proceedings but admitted that “more than a generation of judges have grown up without that experience.” Many have genuine reservations about their ability to handle such interviews properly and also over the potential for delay it could add to proceedings. Training will be necessary, but the lack of resources will make that difficult. So what should judges do now? I asked.

“All one can do is encourage judges to be much more ready to speak to children, particularly where there is a request from the child, CAFCASS or one of the parties. But no judge should seek to see a child who does not wish to be seen, he must be satisfied that it is a genuine request and they have not been badgered into it by, in particular by the party who has care, who is likely to influence the child’s views.”

So as the initiative develops will it be enshrined in formal Rules or take the form of guidance? At this point Sir Mark pointed me in the direction of the guidelines recently introduced in New Zealand which he summarised as follows:

“The judge shall be entitled to expect that the lawyer for the child will advise the court whether or not the child wishes to meet the judge; that the lawyer will meet the parties and advise the court whether or not they consider that the judge should meet the child; that the lawyer will make his or her own recommendation whether or not the judge should meet the child; and will advise the purpose of any proposed meeting.

The New Zealand guidance goes on to provide that, if the judge decides not to meet the child in any given case, he or she shall record in the judgment the reasons for such decision.  If the judge decides that he or she will meet the child then the judge shall decide the time of the meeting (i.e. prior to or following the hearing): the venue for the meeting (i.e. the judges chambers, the courtroom or elsewhere); whether and how a record of the meeting is to be taken; and how any record of the meeting is to be conveyed to the parties.

It provides that the meeting with the child should take place in the presence of the lawyer for the child and that, before the meeting starts, the judge must make it clear to the child that a record may be taken and conveyed to the parties.

More contentiously, the guidance recognises that in exceptional circumstances there will be occasions when the welfare and best interests of the child may outweigh the requirements of natural justice so that the content of any meeting between the child and the judge may be kept confidential.“

While the New Zealand guidelines envisage that the child is separately represented he sees no reason why this approach should not be adopted here with the role carried out by the relevant CAFCASS officer. He was keen to emphasise that any dispute over the exercise of a judge’s discretion on this point would soon be challenged in the Court of Appeal and “it is important that it should come that way rather than pressure from the President” because it is very much a matter of training and encouragement; change will be “by necessity incremental”. However he believes the decision is very much down to the judges own inclinations. He cited Nick Crichton at Wells Street Court who “simply regards it as part of his daily duties in any case he takes”.

The recurring issues of funding and resources that kept popping up as we talked inevitably led me to ask about the drop in care applications that had been experienced after the rise in fees in April. In his view the reasons for the drop are not “wholly clear” but,

“It cannot necessarily be attributed to the rise in fees though it seems to me inevitable that in some cases it would have an impact on thinking at cash-strapped local authorities. I resist in principle that it is due to the requirements of the PLO but operating together these two factors may have had an influence. What is in fact happening is that local authorities, which may be good or may be bad depending on the arrangements involved, are making increasing use of ‘voluntary’ arrangements under s20 and are also encouraging members of the extended family to make private law applications which are funded and not subject to the fees in care proceedings.”

Equally concerning though is the surge in applications following the uproar over Baby P. It is not clear yet whether this rise is just a spike or is a longer term trend but if it continues it will have

“very serious consequences because the judges are at absolutely full stretch and, where resources are short and there is a reluctance to appoint deputies to relieve the list, it will put additional strain on judges and inevitably lead to greater delays in proceedings”

In all family proceedings?

“Of course, as there is no reduction in the level of private law applications and while priority is given to care proceedings, private law proceedings cannot be ignored which, in their way, particularly where children are involved, can have really harmful effects if the matter is not speedily resolved.”

So has the introduction of the PLO had a beneficial streamlining effect? Although it is early days he felt that there are fewer final hearings because of the introduction of the Issues Resolution Hearing. More cases were now being resolved ahead of a hearing and that must “be a good thing” Where the judiciary are experienced and keen and the conditions suit then he does see real improvements being made. He cited the example of the Merseyside courts where the scheme had been piloted and the HHJ de Haas could deploy her mastery of case management. It also helped that the FPC and the county courts are located under one roof so the “omens seem to be good” where the PLO has been implemented properly.

Importantly he also thinks that the PLO will lead to improvements in pre-action procedures in local authorities. Close liaison with the DCSF over the drafting of the PLO had seen them issue directions about how these cases are best handled: before the PLO, this work was outside the ambit of the court processes. Yet he did not wish this to be seen as a criticism of local authorities who,

“Work under immense pressure and stress and where there is a real crisis of recruitment. Even where there is a near full complement, there is a high turnover of social workers which makes continuity of relationship with families difficult. I would associate myself with all those people who say that, whatever the tragic circumstances of the Baby P case, the last thing we should do is pillory the social services who do a fantastic job under great pressure.”

“The same goes for CAFCASS. They are the organisation where for the least extra money the most good could be done to oil the wheels of the system. But again they have recruitment problems and additional responsibilities are being thrust upon them. In many areas reports in private law are taking far longer than they should but I would not criticise the overall organisation. Indeed I would like to pay tribute to the extraordinary work of Anthony Douglas as head of CAFCASS in extremely difficult circumstances.”

Of course, one of the new responsibilities thrust on CAFCASS is their role in contact cases under the Adoption and Children Act 2006. Those provisions came into effect on 8 December. But when did he think that new orders would start to bite? On this he sounded a note of caution. Of course “judges are naturally enthusiastic to use the new powers” and though they were originally conceived as a method to ensure contact enforcement, usually against recalcitrant mothers, contact activities can be directed at a much earlier stage. However he shared some of the professions concerns that the groundwork for providing contact activities has not yet been laid, a fact acknowledged by CAFCASS. Therefore, “judges will need to consult closely with CAFCASS officers on the facilities available before making their orders – a rush would lead to intolerable strains.”

At which point he returned to the theme of the day: the continuing financial constraints and demands place on the family justice system and the family courts. He described a large part of his role as “just resisting cutbacks”. HMCS is down to the bone and that is already causing delays, though the staff particularly in the family courts are tremendously enthusiastic and “keep the whole edifice from tottering”. Adding to these stresses is the increasingly regular appearance of litigants in person. In his off the cuff estimate 18 months ago 2 out of 8 summonses at the PRFD would have been LIPs but that figure has probably now doubled. More judge days are needed but whereas in the past regional directors could find resources to pull in deputies to reduce delays that is no longer the case.

On a more positive note, when asked what has surprised him about his transfer from the civil to the family courts he said that it is that

“the level of idealism and industry generally shown by those involved in this work, including the child lawyers, in a field where insufficient resources underpin the child care system are little short of miraculous.”  

Many, I am sure, would agree.


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