CONTENTS

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Editorial: Teenagers: Are ASBOs The Answer?

Commencement Of The New Lay Magistracy In Northern Ireland

The Rt Honourable Sir Brian Kerr, Lord Chief Justice

Northern Ireland Lay Magistrate’s Association’s AGM

Marguerite Faulkner Vice President

NI Lay Magistrate’s Association’s AGM Chairman’s Report 2004-2005

Loraine Young

Human Rights In The Youth Courts

The Rt. Hon. The Lord Clyde

Current Developments In Youth Justice And Restorative Justice in NI

His Honour Judge David Smyth

Chief Justice Woolf Calls for New Approach to Law and Order

Nick Davies

Balancing Human Rights In Contact Disputes

Mr Justice Gillen, Head of the Family Division in NI

Child Contact And Domestic Violence: Issues From Research

Professor Monica Mc Williams

Why I Became a Lay Magistrate

John McCartney

Stop Violence Against Children

Ljubljana Resolutions

President : The Lord Chancellor

Vice President : Mrs Marguerite Faulkner, MBE, JP

Chairman : Mrs Lorraine Young, JP

Hon Sec : Mr Samuel Brian Rea, MBE, JP

Hon Treasurer : Mrs Marie Rooney-Woods, JP

Magazine Editor : Dr W. G. McCarney, OBE, JP

Published by the N. I. Lay Magistrates’ Association,

Belfast Magistrates’ Court, Chichester St.,

Belfast BT1 3JB

Anyone familiar with social history knows that teenagers have been complained about in every era. Today’s moral panic is hooded teenagers, or what the media prefers to call “hoodie-wearing feral yobs who swear and spit their way around the country”. These “street rats” wear hooded tops and baseball caps. They are mainly boys, but girls tag along. They aren’t into serious crime – perhaps graffiti or stealing garden gnomes. The behaviour which causes offence is noisily hanging around street corners, drinking and harassing passers-by, or congregating at the entrance to shopping malls.

Tony Blair tells us that people are “rightly fed up with street corner and shopping centre thugs” and promises to make restoration of respect a priority for his government. He has appointed a “Minister of Anti-Social Behaviour” to make sure this is given priority.

Anti-social behaviour is offensive, but not necessarily offending, behaviour. There is little doubt that it is an urban blight which seriously erodes the quality of life of ordinary citizens in many countries. Anti-social behaviour and low-level crime constitutes a serious nuisance to ordinary members of the community and the State has an obligation to protect society from the rogue behaviour of hoodlums and vandals.

Mr Blair obviously struck a cord with the general public when he introduced Anti-Social Behaviour Orders (ASBOs). 200 ASBOs were awarded in 1999-2000. In 2004, 2,600 ASBOs were made in the first 9 months alone.

A Mori poll, released on June 9 (2005) indicates widespread support for ASBOs amongst the general population. The reason for their popularity is that the Government has made them as easy as possible to obtain and open to as many actors as possible to request. Proceedings are drawn up in such a way as to permit a range of behaviour that is merely disapproved off (even by only very few people) to be brought within their scope. The police, Local Authorities and other empowered actors are under considerable pressure to apply for ASBOs, both from central government and from inconvenienced members of the local community. This pressure applies equally to magistrates to grant them. The ease of obtaining ASBOs is reflected in the fact that of the 3,069 ASBO applications made between 1 April 1999 and 30 June 2004, only 42 were turned down by the courts.

An application for an ASBO can be made to a magistrate by the police, local authorities, housing action trusts and registered social landlords on their own initiative or on the request of members of the local community.

Consideration is currently being given to allowing individuals, or groups of individuals, to apply for ASBOs directly or to bring proceedings for an offence in respect of a breach. This new development is a matter of serious concern. The potential for human rights abuses, vexatious litigation and the wasting of court time is great.

Where the magistrate is satisfied, on the balance of probabilities, that an individual has been engaged in “behaviour which causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator”^[2], he may prohibit the behaviour in question or the individual from entering a specified geographical area.

Some ASBOs appear to invite inevitable breach. For example, a 16-year-old has been given an ASBO which bans him from leaving his home for the next two years without being escorted by his mother. This is particularly disturbing as the breach of an order is a criminal offence and the penalty is up to five years in prison.

The latest statistics show that 42% of ASBOs are breached and 55% of breaches lead to a custodial sentence. Mr Alvaro Gil-Robles, European Commissioner For Human Rights, in his report of 8 June 2005 (CommDH(2005)6) comments “It seems to me that detention following the breach of an ASBO drawn up in such a way as to make its breach almost inevitable (such as not entering a demarcated zone near one’s residence), and which was applied on the basis of hearsay evidence in respect of non-criminal behaviour, would almost certainly constitute a violation of Article 5^[3] of the ECHR”.

Civil orders designed to protect an identifiable person or group of persons from clearly specifiable behaviour on the part of another have existed for some time. Restraining orders, for example, preventing a given individual from approaching another, exist to protect victims of domestic violence from further abuse. Civil injunctions may also be sought in most countries against such nuisances as excessive noise or harassment by neighbours. What is so striking, however, about the multiplication of civil orders in the United Kingdom, is the fact that the orders are intended to protect not just specific individuals, but entire communities. This inevitably results in a very broad, and occasionally, excessive range of behaviour falling within their scope as the determination of what constitutes anti-social behaviour becomes conditional on the subjective views of any given collective.

ASBOs blur the boundaries between the civil and criminal justice systems. While the behaviour which attracts an ASBO is non-criminal, breaches are punishable by up to 5 years in prison – an extremely heavy punishment for behaviour that is not recognisably criminal in the first instance.

Despite being a civil order the House of Lords has confirmed that the standard of proof applicable for the determination of anti-social behaviour is the criminal standard of proof – i.e. beyond reasonable doubt. However, the same judgment goes on to say that, as the proceedings are civil for the purposes of domestic law, hearsay evidence is admissible. It appears to me that the use of hearsay evidence in circumstances where conviction has such severe consequences could be in breach of Art 6^[4] of the ECHR.

Before seeking an ASBO many local authorities will draft an “Acceptable Behaviour Contract” (an ABC) and invite a young person to sign it in the presence of his/her parents. While this is a purely voluntary agreement there is concern that undue pressure may be brought to bear on the child to consent to an ABC without full appreciation that a breach of the contract could ultimately lead to a conviction. The child may not be aware that failure to keep to the terms of this voluntary contract may be used in evidence against him in a subsequent application for an ASBO. There is no provision for a legal representative or advocate to be present. There is clearly an evidential issue should failure to keep the contract be used in evidence to potentially incur criminal liability. Again this would appear to be in breach of Art 6.

The Home Office guidelines for the awarding of ASBOs encourage a wide-range of measures to notify local residents of the serving of ASBOs on members of the community, which include the distribution of leaflets containing photos of the young person. A recent court ruling concerning the publicity of ASBOs requested by Brent County Council has recognised that the broad notification of local residents is essential to the ASBO system and would not, as a general rule, violate the right to respect for private and family life guaranteed by Article 8^[5] of the ECHR. None-the-less, the aggressive publication of ASBOs, through, for instance the doorstep distribution of leaflets containing photos and addresses of children subject to ASBOs impacts not only on the child concerned but on the family as a whole. In my view, such indiscriminate naming and shaming could well be a violation of Article 8.

The lifting of reporting restrictions which present child protection issues in England and Wales has the potential within the Northern Ireland context to identify a child to non state players raising particular child protection issues for this jurisdiction. Should paramilitary groups choose to become involved on the basis of information supplied by the courts the potential exists for breaches of Art 2^[6] and Art 3^[7].

Much concern has been expressed in recent years about the activities of paramilitaries in “policing” areas of Northern Ireland where the PSNI (Police Service for Northern Ireland) are not acceptable to the local community. One punishment handed out by paramilitary groups has been the exclusion of children and young persons from areas where they live. The British Government has roundly condemned such activities. And yet we find that Magistrates are empowered under ASBO legislation to do precisely the same thing in England and Wales as well as in Northern Ireland. It is difficult to see how it can be a breach of Art 8 in the first instance but not in the second.

The situation in Northern Ireland is even more fraught because of the segregated nature of our society. If a child is excluded from a particular area the options as to where s/he can reside may lead to his moving to an area a considerable distance from his family which again would interfere with his Art 8 Right to Family Life.

Particular concerns arise in respect of the application of ASBOs to children. ASBOs can be served on children as young as 10 in England and Wales and Northern Ireland, and 12 in Scotland. These orders were intended to deal with seriously and repetitively troublesome youths. They appear to be particularly inappropriate for young children who are causing hassle. Children under 16 can not be detained for breaching ASBOs in Scotland. Gil-Robles recommends that this rule should be applied also in England and Wales and in Northern Ireland.

The United Kingdom has amongst the highest rates of juvenile detention in Western Europe. The number of 15 to 17 years olds detained (in prisons) on 30 June 1995 was 1,675, rising to 2,479 on the same date in 1997. On 31 December 2004 the corresponding figure stood at 2,169. An equivalent pattern obtains for young offenders (between the ages of 18 and 20); on 30 June 1995, 5,872 were detained, rising to 7,684 on the same date in 1997 and standing at 8,073 on the last day of last year.

ASBO breaches have resulted in large numbers of children being detained – 46% of young people received immediate custody upon conviction for breach. The chair of the Youth Justice Board has conceded that the rise in the young offender population in custody in 2004 resulted mainly from breaches of anti-social behaviour orders. Given the high reconviction rates for detained juvenile offenders, a likely outcome is that the detention of juveniles for non-criminal behaviour will lead to more serious offending on release. Art 37 of the CRC makes it clear that the detention of children should be a last resort. Detaining children for activity that is not itself criminal cannot be justified.

The proposed provision of ASBOs on conviction is a disturbing new development as this would represent a double jeopardy. If a child has received a determination in respect of a criminal offence to then impose an ASBO is to doubly punish the child in a criminal court for something that is not a crime, using civil standards of proof, hearsay evidence and professional witnesses.

The excessive use of ASBOs is more likely to exacerbate anti-social behaviour and crime amongst youths than effectively prevent it. Juvenile trouble-makers are too rapidly drawn into the criminal justice system and young offenders too readily placed in detention, when greater attention to alternative forms of supervision and targeted early intervention would more effectively straighten the errant, rehabilitate the convicted and consequently reduce youth crime.

A wide range of alternatives already exists. The adoption of the Crime and Disorder Act and the establishment of the supervisory Youth Justice Board in England and Wales in 1998, underlined the importance of holistically addressing all aspects of juvenile disorder and offending. The creation of Youth Offending Teams, composed of representatives from the police, Probation Service and a wide range of social services, enabled intervention to be targeted towards young offenders more effectively. Social welfare reforms introduced a wide range of programmes intended to address the differing needs of deprived children of different ages for example, ‘Sure Start’, ‘Connections’, the ‘Children’s Fund’, ‘Youth Inclusion Programmes’, ‘Positive Action for Young People’. Priority was also given to reducing the numbers of juveniles and young offenders in detention. A range of alternative community sentences was introduced including Supervision Orders, Community Rehabilitation and Punishment Orders.

Unfortunately, according to Gil-Robles: “these welcome initiatives have been significantly undermined by the introduction of a series of civil orders aimed at reducing urban nuisance, but whose primary effect has been to bring a whole range of persons, predominantly the young, within the scope of the criminal justice system and, often enough, behind bars without necessarily having committed a recognisable criminal offence”.

I do not wish to imply that ASBOs should never be used. I agree with Gil-Robles who suggests that well-drafted orders, prohibiting clearly proven and seriously vexatious behaviour, accompanied by appropriate assistance and supervision may well usefully protect citizens from activity that gravely prejudices their welfare, but which falls outside the scope of effective criminal prosecution. Unfortunately many ASBO’s fail to satisfy these requirements. The problems are not necessarily inherent in ASBOs themselves. Rather they appear to lie in the fact that the State has empowered local residents to take matters into their own hands.

The media has convinced most people that youth crime is rising and that something must be done to combat it. The reality is that youth crime is falling. The number of 10-to-17-year-olds convicted or cautioned fell from 143,600 to 105,700 between 1992 and 2002, a drop of almost 26%. The consequences of introducing ASBOs has been to greatly increase the number of young people in custody at a time when it should have been going down.

In 2001 the Government’s Social Exclusion Unit (SEU) appointed five civil servants to work full time for nine months, trawling through statistics and research, visiting prisons, interviewing experts, talking to officials in government departments, all in search of an answer on how best to reduce reoffending by ex-prisoners. They published their report in July 2002. The SEU found that released prisoners were streaming unchanged out of custody and committing something like 1m offences a year and that these offenders alone were costing at least £11bn a year plus the value of the items stolen or damaged. In summary the SEU’s conclusions were:

a) Prison sentences are not succeeding in turning the majority of offenders away from crime.

b) A prison sentence can - and frequently does - make things worse.

c) The real key to reducing offending is to attack its causes. Homelessness, unemployment, drug and alcohol problems, mental health problems, physical health problems, educational problems - these are the seeds from which crime grows, seeds which are fertilised by the impact of imprisonment.

These conclusions were backed by irresistible evidence, supported by seven different government departments which had been consulted, and delivered direct to the Prime Minister, who duly welcomed them as “a significant contribution to our understanding of what works in combating crime”. This was a chance finally for the criminal justice system to start to make a difference. Unfortunately at that time the Prime Minister was preoccupied dealing with “street corner and shopping centre thugs” and the report was shelved.

We know what works in combating crime. ASBOs are not the answer. The ease of obtaining such orders, the broad range of prohibited behaviour, the publicity surrounding their imposition and the serious consequences of breach all give cause for concern.

ASBOs breach international human rights standards, including the UNCRC, the Beijing Rules, The Riyadh Guidelines and the ECHR. It is questionable whether they ultimately serve to protect the public from persistent unruly behaviour. It is certain that they criminalise young people for behaviour which is not criminal.

The CRC determines, and best practice shows, that custody should only be used as a last resort for juveniles and for the shortest period necessary. The one sure outcome of locking up children is the creation of more adult career criminals.

Willie McCarney, Editor

Ladies and gentlemen, I am delighted to have the chance to hold this reception to mark the establishment of the lay magistracy in Northern Ireland and to welcome you all to one of the flagship buildings where much of the work in the field of criminal justice is transacted. It is, I hope you will agree, a fine building and one with which many of you will become familiar in your judicial careers. I say judicial career because although you will not be professional judges, you will nevertheless be an integral part of the judicial process and therefore the importance of the task that you have embarked upon is impossible to overestimate.

The recruitment campaign that led to your appointment had a central and critical objective. It was to secure and increase lay involvement in the administration of justice in Northern Ireland. The greater participation of lay members of our community in the delivery of justice services to the public is a worthy, indeed laudable goal and it is one which I am happy to encourage and recognise.

Of course, lay involvement in the justice system is not new. The office of lay magistrate, first mooted by the Criminal Justice Review, and given legal existence by the Justice (Northern Ireland) Act 2002, is effectively an amalgam of two earlier offices, the Justice of the Peace and the Lay Panellist. Their steadfast work over many years provides an exemplar of the invaluable contribution that can be made by lay participation. It would be remiss of me to fail to take this opportunity to extend my thanks to all those who have served as Lay Panellists, many of whom, I am happy to say, have made the transition to Lay Magistrate. And I would like to thank the Justices of the Peace, who now continue in office, albeit in a changed role, for the sterling contribution that they have made to the legal life of this community over many years.

But, although the existence of the posts of JP and lay panellist provide some precedent for it, the creation of the new office of lay magistrate has provided an unmatched opportunity for local people to become more involved with the work of the courts in their community. Through Lay Magistrates an important link will be forged between the courts and local areas.

It is the hope of the Government, a hope that I unreservedly share, that public confidence in the justice system will be further enhanced by this important development.

The question put to the people of Northern Ireland last May, at the launch of the recruitment campaign, simply asked “Can you picture yourself as a Lay Magistrate?” The response was remarkable. Many members of our community clearly could envisage themselves performing that role. Over 5000 applications for appointment were received from people from all backgrounds and walks of life, demonstrating an exceptionally high level of interest in this new judicial post. This is testament to the sense of civic duty that so many people in our community feel. And, as I have said, that sense of duty is clearly felt throughout our community. I am pleased to say that that diversity is reflected in the [270] plus successful candidates who were appointed on merit after vigorous sifting, testing and interviewing. You come from all walks of life and from all sections of the community and that can only be good for the future of criminal justice in Northern Ireland.

Now, many of those appointed have already completed, what I know was, a rigorous training course provided by the Judicial Studies Board, introducing them to the work of the Family and Youth Courts and instructing them on their summons and warrant powers. Training for the judiciary, however, is a never ending journey. Even Chief Justices have to continue to learn. The JSB, as well as producing the best lay magistrates in Western Europe, aim to educate incumbent judges on the latest developments in law of which, I assure you, there are many. If they do as well with the judges as they have done with you, we will all have reason to be grateful.

Of course, the institution of the lay magistracy could not have been realised without the very significant efforts of many people. I will refer to a number, at the risk, as always on such occasions, of missing some. In the Northern Ireland Court Service in particular I would like to recognise the important contributions of the Director, the Management Board, the Judicial Appointments Unit, the Lay Magistrate Project Board and the Judicial Studies Board. I would also like to thank the Lay Panel Training Committee and those many speakers, too numerous to name, who have played such an important part in the induction of the new Lay Magistrates.

Finally, two things. First I want to mention that I will shortly be launching a process to find a Lay Magistrate to join the Judicial Appointments Commission. If you have a particular interest I would encourage you to apply for this – though there is only one post! Second, I want to remind all Lay Magistrates that they are there to ensure, to assist in the process to secure, that justice is done and seen to be done. The Resident Magistrates will, of course, guide you, but you have an important role to play, in considering the different aspects of a case including the facts, the position of the victim, of witnesses and, yes, of the accused. It can be a difficult task but I have no doubt that you can do it.

It is my great pleasure to congratulate you on your appointment and to wish you well in your new and challenging posts.

Thank you all for attending today.

Ladies and gentlemen may I extend a very warm welcome to you all today for the Annual General Meeting of The Northern Ireland Lay Magistrates’ Association. It is wonderful to see so many of you here.

Over the years our Association has seen many changes but perhaps during the past year it has experienced the biggest one to date. In its simplest form we have now become Lay Magistrates which basically is an amalgam of a Lay Panellist and a Justice of the Peace. However, as with all changes, things are never that simple.

You are all aware the Belfast Agreement of 1998 provided for a review of the Criminal Justice System in Northern Ireland. It was agreed there should be an open and transparent Justice system with one of the recommendations to increase the involvement of Lay People. This has been incorporated into the Justice (Northern Ireland) Act 2002 which in turn provided for the creation of the office of Lay Magistrate.

In fact just over a year ago on the 23^rd April 2004 the Lay Magistrates (Eligibility) Order 2004 successfully passed through The House of Lords giving Brian Sinnamon and his team from Judicial Appointments along with Pricewaterhouse Coopers (PWC) the green light to begin the recruitment and selection programme. Along with some of my colleagues I attended the launch of this recruitment campaign by Lord Filkin on the 14^th of May 2004.

At this point I would like to thank Brian and his team for keeping us up to speed with each development as it occurred and for taking the time to meet with our sub committee of Brian Rea, Jimmy McClean, Jill Quinn, Janet Leckey and myself on a regular basis.

The recruitment and selection of new Lay Magistrates has been a major and unprecedented exercise for the Northern Ireland Court Service and attracted huge public interest with over 22,000 expressions of interest and more than 5,000 applications. So, may I congratulate all 163 new appointees on your success in a most rigorous appointment procedure.

I would also like to pay tribute to those 109 transferring Lay Panellists for their dedication and commitment given on an entirely voluntary basis over many years and who bring a vast amount of experience with them. I must say I am really looking forward to working alongside my new colleagues and feel excited at the prospect of being part of the largest Judicial body within the Court System in Northern Ireland.

Now, moving onto training: as you know all Lay Magistrate training is planned and organised through the Lay Magistrates’ Training Committee, for which the Judicial Studies Board provides the Secretariat. I am delighted to say that our Training Committee has to have an excellent working relationship with Judicial Studies Board and it continues to go from strength to strength.

It cannot have escaped your notice that there have been an exceptional number of training events over recent months. - so please bear with me while I give you an overview of just exactly what has been going on – Gosh, it makes me feel tired just thinking about it!

Planning for Lay Magistrate Induction Training actually began 3 years ago and has 4 key stages to the project.

Firstly, training needs were analysed in order to ascertain the details of the actual training required. This involved researching training delivered to Lay Magistrates in England and Wales and setting up a Working Group in Northern Ireland.

Secondly, a lot of work was carried out in designing the format of various training events. This involved consulting with speakers, planning meetings with facilitators and purchasing venues within budgetary constraints.

Thirdly, we came to the delivery of training.

Training for transferring Lay Magistrates took place in November and December 2004. It covered summonses/warrants, diversity and human rights.

Training for the newly appointed Lay Magistrates commenced on the 4^th January 2005 and finished at the end of April. You may be surprised to hear that we are talking about a total of 160 events which included training days, Court Observations etc. In addition to my own training I attended each of the Youth Court Training events held in the Everglades and the Culloden hotels where I had the pleasure of meeting many you here today for the first time. I hope you found it informative and rewarding.

The evaluation and feedback of those events is still ongoing but so far the signs are positive. There will be a second, post sitting evaluation stage in approximately 3 months time.

The vast majority of this work was done by Brian Sherrard’s team comprising Joanne Flood, Louise Mehaffey and Cathy Murphy.

I really don’t know how they managed to cope with such a workload. It is a testament to their professionalism that they were able to complete all their responsibilities on time and always with good humour. Thanks very much to you all. In particular Joanne, I would like to thank you for being a listening ear and for putting up with all my phone calls.

Now I have not quite finished just yet with Judicial Studies Board. I would also like to congratulate Terence Dunlop for producing the Lay Magistrates’ manual. It clearly and concisely underpins all of our training and is an extremely useful reference tool enabling us to carry out our duties to a high standard.

The manual is quite clear concerning the role of the Lay Magistrate when it states, and I quote “Lay Magistrates bring an invaluable fund of life experience from a diverse range of backgrounds.” In fact The Right Honourable Lord Justice Campbell in the forward states “Lay Magistrates are, by definition, not lawyers and the induction training will not seek to turn them into lawyers, but will recognise that their role is different.” With this in mind I am sure we all look forward to building upon the excellent relationships which exist between our Association members and the Resident Magistrates.

You will all appreciate that it is still early days for everybody and I ask you all to exercise a degree of patience. It is going to take time for the Resident Magistrates to get used to so many new faces.

The Lay Magistrate Liasion Officers have to juggle with much larger numbers in organising rotas, so it is inevitable that there will be teething problems.

For example, it was anticipated that 17 year-olds would be brought within the ambit of the Youth Court in April but this has been delayed and hopefully will be resolved by the summer.

Be rest assured however, your Executive will be keeping a close eye on all these matters and would wish to receive regular feedback through the Chairs of each Division. In any event it is also anticipated that you will all be sent a questionnaire from the Executive in about six months time and we hope you will all complete it as we perceive it to be the best way of determining how all the new systems are progressing

During the past year Judicial Studies Board provided for some members to attend various seminars and conferences. In particular:

In November 2004 Janet Leckey went to the Glenavana Hotel and attended a Restorative Justice Conference titled - The Next Decade.

Also in November Eleanor O’Neill attended The Women’s Aid Conference in the Ramada. This conference was called “Why Doesn’t She Just Leave?” Eleanor continues to be very active with Children Law UK – They meet quarterly and she has been vice chair for the past three years.

Deidre Kennedy also attended a conference in November which was hosted by The Bar Council and The Law Society of Northern Ireland. It was titled Children’s Rights – Moving On.

In March of this year Deidre also went to a seminar run by The Law Department of Queens University - Youth Justice in Transition.

I attended a Children Law UK Conference last November in London. It was chaired by The Rt Hon Dame Elizabeth Butler-Sloss. The topic was, Contact Today – The Challenge of Parental Separation. It was rather ironic that the conference was interrupted by a demonstration by Fathers 4 Justice just as John Baker, of Families Need Fathers was addressing us.

Copies of these reports are available from Judicial Studies Library. I would also like to say that Judicial Studies Board will be launching a website in the near future which will provide a portal specifically for Lay Magistrates providing access to relevant legislation, publications and training materials.

In addition to my committee and sub committee meetings, of which there were many, I also attended The Youth Justice Agency, Strategic Planning Presentation in March 2005.

We all have attended the Swearing In Ceremonies at our local courts and I am sure you wish to join me in thanking all those court staff involved in making it a memorable day for everyone.

On the 8^th April 2005 The Lord Chief Justice, The Right Honourable Sir Brian Kerr hosted a reception for us all at Laganside Courts. Unfortunately I was unable to attend. I have been informed it was a very pleasant event and on your behalf I would like to thank Court Service for taking the time to organise it.

No Chairman’s report would complete without an update on our esteemed member, Dr Willie McCarney, OBE. He is President of The International Association of Youth and Family Judges and Magistrates, and what a busy year he appears to have had, so fasten your seat belts while I take you on a world tour. Dr. Willie travelled to Brazil, Canada, India, Lithuania, Russia, Singapore, South Africa, Sweden, Switzerland and the USA - it is very nice to see you here today Dr Willie.

In particular there are two projects I would like to mention in which he is involved.

Firstly, Dr Willie was invited to Russia where there are no separate courts for juveniles. The Vice-President of the Russian Children’s Fund and a group of Judges are trying to set up a pilot Juvenile Court in Ivanovo. He also met with among others the State Governor, Chief Justice, and President Putin’s representative. The response was very positive, but ongoing civil unrest including the attack on the school in Beslan diverted attention elsewhere.

Also, Dr Willie has been working with the University of the Western Cape as a consultant identifying “best practice” examples pertaining to a number of child justice issues.

In Cape Town in the company of Mr Justice Gillan, Dr Willie was promoting the World Congress of which he is President. It will be held in Belfast from 27th August to 1st September 2006 next. This will be a major international conference with some 500 – 600 delegates from around the world. Our Association will continue to lobby for a number of members to attend and will keep you posted.

As recently as Thursday of this week I attended my first Children Order Advisory Committee (COAC) meeting. This committee is chaired by The Honourable Mr Justice Gillen. He paid tribute to the Lay contribution to this committee by our immediate past Chairman Mr Norman Humes – so thank you Norman for representing our Association so well.

At this juncture I would like to thank Mr Jim Currie for his contributions to the Training committee prior to his retirement as a Lay Panellist last November. He does however continue as Chair of the Guardian ad Litem Agency which will keep him busy and we wish him a long and healthy retirement as a member of the Association

This year Mrs Jill Quinn from the Belfast Division and Mrs Evelyn McKinley from the Antrim Division completed their terms of office on the Executive Committee. They have been a great support to me over the past year which saw many changes but we must not forget the valuable contributions both Jill and Evelyn made in previous years as members of the executive. Many thanks to both of you.

Before I finish I must sincerely thank all my trusty lieutenants who have acted above and beyond the call of duty. I refer of course to all the members of both the Training and Executive Committees.

I would like to specifically mention The Honorary Secretary Brian Rea, OBE and The Honorary Treasurer Mrs Marie Rooney-Woods who had to deal with an exceptional workload this year. They gave of their time without complaint and without their dedication my first year as Chairman would not have run so smoothly. Many, many thanks Brian and Marie.

Finally, last but by no means least I really want to thank my right hand woman Mrs Janet Leckey who, as Vice Chairman deputised for me on occasions, sometimes at very short notice. I could not have wished for a more supportive colleague who received emails and telephone calls from me at all hours of the day and night. Thank you Janet.

That, Ladies and Gentlemen you will be relieved to hear concludes my Chairman’s Report for the year 2004 - 2005

Before sitting I will take any relevant questions regarding this report.

Thank you.

Lorraine Young, Chairman

7^th May 2005

Essentially human rights is a subject to be studied in the context of particular situations and not as an abstract topic in isolation. The courts, and the youth courts in particular, provide one such particular situation.

Four general considerations may be made at the outset.

Discussion of human rights is often related to the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, as contained in the Human Rights Act 1998. But there are a variety of other conventions which should also be taken into account, for example:

The United Nations Convention on the Rights of the Child – see in particular Article 40(2)(b)(iii),

The International Covenant on Civil and Political Rights,

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”).

It may be noted that much of what is to be found in the Conventions is reflected in the detailed Guidelines which have been prepared for the operation and layout of the Youth Courts.

The European Convention is over 50 years old. Over that period the ideas, attitudes and standards of society have been undergoing some changes. The interpretation of the Convention rights has developed. What was acceptable in 1950 may not be now. So it may not be good enough to adopt a practice simply because things have always been done that way. One has now to be conscious of the developing rights and ensure that they are being respected.

While much of human rights is common to all courts, the management of young people in court calls for a particular sensitivity. It was recognised in the well-known case of T & V v UK 1999 30 EHRR 121 that it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity, intellectual and emotional capacities and that steps be taken to promote his ability to understand and participate in the proceedings. If the child is so overwhelmed and emotionally distressed that he cannot participate it will not be a fair trial. While T & V was an extreme case the principle of avoiding intimidation and achieving an appropriate degree of informality remains applicable in all cases.

Justice must not only be done but must manifestly and undoubtedly be seen to be done. The appearance may be as important as the reality. Account must then be taken of the young person’s perspective. If a young person is entitled to a fair hearing it should not only be fair but should be seen to be fair.

The rights which may arise in relation to the work of the youth courts may include such things as the right to education and the right to privacy and family life. The present concern is with matters of procedure and here Article 6 of the European Convention is critical. That Article deals with the determination of any criminal charge against a person and it applies to the whole process of the determination of a charge before the youth court. Its various elements may be explored separately.

The determination must be made by an independent and impartial tribunal established by law.

The youth court is established by law and the appointment of its members has been by a process designed to secure independence. What may occur as a problem is the matter of individual impartiality. There is of course not likely to be any actual bias. But the appearance of bias has to be guarded against. For example, however impartial a member of the bench actually and consciously is, problems may occur if it is known or discovered that he or she is related to one of the parties, or has personal knowledge of the accused, or of the particular case. Anything which might give the impression of a closed mind, such as a premature expression of a view of the case, or language evidently hostile to one side, may suggest a partiality. Comments on the case outside the court room in the hearing of third parties may also be dangerous.

The hearing must be in public unless where the interests of juveniles or other good reason requires exclusion. This point is developed in the Guidelines and in Article 27(4) of the Criminal Justice (Children) (Northern Ireland) Order 1998. Careful consideration should be given to the question whom the court should in terms of the Guidelines authorise to be present. Should persons waiting for other cases be allowed to be present? One should be aware of the danger of allowing people to come and go, creating a risk of distraction for the young person.

The hearing must be fair. This covers a number of considerations, including the following:

(a) Before the hearing:

The young person must have notice of the charge (Art. 6(3)(a)), time to prepare (Art. 6(3)(b)), and notice of the hearing.

(b) Representation

The young person is entitled to be represented. See Art. 6(3)(c)

The layout of the courtroom should not be too confrontational or oppressive. Note the Guidelines on the level of the bench. The young person should be able to see and be seen, as well as hear and be heard.

(d) Ability to understand

The young person must be able to know and understand what is happening. See the Beijing Rules 7.1. People must speak loudly enough for him to hear and use simple language. See the Guidelines. Consideration may have to be given to the need for an interpreter (see Article 6(3)(e)). The young person must not be isolated or marginalised.

(e) Participation

The young person must be able to participate. This point is developed in the Guidelines. See also the Beijing Rules 14.2. and Article 6(3)(d). His representative may often efficiently conduct the case for him but the opportunity for the young person to participate should not be lost.

(f) Conduct of the Bench

All those who give the decision must have heard the whole case and not just part of it. They must hear both sides equally and decide the case on the material put before them. The responsibility for making the decision is not something which can be shared with any third party, so it may not be discussed with outsiders, and each member of the bench should be able to express his or her individual view in the process of decision-making.

(g) The determination must be made within a reasonable time.

For delay to be fatal to the proceedings it must be such as to give rise to a real concern. The matter depends much on the circumstances of the case. But justice delayed is justice denied and criminal cases must be handled as expeditiously as possible. See the Beijing Rules 20.1. It may be that advantage can be taken of every possible increase in the frequency of sittings. A robust attitude may usefully be adopted to any attempts to procrastinate without sound reason. Delays and postponements may develop into a culture but once it is known that a court is intolerant of delay a remarkably improved system may be achieved.

The following is intended to give a short picture of the way the concept of restorative justice has developed in Northern Ireland and of the present position as regards “youth conferencing” here and of the current status of community initiatives in restorative justice. The phrase restorative justice is used in default of any better description and appended to this is an outline of the fundamental concepts of this as developed in America. The development of the idea of “group conferencing” in New Zealand has however some differences and it will be seen that this has greatly influenced developments here.

History

In 1994 the Ulster Quaker Public Service Committee hosted a conference at Porballentrae on restorative justice. It was chaired by Mary McAleese who then headed the Institute of Legal Professional Studies at Queens. This was attended by persons invited from a wide range of statutory and community groupings who were perceived to be interested in developing this concept here.

After this the UQPSC set up the Restorative Justice Working Group. Initially this attracted membership from the “statutory” sector (such as the judiciary, probation, the office of the DPP and police), from non-governmental groups such as the NSPCC and Extern and also representatives of local community projects (such as the loyalist Greater Shankill Alternatives and the republican Restorative Justice Consortium).

Very quickly the attendance of the representatives of the local community groups fell away. In part this was due to a feeling that the RJWG was too “establishment” orientated to be useful to community groups. Partly it was because of political pressures and worries on the part of all concerned and partly because of the human rights worries of some of the members.

Despite the attempt to use the offices of the Mediation Network to address these difficulties nothing happened that brought the community representatives back. Informal contacts were however maintained with both. A measure of the difficulties involved can be gained from the past records of some of those most interested in both groupings but particularly on the republican side.

This essentially ad hoc group regularly met and attempted to promote the concept here. It sponsored talks and visits and attempted to interest those who were concerned in criminal justice. Persons who were principally involved were Professor Harry Mika and Howard Zehr. The RJWG published a paper entitled “Proposals for Restorative Justice in Northern Ireland” and concluded that properly targeted restorative justice initiatives had an important role to play alongside the existing criminal justice system and that this would bring a benefit to victims, offenders and to the community.

After a visit to the RJWG by Murray Power of the Criminal Justice Policy Division of the Northern Ireland Office the NIO set up a Restorative Justice Steering Group to develop practical proposals through the development of existing laws and projects and through piloting appropriate projects.

In 1997, the NIO promoted a Criminal Justice Conference one of whose themes was Restorative Justice addressed by academics, judges and probation officers and policemen. The RUC commenced a pilot project in East Belfast based at Strandtown using the concept of “caution plus” and that attempted to have involvement of victims. The NIO produced a positioning paper for the Criminal Justice Review and when it was published in 2000 the authors of the CJR made a number of significant recommendations relating to restorative justice.

In particular they recommended a system of youth conferencing. This was to be ordered by courts for young offenders aged 10-16 years. There was to be no discretion and courts would have to order such a conference. It was to be court based and was clearly closely modelled on the New Zealand system. It sought to facilitate a “safe” mediated meeting between victim and offender, the dual purpose of which is to enable the victim to receive reparation for the harm caused and to address the young person’s offending behaviour.

Essentially it was envisaged to be rehabilitative but to help meet the concerns of victims. It was to centre on the concept of the conference which required approval of prosecutor and court and was designed in a way to encourage offenders to bring parents and victims to participate with perhaps the assistance of others. It was intended to be proportionate, re-integrative rather than retributive and to assist in repairing and restoring relationships.

Recent Developments

Following the recommendations of the Review the NIO accepted that there should be a Youth Justice Board for Northern Ireland. The enactment of the Justice (NI) Act 2002 saw the establishment of the Youth Conference Service and a statutory system that effectively incorporates restorative justice practices into criminal justice here. Victims are to be routinely requested to attend conferences with the offender or have some other input e.g. video-link or written submission.

Dr Bill Lockhart is the chief executive of the Youth Justice Board and it has headquarters in Waring Street in Belfast. The Youth Conference Service is also based there and is headed by Alice Chapman.

Instead of being purely court based the legislation permits two routes whereby a young person can be referred to a youth conference: via the public Prosecution Service (PPS) or via a court. Referral is dependant on admission or finding of guilt and also voluntary consent.

Evaluation was considered mandatory and an interim evaluation done by a team from Queens University Institute of Criminology was published in January 2005. The period covered was limited because the scheme commenced in December 2003 and the period covered ended in August 2004. In part due to a slow start and also to the shortness of this period the evaluation was limited. The scheme is being piloted in Belfast and Fermanagh and Tyrone but the latter area had a later commencement date. The conclusions were reasonably satisfactory and also the team indicated that progress was being made addressing some of the preliminary issues.

I append with this the latest up date that is available from the Youth Conferencing Service.

Youth Conference Service Progress Report April 2005

Rollout

The rollout of youth conference service is mirroring the rollout of the new PPS in Northern Ireland. To date, all staff, accommodation, programmes and procedures have been in place in the rollout areas.

The Youth Conference Service is being fully evaluated by Queen’s University Belfast. The evaluation period runs from December 2003 to June 2005. The full report is expected in the autumn 2005.

An interim report was produced in December 2004. Overall the report was very positive, highlighting the following areas:

The rate of victim attendance at conferences was higher than other jurisdictions at 62%.

79% of victims found the experience either satisfactory or very satisfactory.

All victims and the vast majority of offenders were happy with information received before the conference.

The vast majority of offenders (91%) and victims (89%) thought the plan fair or very fair to the offender.

The vast majority of offenders (90) and victims (81) thought the plan fair or very fair to the victim.

All victims said they would recommend conferencing to other victims.

All bar 2 offenders said they would recommend conferencing to offenders.

Challenges Ahead

Three challenges have been clearly identified. These are:

The hesitancy in implementing a youth restorative approach in a formerly retributive model in Belfast youth court.

The difficulties involved in framing a restorative model within a “sentencing framework”.

The need to maintaining victim attendance levels.

Some Concerns

There are obvious concerns. Those that I would identify include:

· The possible waste of resources by the inability of the court to have a discretion not to order a conference. If resources are limited it is best they be directed to where they are most required. Very shortly 17 year olds will be included in the system. Driving without insurance is perhaps not an offence that will always benefit from a conference. It is surely wrong for the system to depend on an offender withholding consent.

· The need to properly monitor the implementation of plans once they have been approved and to have a sufficient menu of appropriate schemes available.

· The outstanding problem of addressing how the community based schemes will fit into the system, if at all.

The Justice Oversight Commissioner, Lord Clyde, said this in his last Report, the third published earlier this year:

“it is unfortunate that the name “restorative justice” is liable to be misunderstood. It is certainly desirable that efforts be made to achieve a greater understanding on the part of the public about the substance and advantages of restorative justice and in particular community restorative justice. But that is one element behind the difficulties which currently exist. Among other factors the political situation and an element of mistrust may also be contributing to the slow rate of progress. The problem may be required to be resolved by movement at all levels. All those involved may need to be flexible in their approach and ready to move forward.

The schemes provide an opportunity for the engagement with the community and should not be seen as a threat but a possible advantage for the whole system. It would be unfortunate if the present opportunity for dialogue was missed and the full range of possible methods for dealing with problems at a community level in a manner which is consistent with human rights and which supplements the work of the statutory agencies was lost to Northern Ireland”

The conflict between those who think that a restorative approach can be applied to all situations of criminal behaviour right across the board as opposed to selected age groups and/or categories of offence and those who have reservations about the extent to which it can usefully be put.

This conflict is best exemplified by the arrival of ASBOS and the fact that this largely civil procedure will potentially result in an increase in the use of custody. There are also those who do not accept that the principles of restorative justice can usefully be applied to adult offenders involved in serious crime.

The impact upon morale of all concerned by repeated conferences on recidivist offenders that achieve nothing. This has been a matter of major concern in New Zealand.

Other developments:

These include the closure of Lisnevin, the establishment of Rathgael as the sole custodial centre for juveniles in Northern Ireland (as opposed to the Young Offenders centre for those over 17) and the appointment of a Commissioner for Children and Young People.

Anti social Behaviour Orders arrived here last year but their first use was on a juvenile in North Antrim last month. Because of his age his identity and the reasons for the Order being made are not public. It perhaps reflects on the nature of the Northern Irish system that this is the first Order sought under this legislation but the problems encountered in England and Wales will no doubt arrive here in due course.

There are also currently problems in relation to the inappropriate remanding of juveniles to custody under PACE provisions. Recently the facility at Rathgael refused to admit some remands on the ground they are inappropriate. The Government’s attitude to “best interests” and to the “welfare” of the child, however defined, is being well tested here.

The facility at Rathgael is for 34 juveniles in total and divided into five houses. The position contrasts with that in the early seventies when considerable more children were in custody of one form or another.

I apologise about the brevity of this but hope that it has been useful.

The retiring Lord Chief Justice, Lord Woolf, today (17 August 2005) makes a passionate plea for a new approach to law and order which would see a major shift away from punishment towards the solution of problems which generate crime.

Writing in today’s Guardian, Lord Woolf suggests a shortlist of four strictly limited categories of offenders who might be imprisoned and - in sharp contrast to the rhetoric of government ministers - he adds: “We need wider understanding and acceptance that the principles of sentencing are not just founded on punishing offenders.”

Lord Woolf is stepping down in September after five years as the most senior criminal judge in England and Wales. His comments come in a response to the Guardian’s two-year investigation into the criminal justice system, which uncovered fundamental weaknesses. The heads of prisons, drug treatment and the new National Offender Management Service (Noms) also respond in today’s paper.

Lord Woolf argues for a fundamental change in the use of imprisonment, restricting its use to the most dangerous offenders and the most serious crimes, as a recognition of special offences and as a fall-back where all other efforts have failed. But his stress is on the need to find more effective ways of cutting crime.

“Whilst I firmly believe that for serious and violent crimes there is no alternative to a custodial sentence, I also believe passionately on taking steps to turn people away from crime,” he writes.

“We do not want a system that shuts people outside society, once they have left the prison gates.”

He highlights the failure of current measures to prevent reoffending: “All of us working within the system must aim to do much better than that.”

He supports moves towards restorative justice, which sees offenders making amends to their victims; and he suggests there might be a wider use of the approach taken with young offenders by the Youth Justice Board, which pulls together different agencies in a concerted attack on the roots of crime: “I see great value in looking at the specific needs and problems of particular groups.”

He welcomes the creation of the new Noms but, in an aside which may irritate Whitehall, he acknowledges concerns, highlighted in the Guardian series, that the Home Office is struggling to manage the creation of the new service.

His comments come as the prison population in England and Wales shows alarming signs of surging upwards. On Friday, it reached a new high of 76,877 with predictions that it may break through 77,000 this week - despite the fact that August normally sees a drop in imprisonment.

Courts are apparently being driven into tougher sentencing by the recent outbreak of punitive rhetoric from government ministers, led by the prime minister’s comments on young people wearing hoodies. This week a court sentenced a teacher who had had sex with a 14-year-old pupil to 15 months in jail.

Lord Woolf has a history of standing up to ministers and other hardliners over this kind of rhetoric. In May he spoke out against the overcrowding of prisons immediately after the chief constable of Hampshire, Paul Kernaghan, had called for yet more offenders to be jailed.

Last year, he clashed with the former home secretary, David Blunkett, and the Sun newspaper, both of whom attacked his proposal to reduce the time served in prison by murderers who plead guilty. He has also challenged the Lord Chancellor’s intervention in the appointment of judges for public inquiries.

This article appeared in the Guardian on 17 August, 2005. I am grateful to the editor for permission to reproduce it here.

Willie McCarney

There has (not surprisingly) been much academic and practitioner speculation as to the effect the Human Rights Act 1998 would have on judicial reasoning in family (and other) proceedings. The challenge has been as to whether it would introduce a rights-based analysis of contact into domestic law. The Human Rights Act 1998 adopts the language of rights and derogation therefrom, which, at first glance, may appear antithetical to the utility approach of the Children Order (Northern Ireland) 1995. Of particular relevance is Article 8 of the European Convention for the Protection Rights and Fundamental Freedoms 1950 (ECHR) which confers the right to respect for private and family life, potentially to be enjoyed by all family members. The Convention rights must be considered in private proceedings under the Children Order 1995 by virtue of Section 3 of the HRA 1998; this so called “horizontal effect” has been expressly acknowledged in this context by the Court of Appeal in a case of Payne v Payne^[8]. According to the Strasbourg jurisprudence, parents’ rights to family life with children under the Convention include contact, but a child also has rights of his own.^[9] Self-evidently no individual’s right can be absolute. Not only does the Convention itself articulate the derogations necessary in a democratic society, but the Strasbourg case law also increasingly emphasise the balancing exercise that must be undertaken in relation to the potentially conflicting rights of various family members. In so doing, it is stated that the child’s right is to be accorded special weight and “ particular” or “crucial” importance. This analysis of the European Court of Human Rights has now been adopted by our domestic courts in the context of litigation under the Children Order 1995, including applications for contact orders, on a number of occasions both before and after the implementation of the Human Rights Act 1998. Thus in Re L Dame Elizabeth Butler-Sloss P observed that:

“Article 8(2) provides the crucial protection for the child … who also has rights under the Convention … in Hendricks v Netherlands (1983) 5 EHRR 223 the court held that where there was a serious conflict between the interests of a child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail. The principle of the crucial importance of the best interests of the child has been upheld in all subsequent decisions in a European Court of Human Rights.”

However I believe the HRA 1998 has brought to bear on the private law provisions of the Children Order 1995 some new perspectives and techniques in reasoning and disclosure, rather than differences of practical outcome. In the vast majority of cases, the result will be the same as that which would have been produced by the straightforward application of the paramountcy principle.

In some respects the years since the HRA 1998 have witnessed a forceful re-emphasis of the child centred approach predicated by the paramountcy principle articulated in Article 1 of the 1995 Order accompanied by the disavowal of any pro-parent presumption and a correlative emphasis on the breadth of discretion. In the context of discourse predicated by the welfare approach, according to which contact is considered generally to be in the child’s best interest, there has been a shift in the language of both courts and other institutions from “principle” or “presumption” to “assumption”^[10]. Thorpe LJ has stated that “I do not think that such concepts of presumption and burden of proof have any place in Children Act 1989 litigation where the judge exercises a function that is partly inquisitorial”^[11].

The new terminology indicates a greater readiness to acknowledge this in circumstances that render contact unconducive to a child’s welfare; in other words, an assumption is more easily displaced than a presumption. In cases where there is a finding of domestic violence, the pro-contact assumption is replaced by the exercise of judicial discretion in the light of range of factors in the “welfare checklist” in Article 1(3) of the 1995 Order.

A striking development in recent case law is the eagerness on the part of courts, particularly the Court of Appeal in England, to justify, rationalise and articulate a pro-contact assumption by calling in aid the scientific knowledge and clinical experience of mental health professionals, as well as socio-legal and social science research. The psychiatric underpinnings of a child focused approach are now emphasised. This was notable in Re L^[12] in which a general report of the effects of contact on children was commissioned from two eminent child psychiatrists and heavily used in the judgments of the Court of Appeal. Nor was reference to socio-legal research absent. I believe this is a welcome development and it represents a further recognition of the value of an inter-disciplinary approach to the family justice system. One has to be careful however to ensure that scientific expertise is not only selectively used to reinforce a priori judicial assumptions about the benefits of contact, with judges tending to simplify expert opinion and to discount or reject that which runs counter to their own a priori assumptions.

We should not be afraid of the concept of human rights and the necessity to balance those rights under the European Convention of Human Rights. The primary concern of the HRA is not so much rights in the ordinary common law sense but values. These are the values which are increasingly being recognised around the developed world as being at the heart of the rule of law. The recognition of the need to adhere to the rule of law by protecting human rights is essential to the proper functioning of democracy. The observance of human rights is a hallmark of a democratic society because it demonstrates that society values each member as an individual. Just as it is of the essence of democracy that every individual has an equal right to vote, so each individual has the right to expect that his or her human rights will be protected.

Last year the courts in Northern Ireland made 1719 contact orders together with 35 refusals of contact. These figures do not include those cases where the applications were withdrawn or where no order was made. Consequently it will be seen that less than 2% of cases in Northern Ireland resulted in a refusal of contact. This compares with the situation in England and Wales where appropriate 67,000 contact orders were made with less than 1% resulting in a refusal of contact. The fact of the matter is that the vast majority of contact cases are satisfactorily resolved through agreement between the parties. There is however a residuum of cases where contact between the child and the non-resident parent becomes a new battle ground between the separated parents with attendant attempts by the resident partner to destabilise the relationship between the child and the non-resident party. I fear that in Northern Ireland, as elsewhere in the United Kingdom, there is a popular perception which scapegoats the family courts postulated on the premise that the courts failed to provide sufficient or adequate redress for such cases. We are all wearily familiar with the pattern that emerges in this small percentage of cases. The resident parent, usually the mother, although in the last year I have come across two cases involving the resident father, is bent on venting his/her spleen on the non-resident parent by frustrating contact behind the veil of allegations inter alia, that the child does not wish to see the other parent, does not wish to see the new partner, suffers various illnesses at the time of contact, supervening commitments coincide with contact arrangements at the last minute etc. In a number of instances which may alarmingly be on the increase, I have come across belated allegations of sexual or physical impropriety. Exchanges, when they occur, at change over points such as school become flashpoints for verbal and physical exchanges between the adults often in the presence of bewildered and at times terrified children.

It is important in such cases that whilst the competing rights of mother and father must be taken into account, nonetheless at the end of the day the overwhelming issue is the best interests of the child. The court must be wary that it does not lend itself, however unwittingly, to the battle of contact that is being fought out between mother and father. There can be long delays before the case reaches court as the parties slog it out alone initially often with protracted and unfruitful correspondence between solicitors. Thereafter the court proceedings are equally long and protracted moving at what must seem like a glacially slow speed to the deprived parent and the bemused child. If and when contact is revived, the relationship between child and non-resident parent often has to be re-established at an equally slow speed since a child may well have forgotten the attachment that had previously existed. Attempts to frustrate court orders lead to return applications to the court by non-resident parents to define and enforce contact. The court itself is cast in the role of one of useful impotence, a forum where the issues can be usefully crystallised but where the court is impotent to resolve them. Courts are often reluctant to utilise the only remedies that we currently have, namely to imprison or fine the mother or to transfer residence though this is a remedy that is being increasingly looked at. Future legislation in England and Wales (which I trust will eventually come to Northern Ireland) will widen the powers of the court. The court will now have powers to refer a defaulting parent in a contact case to a variety of resources including information meetings, meetings with counsellors and parenting programmes/classes designed to deal with contact disputes. There will be power to refer a non-resident partner who has been violent or who has breached an order to a relevant programme, power to attach conditions to orders which may require attendance at a given class or programme, and there will be an ability to impose community based orders with programmes specifically designed to address the default and contact.

Contact centres will of course play an important role here. However, it is absolutely vital that courts use contact centres in a proper and efficient manner. Court orders must be specific ensuring that those orders are provided to the centre, that someone is nominated who is responsible for informing the centre when precisely the referral is to take place and of course has received confirmation that the contact centre is prepared to act in the matter.

The courts do naturally start with a view that in most cases contact between the child and the non-resident parent is desirable both for the child and the parent. This accords with the general welfare of the child under Article 3 of the 1995 Children Order, Article 8 of the European Convention on Human Rights and Article 7 of the United Nations Convention on the Rights of the Child. At the same time, particularly with the increasing recognition of the significance of abuse generally and the importance of child protection issues, it is important to appreciate that this balancing exercise does not mean that the paramount interests of the children does not still obtain. Although there are rights of both parents under Article 8 of the Human Rights Convention to be considered the child has equal rights and the welfare of the child is the overriding consideration. Until comparatively recently it was widely assumed, particularly I am sorry to say by lawyers and judges, that violence or threats of violence adversely affected the spouse or other partner, but unless the children were directly involved in the violence, for example by being injured, they did not seriously suffer from the adult conflict. Time has now moved on and we are well aware of the full spectrum of domestic violence including sensing, seeing, hearing the event and the aftermath. I am satisfied that there should be no automatic presumption against contact where one parent has been violent but it is a highly relevant factor among many which must be taken into account when the difficult balancing exercises carried out by the judge applying the welfare principle and the welfare checklist in the Children Order. Domestic violence is properly contained in the checklist of Article 3 of the Children Order which includes having regard to significant harm. Clearly domestic violence raises the issue of significant harm. Of importance here is that the court must explore allegations of violence, even where the parties to a contested application for contact may appear to have agreed what the contact should be. It is the child who matters not the agreement of the parents. But there will be situations where a respondent mother feels pressurised into agreeing to contact with the result that allegations of violence may not be investigated. But if violence is, or has been a problem, the effects of that violence may well cause future problems with contact. Judges should be alive to this problem, and not allow consent orders to have the effect of brushing aside the allegations of violence in these circumstances. If there is a break from the culture of violence I believe it has to be led from the judiciary in the criminal courts and in the family courts. We must look at increased communication between the criminal and the civil courts in this regard.

It is important that in balancing rights we do not lose sight of the fact that the purpose of contact is for the child. Is the contact to be positive for the child bearing in mind that the welfare of the child is the overriding consideration notwithstanding the rights of the other parties? In this context it is important to remember what Lady Justice Hale, as she then was, said in case of Re A:

“The evidence is now quite clear that children whose parents are separating, especially if their parents are in conflict with one another, need a voice; someone who is able to listen to anything they wish to say and tell them what they need to know. Sometimes they need more than that and that is someone who is able to orchestrate an investigation of the case on their behalf.”

Once the court has found violence proved, which is significant and relevant to the disposal of the case, the court must not only consider the effects of that violence on the child and on the primary carer, but also the response of the perpetrator to the violence. The violent parent must understand the consequence of violence and consideration be given by the court to the capacity of that parent to change. There must be some positive proof that this has happened including that parent seeking help for aggression.

In the context of balancing human rights, I believe that contact centres play a pivotal role. Parental separation often creates for the child a bewildering world where parental disputes and mutual distrust can regularly flare into explosive confrontation all played out in the presence of the child. For children the circumstances of post-separation contact can often be yet one more stage in the relentless misery created by family break up. It is in this context that I have often expressed the view that I believe the growth of contact centres is probably the most significant development to occur in the management of contact disputes and the balancing of human rights in recent years in such circumstances. They present an invaluable facility for enabling contact to take place in places where it would otherwise not be able to take place or be fraught with difficulty and stress for all concerned. The key to these centres is that contact is child centred and impartiality is fundamental balancing equally the rights of both parents. They are places where families put into practice agreements reached elsewhere, they are confidential and operate at a grass roots level providing a vital practical service to ensure that justice is given an opportunity to flower. There are too few of these centres in Northern Ireland and I am satisfied that an increase in their numbers would make a vital contribution to protecting human rights of all parties in contact disputes. Wall LJ, the Vice-President of the National Association of Child Contact Centres, said recently:

“However it is essential that the basic supported contact services continue to be provided and that the enthusiasm and good will which currently exists and which drives these services are not lost.”

I am firmly of the belief that if those with power over the available resources recognise this and contact centres are given a higher profile both economically and physically, then this will make an enormous contribution to the balancing of human rights for all parties and particularly children in contact disputes. The challenge is there and it is for all us, including Government, to face up to that challenge.

This speech will concentrate on the issues in relation to contact and domestic violence. It is in that context that I predominantly refer to mothers as the non-abusive parent, though I am aware that there are some fathers to whom this may also refer.

There are many dilemmas facing those dealing with the issue of contact and domestic violence. One of these is that women who report domestic violence to social services are concerned that unless they leave they will end up losing their children but when they leave their children may be forced to have contact with the person who abused them in the first place. It is concerns such as these that need to be addressed in cases of contact where domestic violence has been an issue. As the Family Court Judge in England, Dame Butler-Sloss, stated

‘There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background on the premise that they were matters affecting the adults and not relevant to issues regarding the children.’

So what can we learn from the research on abusers which might better inform the decisions about contact. At the Belfast and Lisburn Women’s Aid domestic violence conference last November, Dr. David Adams from Boston’s Emerge programme highlighted the importance of the following:

· How their public image bears little relation to the private behaviour.

· How they minimise and deny the abuse

· How they externalise and blame others

How they rationalise and excuse the violence arguing stress; loss of control; alcohol;

· How they use manipulation tactics to discredit, to divide, to bargain for themselves.

· How they are extremely self-centred so that contact is not about the children.

In this context Adams also highlighted some of the parenting issues relating to domestic violence:

· 40-70% of perpetrators abuse their children or expose children to the abuse of their mother or verbally abuse mother to children.

· They have rigid or inappropriate expectations.

· They use favouritism amongst children.

· They enlist children as spies on visits.

· They undermine the mother.

· They manipulate visits, filing child abuse reports.

· They withhold child support.

· They countermand the rules and limits set by the mother.

Much research has also been undertaken in relation to the risk factors that should be taken into account in relation to contact These are the issues highlighted by John Lloyd at the conference:

· Is there a criminal record?

· Are there any injuries and what is the extent of these?

· Was a weapon used?

· Are there financial problems?

· Is alcohol abuse, mental health, or drugs addiction an issue?

· Is the victim pregnant?

· Are there issues of jealousy and/or coercive control?

· Is there continued conflict with ex partner over contact?

· Have there been threats to kill/strangle/or harass the partner or family members?

· Is the abuse increasing in severity and frequency?

· Are there threats of suicide or has there been any suicide attempts?

· Is there any history of sexual abuse?

· Is there extensive fear on the part of victim around her own safety and that of her children?

What are the lesson from all this?

1 There is a close relationship between the safety of the mother and the welfare and safety of children. Contact needs to be supervised and monitored.

2 Contact may not necessarily be useful to, or in best interests of children.

If contact centres know this, they should be in a position to add this to assessments of the contact.

3 Quality of contact is especially important where children’s welfare is concerned.

Marianne Hester argues that unless the criminal and civil law is integrated with public law (where child protection issues and the welfare of the child are discussed) and private law (where residence and contact are discussed using a negotiated and mediated outcome) then the current situation will remain messy, and in some cases dangerous.

In 2000, in the English Appeal Court, Sturge and Glaser as expert psychologists on contact cases, summed up the impact of domestic violence when they stated “Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s care and failure to protect the child emotionally”. Following the change to guidelines as a result of this court case, in a research report titled ‘Failure to Protect’, Women’s Aid undertook a piece of research in England and Wales to ensure that contact and residence orders were safe for children before they were enforced. They noted that in 2002, 61,356 contact orders were made, 16,000 had welfare reports and as a consequence 518 cases were refused. They interviewed 178 women in refuges to ascertain the extent to which the guidelines were being implemented. It is worth noting briefly the issues which the guidelines highlighted

· An acknowledgement of the abuse

· An acceptance of the impact

· An expression of regret

· A wish to make reparation

· A genuine interest in the child’s welfare

· An ability to sustain contact

So what did the research conclude about the impact of the guidelines on good practice for cases of parental contact. Only 10% of the mothers felt that court practice had improved.

60% stated that court practice had stayed the same and 6% said it had got worse. Only 3% believe appropriate measures are being taken to ensure the safety of the child and the resident parent. The majority of those interviewed also felt that Article 12 of UN Convention on Rights of Child was being ignored in that children’s views were not being sufficiently taken into account.

Amongst the sample of 178 women, 18 children had been ordered to have contact with parents who had committed offences against children and 21 children had unsupervised contact despite the child being on the Child Protection Register due to the parent’s behaviour. Almost half of sample knew of cases where the abusive parent had been able to track them down. Given the risk assessment outlined above, and particularly the increased risk of homicide at the point of separation or on leaving a violent partner, it should follow that safety issues in relation to contact should be paramount. Research also shows that in contact cases where domestic violence was an issue, ‘low vigilance’ seemed to be the norm with only one third having supervised contact.

Some of the lessons from the research are as follows:

· Ensure that all those involved in contact issues are following the good practice guidelines.

· Make safety a priority to ensure the elimination of violence to the non-abusive parent and/or child

· Support the mother to be a well functioning parent

· Provide opportunities for children to build the necessary trust with legal and /or social service professionals to talk about any concerns around contact and support for any recovery work

· Ensure that resources are in place for training on the risk factors and coercive control associated with domestic violence

· Ensure that contact procedures avoid re-victimisation and/or the possibility of tracking victims

· Provide resources for accessible, supervised and good quality contact.

As those of you who work in contact centres are aware, this is difficult but important work. Too often those working with victims of domestic violence fear opening Pandora’s box in case there are issues in there that they find too difficult, too complex or too distressing. But we should also remember that one of the gifts that Pandora had in her box was the gift of hope. So we should always hold on to the hope that in putting ‘good contact’ in place, we are helping to create healthy relationships between parents and children. In doing this, we also create the possibility for a much healthier society.

When invited by the Editor to prepare a short article for the magazine outlining why I wanted to become a Lay Magistrate it seemed a straightforward request. However, when I sat down to try and answer the question I found it quite difficult. After some reflection I talked it over with some of my newly appointed Lay Magistrate colleagues. I discovered that they were having some difficulties answering the question also. So let me begin by setting the context while I collect my thoughts.

In 1998 the Belfast / Good Friday Agreement stated that one of the four aims of the criminal justice system was ‘to be responsive to the communities’ concerns, and encourage community involvement where appropriate’.

The Agreement provided for the creation of a Criminal Justice Review Group to carry out a wide-ranging review of criminal justice in Northern Ireland. Included in the terms of reference of the Criminal Justice Review Group was the requirement to consider ‘measures to improve the responsiveness and accountability of lay participation in the criminal justice system’.

The Review made a series of recommendations for the future of lay involvement in the justice system, including the establishment of a new judicial office of ‘Lay Magistrate’. Lay Magistrates were to be the “Voice of the Community” in a new criminal justice system that:

· delivers a fair and impartial system of justice to the community;

· is responsive to the community’s concerns and encourages community involvement where appropriate

· has the confidence of all parts of the community.

The stated Government objective was to improve responsiveness, accountability and lay participation in the criminal justice system and to provide an input from a local and community perspective into decisions made in the Youth Court and in the Family Proceedings Court.

Thus began a rigorous and highly professional selection process. The recruitment process was designed to select candidates who were of good character, could show commitment and reliability, understand and communicate, had social awareness, maturity and sound temperament, and, of course, sound judgment.

Once recruited under the provisions of the Justice (Northern Ireland) Act 2002, we all had to “complete a course of training approved by the Lord Chancellor.” On successful completion of what was a most intensive, informative and useful training course we were all eligible for appointment by the Lord Chancellor to one of Northern Ireland’s County Court Divisions.

After that brief history of what the post is, the big question is still unanswered – why does anyone want to be a Lay Magistrate? Clearly a lot of people did! There were more than 22,000 initial enquiries and over 5000 completed applications. From this large pool of applicants only 180 people made it through to the appointment stage. In discussions with my colleagues during the intensive three-month training programme I have come to the conclusion that the role which was designed to attract ordinary people, has in many cases attracted some rather special individuals!

In discussions with colleagues, I have concluded that there are two overarching reasons why they became Lay Magistrates.

The first, somewhat surprisingly, is that many of the new Lay Magistrates seem to have been on a life experience path, that has almost led them naturally to the position. They have had a series of life experiences, many of them in the voluntary sector, that have given them the social awareness, and life skills, that has led them to their new position.

But more interestingly the selection process appears to have recruited Lay Magistrates who, not only have the experience and skills, but also do not have strong or entrenched views on ‘rights’ and ‘wrongs’. It is refreshing to see people who are able to appreciate the pressures of life that cause younger people to get themselves into difficulties. This balanced viewpoint gives an opportunity not only to be the voice of the community, but also to be a balanced well informed voice which will assist in the decision making process when working alongside our Resident Magistrate colleagues in the courts.

The second common theme among Lay Magistrates appears to be that we are trying to set a good example for our own children, and others in the community, that the justice system is valid and works for all. In some ways, for those who have dedicated a lifetime of service to the criminal justice system, this may seem an unnecessary goal. However the feeling among many younger people is one of a great gulf between themselves and the courts. Youth crime in N. Ireland has not yet reached the UK wide statistic of a quarter of known offenders being under 18. However, it is still imperative that the young people of today have access to and confidence in the criminal justice system. Input from local people who are in touch with everyday life in the community makes the whole system feel as if it is driven by the society and communities they come from. Many of us are both proud and humbled to be part of this wider process.

To try and explain the concept of a life experience path leading to the role of a Lay Magistrate working in the Family and Youth Courts, I can probably best describe what it means by sharing my own experience.

Back in the late 1980’s I became aware of the very high suicide rate in the North West of Ireland, and decided to see what I could do on a voluntary basis to help. This led me to a long spell as a volunteer in a local branch of a national helpline, where I eventually became the Branch Director.

During this time I became acutely aware of the problems associated with children in care, and the terrible cycles of neglect and crime that some families fall into. At the time I had five children of my own, partially grown up, and after long discussion as a family we decided to foster. Now 10 foster children later (four who are with us as I write this) I can say that it has been a rewarding experience for us and for them, and, like many foster parents, where we have been given the chance we have broken cycles of neglect and got children “back on the starting blocks again”.

Later, as all parents do, I became aware of the difficulties in some of our local secondary schools, and after making some discreet enquiries as to how I could help out, I found myself on the Board of Governors and on a very fast track learning process!

During the early 90s I had a significant health scare, and immediately noticed the people in hospital who had no one to visit, who gazed anxiously at the corridors hoping for some non-medical interaction. Once I recovered I became a Lay Minister for the local hospital Chaplincy.

Thus it was that a professional scientist who would otherwise have been cocooned in the laws, theories and applications of scientific protocol, slowly developed a social awareness and understanding of issues around children and society without even realising that it was happening. Subsequently when the opportunity came up to apply for a position as a Lay Magistrate, it seemed like a natural step. I am sure this is true for many of the other new Lay Magistrates, although they will have been following many different pathways.

The answer, then, to the question as to why I wanted to become a Lay Magistrate seems to be that, for me, at that point in my life, it was the right thing to do!

References;

Picture yourself as a Lay Magistrate – Information booklet for applicants

Justice (Northern Ireland) Act 2002

Creating a safer N. Ireland through partnership, N. Ireland Office 2002

· Northern Ireland Court Service

Draft Lay Magistrates (Eligibility)(NI) Order 2004 and Policy

Outcome of Public Consultation and Decisions taken on eligibility for appointment as a Lay Magistrate in Northern Ireland

House of Commons publications on the Internet – delegated legislation committee debates.

Aware of all forms of violence against children taking place across different settings, including the home and family, schools and residential institutions, in the workplace and in the community, including as a consequence of acts of terrorism, conflicts and war,

Emphasizing the importance of the Convention on the Rights of the Child as well as its Optional Protocols as the standard for the protection of children from all forms of violence and that its provisions as well as other relevant international human rights instruments, including the Convention against Torture and Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, must constitute the minimum framework for addressing all forms of violence against children,

Recalling the importance of effectively implementing regional treaties for the prevention of all forms of violence against children, including the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocol, as well as of ratifying and implementing without delay the European Convention on Compensation of Victims of Violent Crimes, the Revised European Social Charter and its Additional Protocol and the Convention on Contact concerning children, the Council of Europe Convention on the prevention of terrorism and particularly its provisions concerning children,

Bearing in mind the final recommendations adopted by the Committee on the Rights of the Child at its 2000 and 2001 Days of General Discussion on respectively “State violence against children” and “Violence against children within the family and in school”, the general body of jurisprudence of the Committee on all forms of violence as well as of other relevant human rights treaty bodies, the jurisprudence of the European Court of Human Rights and the conclusions of the European Committee of Social Rights,

Recognising the diversity of settings in which violence against children takes place across Europe and the Central Asia region and that factors such as gender, ethnic or social origin and disability put some children at greater risk than others; recognising that the wall of silence around violence in the family including corporal punishment, remains to be broken; recognising that violence in schools and out-of-school settings, public and private institutions and workplaces needs to be better monitored, and that prevention efforts need to be prioritised; recognising equally the diversity of opportunities to prevent violence and protect victims through different socio-economic structures and programmes,

Being aware that violence poses a large burden on the physical and mental health of children, with long lasting consequences on their holistic development, often only manifested later in life,

We, the participants, recognise the importance of a child rights approach in order to bridge the gap between standards and reality, and the challenge of changing perceptions in society, in structures of governance and at an individual level, of what are acceptable ways of behaving towards children. We agree to take the following actions as a matter of priority:

1. Develop and put into action, with the active assistance of civil society organisations, measures at all levels to prevent violence against children through interdisciplinary and participatory approaches that include professionals from different sectors and backgrounds, parents and children, and which are supported at the highest possible political level;

2. Ratify relevant international treaties, enact, amend or repeal all domestic legislation as necessary in order to prohibit all forms of violence against children including corporal punishment and humiliating treatment, and take all necessary measures to prevent and sanction such offences against children; also pay special attention to the development of juvenile justice procedures to prevent violence against children in all stages of the process;

3. Give the highest visibility and political importance to the prevention of violence against girls and boys, including, for example, the launching of public information campaigns to raise awareness about the scope and negative consequences of all forms of violence ; and to do this by means of developing sustainable partnerships with children, parents, civil society, the private sector, new information technology industries and mass media;

4. Upgrade technical, legal, procedural and institutional capacity across relevant sectors, such as education, health, justice, protection services and labour inspections to identify violence and put in place appropriate evidence-based strategies and explicit family and child policies to prevent violence, support child victims and strengthen reporting, referral and response;

5. Seek to establish, analyse and regularly monitor, the extent of different forms of violence against children, collect desegregated data by sex, age and other relevant factors, including the sources of discrimination that make some groups of children particularly vulnerable to violence, and systematically evaluate the appropriateness and effectiveness of interventions to protect children from violence, as well as efforts to provide timely assistance and address the consequences of abuse, including its social and economic cost for society;

6. Intervene in an early, effective, gender sensitive and child friendly manner to prevent victimization and re-victimization, through development of sensitive procedures and mechanisms, including provision of confidential advice; child-friendly judicial proceedings, and supportive health and protection services to ensure the physical and psycho-social recovery of affected children and young offenders;

7. Develop systematic and integrated education on child protection, encourage training for parents, all relevant professional groups and the mass media, that include information on human rights standards, on non-violent methods of conflict resolution and discipline, as well as on child development and the rights of children with special needs;

8. Strengthen and develop further all forms of international and cross-border co-operation, including prevention of criminal activities, in order to prevent and combat all forms of violence against children and to ensure that perpetrators of such violence do not escape justice and receive appropriate treatment;

9. Create opportunities for children and young people to play a more active role in addressing violence, equipping children with the knowledge and skills to be better able to recognise violence, and establishing mechanisms to ensure their participation in situation analysis, research and monitoring, and in the design of laws and policies that affect them;

We, participants from all the countries of the European and Central Asian Region, agree that these 9 steps will be the first important steps that we will take at domestic and regional level to address violence against children.

^[2] Home Office Guidelines on the use of ASBOs

^[3] the right to liberty and security of person

^[7] The right to freedom from torture, inhuman or degrading treatment or punishment

^[8] 2001 1 FLR 1052 (In the context of an application for leave to remove from the jurisdiction).

^[10] Child and Family Law Quarterly Volume 13 No. 4 2001 p. 366.

	Court Division	Commencement
	Belfast	December 2003
	Fermanagh and Tyrone	April 2004
	Armagh and South Down	6 June 2005

	Anticipated rollout complete	October 2006

	Court	Diversionary	Total
Belfast (from December 2003)	158	67	225
Fermanagh and Tyrone (from April 2004)	50	22	72

Total	208	89	297

	Belfast		Fermanagh and Tyrone
	Court	DPP	Court	DPP
Acceptance rate	44%	100%	100%	100%

	RM Kelly	Other RMs
Plans received	71	17
Accepted	25	15
Rejected	46	2
% Accepted	35%	88%