HC Deb 10 March 1994 vol 239 cc513-20

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Robert G. Hughes.]

10.44 pm
Mr. Patrick Thompson (Norwich, North)

I am grateful for the opportunity to bring to the attention of the House the experience suffered by my constituent Mr. John Craig in seeking custody of his son. I am grateful also to my hon. Friend the Parliamentary Secretary for being here to reply to the debate and I look forward to his response with great interest.

There are a number of questions that have not been answered to my satisfaction. That is why over the next 10 minutes I shall press especially strongly the case that Mr. Craig has put to me. I hope that I shall receive satisfactory answers at the end of the debate.

The breakdown of any marriage and the pain it causes to the parties involved, especially the children, must be matters for regret. Unfortunately, parents who have divorced cannot always agree which of them should retain custody of their children. Decisions on custody matters often have to be taken by the courts after hearing the parties involved, and on the basis of expert advice.

The tragedy is that elementary failures in procedure by Norwich county court and the court welfare service prevented Mr. Craig from securing a proper hearing at all, and have left him seriously out of pocket.

Mr. Craig's case was originally straightforward. In February 1992, he obtained better rights of access to his son, who had remained with his former wife. At his solicitor's request, a court welfare officer, Mrs. Tanner, was appointed to compile a social inquiry report on Mr. Craig's son. A full hearing for Mr. Craig's claim for custody of his son was set for Friday 22 January 1993 in Norwich county court. Mr. Craig's solicitors briefed a barrister, Mrs. Margaret Gee, to represent him. Mr. Craig had to meet the costs of his barrister and solicitor himself, while his former wife was legally aided.

I must make one point absolutely clear at this stage. Mr. Craig's solicitors, Howard Pollock and Webb, told the chief clerk of Norwich county court that it would be a fully contested action which would occupy the Court for the entirety of the day". Mr. Craig's counsel, Mrs. Gee, took the view that the case would require a full day, and the barrister representing Mr. Craig's ex-wife, Mr. Wardlow, apparently thought that it would take a day and a half. There can have been no doubt about the length of time that the lawyers expected the case to take, and that was known to the court before proceedings began.

There were two judges hearing civil cases in Norwich on 21 and 22 January 1993. Judge Head and Judge Mellor had cases estimated to last one day listed for 21 January. They were each expected to hear a further one-day case the following day, and one of those was Mr. Craig's. Unfortunately, it became clear that Judge Head's case would overrun 21 January, so he would not be available on 22 January.

Judge Mellor was approached by the listing officer on 21 January about the problem, and he took the view that he could deal with both the cases due to be heard on 22 January himself. Unfortunately, his original case was not concluded until after 11 am on 22 January. That meant that the case before Mr. Craig's, despite its extremely brief settlement, was not concluded until midday.

Judge Mellor then saw counsel in Mr. Craig's case. Mrs. Gee and Mr. Wardlow, the two barristers involved, applied to the judge for an adjournment to a later date. Both agreed that, because of the delay that had already occurred, the case could not be fitted in to that day's proceedings. Judge Mellor could not sit on the following Monday, and Mr. Wardlow would not be available then either. New dates were therefore agreed—18 and 19 March. Mrs. Tanner, the court welfare officer, was present in the listing officer's room when the new dates were set and agreed, and she agreed that she would be able to attend then to give her report.

That may all appear complex, but it is important that the facts be set out exactly as they have been presented to me in answer to my inquiries. The barristers and solicitors in the case had made it clear that it would not be possible to conclude the case that day, and that was known to the judge and to the listing officer. That is what makes what happened next, and the explanations given for it, so hard to believe.

The outstanding case before Judge Mellor was settled very rapidly and the listing officer, Mr. Crane, tried to contact the two counsel in Mr. Craig's case to reinstate it. Unfortunately, Mr. Craig and his representatives had left the court, so Mr. Crane could speak only to Mr. Wardlow, who declined to agree because an adjournment had already been granted and the other party's representatives had left. Attempts to use the Tannoy system to contact them failed.

At this stage, I want to be absolutely clear on two points relating to the events in question. The first is that Judge Mellor granted the adjournment. It has subsequently been claimed that he had predicted that the other case would be rapidly compromised. Mr. Crane, the listings officer, argued that on 18 March.

My hon. Friend the Parliamentary Secretary, Lord Chancellor's Department referred, in his letter to me on 16 July, to the judge's belief that he would be able to deal with both this case and that of Mr. Craig on 22 January. If Judge Mellor had believed that when counsel appeared before him on 22 January, he would not have granted an adjournment of the case at all. Up to two hours of the court's working day of five and a half hours had already been lost.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor)

Will my hon. Friend accept it from me that Judge Mellor's decision to take the two cases on the Friday was made on the Thursday before he realised that his own case would overrun?

Mr. Thompson

I shall pursue my argument to its conclusion and then possibly respond later to what my hon. Friend said. The important point in this case is that the information that I have received as Mr. Craig's Member of Parliament has been highly confusing. The responsibility lies with my hon. Friend to establish the facts. I can only operate on the facts and the understanding that I have been given.

Mr. Crane knew that a full day was needed, yet still tried to argue that the case could have started, even though it could not finish. Indeed, he went further. He claimed that Judge Mellor believed that the court had been misled by a premature application for an adjournment. No one reading the evidence from the two firms of solicitors and counsel about the likely length of the case could believe that. The explanations offered by the court administration lacked basic credibility.

The failure to hear Mr. Craig's case on 22 January cost him £1,000 plus value added tax in fees to his counsel, apart from his solicitor's bill. Worse still was to follow for him. The hearing on 18 March began on time. Unfortunately, the court welfare officer was absent, despite her commitment to attend given on 22 January. Inquiries to the probation service revealed that Mrs. Tanner was on holiday in Australia for four weeks. It was only on 13 May that a copy of a letter from her dated 29 January announcing her unavailability was provided to the clerk of the court. Mr. Craig had become liable for a further bill of £500 plus VAT to his counsel without the case proceeding any further at all.

The case was reallocated to dates in August 1993. However, because of the delay in hearing the case, Mr. Craig was advised to abandon his claim for custody and seek better rights of access. He was obliged to accept that advice. The courts are understandably reluctant to remove children from one parent's custody when they have been settled for a lengthy period.

Serious questions arise from this case. First, there is the failure of the listing officer to contact Mr. Craig's solicitors on 22 January. That is particularly inexcusable as Howard, Pollok and Webb are a local firm which was already known to the listing officer at Norwich county court. I must stress that, despite that fact, absolutely no attempt was made to phone or fax them on 22 January.

Secondly, there is the delay in responding to the complaints of those solicitors. It took the listing officer six weeks to respond to their initial letter of 2 February complaining about the proceedings in January. His explanation of events then was not credible. Moreover, Mr. Crane declined to refer any of those initial matters to the court administrator's office. Clearly, that was obstructive, and only when pressed again did he consent to do so.

Finally, there is the matter of a letter of 29 January from Mrs. Tanner. I have no means of knowing whether it was sent by the probation service to Norwich county court at that time. If it was sent, what happened to it? Someone must have lost it. What explanation is there for the fact that. if the clerk of the court received a copy on 13 May, my hon. Friend's Department did not know of it on 18 May when it wrote to my constituent's solicitors refusing to pay compensation? Which officer of the court failed to inform my hon. Friend of the letter's existence before he wrote to me on 16 July again declining to accept liability for the administrative errors that had occurred?

How was it that my hon. Friend the Member for Penrith and The Border (Mr. Maclean), a Minister of State, Home Office, was able to write to me on 23 August last year informing me of the letter's existence, but no acknowledgement of its existence was given from Lord Chancellor's Department before 12 November?

One or more officers of Norwich county court failed to tell the full story. I have no doubt that it was convenient for the county court administrators to be able to blame the probation service for not having informed the court that Mrs. Tanner would be unavailable in March. To ordinary people, it looks like a cover-up.

Is not the truth that the county court officers at Norwich have been more than economical with the truth because of their blunders?

I said that I felt strongly about the way in which my constituent has been treated, and I am trying to get that across during the debate. The most alarming feature is that no one was willing to accept responsibility for the mistakes that occurred. Norwich county court's listings officer has blamed the counsel in the case for the failure to hear it on 22 January. That is not acceptable or credible, for the reasons given by the Lord Chancellor's Department to Mr. Craig's solicitors in May 1993. The court must rely on the estimates of time given by the parties' solicitors—in this case, one full day.

It is on the basis of the fallacious information supplied by the listings officer that compensation has been refused by the Lord Chancellor's Department to Mr. Craig. I hope that my hon. Friend will announce that there has been a change of heart tonight. I am equally concerned that neither the Home Office nor the Lord Chancellor's Department accepts responsibility for the failure to conclude the proceedings in March 1993.

It is not good enough to accept that Mrs. Tanner's letter was sent to Norwich county court, and that no blame therefore falls on Norfolk probation service. If it was sent, Norwich county court should have made the parties to the case aware of it. If the explanation that I received from the Home Office is right, Mr. Craig has been failed by the county court's administrators. The county court appears to prefer to rely on a claim that it did not receive the letter at all. We can all recognise the buck-passing here, which is occurring on a grand scale.

Mr. Craig should have had justice in the courts—instead, he got a shabby deal. All he has received has been a litany of incredible excuses. I hope that tonight he will receive a proper apology, a full explanation and the overdue compensation which he deserves. I look forward to receiving a positive response from my hon. Friend and, once again, I am grateful to him for hearing me out.

10.57 pm
The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor)

I know how strongly my hon. Friend feels. He has been my hon. Friend for 11 years, and my personal friend for 20 years. I can well understand also the distress that his constituent Mr. Craig feels at the adjournment on two occasions of his application for custody of his son. As a result, he has suffered not only a delay in resolving an extremely sensitive and important family issue, but the wasted legal costs of the adjourned hearings.

My Department is always prepared to consider any reasonable request for payment for such costs. However, there is an extremely important principle to consider whenever requests for payments from public funds are made. That is the duty that I have to the taxpayer to ensure that the financial loss from which payment is sought has genuinely arisen as a result of errors made by departmental staff. In this instance, I do not consider that to be the case.

To explain why, I shall outline the circumstances that led to the adjournment of each hearing, and the reasons for the refusal of Mr. Craig's claim in each case. I beg the forgiveness of the small audience present, and that of the perhaps larger readership tomorrow, if there is good deal of overlap between what I have to say and what my hon. Friend said.

The first hearing took place at Norwich county court on 22 January 1993. As my hon. Friend said, two judges were hearing civil matters at the court that week, Judge Head and Judge Mellor. On the day before Mr. Craig's hearing, each judge had a single case in his list for which the parties had given a time estimate of one day. On 22 January, two one-day cases were listed, one of which was Mr. Craig's. Thus, there was every reason to suppose that Mr. Craig's case would be heard.

Unfortunately, it became clear during the preceding day, the Thursday, that the case being heard by Judge Head would considerably overrun. That meant that Judge Head would be unable to hear either of the two cases listed for 22 January. On Thursday 21 January, the court listing officer, Mr. Crane, consulted Judge Mellor, who examined the files and decided that he would be able to hear both cases. He instructed that the other case be listed before Mr. Craig's case, as he believed that it was likely to settle.

In the event, Judge Mellor's case of 21 January overran until 11.15 am on 22 January. Then counsel in Mr. Craig's case requested an adjournment, which was granted. Judge Mellor began to hear the other outstanding case, which reached' settlement within a few minutes. The listing officer made urgent attempts to locate Mr. Craig and his representatives to see whether they wanted the judge to hear the case after all, but they had already left. The listing officer was right to do that. Mr. Craig's solicitors wrote to the court on 2 February complaining that the list for 22 January had been overloaded. The listing officer did not reply to that letter until 18 March. I apologise to my hon. Friend for that delay, which was clearly unacceptable.

My hon. Friend doubts the version of events given in the listing officer's letter. I agree that the letter was confusing and that the tone in which it was written was unfortunate. Specifically, the listing officer's initial refusal to refer the matter to the courts administrator's office, as requested, was clearly wrong. For that, too, I apologise. However, the fact remains that Judge Mellor instructed the listing officer on 21 January to list both cases before him on 22 January, and he did so.

There are two important principles here. First, in preparing lists, courts have to rely on the time estimates given by the parties. If the estimate proves to be inaccurate, that is not the fault of the court. The president of the family division has recently issued a direction which emphasises the responsibilities of the parties in that matter.

Secondly, there is the fundamental principle of judicial independence. As my hon. Friend will know, the judiciary is entirely independent of Government. That means that neither I nor any of my officials can intervene in individual cases or seek to question or influence judicial decisions. Listing is a judicial function, not an administrative one. The judge decides the list; the listing officer does his bidding. No blame can be attached to the court for its actions on 22 January.

The second hearing of 18 March 1993 was fixed when the hearing of 22 January was adjourned. The court welfare officer involved in the case was present on 22 January, as my hon. Friend said, and confirmed that she could attend on 18 March. However, on 18 March the court welfare officer failed to appear. The judge asked where she was and was told that she was in Australia. The judge then adjourned that hearing.

The court subsequently asked for an explanation from the local court welfare service, which, as my hon. Friend knows, comes under the responsibility of my right hon. and learned Friend the Home Secretary. The service wrote to the court on 13 May enclosing a copy of a letter from the court welfare officer to the court dated 29 January, in which she said that she would not be able to attend the hearing. There was no record that the original letter had been received by the court. Subsequent exhaustive searches have failed to produce any evidence that it was ever received.

Regrettably, some confusion arose in the course of my correspondence with my hon. Friend about the case, because court staff did not initially tell officials at the Lord Chancellor's Department's headquarters of the court's correspondence with the court welfare service following the second hearing. I apologise for that error. My hon. Friend asked to be told who it was made by. It was made by the deputy chief clerk in the absence of the chief clerk. However, I am satisfied that that was an unfortunate oversight by the court, and that there was no intention to mislead Mr. Craig.

As I have said, there is no evidence that the court welfare officer's letter was received by the court before the hearing on 18 March. The court cannot be expected to have taken action on a letter that it did not receive. In those circumstances, the court cannot be held to be at fault and thus there can be no payment.

Mr. Patrick Thompson

On the subject of payment, does my hon. Friend accept—I am sure that he does—that the delays that we have debated tonight have cost my constituent, Mr. Craig, a considerable sum of money? I specified the approximate sums in my speech. Therefore, in spite of the technicalities, my constituent has lost money, and he has a case in natural justice. Will my hon. Friend respond to that argument?

Mr. Taylor

I am sure that Mr. Craig has lost money. I think that the whole tenor of my remarks has been to concede that. However, the Lord Chancellor's Department is bound by law. There are only certain circumstances in which payments can be made. There must be demonstrable administrative error that gives rise to the consequential loss. It is my Department's case that there is no demonstrable administrative error causing the loss.

I have also indicated to my hon. Friend, without seeking to be at all personally critical of the listing process, that the listing process is not administrative but judicial, and it is independent of Government and independent of the Lord Chancellor's Department.

As I have said, there is no evidence that the court welfare officer's letter was received by the court before the hearing on 18 March. The court cannot be expected to have taken action on a letter which it did not receive. In those circumstances—at the risk of saying it twice—the court cannot be held to be at fault and thus there can be no payment.

I sympathise with Mr. Craig in his misfortune and the financial loss that he has suffered. However, I am sure that my hon. Friend will agree that it would not be proper for me to authorise payment from public funds when that loss was not caused by administrative errors on the part of my staff.

Question put and agreed to.

Adjourned accordingly at seven minutes past Eleven o'clock.