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Research Reports 2003

These are reports from research we have completed.

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6/2003 - Residence and Contact Disputes in Court - Volume 1

5/2003 - Evaluation of the Impact of the reforms in the Court of Appeal (Civil Division)

4/2003 - Can't Pay or Won't Pay? A review of creditor and debtor approaches to the non-payment of bills

3/2003 - Evaluating the Effectiveness of Enforcement Procedures in Undefended Claims in the Civil Courts

2/2003 - Ethnic Minorities in the Criminal Courts: perceptions of fairness and equality of treatment

1/2003 - Significant harm: Child protection litigation in a multi-cultural setting

»No 6/2003 - Residence and Contact Disputes in Court - Volume 1 -
by Carol Smart, Vanessa May, Amanda Wade and Clare Furniss

There is currently much concern expressed over legal disputes concerning children's residence and contact. It is important that as new policies develop they are based on a better understanding of the cases that come to court. This report examines the nature of the disputes over residence and contact that were brought to three County Courts in England in the year 2000. The study explores how the courts processed these cases, focusing especially on cases that were resolved speedily and on protracted cases. It appears that in some cases the court provides quick solutions, while the more intractable disputes can pose the courts with problems beyond their remit. Often families who use the courts come with multiple problems and limited resources and their problems are substantial. These difficult and seemingly endless cases can dominate public impressions of what most court cases are like, yet they are not typical of all the cases that come to court. The study also examines how the courts dealt with allegations of violence and abuse, as well as looking at the underlying complexity of the disputes, which were not always about the welfare of the children so much as grievances between parents. Finally, the report focuses on the issue of how children's welfare was defined and the extent to which children's voices were heard in the disputes. The report concludes that the picture provided by the court files is a complex one of competing values and ideas about child rearing and family life.

»No 5/2003 - Evaluation of the Impact of the Reforms in the Court Of Appeal (Civil Division) -
by Joyce Plotnikoff and Richard Woolfson

In his review of the legal year following publication of the Bowman Report in 1997, the Master of the Rolls commented:

'The main changes recommended in the Bowman Report are a move towards the early management of cases by the Court, extension of the requirement for leave (or permission) to appeal, and the diversion of some smaller appeals away from the Court of Appeal. It is anticipated that, if implemented, the recommendations will lead to a significant reduction in the number of appeals reaching the Civil Division. I hope that, by focusing the Court's attention on cases of appropriate weight for the Lords Justices, who are the members of the court, and by improving the efficiency of our procedures, we will be able to offer a better service to court users.'

This study's overall aim was to describe the impact of the reforms to the Court of Appeal (Civil Division) introduced since the Bowman Report and to assess the extent to which the intentions set out in the Access to Justice Act 1999 have been achieved.
Specific study objectives were:

The study concludes that the most impressive change in the Court of Appeal since the introduction of the new rules is the improvement in processing the Court's caseload. Waiting times and pending caseloads have reduced substantially and the length of hearings has not increased despite the weightier nature of matters being litigated with all credit due to staff within the Civil Appeals Office. The extension of the requirement for permission to appeal has proved effective at filtering out many unmeritorious appeals without the need for a full appeal hearing. Lords Justices have risen to the challenges that this changing work pattern presents.

The research also identifies and examines aspects of the reforms that have been less successful, including but not limited to, the increased pressures on Lords Justices, the failure of anticipated savings in legal costs to materialise, and the complexity of procedures and the quality of guidance information available to litigants.

» No 4/2003 - Can't Pay or Won't Pay? A review of creditor and debtor approaches to the non-payment of bills -
by Nicola Dominy and Elaine Kempson

With assistance from HM Treasury's Evidence-Based Policy Fund, LCD commissioned this research to identify and characterise, where possible, the distinction between debtors who do not pay their creditors and those who cannot pay. In particular, it explored the following questions that arose from the Report of the First Phase of the Enforcement Review.

The research included depth interviews with both creditors and debtors and has evolved a detailed map of the can't pay/won't pay divide, which takes into account both the debtor's ability to pay and their intention of doing so. This shows that the great majority of people who fall into arrears have every intention of paying but are unable to do so either through a drop in income or living long-term on a low income. There is, however, a minority of debtors who have little or no intention of paying the money they owe and have a range of reasons for not paying. Creditors vary widely in their ability to distinguish between these different groups of debtors.

» No 3/2003 - Evaluating the Effectiveness of Enforcement Procedures in Undefended Claims in the Civil Courts -
by John Baldwin

This study is concerned with what is described as the crisis of enforcement of civil court judgments in England and Wales. A major problem in understanding the issues has been the lack of hard evidence about the operation of enforcement procedures.

This research focuses upon civil claims that end in 'default judgments' (i.e. those in which judgment is awarded automatically to the claimant because no defence has been submitted to the court within the response time). The main issues explored are:

The study reveals a bleak picture of the effectiveness of enforcement procedures with only a small proportion of the county court and High Court claimants receiving full payment from the defendant in the time period specified in the court order. Steps taken to enforce default judgments did not prove effective either. Such failure led to the expression of frustration, disenchantment and some bitterness amongst claimants.

In conclusion, Professor Baldwin argues that it is of the greatest social importance that court-based enforcement mechanisms enjoy the confidence both of defendants and creditors but warns against anticipating dramatic change. The report argues that the key to building a system that is firm yet sensitive will be to ensure that the courts have adequate powers to secure detailed information about individual debtors so that they are in a position to make informed assessments of the financial circumstances of defendants who fail to pay money that has been ordered.

»   No 2/2003 - Ethnic Minorities in the Criminal Courts: perceptions of fairness and equality of treatment -
by Roger Hood, Stephen Shute and Florence Seemungal

This report - carried out by the University of Oxford Centre for Criminological Research in association with the University of Birmingham School of Law - is based on an investigation of the extent to which ethnic minority defendants (as well as some witnesses) in both Crown and magistrates' courts perceived their treatment to have been unfair, whether they believed any unfairness was a result of ethnic bias, and how this affected their confidence in the criminal courts. The views and perceptions of court staff, judges, magistrates and lawyers were also taken into account.

The study reveals that about one third of defendants in the Crown Court and about a quarter in the magistrates' courts believed that they had been unfairly treated when in court: but no major differences were found between the proportions of white, black African/Caribbean, or South Asian defendants in this respect. However, about one in five black defendants in the Crown Court and one in ten in the magistrates' courts believed that they had suffered unfair treatment as a result of racial bias, as did one in eight Asian defendants in both the Crown and magistrates' courts. Significant as this is, it appears to be a lower proportion than many commentators had previously assumed.

The complaints were mainly that sentences were more severe than a white person would have received, and not about overt racial remarks by court personnel. Taken as a whole, the findings suggest that there has been a marked 'cultural shift' in the treatment of ethnic minorities during the last decade since ethnic awareness training for judges and magistrates was introduced. There is, however, no room for complacency. Among black defendants and lawyers in particular, there was a belief that the authority and legitimacy of the courts, and confidence in them, would be strengthened if more personnel from the ethnic minority population were seen to be playing a significant role in the administration of criminal justice.

» No 1/2003 - Significant harm: Child protection litigation in a multi-cultural setting -
by Dr Julia Brophy, Dr Jagbir Jhutti-Johal, Charlie Owen

Within a statutory framework that aims to protect all children from parental ill treatment, this study explored the information on diversity available to courts, and whether the legal criteria engaged to assess significant harm and future risk to children are sufficiently sensitive to culturally diverse approaches to parenting. The study involved an analysis of court files concerning applications for care orders under s.31 of the Children Act 1989, observations of court hearings, and finally interviews with key court personnel.

Findings support the need for ethnic monitoring in public law proceedings not only to provide information to support consideration of policy questions, but also to support the everyday operational work of family courts. When a case is heard, the court is highly dependent on the written evidence provided and has no independent way of knowing whether diverse cultural contexts might be relevant in the absence of documented information. The study found some worrying gaps in the information before the court. The clear message of the study is that both courts and other professionals need to be aware that, where appropriate, attention is drawn to culturally diverse contexts. This is equally important from the parents' perspective, as to ensure fair and just treatment by courts that justice has to be done and it also has to be seen to be done.

One of the aims of this exploratory study has been to locate the various distinct debates about child protection in a diverse society, bringing these very firmly into family policy frameworks as part of an endeavour to build bridges between very different audiences, ranging from legal/welfare professionals in the family justice system to social anthropologists and clinicians debating cross-cultural assessments in psychiatry and psychology, to lay commentators/advocates concerned about individual and institutional racism.


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