House of Commons Hansard Debates for 23 Oct 1989

(a) in the case of an application for a residence order, any person (other than a local authority) who has the leave of the court ; (

(b) in the case of an application for an education supervision order, a local education authority ; and

Miscellaneous Consents under the Marriage Act 1949 37.--(1) In the circumstances mentioned in sub-paragraph (2), section 3 of and Schedule 2 to the Marriage Act 1949 (consents to marry) shall continue to have effect regardless of the amendment of that Act by paragraph 3B of Schedule 10.

(2) The circumstances are that--

(a) immediately before the day on which paragraph 3B of Schedule 10 comes into force, there is inforce--

(i) an existing order, as defined in paragraph 5(1) ; or (

(ii) an order of a kind mentioned in paragraph 16(1) ; and (

(b) section 3 of and Schedule 2 to the Act of 1949 would, but for this Act, have applied to the marriage of the child who is the subject of the order.

Children Act 1975 38, The amendments of other enactments made by the

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following provisions of the Children Act 1975 shall continue to have effect regardless of the repeal of the Act of 1975 by this Act-- (

(a) section 68(4), (5) and (7) (amendments of section 32 of the Children and Young Persons Act 1969) ; and

(b) in Schedule 3--

(i) paragraph 13 (amendments of Births and Deaths Registration Act 1953) ;

(ii) paragraph 43 (amendment of Perpetuities and Accumulations Act 1964) ;

(iii) paragraphs 46 and 47 (amendments of Health Services and Public Health Act 1968) ; and

(iv) paragraph 77 (amendment of Parliamentary and Other Pensions Act 1972).

Child Care Act 1980 39. The amendment made to section 106(2)(a) of the Children and Young Persons Act 1963) by paragraph 26 of Schedule 5 to the Child Care Act 1980 shall continue to have effect regardless of the repeal of the Act of 1980 by this Act.

Legal aid 40. The Lord Chancellor may by order make such transitional and saving provisions as appear to him to be necessary or expedient, in consequence of any provision made by or under this Act, in connection with the operation of any provisions of the Legal Aid Act 1988 (including any provision of that Act which is amended or repealed by this Act).'.

It may be for the convenience of the House if I mention that there is a printing error in this amendment. Paragraph 27(1)(a)(ii) refers to part IV, but it should read "Part V". I am moving the amendment with the incorporation of that correction.

It is a transitional amendment, which I commend to the House. Amendment agreed to.

Schedule 13

Repeals

The Solicitor-General : I beg to move amendment No. 236, in page 148, leave out line 39.

Madam Deputy Speaker : With this we may take Government amendments Nos. 250, 451, 452, 437, 251, 453, 254, 439, 440, 454, 255 and 266.

The Solicitor-General : Here again I need not detain the House. All the amendments repeal existing legislation in conformity with the general provisions of the Bill, and I commend them to the House. Amendment agreed to.

Amendments made : No. 248, in page 148, line 42, at end insert-- 1944 c. 31. The Education Act 1944. In section 40(1), the words from "or to imprisonment" to the end.

In section 114(1), the definition of parent.'.

No. 352, in page 148, line 46, column 3, at beginning insert--

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In section 3(1), the words "unless the child is subject to a custodianship order, when the consent of the custodian and, where the custodian is the husband or wife of a parent of the child, of that parent shall be required".

Section 78(1A).'.-- [Mr. Mellor.]

Mr. Mellor : I beg to move amendment No. 237, in page 149, line 9, column 3, at end insert--

Section 53(3).'.

Madam Deputy Speaker : With this we may take Government amendments Nos. 118 to 120.

Mr. Mellor : These are technical amendments concerning recovery orders and other powers to recover children in care, or those who are subject to emergency protection powers.

Amendment agreed to.

The Solicitor-General : I beg to move amendment No. 353, in page 149, line 10, at end insert--

1964 c. 42 The Administration of Justice Act 1964 In section 38, the definition of "domestic court".'.

Madam Deputy Speaker : With this we may take new clause 1 : Family Courts (1) Within each county court and magistrates court there shall be created a family division which, together with the Family Division of the High Court, shall operate as a Family Court.

(2) The Lord Chancellor shall by rules of court specify the procedures to be followed in order to--

(a) identify the welfare of the child ;

(b) avoid unnecessary formality ;

(d) reduce the harm to children and families resulting from the court process and

(e) introduce conciliatory methods of dispute resolution. (3) There shall be a welfare and conciliation service attached to the Family Court and it shall include--

(a) guardians ad litem and reporting officers ;

(b) a family conciliation service in respect of children subject to proceedings under part two.

(4) This section shall come into force on such day as the Secretary of State may appoint, being not later than eighteen months after the Children Act receives Royal Assent.'.

Government new clause 18 and Government amendments Nos. 240 and 242.

The Solicitor-General : We now come to the debate that the House has been waiting for : the debate on the family court. In this debate will will discuss new clause 1, the Government's new clause 18 and, above all, the Government amendment incorporating new schedule 9A. We had some interesting debates on the family court in Committee. Now we shall see how the Government's proposals match those of the Opposition--both those in new clause 1 and others that are not formally before us, but which we have had the opportunity to consider. I trailed our proposals a moment ago when speaking to amendments on legal aid, and mentioned the view of the

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president of the Family Division that the Bill, in essence, would set up a family court. I must qualify that to some extent because of the scope of the Bill, but I must also make it clear that there is much truth in what the president said about how far it is possible to create a family court in the context of the Bill.

When considering major reforms of this nature, it is essential to assess the extent to which jurisdictional changes can be of any significance unless and until we have got the substantive law right. My right hon. and noble Friend the Lord Chancellor has been making that point ever since he was appointed, and I have done the same in the House in questions to the Attorney-General, answering those who have supported the family courts campaign or the family courts lobby in one form or another.

It is now recognised that, if we are to make progress on procedural aspects, we must first make progress on substantive law. The Bill begins by creating a new and coherent body of child law, which applies in all relevant courts at every level. Let me explain how our proposals, embodied in new clause 18 and amendment No. 240, achieve what, to a great extent, are shared goals. I shall be interested to hear how the hon. Member for Monklands, West (Mr. Clarke) and others on both sides of the House reiterate their goals.

There is, I believe, widespread acceptance of the need for a properly supported specialist jurisdiction in family matters, encompassing the courts at all relevant levels. That includes the magistrates courts, the county courts and the High Courts, and it is the achievement of those goals within the scope of the Bill that we are about to debate.

It is, as I have said, essential to realise that whether we are discussing only matters relating to child law--as covered by the Bill--or the whole range of family law, including divorce, before we can gain any worthwhile benefit from a reform of court structures or from a unified jurisdiction we must create that unified body of law, applicable at all levels and to all relevant matters.

Mr. Vaz : Will the Solicitor-General give way?

The Solicitor-General : I shall do so in a moment.

I propose first to explain how we intend to achieve our goals, and then to demonstrate how they take their place in the Government's rolling programme of review and reform to which I referred in Committee and on Second Reading, and to which my right hon. and noble Friend the Lord Chancellor referred on Second Reading in the other place. We are dealing with children's law not in isolation--although we can go no further than is allowed by the scope of the Bill--but in the context of a general and rolling review of family law as a whole.

Mr. Robert Hughes : Will the Solicitor-General give way?

The Solicitor-General : I feel that it would be courteous for me to give way first to the hon. Member for Leicester, East (Mr.Vaz).

Mr. Vaz : No one in the House disagrees with the

Solicitor-General's comment that this is an historic Bill, which will reform the substance of child care law. Does he agree, therefore, that now is the time to reform the

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procedure? If Parliament changes child care law radically, and we do not get the support structure right, the Bill will be completely ineffective.

The Solicitor-General : I agree to a considerable extent. That is what we are about to do--indeed, what we are in the process of doing.

Mr. Vaz : So we have a family court.

The Solicitor-General : The hon. Gentleman says, from a sedentary position, "So we have a family court", but it is essential to understand that family proceedings go much wider than proceedings on children. Important as the matters of public and private law dealt with in the Bill may be, the Bill--as must be obvious to everyone in the House and in the country--does not deal with the whole matter of divorce. If we are to have a family court, we must consider how that can encompass the whole area of family proceedings.

Our rolling programme takes what I submit is a first and major step towards what might be described as a family court, although--not least simply because of the scope of the Bill--it cannot go the whole length to create the family court. There is much more to it than the scope of the Bill. As we know, in proceedings relating to children the magistrates court has only a comparatively limited jurisdiction, and one has to jog about from one court to another at different levels, from the county court to the High Court, to exercise different powers.

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With this Bill we are in the business of creating, first, a single body of law and then a unified jurisdiction that runs through all courts. That is greatly to be welcomed, but it does not apply to other areas. For example, it does not apply to the whole concept of divorce, to domestic violence or to access or denial of access to the matrimonial home. Therefore, a great deal of careful review, which is under consideration by the Law Commission, among others, will need to be thought through to create a substantive body of law which is appropriate to all levels before we can take further steps in that direction.

Mr. Vaz : I do not wish to harass the Solicitor-General ; I want to be fair to him and I follow his argument. He has referred to the rolling programme, and he has used the phrase, "the first step" which he used in Committee and he has sought the endorsement of the president of the Family Division for his proposals. If he is on a rolling programme, and bearing in mind the fact that it has taken about 100 years radically to reform the law governing children, what is his timetable? When can Parliament return again to discuss this crucial issue? How long will we have to wait for the second step?

The Solicitor-General : I shall develop that point later in my speech. The timetable is nothing like 100 years ; I suggest that it is nothing like a decade. The programme is already in force. For example, the Law Commission is to report on a number of important matters next year. By the time we are digesting this legislation, which will have to be absorbed and implemented and which will require a great deal of training, we will find that thinking is moving

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forward faster than the hon. Member for Leicester, East (Mr. Vaz) realises, and possibly faster than his own pace of thinking, but I would not like to do him an injustice.

Mr. Robert Hughes : Will the family courts now being proposed be able to deal with so-called transracial adoptions, where social work practice with which I profoundly disagree takes for granted that if a child has any black parentage or grandparentage the placement should automatically be with a black family?

The Solicitor-General : I shall return to the way in which adoption links into this matter. However, when considering a unified jurisdiction in relation to children, and that is certainly not beyond the scope of our contemplation, we are considering a court which ought to be able to deal with that aspect. I shall give the hon. Gentleman a more precise answer when I have more detailed instructions.

In summary, the Children Bill provides for a single body of substantive child law, and thus it can and does go on to provide for a unified jurisdiction at whatever court level is appropriate for a particular case with swift and expert means to determine and adjust that level as circumstances require, with the same law and the same powers applying at every level. That means that a case that falls within the scope of the Bill may start in the magistrates court, as many cases do, but there may be other family proceedings, for example a divorce, which start in a High Court, or there may be proceedings which start or may be appropriate to go to the High Court, and can rapidly and readily be moved to the appropriate level.

The changes that the Bill will enact and further changes in the wider field of family law are based on and developed from existing structures designed to make the best use of, and to grow out of, existing resources. I refer not only to financial resources, where one starts from where one is today, but, much more importantly, to human resources. The resources of manpower and expertise that are currently available must be built on by way of training and selection. They will require time for absorption and for a formidable programme of selection and training, but I hope to convince the House that when implemented they will constitute a major step towards what I believe are our shared goals.

Turning in detail to a single code, our amendment allows us to create a single concurrent jurisdiction for children's cases in the Bill only because the Bill also creates a single code of substantive law applicable in all the courts. Talk of a single jurisdiction without such a code would be nonsense. I hope that I do not need to overstress the fact that without a code of law that can be applied at every level--and we do not have that until we enact the Bill, and we do not have it in relation to divorce proceedings, for example--it is quite pointless to set up a single jurisdiction. However, elsewhere on the statute book the applicable family law varies from court to court, with, for example, different rules relating to financial provision, domestic violence and rights to occupy the family home depending on the level of court in which a case is heard. Other parts of the law, such as divorce, are either in a state of transition--I have already said that the Law Commission has a number of works in hand--or they are so carefully grafted on to the structure and constitution of the courts which presently deal with the matter as to make the reorganisation of the wider body of family law an

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extremely complex task. For example, one can only commence a divorce case by a petition and no one has ever heard of a petition in a magistrates court ; and one can only obtain an injunction out of the county court or out of the High Court as it is wholly inappropriate to the magistrates court. A number of procedures in the magistrates court are equally inappropriate to the higher courts. Having pointed that out, I should add that the job of creating a single body of law is in hand. The Law Commission has already issued discussion papers on domestic violence and the right to occupy the family home and on grounds for divorce. Final reports on both are expected next year and a joint review of adoption law by the Government and the Law Commission is also on foot, and that will be relevant to what the hon. Member for Aberdeen, North (Mr. Hughes) said.

As to financial provision, we shall take that on board in the rolling programme to which I shall refer in more detail later when I talk about the work that is going on between relevant Departments. However, it must be recognised that until the same law applies at all levels there can be no overall single family jurisdiction. The next essential step towards our ultimate goal is to ensure that the courts hearing family proceedings are specialists. That theme has rightly come through all the campaigning and is certainly recognised by my noble Friend the Lord Chancellor and myself. The Government's new clause and schedule provide that, in the case of the magistrates, by creating the new magistrates family proceedings courts we shall meet that specialist need. When I mentioned the magistrates family proceedings court, the hon. Member for Leicester, East sought to pass that off as a mere change of name. I hope that he has thought more about it since, because it involves a great deal more than that. The magistrates on the new family panels will receive special training on children's and family matters, which they do not receive today. The form of care proceedings which they, the county courts and the High Court will have jurisdiction to hear will differ significantly from those presently heard in the juvenile court. There is to be a move away from what is sometimes called, in rather inelegant jargon, orality--from having everything done by the spoken word--towards the parties being expected to disclose their case, and their evidence, in advance and in writing. I am glad to see the hon. Member for Ynys Mo n (Mr. Jones) nodding assent because I think that he recognises, as I do, that early, clear disclosure in writing is of the greatest assistance when one is trying to clarify the real issues in a case and to shorten proceedings, and it concentrates the mind of the court that has to hear the case on the matters it has to determine.

Magistrates will be expected to read papers ahead of the hearing and to give reasons for their decisions. It is expected that the court will take a more active role in the case, ensure that unnecessary delays are avoided and, for example, use the guardians ad litem to ensure that all matters relevant to a case are investigated. The hon. Member for Wakefield (Mr. Hinchliffe) mentioned guardians ad litem and the Government have the issue under consideration. Generally, it is intended that procedures in magistrates courts and superior courts in care-related cases should be brought into line as far as possible, or at least made compatible. That will ease the movement of cases between different levels of court.

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In the High Court, cases will continue to be dealt with in the specialist Family Division. In the county courts, the great majority of orders will be made, as now in the case of divorce proceedings, by divorce county courts. The intention is to concentrate children's and other family proceedings in the hands of selected judges and registrars, many of whom will have had long experience in this area, either as practitioners or on the Bench, and who will have made a special study of such proceedings and built up expertise in family matters. Others who have shown an aptitude, willingness and personal interest in this type of case will be suitable for training. The Government are currently considering how best that can be arranged. The next step that we would need to take would be to ensure that individual family proceedings within the single jurisdiction are dealt with at the right level. Until the same substantive law is applicable at all levels, that cannot happen. Now, as the Bill creates a single body of child law, it is possible to give the Lord Chancellor power to provide for the allocation of children's cases and some non-children's family cases within the concurrent jurisdiction and to consolidate them with proceedings about a child. We are making real progress towards the objectives set by those who are calling for a family court.

We intend to use the allocation powers in the amendment to specify where proceedings should start and to provide for the transfer of proceedings for three purposes. First, the powers will be used to ensure that, as far as practicable, all proceedings relating to a child and a family are consolidated and heard together.

If there are already family proceedings afoot, such as a divorce or maintenance dispute between parents, we intend that subsequent applications in respect of a child should usually be made to the court hearing those proceedings. If the proceedings are started in different courts, we intend to provide for transfer so that they can be heard together.

For example, if there is an application in a county court to adopt a child who is subject to a care order and the parents are applying to a magistrates family proceedings court to discharge that care order, the rules will ensure that the two applications can be heard together. This important need to consolidate proceedings which may affect the same child is why the powers in these amendments, unlike those which we considered in Committee on the present clause 82, now extend to family proceedings other than those covered by the Bill. 6.15 pm

In proceedings not centred around a child, the powers can be used only to consolidate them with proceedings that are. For example, we could require a divorce case to be started in the same county court in which the spouses were contesting an order about the child, but we could not transfer a divorce case where other family proceedings were unconnected with children. Unfortunately, to attempt to take powers to do that would be outside the scope of the present Bill. Secondly, subject to rules aimed at consolidating them with other proceedings, care and supervision proceedings will be required to start in a magistrates family proceedings court. However, provision will be made for their transfer to a county court or to the High Court, if it were considered more appropriate for them to be heard by a superior court. In the amendment, we are taking power

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to prescribe criteria which will identify the cases which need to transfer up. Consultations and research are already in hand to enable us to draw up those criteria.

Complicated law or forensic complexity--for example, a case that involves a lot of contradictory medical evidence--are the sort of factors which are likely to affect transfer. We consider that it should be possible to transfer cases up or sideways to a court at the same level if the court seized of the case cannot hear it within a reasonable time. We passed an amendment without discussion or controversy that militates against delay in this kind of proceeding. If the court cannot hear a case within a reasonable time, or if the case needs to be expedited or to be heard over several days and the court cannot provide consecutive hearing days--as some courts, with the best will in the world, cannot--the provisions, which I hope we shall enact, will enable the system to divert the case to a court that can hear it promptly and which has all the necessary expertise. At present, we intend that the magistrates or their clerk should be able to transfer a care case at any stage, but should they refuse to do so and should an aggrieved party wish, he will be able to apply to a county court registrar to pluck up the case if he considers that the statutory criteria are satisfied. That registrar can allocate the case either within a county court or to the High Court. I stress that there will not be a need for a further delay as another transfer procedure is gone through if the case merits a High Court hearing. It is recognised that there will be a need for administrative back-up and co-operation between the courts to run such a scheme for care-related cases. That need will be met through a central committee structure, under the aegis of the president of the Family Division. The Government consider that it is important to have the flexibility that these powers confer so that transfer criteria and rules relating to where proceedings should be initiated can be altered if experience shows it to be desirable.

As I have already mentioned, we intend, initially, to require all local authority care applications to be made to a family proceedings court. If we find that most of them are subsequently transferred up to a county court, we may wish to allow care applications to be initiated in a county court, while providing for subsequent transfer down to a family proceedings court in appropriate cases.

Conciliation and what are often broadly called the support services need to be thought about separately. Conciliation has been the subject of a very comprehensive research project carried out by the conciliation unit at Newcastle university on the Government's behalf. The unit reported earlier this year, but those concerned with family matters in the Government have had comparatively little opportunity to consider its findings or the comments that have been made on them, because of their work on this Bill.

This is a subject which merits the most careful consideration and the thinking that we have been able to devote to it thus far has led us to the preliminary conclusion that the future of conciliation cannot be properly considered in isolation from the divorce law, on which the Law Commission will report next year.

The intrinsic relationship between the two can be demonstrated if one thinks about the options for change canvassed by the commission in its discussion paper on grounds for divorce, which was published earlier this year.

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Mr. Devlin : I have listened carefully to what my hon. and learned Friend has said and I agree with much of it. What has concerned me in correspondence over the summer has been that the Government appear not to be willing to give any form of commitment about funding needs to existing conciliation services until such time as the Government make up their mind on the issue. That is of great concern to many good conciliation services that currently face financial crises which may not be solved and which may lead to some of the conciliation services going to the wall. May we have an undertaking that, while the Government consider these complex matters, proper funding will be made available for conciliation services so they are still there when the Government recognise that they are necessary?

The Solicitor-General : I shall let my hon. Friend develop that point a little more if he speaks later in the debate and I shall seek to answer him then. I want to develop the point about the intrinsic relationship between conciliation and child cases, and the whole question of family matters and divorce.

One option canvassed by the Law Commission was a system that would require parties to identify--this is an important point--the consequences of divorce and, if they still wished to divorce in the face of all the likely problems, generally to resolve those problems as a precondition to ending the marriage. That will strike a chord with many hon. Members, but such a system would be likely to put reconciliation, as well as conciliation, in the front of the process so that only real disputes ever reached the court and then only as a last resort.

The House will appreciate the difference between conciliation and reconciliation. Conciliation aims to enable the parties who are determined to break up the marriage, or who see no other option, and who regard it as irretrievably broken down to decide what will happen thereafter. Reconciliation, which those who are not used to the jargon often confuse with conciliation, is the idea of getting the parties to go back together and not to get divorced at all. Arguably, conciliation might be structured and provided for under such a system in a very different way from that which has grown up round the present divorce system, in which the parties initiate the process by seeking a divorce from the court and by making bruising allegations at the outset, which often make conciliation and reconciliation much more difficult. The consequences, such as the custody of children and financial provision, are only then treated as ancillary issues to those opening steps. I throw those ideas out simply as food for thought for the House. We are indebted to the Law Commission for pointing them up. They show how important it is that we see the matter in the round before we achieve anything like the goal that a high proportion of us seek.

It is, of course, too soon to say whether divorce law should be reformed and, if so, how. I merely wish to demonstrate that it and conciliation must be considered together. That task is also to feature as an item in the rolling programme, which I have mentioned. I shall now deal with the support services. The courts will need support if they are to carry out their functions both under the Bill and under any wider procedures the House may seek to enact in due course and which the Government may seek to bring forward. Those services include the provision of welfare reports, the work of the

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guardians ad litem, the work of reporting officers and the functions of the Official Solicitor in High Court cases. By virtue of clause 6, welfare reports are to be available to all courts in all children's proceedings, either from a probation officer or through a local authority, which may use one of its own officers or ask a voluntary organisation, such as the National Society for the Prevention of Cruelty to Children, or any other qualified person to prepare the report. Guardians ad litem are to be available in all the specified proceedings set out in clause 37(6), including applications for a care or supervision order, and are to be appointed unless the court thinks that it is unnecessary to do so to safeguard the child's welfare. Both clause 6 and clause 37 represent improvements on the present law, under which the courts do not always have power to call for welfare reports in children's cases and there is not the same near imperative on the court to appoint a guardian ad litem in care proceedings.

Mr. Hardy : It is relevant at this stage to ask whether the comments of the Solicitor-General make it clear that the Government understand that the implications of this legislation are that inevitably, even where the courts do not exercise the right to appoint, there will be a greater need for more guardians ad litem to be appointed under these arrangements. At present, there are serious difficulties in securing the appointment of a sufficient number of people for that role. What action does the Solicitor- General envisage will be taken to meet the need that arises from these provisions?

The Solicitor-General : The hon. Gentleman has intervened at the appropriate moment. The Government recognise that there is concern about the present arrangements which involve among others not only guardians ad litem, but probation officers, independent social workers, local authority social workers, and the Official Solicitor and his staff. It has been suggested that the functions they perform could be better organised, perhaps being centralised or even attached to the court. There is also the question of the overall level at which they are provided. Such reorganisation and redeployment of resources would be a major undertaking and the issue needs to be examined in detail before a decision is reached. That matter is also to be included in the rolling programme, where it can be examined in the context of the other changes under consideration.

I have referred to the rolling programme several times and I want to elaborate on it. It is a rolling programme to review family law and procedure and by now the House will want to know how it is to be carried forward. To give it reality, Ministers have agreed that the officials in all the relevant Departments will come together in an interdepartmental working party under the following terms of reference :

"The Working Party shall oversee a programme of work directed at improving all aspects of family law and business. In particular it shall

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