House of Commons Hansard Debates for 23 Oct 1989

Column 574

initiatives will be flawed until they address the central issue--the removal of the present adversarial system of family proceedings and the introduction of a properly funded counselling, conciliation and mediation service.

All the evidence that we have so far supports the view that the only way to remove the courtroom pain and anguish of family disputes is the introduction of an inquisitorial system backed by conciliation. I mentioned courtroom pain and anguish advisedly. We know that we cannot remove all the pain and anguish involved in these cases, but that is no excuse for allowing the courts to be used as a vehicle for venting the anger, frustration, bitterness

and--often--guilt which are associated with these matters. Court proceedings are also seen by many as occasions for winning and losing, a view perpetuated by our present system. No palliatives given to the family courts campaign can ever be successful until this problem is tackled.

We must also consider the facilities that are available in many magistrates courts. They are often appalling. Many courts have no facilities for conducting private interviews, which are held in corridors and passageways. The waiting rooms in many of our courts are cold, forbidding places where witnesses have nothing to do but glare at each other. Is that the way in which we should treat people who are already under considerable stress? Is that the way in which to resolve these difficult issues? A congenial setting is more conducive to better understanding all round. That is why the family court system in New Zealand places so much stress on the setting in which cases are heard. Basics such as the positioning of tables and chairs and how court officials, including judges, are dressed are considered important.

During the recess I met a representative of the embryonic North Wales family conciliation service, a group set up about three years ago in the hope that it would be able to offer conciliation services to all the courts in north Wales. Yet three years later it does not have a penny with which to begin to put that system into operation. Recently the group asked me for my support to persuade the Welsh Office to give it finance.

To be fair, in their response to the Social Services Committee the Government conceded that we have a patchwork of systems in England and Wales which is nothing like the system that we need--a universal, properly funded system. I want to ask the Solicitor-General when the university of Newcastle report will be published. When will we be told whether we shall have a properly funded conciliation service? Conciliation services offer couples opportunities to meet in a structured setting so that they can begin to resolve conflicts and work jointly with children to agree decisions. That is important, because conciliation aims to find a way of reducing the pain, anger, confusion and sadness experienced by children caught up in the process of their parents' separation and divorce.

We must never forget that parents need support when reaching and maintaining responsible decisions about custody and access. Because their parents lack support at the time of separation, children are not properly informed of decisions that will affect them. That leaves many children helpless, confused and lonely. Children want to be consulted and involved in decisions that will dramatically affect their lives. They want basic, practical information.

Column 575

They want to know where they will live, whether they will stay at the same school, whether they can still see their grandparents and where their absent parents will be living.

For these and other reasons, a conciliation service would play an invaluable role. Experience of the family court system in New Zealand is that there has been a dramatic reduction in the number of custody cases that proceed to the traditional blood-letting of a court hearing. There has been a dramatic acceptance of the need to change traditional approaches and procedures on the part of judges, administrators and the legal profession.

I believe that the campaign for a family court has come a long way, but not far enough. I confess that I did not come to this debate expecting that the Government would come forward with a system to establish family courts, because I knew that they would repeat what was said in Committee. But it is important for the House to have had the opportunity once again to debate this issue. As surely as night follows day there will inevitably be a family court in England and Wales. The House has an opportunity to place an important milestone along the way to the establishment of that system, and I hope that we will divide tonight so that we can properly gauge the support in England and Wales for its establishment.

Mr. Rowe : My hon. and learned Friend the Solicitor-General left me in no doubt about the Government's intentions in the matter of a family court. I have no doubt that the Government clearly see many of the absurdities in the present system and are anxious to end them. I welcome the commitment to a unified jurisdiction so that we can at least consider all matters relating to one family in one place at one time. That is probably as far as it is reasonable to expect the Government to go in this Bill.

I share a number of hon. Members' concerns about this rolling programme. I take issue with my hon. Friend the Member for Stockton, South (Mr. Devlin). I do not see a huge army of civil servants. I see three or four, some of whom have probably been up to their necks with the Bill hitherto, being switched, probably quite gladly, to the next great issue. The more that they come under pressure from outside, the harder it will be for them to work speedily. I hope that the Government will make sure that there are enough civil servants to do this important job expeditiously.

I received one nasty tremor during the Solicitor-General's speech when he quoted other people. He said that he thought that they had in their minds a wholly new structure, a new steel and glass building, he said, staffed by people with robes of a different colour. I hope that he completely distances himself from that attitude not so much because of the separate system but because of the robes of a different colour. The last thing we want is a reshuffle of existing wigs and gowns into a new pattern of formality and authority. We need a wholly new direction based on non- adversarial procedure. The need is to support the family and the child. Most people who have got into matrimonial difficulties desperately want either to resolve them or, if they cannot, to leave one another amicably and equitably. Adversarial proceedings make that harder not just in court but outside it. It is similar to the insurance company's injunction that one should not even be polite to the driver with whom one has just had an accident in case one gives the impression that one was at fault. Such an attitude is disastrous for the

Column 576

children and destructive for the family. I suspect, although I could never prove it, that it has a knock-on effect because if one of the spouses remarries the bitterness of the divisions may make it much harder to establish a good future relationship.

The third objective must be to get agreed solutions where possible. That will reduce the likelihood of a spouse losing access to the child in later years or a wife--it is usually the wife--not getting maintenance. Formality simply does not help.

When it comes, the family court should be bold, as it was bold in Scotland. Kilbrandon made this great radical leap of differentiating between questions of fact and questions of treatment, especially in criminal cases. It would be a serious error if the family court left juvenile crime to one side. How otherwise are we to reduce our appalling record of incarcerating young people, the worst record of incarceration in western Europe? How can we support the idea of family responsibility if at an incredibly early age we start treating the child who has committed an offence as some kind of criminal standing on his own? I realise that there are risks and I understand that in Scotland at this very time some of the children's panels are anxious lest some of their agreed treatment procedures are oppressive, but they are not questioned because there has grown up a culture of not questioning. Perhaps some should be taken to the sheriff for examination on a voluntary basis to make sure that that is not the case. However, that is a minor matter. I agree with my hon. Friend the Member for Chislehurst (Mr. Sims) that we have to support the existing family conciliation services while the rolling programme wanders on.

Every so often in India there is a great ceremony at which an enormous goddess called Juggernaut is taken out of her temple, put on rollers and taken through the streets. Many devotees allow themselves to be crushed to death under the rollers. I cannot believe that it is the Government's intention with their rolling programme to crush to death the existing family conciliation services by starving them of money while they wait for the Newcastle report to be properly evaluated.

Mr. Hinchliffe : We have heard some excellent speeches. The speech of the hon. Member for Mid-Kent (Mr. Rowe) was commendable and raised some important issues. I should like to concentrate on what could be described as practical grass-roots issues rather than the complex legal procedures raised by the Solicitor-General and some hon. Members.

7.45 pm

In Committee our proceedings were dominated by hon. Members who were either magistrates or lawyers. I am aware that I am competing with at least four Opposition lawyers who are trying to catch your eye, Madam Deputy Speaker. I speak as a non-lawyer, but as someone who has had extensive and on occasions bitter experience, especially in the juvenile courts, of social work practice. On the basis of that experience, may I say that the existing system of the administration of child care law is a discredited shambles long overdue for reform. It would be shameful if we were to allow the opportunity presented by the Bill to pass without a clear change in the procedures that are long out-dated for the work that they are expected to do.

Column 577

It is a matter of great regret that the Government have not proposed anything positive. I suspect that what the Minister said today is not much different from what he said in Committee. I am disappointed by that because I think that some Conservative Members, some of whom are not in the Chamber, firmly believe in the principle of the family court system and recognise the major problems. We all accept that in many ways the Bill is a great step forward. It answers the question about the principle of the welfare of the child and affords protection for children and young persons. It advances in law the rights of children and the rights of parents and carers and other relatives in respect of children. However, the Bill leaves the administration of these important changes in a court system that is clearly a hangover from the past.

In Committee I spoke about my concerns on the practical issues, some of which have been referred to. They certainly concern me and many users of the courts. We should not forget that not many hon. Members have had the experience of being before a juvenile court and having to defend themselves. Not many have had the experience of seeing their children before such courts. Many hon. Members have had experience of being professionals in court, but they have not seen the other side. That is the side that we should consider when we contemplate legislation.

I am worried about the system as it stands and the one that we will have in being to administer the new legislation. First, there is the matter of formality which has already been mentioned. The system that I met as a young social worker was markedly different from my perception. I had been led to believe that the juvenile court was informal and assisted children to bring forward their views and express themselves. My experience of the juvenile court is completely to the contrary. It is a highly formal system and terrifying for young children. I can recall seeing tearful children being made to stand up straight by magistrates who were offended because the child was so embarrassed that he was looking at the floor when speaking. We must aim at a system that assists children in frightening circumstances to express themselves, and that must be done in a caring and effective way rather than in a daunting way.

In Committee I mentioned the matter of sensitivity in dealing with children and families. Some hon. Members have spoken about the adversarial system. In Committee I spoke about giving evidence in a serious case of sexual assault on two young children. I was asked to give detailed evidence about the assaults in front of the two children. I objected, but I was forced by the magistrate to give evidence. That is not on, and it is not the kind of system we should have in a civilised country. Vulnerable young children should not be treated in that way. Formality must be tackled as a matter of urgency.

The other issue that caused some offence to one or two hon. Members who were magistrates was that many people who administer justice, particularly in magistrates courts and juvenile courts, have no insight whatever into the lives of the people with whom they are dealing. They do not come from areas where children have the problems that lead them to end up in juvenile courts.

I know that the hon. Member for Batley and Spen (Mrs. Peacock) was deeply offended when in Committee I referred to flowery hatted magistrates, and she continues to assure me that she does not possess a flowery hat even though she is a magistrate. However, she took the point that magistrates come from certain parts of the community

Column 578

and tend not to be a reflection of the people brought before the courts. We must challenge that and then tackle it. Many benches are unrepresentative of local communities and have no insight into the problems that cause people to end up in juvenile courts.

The hon. Members for Mid-Kent and for Ynys Mo n (Mr. Jones) referred to the physical conditions of many courts. People have to wait in appalling conditions to make a daunting and frightening appearance in court, often with the people whom they are opposing. The pressure and the demands on the court system have a bearing on the way people are treated. Although the Government are not introducing the necessary reforms, I hope that they have given some thought to the pressures that the Bill will place on the court system. I can see that huge increases in the workload will result from the emergency protection orders, and the appeals that will result from the Bill.

As my hon. Friend the Member for Monklands, West (Mr. Clarke) said, we must look at the Scottish system. Through the auspices of my hon. Friend the Member for Aberdeen, South (Mr. Doran), I was fortunate enough to make a visit to see the Scottish children's panel in operation. That was an education, because it was a completely different from a court hearing in the juvenile court system in England and Wales. It was like a breath of fresh air, because it was informal and sensitive and allowed the child, in a non-threatening situation, to express his views. It was non-adversarial and it offered a lot at which we should look. Our colleagues from Scotland should not be afraid to boast about what they have. They are asking how they can improve on that and we are a long way behind them. We should look to Scotland for a lead, particularly on a family court system.

The central issue is that we need a court system for children that, like the Scots system, has at its heart not the convenience of lawyers, magistrates, police and social workers but the central principle that underlies the Bill--the welfare of the child. We are long way from that principle with the system as it stands. New clause 1 sets out the principles that should underpin the legal system dealing with children, young persons and families. It also sets out the principles that would underpin the operation of the family court system that we envisage, identifies the welfare of the child, and avoids unnecessary formality, which inhibits and confuses most children. It also reduces delay and inconvenience to the public, which often occurs as a result of the way that cases are handled, reducing the harm to children and families that comes from the system. The court system's purpose is to help young children, but when they are involved in it, they suffer. Another vital principle is the introduction of conciliation into our method of resolving disputes. That seems an obvious thing to do.

I urge the Government to rethink their position. I am unhappy that new clause 23 and the Bill do not include the central principle that all Labour Members, and many Conservative Members, believe should be included in the court system to administer the Bill. It may be another 10 years before we get the chance to debate a similar Bill. It is crucial that we do not sit back and set up committees on rolling programmes. Instead we should get down to business, bring about the procedures for these reforms, and include them in the Bill.

Column 579

Mr. Fearn : My party has campaigned for many years for the introduction of a family court. I remember standing up in Southport district council in 1974 to speak on the Finer report and to support family courts. This is far from being a new subject, but we are still debating it.

We are all aware of how the present system of numerous courts dealing with family matters causes confusion and distress for families. In many cases, the children suffer most. Therefore, it is right to attempt to clarify the Government's position on the family court. Under the Bill, the interests of the child are paramount, and that lies at the heart of all the calls for a family court. By providing for the introduction of concurrent jurisdictions, the Bill may go some way to improving the legal and administrative tangle in which families are so often caught. However, because of so much reliance on secondary legislation, that cannot be guaranteed and the results may be worse.

The Bill does not go far enough. The adversarial nature of the British legal system--there must be a winner and a loser--is often at the root of the problem. Many cases dealing with some element of family life do not need a formalised court hearing. What is required is the ability to arrive at the truth in a fair, comprehensible and civilised manner, which would lead all the parties, including the children, to believe that they had had a fair hearing that would allow a proper assessment of what was in the child's best interests. A family court is the only way to achieve that.

A separate family court that would also cover young offenders would help to reduce delay in cases involving children. It would prevent cases from being allocated to an inappropriate level of court, and would prevent bottlenecks from arising because of other cases fighting for priority. In some areas, the courts are already severely overburdened, with devastating consequences.

A family court system with proper and adequate auxiliary services, such as conciliation, mediation, probation and welfare services, would prevent family problems from being dealt with on a piecemeal basis, would allow the whole picture to be considered and would allow for many cases to be resolved before coming to court. It would also enable the judiciary and other members of the legal profession to build up expertise in all sorts of family problems.

On the whole, there is much common ground between all parties and among the public. It is generally accepted that the best people to resolve problems concerning the needs of children are the parties involved. However, occasionally the state must intervene to protect the welfare of children. That must be done within a coherent framework of services and, whenever possible, with the agreement of those involved. That could be achieved by creating a properly resourced and serviced family system. The system that the Solicitor-General has set out is not a family court.

The arguments in favour of such a system are well known to all hon. Members. Although I welcome the Government's moves towards the family proceedings court, and understand to some extent their desire for gradual reform, I believe that family courts are an important factor in safeguarding and promoting the welfare of children and their families. Delay is not justified, but delay is what we are getting tonight. It may be 15 years

Column 580

before the rolling programme brings forth the priorities that we need. The time is now right to make that commitment and set the reform in motion.

Mr. Vaz : In Committee, the Solicitor-General coined the memorable phrase "an all-singing, all-dancing, family court". When he started his speech, and busied himself around the Dispatch Box looking for his notes, I thought that he was giving us an example of what the all-singing, all- dancing court would look like.

The scenario put forward by the hon. Member for Mid-Kent (Mr. Rowe) of the Solicitor-General standing on rollers being pushed down the hill as devotees sing around him as a metaphor for the rolling programme is an interesting spectacle. If the Solicitor-General has listened to the speeches tonight, as I am sure that he has, he will have found himself in a minority of one. I suppose that, as he is in the Government of a Prime Minister who decides that a vote of 48 to one at the Commonwealth conference is a victory, he will apply the same criteria and say that he has won the debate on his arguments. My hon. Friend the Member for Monklands, West (Mr. Clarke) quoted St. Augustine and talked about chastity. The Solicitor-General is like a reluctant legal virgin, unwilling to take the final step that is necessary to bring him close to us on ideas on the family courts. He introduced the extraordinary phrase in Committee about the rolling programme, and I pressed him as to what that was. It is a remarkable programme with no real beginning and no real end. There is no timetable, just loose criteria based on the points that the Solicitor- General mentioned earlier.

8 pm

The Bill has, for the most part, achieved a large degree of consensus. The Standing Committee divided on only a few occasions, and I suspect that there will be few Divisions on Report. Nevertheless, this is one of those occasions. Before I was elected to the House I was a senior solicitor for a London borough. I must tell my hon. Friend the Member for Wakefield (Mr. Hinchliffe)--and it is a confession to appease him--that I have never been a private solicitor taking private fees ; I have always worked in the public service for various local authorities. As someone involved in child- care law, I saw this Bill as a great, historic opportunity to achieve a unified family court system--but we are being bought off. I hope that some Conservative Members will join us in the Lobby when we divide on this matter, especially the hon. Members for Mid-Kent (Mr. Rowe), for Stockton, South (Mr. Devlin) and for Batley and Spen (Mrs. Peacock), who all spoke eloquently about the need for family courts. We shall have to wait to discover whether they will vote with us or whether the holiday in Bermuda offered to the hon. Member for Stockton, South has been accepted.

It is 100 years since family law has been considered as carefully as it has been during the passage of the Bill. We are all aware of the historic nature of our work. I agree with my hon. Friend the Member for Wakefield that the opportunity to act may not arise for a decade, although I think that it will be even longer than that. Unfortunately, these issues are too low down the political agenda for Governments to include them in their programmes. Despite the eloquence of my hon. Friend the Member for Monklands, West and the fervour with which he will no doubt carry out his tasks as Minister of State in the next

Column 581

Labour Government, he will have to fight very hard to get these matters debated early in the programme of that Government. The Solicitor-General, as a lawyer, must know that it is necessary to have a timetable. It is always good to end something that has been started. It is a reasonable suggestion and I hope that he will be teased into commenting on it when he replies to the debate. He said that, as yet, the substantive law is not quite right, but when it is that will be the time for a change in court structure. As many hon. Members have already said, the Bill will become law shortly--including, I hope, Opposition amendments. Its passage is almost a foregone conclusion--if saying that does not usurp the authority of the House--and there will be in place a substantive and radical piece of law that will repeal six statutes and amend a further 30. It is only reasonable to consider the question of structure, and surely it is best to do so at the same time as considering the substance. I think that that is the sensible way to proceed, but unfortunately the Solicitor-General does not agree with me. We accept all that he said about the need for special training for magistrates and for those who will assist in the processing of cases. We agree that the new proposals in clause 67 will provide the opportunity to switch jurisdictions between courts. The hon. and learned Gentleman claims to have the support of the president of the Family Division, who has said that we now have a family court in all but name. If that is the only problem, I urge him to take that little step forward. The hon. and learned Gentleman said that we cannot change procedures because certain courts have petitions while others have summonses, yet he is proposing to do just that by changing the way that evidence will be made available to the domestic courts. He mentioned the introduction of affidavit evidence and of magistrates considering evidence well in advance. That is a substantial change in procedure, and if he is prepared to go that far, he should go just that little step further.

I listened carefully to my hon. Friend the Member for Aberdeen, South (Mr. Doran), although I did not think it the appropriate time to raise the matters that he did. I accept that he was entitled to do so, but I disagreed with everything that he said about transracial adoption. If we are to consider questions of creed and linguistics, we must also consider the question of race. However, that is a larger argument which is not really relevant to a discussion about family courts. My hon. Friend and I must discuss the matter later, when I shall try to convince him of my view and he can try to convince me of his. My experience as a solicitor at the juvenile court in Islington was of enormous pressures being placed on children. That led me to believe that the only solution would be a unified family court and conciliation system. Children in court settings have to face the terrible experience of hardship and bitterness. Time and again I would turn up at the courts, there would be an adjournment and the children would have to wait almost all day before the hearing for interim orders, full-care orders or supervision orders. They would then have to return to the court 28 days later.

I acknowlege that the Government have recognised the problem and I supported the Solicitor-General when he moved amendment No. 37, which sought to reduce delays. We supported the idea of a timetable for cases that will be made possible by the rules of court, which is important,

Column 582

but the best way to solve the problems of delay is to have a family court system with properly trained magistrates and clerks who understand the nature of what is at stake.

I and the hon. Member for Stockton, South--it sounds like a mutual admiration society, but this is probably the only legislation on which we will agree during our time in Parliament--rue the fact that wardship jurisdiction will be abolished by the Bill. I have an affection for wardship because I believe that it allows for a better system of justice. I should have liked to have a family court system along the lines of the system in the High Court, with experienced judges of the Family Division having affidavit evidence placed before them.

Mr. Devlin : I understand that while I was out of the Chamber the hon. Gentleman expressed the concern that I might have disappeared to Bermuda. I assure him that I had only gone to pick up the ticket. He mentioned our mutual admiration society, and indeed I rushed back from the other end of the building as soon as I saw his name on the monitor. I agree that wardship should have been retained. It proved to be an invaluable part of the proceedings in Cleveland. Had children not been put in wardship during that unfortunate crisis, we would probably never have had the matter sorted out. As I said in Committee, I regret the Government's view that wardship should be phased out.

Mr. Vaz : I am glad that the hon. Gentleman returned to the Chamber rather than going to Bermuda. I hope that he will join the Opposition in the Lobby and support new clause 1.

I agree with the comments of some hon. Members about the way in which the courts operate. The juvenile and domestic courts in Leicester are prime examples of the problems and the pressures on families. There is only a small room in which more than 70 people, including children, have to wait for their cases to be called, and only one court is available. No refreshments are available, there are no telephone facilities and there is no appointments system. All that adds to the burden on families.

If the Solicitor-General were to say tonight that the reason that he could not introduce the measure was because it would cost more, I should refer him to the points made by so many people and especially to the report of the Chartered Institute of Public Finance and Accountancy and to the document "The Price is Right", named after a popular quiz show, which suggested that there would be savings of more than £10 million. If he is afraid that the Chancellor will say that he has not enough money to pay for the new system, I suggest that he hand the Chancellor a copy of that document, which will show the tremendous savings to be made if the system is introduced. We need to bring the many aspects of children's legislation into a single system. Wardship, adoption, divorce, custody, access, maintenance, domestic violence, guardianship, affiliation and care orders are all aspects of law and social policy that affect children directly. If the Solicitor-General does not accede to the demands of new clause 1--if he continues to maintain that the change of name that he proposes in Government amendment No. 353 meets the requirements laid down by hon. Members, the family courts campaign and other outside organisations--I feel that he should reconsider the Government's proposals. Merely changing the name will not solve the

Column 583

problem. If he does not reconsider, the hon. and learned Gentleman will go down as the first Solicitor-General in history who has introduced such a radical measure and then sabotaged it because he has not the courage, or perhaps the political muscle, to go a step further and introduce a new system that will ensure that the Bill-- many parts of which we support--constitutes an effective body of law.

Mr. Doran : Many powerful speeches have been made on both sides of the House in favour of the family court system, and I do not intend to repeat points that have already been made. I should like, however, to speak from the perspective of one who has specialised in family and child care law for many years, and also from the Scottish perspective.

I was pleased to hear the compliments that have been paid to the children's hearing system, in which I worked for some 12 years as a solicitor employed both in private practice and by a local authority. I am mystified by the fact that, after all our years of experience of the Scottish system--which got under way in 1971--a similar system has still not been introduced in England and Wales. After reviewing the literature, I have concluded that the only reason why it has not is that the magistrates are far too powerful a lobby to be overcome, and that they want to keep the jurisdiction for themselves. What the Government do not perceive is the damage being done to families and children in the process.

I listened carefully to what the Solicitor-General had to say, and I should like now to deal in particular with two points that he made. He said that those of us who see the need for a family court consider the problem institutional rather than functional. I consider that rather an insult : it suggests that we ignore the reality of the present system as it affects those who must appear in court, both children and adults. It also assumes that we are talking in a vacuum, which we are not. We have experience both of the damage done to families and children by the present system, and of the Scottish system. But I do not want merely to praise the Scottish system ; I want to put on the record something of what it means in practice. The Scottish system is informal in that the legal process is separate from the actual hearing and disposal of a case. Every local authority area is required to have a children's panel, consisting of people chosen from and intended to reflect the community, lending an element of democracy to the procedure : lay people are exercising the juvenile justice and child care systems.

Every children's panel is split up into children's hearings, which hear individual cases. The hearings comprise three members, one of whom must be female and one of whom is elected as chair. My hon. Friend the Member for Wakefield (Mr. Hinchliffe) described his experience of attending a children's hearing in Edinburgh, and I understand why he felt that that was a breath of fresh air. Such an informal set-up, with parents and children sitting around a table with the members of the hearing and everyone not only allowed the opportunity to state his point of view but encouraged to do so, would come as almost a cultural shock to someone who had grown up in the English system--or, as did my hon. Friend the Member for Monklands, West (Mr. Clarke) with the old Scottish juvenile justice system. Decisions are not imposed on people ; they discuss the disposal by the hearing, and are involved in decision making. That, I think, is crucial.

Column 584

8.15 pm

It is also important to emphasise, as did the hon. Member for Mid-Kent (Mr. Rowe), the importance of the Kilbrandon report. Let me here record the sad death of Lord Kilbrandon a few weeks ago, and the debt owed to him by the Scottish legal profession--and, I am sure, the social workers--for his legacy of the children's hearing system. As long ago as 1964, the Kilbrandon committee saw the necessity of bringing together children who were in need of care and treatment because they had been neglected or abused by parents, and those in need of such care and treatment because they had offended. The two should not be distinguished, and following the report they were dealt with in exactly the same way. That was a fundamental reform in Scots law, and it is the essence of the children's system. The English system seems incapable of similar action : it still forces children to appear before a court. This may be a newly contrived court with a different name in an attempt at subtlety, but the old formality will remain, as will magistrates with no real training or experience of the problems faced by families.

The Solicitor-General--still basing his remarks on the view that Opposition Members see the problem as institutional--spoke of the difficulties that he has faced in considering the concept of a family court. It seems to me that he himself saw the problems in an institutional context : he confused the need for procedural reform with the need for legal reforms in many other spheres--divorce, for instance, and matrimonial violence.

Surely it would not be very difficult to establish what should be the jurisdiction of a family court : to establish the rules for such a court, and to change the law in other areas later. I see no need or justification for saying that the whole idea of a family law must wait on the stocks until we have reformed divorce law. What must be reformed are the rules of court relating to divorce. If it seems appropriate to make what I would describe as the cosmetic changes announced by the Solicitor-General today and in Committee, it surely would not be difficult to establish a family court. Let us by all means make other essential changes later.

I have wrestled with the difficulty that faces me, as a Scots lawyer with experience of the children's hearing system--containing, as it does, informality and a lay element--when it is clearly intended to retain the formal court system to deal with children's cases. I feel that a hybrid system is needed ; certainly I do not wish to see the end of the important lay element in the Scottish system. A few years ago I worked on the idea of a family tribunal, similar to the industrial and employment tribunals. In my view, we must retain the legal element simply because of the many important legal questions that come before the courts. None of the speakers today, apart from the Solicitor-General, has suggested that the present system which operates in England and Wales should be retained. They realise the need for informality, to remove the barriers and to encourage the proper sensitive solution of cases rather than throwing them to the mercies of the adversarial system. A hybrid sytem with the best of both systems which retained the legal element but introduced a lay element should be explored. The Bill does not do that, but it goes some way towards recognising the need for radical change.

I catalogued my experience in child and family law in Scotland before going on to the meat of what I had to say. I have another relevant experience to bring to today's

Column 585

debate, and that is as a child witness before a court in Scotland. At the age of eight I was the victim of an assault and was required to appear in the sheriff court at Edinburgh. I have never forgotten the terror that I felt as a young child standing in the witness box and being required to answer questions from the bench and from the solicitor who defended the woman who had assaulted me and from the prosecutor. It is a terror which I have seen since in children I have taken to court to meet the judge when, for example, there has been a dispute over custody and the presence of the children has been required by the judge because they were old enough to express a view. It is a terror which every child who appears before the juvenile courts in England must face today. I want to see it stopped, and that is why I will support new clause 1.

Mr. Stuart Bell (Middlesbrough) : I am grateful for the opportunity to follow my hon. Friend the Member for Aberdeen, South (Mr. Doran). In his short speech, he brought to the House his own experience as a child, and reflected on the trauma that he felt and that he saw other children experience when they had to appear in court.

I shall begin my speech by speaking directly to the

Solicitor-General. After listening to my hon. Friend the Member for Leicester, East (Mr. Vaz), I felt that the Solicitor-General is a much- maligned man, having to suffer many of the slings and arrows of Opposition fortune. I should like to congratulate him on keeping the promises that he made in Committee. He made a series of commitments to family courts and he has fulfilled them in schedule 9 and new clause 18. I am grateful to him for keeping his promises. Politicians are not supposed to keep promises. The Solicitor-General is a politician as well as being a Law Officer and he kept his promise. My hon. Friend the Member for Monklands, West (Mr. Clarke) made a vigorous speech enunciating his opposition to what the Government were doing and making the strong policy commitment that the Labour party has to a family court. He called the Bill a "lost opportunity". He said that the Solicitor-General had produced a "small little mouse" by way of a family court. I accept that we are unifying the jurisdictions of the High Court, the county court and the magistrates court. That is a welcome step, but I believe that the

Solicitor-General has builded a small and modest house.

I should point out to the Solicitor-General that it is always a risky business to make one major reform, such as the creation of a family court, dependent upon other reforms. As the hon. Member for Chislehurst (Mr. Sims) will understand, it has taken so long to bring forward the Children Bill because a whole series of investigations and commissions were looking at children's rights. We had the Law Commission and other reviews and each Lord Chancellor waited for the outcome of the next review before the Children Bill was produced. I shall make a great effort not to mention Cleveland. I will leave that to my hon. Friend the Member for Monklands, West, but a steer had to be given to the variety of commissions before the Children Bill was produced. If we have to wait for the Law Commission's proposals on divorce and adoption, we may have to wait a long time. We shall also have to wait for the working party to which the Solicitor- General referred, and which is a novel arrangement, to produce its conclusions. It is not as if we do not have a divorce law. We have divorce law and proceedings in relation to conciliation, we have adoption

Column 586

laws and laws dealing with access and matrimonial violence. Why do we have to wait until the Law Commission's report on all those matters before we take the bold step of creating family courts? That is why I and my colleagues support new clause 1 which is in our names and, as the hon. Member for Stockton, South (Mr. Devlin) said, was in his name and that of the hon. Member for Batley and Spen (Mrs. Peacock) in Committee.

The debate has referred to the Finer committee on which we had a great discussion in Committee. When the Solicitor-General referred to the new working party that he was setting up, he did not take up one of the recommendations of the Finer committee which was that there should be a close relationship with social security law. Perhaps the Solicitor-General should look again at that recommendation by the Finer committee and add it to the working party discussions. We do not want to overburden the working party, but we want a family court that reflects the considerations of the Finer committee.

Finally, I should like to refer to what the hon. Member for Chislehurst said. He said that the Committee had a great consensus and was essentially a non-political committee. We made many references to resources, which have been mentioned again tonight. If the Opposition were in government we would put more resources into child care than the present Government are doing.

It is clear that we shall be dividing the House on the issue. The hon. Member for Stockton, South said that my hon. Friend the Member for Monklands, West had referred to his speech in Committee which was a felicitous speech. I appeal to the hon. Members for Stockton, South, for Chislehurst, for Batley and Spen and for Mid-Kent (Mr. Rowe). If they wish to show clearly their own personal commitment to a family court they should join us in the Lobby and vote for our new clause.

The Solicitor-General : First, I am grateful to the hon. Member for Middlesbrough (Mr. Bell) for his opening remarks, although I must disagree with his closing remarks. The Government have fulfilled their engagements given in Committee. Although it is in his absence, let me draw on the words of the hon. Member for Leicester, East (Mr. Vaz). The Government have put in place a radical and substantial piece of law. When we enact the Bill, it should be recognised on both sides of the House that that is exactly what we have done. One of the difficulties is that discussion on family courts tends to be long on rhetoric and short on thought. Quite frankly, I must say that very firmly about the speech of the hon. Member for Monklands, West (Mr. Clarke). The speeches that suggest that hon. Members should support in the Lobby the Opposition clause instead of the Government's clause are, frankly, misguided.

The first point to recognise, and the hon. Member for Middlesbrough will recall this as he at least has researched these matters, is that it was Finer himself who recognised that a family court would have to apply a single unified body of substantive law. I have constantly reiterated the fact that we are creating in the Bill a single unified body of substantive law in relation to this aspect of children's law, and to that extent we can and shall create a unified jurisdiction and those aspects of what might be described as a family court.

Mr. Vaz : When?

Column 587

8.30 pm

The Solicitor-General : I will answer the hon. Gentleman. I have had the oportunity to look at the Labour party's own clause--new clause 1-- which would be brought into force in not more than 18 months, and then there are the allotted rules of court to be made. Within that time scale-- about two years-- the House can expect the provisions of the Children Bill to be up and running and in effect. I did not give a time scale for the further rolling programme because that programme goes into wider aspects of family law where we have to do exactly what Finer said and create a single unified body of substantive law.

By the time that two years is up we can expect to be well down the road. We will have had two or three reports from the Law Commission. We will have considered with constructive care the Newcastle university reports on conciliation. The hon. Member for Ynys Mo n (Mr. Jones), who has paid a good deal of attention to the debate, asked when the Newcastle report will be published. That is an example of the amount of thought that has been given to this Bill. The report was published last spring, and I am rather surprised that he has not read it.

Labour's new clause 1 contains perfectly reasonable hopes, which we will very largely fulfil by our substantive clauses, but they are no more than hopes.

The hon. Member for Monklands, West referred to other jurisdictions. He mentioned Australia as being in the forefront, but he should be aware of the major difficulties that Australia has had with its family courts-- perhaps New Zealand would be a better model. The hon. Member for Monklands, West referred to the family and conciliation. It is interesting that new clause 1 applies those aspects only to part II, when they are quite clearly equally applicable to part I.

The truth of the matter was brought out by my hon. Friend the Member for Stockton, South (Mr. Devlin), when he said that, in new clause 1, the Labour party intends to divide the House upon something that is no more than the clause that he put down for probing purposes in Committee. That illustrates the barrenness of the Opposition's stance.

Mr. Tom Clarke : The Labour party made it quite clear from the beginning that it was no disgrace to look for consensus on an issue where we were assured that consensus existed. New clause 1 reflects the all-party view expressed in Committee. The difference between the Labour party and the Government--and I now know what it feels like to be savaged by a dead mouse--is that we are honouring the commitments that we gave.

The Solicitor-General : I am grateful to the hon. Member for Monklands, West for that intervention, which says little more than his earlier speech.

The Bill produces major changes in substantive law on children, in jurisdiction and in court structure to enable the family court concept to come into effect in care and family proceedings. I commend the Government's new clause and amendments warmly to the House. Amendment agreed to.

Amendments made : No. 354, in page 149, line 18, column 3, at beginning insert--

Column 588

Section 1(4)(a).

Section 5(2)(d).'.

No. 355, in page 151, line 9, at end insert--

1972 c. 18. The Maintenance Orders (Reciprocal Enforcement) Act 1972. Section 41.'.

No. 250, in page 151, line 10, leave out paragraph' and insert paragraphs 4 and'.

No. 249, in page 151, column 3, leave out lines 14 and 15 and insert--

Sections 42 to 44.

In section 52(1), the definition of "custody".

In Schedule 2, paragraph 11.'.

No. 446, in page 151, line 16, at endinsert--

1973 c. 45. The Domicile and Matrimonial Proceedings Act 1973. In Schedule 1, in paragraph 11(1) the definitions of "custody" and "education" and in paragraph 11(3) the word "four".'.' No. 451, in page 151, line 43, column 3, at end insert--

In section 28(5), the words "or the organisation". '.

No. 452, in page 151, line 54, after safety' insert

', in the definition of "local authority" the words from "and" to the end'

No. 437, in page 151, leave out line 59 and insert

11, 19, 21 and 22.'

No. 251, in page 152, line 16, leave out paragraph' and insert paragraphs 10 and'.

No. 252, in page 152, column 3, leave out lines 18 to 20 and insert--

Sections 9 to 15.

In section 19, in subsection (1) the words "following powers, that is to say" and sub-paragraph (ii), subsections (2) and (4), in subsection (7) the words "and one interim custody order" and in subsection (9) the words "or 21".

In section 20, subsection (4) and in subsection (9) the words "subject to the provisions of section (11)8 of this Act".

Section 21.

In section 24, the words "or 21" in both places where they occur.

In section 25, in subsection (1) paragraph (b) and the word "or" immediately preceding it and in subsection (2) paragraphs (c) and (d).

Section 29(4).

Next Section

Home Page