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12.44 pm
Mr. Bill Olner (Nuneaton): I congratulate the right hon. Member for Tonbridge and Malling (Sir J. Stanley) on securing this very important debate, and I thank him for leaving me a few minutes in which to add to his excellent comments. I also congratulate the Parliamentary Secretary, Lord Chancellor's Department on his new post. I think that the first time I saw him was when we were both being issued with our security passes in early April 1992.
I should like to follow the latter points made by the right hon. Member for Tonbridge and Malling on the review of the workings of the Hague convention. I know that Reunite National Council for Abducted Children is doing some excellent work in considering all the problems that people face. It certainly has strong links not only with
the Lord Chancellor's Department but with the Home Office and the Foreign Office, and is well able and professional enough to bring all those strands together.
I also think that it would be very difficult to get all the signatories to the Hague convention to alter the wording. We need to take action fairly quickly, however, so I hope that the Government will first concentrate on considering mediation. Perhaps mediation should be included in the international code of practice that will be given to judges. Many cases begin domestically and could be sorted out before they become involved in all the ramifications of the Hague convention. Some guidance needs to be given on the starting point, because many problems could be avoided.
I am grateful to the right hon. Member for citing the statistics on legal aid, because our nationals feel that it is a great injustice that foreign nationals are able to get legal aid immediately over here. Foreign nationals do not have to prove whether they are rich or poor, but automatically receive legal aid in Hague convention cases. That is not so for our nationals when they are abroad. Such differences should be looked at strictly, because legal aid provisions should be mirrored in other Hague convention countries.
While we are considering the review, we must look at the quality of the interpretation of the signatories to the Hague convention. Countries sign it, but very little seems to be in place to ensure that it is possible to put right all the things that need to be put right.
I want to leave the Parliamentary Secretary a fair amount of time to answer the important questions, so I shall leave him with a point that ought to be considered. All child abduction cases are heart-rending, and many people--standard families as well as others--are badly hurt. Even with the best legal process, there can be some injustice. Will the Parliamentary Secretary give serious thought to establishing an international panel of arbiters, so that, when two national law-making bodies clash and cannot agree, the case can be sent somewhere else, where it can be properly, fairly and independently judged?
The Parliamentary Secretary, Lord Chancellor's Department (Mr. Gary Streeter):
First, I thank my right hon. Friend the Member for Tonbridge and Malling (Sir J. Stanley) and the hon. Member for Nuneaton (Mr. Olner) for their kind remarks. The hon. Gentleman referred to an episode that we shared in the photographic booth in another place, which I remember with great affection and fondness.
I thank my right hon. Friend for initiating this important debate. I pay tribute to him, the hon. Member for Nuneaton and all members of the all-party group on child abduction for their efforts on behalf of children and parents who are involved in such unhappy situations. I also readily acknowledge the excellent work of Reunite National Council for Abducted Children. In common with my right hon. Friend and the hon. Member for Nuneaton, I recognise that the distress caused in such dreadful cases is real.
I believe that my right hon. Friend, and indeed all hon. Members present for this debate, support the important purposes of the 1980 Hague convention on the civil aspects of international child abduction. Those are primarily to prevent international child abduction and to promote the lawful exercise of rights of contact with children. The convention aims to achieve them by requiring a contracting state to return promptly children who have been wrongfully removed from another contracting state in breach of existing custody rights. The prompt return of children in that situation is intended to restore as nearly as possible the status quo before the wrongful removal, and to require both parents to pursue their custody and access claims in the courts of the country where the child is habitually resident.
As international contacts grow, the need for and use of conventions of that kind will increase. To illustrate the point, the total number of convention cases has doubled in the past five years, and further growth is likely, as my right hon. Friend said.
I shall attempt to persuade my right hon. Friend that the convention is generally, although not in every case, operating in a satisfactory manner. If that is right, we may reasonably assume that it also performs the valuable function of deterring would-be abductors and encouraging them to resolve their difficulties through judicial processes or mediation. Deterrence of this kind would not, of course, show up in the statistics collected by our child abduction unit.
I had intended to give the House some background information, but, in view of the time constraint, I shall refer immediately to the specific matters that my right hon. Friend and the hon. Gentleman have raised. My right hon. Friend has argued that the convention is in need of a general overhaul in order to increase its efficiency. He also made a number of specific criticisms of it. As he said, a general review of the convention's operation is planned for early next year.
The Hague conference on private international law regularly reviews the workings of existing Hague conventions; the one on child abduction was reviewed in October 1989, and again in January 1993. A special commission of the conference, which is a working group of experts from the contracting states, will meet next March to consider an agenda prepared by the permanent bureau. The review will cover any problems with the convention's operation that member states wish to raise.
The Government take that opportunity for review seriously. In the coming months, we shall do what is necessary to ensure that all relevant problems are identified and included on the agenda, and that they are then discussed by the special commission in as constructive a way as possible.
As a result of my right hon. Friend's representations today and previously, for which I am most grateful to him, I am glad to say that we have decided to carry out consultations in advance of the special conference meeting to help us to decide what matters to put forward for discussion. We have had some interesting suggestions today.
One of the problems raised by my right hon. Friend concerns the evidence of expert psychologists in applications for the return of the children under the convention. It is said, quite rightly in my view, that in
that situation psychologists must be independent experts, offering objective and professional opinions on all aspects of the cases on which their advice is sought.
It is also said that that has not happened in the case of Catherine Laylle, to which my right hon. Friend drew our attention, in her attempts before the German courts to secure proper custody and access arrangements in relation to her children. I have the greatest sympathy for Mrs. Laylle, as I have for all parents who are separated from their children in unhappy circumstances such as those that we are discussing today.
It seems that Mrs. Laylle has failed to secure the appointment of a psychologist who is able to speak both German and French, the languages spoken by her children, and who is clearly independent. The one who has in fact been appointed by the court speaks only German--not Mrs. Laylle's language--and is a local practitioner, from Bremen. Mrs. Laylle does not have confidence that his advice has been, or will be, unbiased.
I should point out that the proceedings in relation to which the psychologist's advice has been sought are not proceedings under the Hague convention. Those proceedings were concluded in October 1994 by the decision of the Celle higher regional court, which decided that Mrs. Laylle's children should not be returned to England. That decision was based on interviews with the children, not on the evidence of psychologists.
My view at present--I should emphasise that I do not have a closed mind on the issue--is that there is not a general problem with the evidence of psychologists who are not properly independent being given in proceedings under the convention for the return of children. Such proceedings are concerned only with which court should have jurisdiction to make orders in relation to the children, and are therefore necessarily summary in nature. In those circumstances, psychological evidence will not generally be of particular relevance, but if my right hon. Friend has any further material on the matter, I should like to hear from him as soon as possible.
The second specific matter raised by my right hon. Friend concerns the weight that should be given under the convention to the wishes of the children--an important matter. Under article 13, the courts of a country to which a child has been wrongfully removed may refuse to order his or her return if they find that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
The suggestion here is that in some cases excessive weight has been placed on those wishes, thereby frustrating the return of children in circumstances where the general principle of the convention should operate--that wrongfully abducted children should be returned to the country of their habitual residence for the courts of that country to make orders relating to their long-term future.
That is a difficult area, where each case turns very much on its own facts. However, some general propositions can be stated with confidence. There is always a difficulty about the weight to be placed on the
child's wishes where the dispute is, in effect, only on the limited jurisdictional question as to which court should determine that matter. The general principle of the convention is that abducted children should be returned to the country of their habitual residence. A number of exceptions to that principle are laid down, but it is plainly desirable that they should not be interpreted in an overly broad way; otherwise, the general principle will be undermined.
In that context, it is important that undue weight should not be attached to the wishes of the children, and that only in clear cases should those wishes be sufficient to undermine the general rule of return to the country from which the children have been abducted. It may be that, in certain cases, that exception may have been interpreted too widely and that, as a result, children have not been returned when perhaps they should have been. We are looking into this further, but my right hon. Friend will be glad to learn that it is one of the issues on which we will be consulting to determine whether we should place it on the agenda for the meeting of the special commission.
My right hon. Friend rightly complained that, although legal aid is available in this country in the usual way for applications under the convention, it is not always available in the contracting states. That remains the case in a number of countries, which I will discuss with my right hon. Friend at some stage in more detail.
I agree with my right hon. Friend that the provision of proper legal aid in such circumstances is of the upmost importance. There appears to be a problem in the United States, but it is not apparent in other countries. I will reflect further on whether any useful purpose would be likely to be served by putting that matter on the agenda for the special commission, or by taking the matter up bilaterally. If I consider that there would be, I can assure my right hon. Friend that that will be done.
My right hon. Friend referred to rights of access and the operation of article 21. I should be grateful if he would let me have details of any particular cases that I should take into account before the meeting of the special commission.
A number of interesting suggestions have been made today about what should be considered by the special commission--for example, a code of practice and an international panel of arbiters. I will reflect further on them.
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