Adoption and Children Bill

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The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I am interested in exploring some of the options that you think would be needed in legislation. It has been suggested that guidelines should be made statutory. However, that might cause a problem, and I should be interested in your comments. The whole idea was to monitor the guidelines to find out whether they were effective, whether they needed amending or improving and whether some of them needed to be taken away. If they were immediately made statutory, you might be left with inadequate guidelines. Do you think that other legislative changes should be considered?

Caroline Abrahams: It is partly about the law and it is partly about practice, is it not? I think what is happening is that on the northern circuit the practice is moving ahead and that is terrific, but maybe we need to do more to tighten up the law to help other people. But it should not be an either/or.

I think we must do everything we can to keep encouraging people like the well-named Mr. Justice Allweis in the northern circuit—the guy responsible for this improvement. That is great, but we need to encourage him and applaud what he and his colleagues are doing; but perhaps for other people you need something that is altogether stronger so that everyone can move together. I do not know what Chris says about this.

Christine Atkinson: Also, we have learned in other aspects of law where the judicial system has looked at the situation of children—I am thinking particularly of child witnesses. What we have seen is very much an incremental approach, where you have had legislation but also, accompanying that, guidance to help things along.

I think what we are saying is we do not think, in this situation where children are actually being currently put at risk, that guidelines on their own are enough, because it leads to inconsistent practice. From what we can see in how the Children Act is being interpreted there is an over-emphasis on that contact should continue with both parents regardless of the safety aspects for the child. So if there was a change to the Children Act it would actually attempt to rebalance that in certain cases.

6.30 pm

Liz Blackman: I am sorry that I have come in at the end of this discussion—I got back late from voting. I should like to ask Caroline Abrahams what Judge Allweis is doing that makes him so effective? Is he merely following the guidelines, employing a huge slab of common sense and ensuring that that practice is followed throughout his district, or does more need to be done? If practice, based on what is already there, was good, would the situation be much better or would the law still need to be changed?

Caroline Abrahams: My understanding is that Judge Allweis is being incredibly proactive and has set up a multi-disciplinary group, and it has set up training on the back of that. So the culture has changed, and I think that my view about that would be that that is because the people were ripe for change, as it were, and there was real leadership in that area. Perhaps in other areas, where the same conditions do not apply, one needs a greater tightening of the law in order to generate that change. If we could replicate people like him everywhere then everything might be okay, but I do not think that that is how it is, and I think that there is always a danger of extrapolating from the best. I think we do that all the time—we find an example of good practice and we are inclined to think we can replicate it, and I am just not sure it works like that.

Liz Blackman: Judge Allweis must be operating within the framework of the law, and he is delivering best practice, so what could change in the legal framework to help people elsewhere to reach his standard?

Caroline Abrahams: I suppose one of the things you could do is to look at what has happened in other jurisdictions, such as New Zealand or Northern Ireland, where they have actually changed the law quite significantly so that there is actually more of a trigger during proceedings for a thorough assessment and discussion about whether contact is in the best interest, what kind of contact, and how we can make it work for children and for adults. So there is a rebuttable presumption against contact, for example, in New Zealand, which Mr. Justice Wall did look at, but I think considered a bit unwieldy and possibly a bit expensive. But the great thing about it is it meant there would be a thorough risk assessment, and perhaps that is what is sometimes missing at the moment. That is perhaps why children are still sometimes having unsupervised contact with schedule 1 offenders and it leading to significant problems later on.

Liz Blackman: But there is certainly scope in the interim for spreading the good practice of Judge Allweis across the land?

Caroline Abrahams: Yes, I think that that is undoubtedly the case.

Jacqui Smith: To follow up the point about looking at other systems, can you explain to us what they do differently in Northern Ireland and how that would translate into British law?

Caroline Abrahams: My friend here might help me, but my understanding is that they have gone part of the way towards the New Zealand approach, but not all the way. I am slightly perplexed by it, because they seem to have put in a trigger to make the court decide, before granting a contact or residence order, whether the child has suffered or is at risk of suffering any harm through seeing or hearing ill treatment of another person; or perhaps a non-molestation order is already in place. It is specifically around domestic violence. The thing that seems slightly odd to me is that it does not seem to encompass cases where there is direct abuse or a risk of direct abuse towards the child. It is an interesting step forward but does not quite meet the ends that we would like it to. Maybe I have got that wrong and Chris will put me right.

The Chairman: Christine Atkinson is shaking her head. Do any other witnesses have thoughts about this aspect of the matter?

Liz Garrett: We at Barnardo's are very much in support of the points that NCH and NSPCC have made. It is a matter of concern. The practice is inconsistent and therefore children are not protected. It is not enough to wait and see whether good practice spreads, because in the mean time children are subjected to very risky situations.

Kathy Evans: I support that view.

Margaret Moran: To follow up the points about the Northern Ireland legislation, Caroline Abrahams seemed to imply that it would help but that other things would make it more effective with respect to child protection. How might it be enhanced?

Caroline Abrahams: A slight amendment to the Northern Ireland legislation, dealing with the possibility that the child had suffered ill treatment or was at risk of it, as well as the slightly wider and more subtle issues concerning domestic violence, would help. That would put the focus much more firmly on the probable impact on the child, which is what courts need to think about.

Margaret Moran: I take your point about the New Zealand legislation. I understand that an element of that is a checklist that the courts are required to use to assess risk before taking a decision on child contact. Do you think that that would be helpful?

Caroline Abrahams: I think that it would be very helpful. Interestingly, the reason for New Zealand doing what it has done is, as I understand it, the tragedy of a child's death. New Zealand has done as we often do—it has responded to a tragic situation. It would be nice if that did not have to happen to us before we acted. Perhaps we could learn from them.

Christine Atkinson: As well as a checklist, New Zealand also uses risk assessment. I was making a point earlier about other areas of law and protecting children from schedule 1 offenders and sex abusers. That has meant a programme of risk assessment before anybody is allowed unsupervised contact. In this area, we do not have a risk assessment process.

The Chairman: Let us move to another area and the issue of independent advocacy. I think that Mr. Shaw wanted to ask about this.

Mr. Shaw: I have to find my papers.

The Chairman: Mr. Dawson will fill the gap.

Mr. Dawson: On an issue of interest, we are all in favour of increasing the number of children who are adopted from care, but I have been reflecting on the fact that, in care, children are relatively protected because if they are physically punished by staff—or indeed by foster carers—the staff get sacked and stopped from working with children ever again, whereas once children are adopted they can, of course, be physically punished and are less protected under the law from physical assault than adults. I just wondered what the children's charities felt about that glaring inconsistency.

Ann Haigh: The most important thing, when assessing potential adopters, is to talk about discipline and how they will bring children up; and to educate people to understand how best to deal with issues and to bring them on board, so they are internalising those things and sort of see it through looking at the experience of a child, particularly children who have been abused in earlier times of their lives. I think that is something you can do with people to look at those issues and to endeavour to keep children safe.

Kathy Evans: The way in which Mr. Dawson describes the situation illustrates what to us is unacceptable: that there are some people in society who currently have a defence in law for assaulting a child. That is what is highlighted by that situation, and we would wish to see that defence repealed.

The Chairman: Mr. Shaw, is your act together?

Mr. Shaw: I hope so.

This question, which is on the right to independent advocacy, is for the representatives of the Children's Society, but the other agencies might want to comment. You said that you were concerned that no system had been set up for independent advocacy for children. We discussed the subject during the passage of what is now the Care Standards Act 2000, and the Government were not minded to establish one.

Caroline Abrahams made a point about law and practice. Perhaps the message that we should spread is that a law could be implemented where practice worked well, but the test for whether it worked would be whether it affected the practice. Why would such a system assist children?

Kathy Evans: We think that all complaints procedures are particularly important. They are not even always a sign of failure—that we want to encourage young people to voice their opinions about the experiences that they are going through—and so, as it relates to what we have said, we welcome addressing an informal stage of that process. That process is about empowering young people to express their views about what they are going through. But we have to recognise—as we have done in all sorts of other contexts—that, for children and young people who are dealing with both statutory systems and primarily with adults who are making decisions about them, that can be intrinsically intimidating, even not counting the fact that, in these situations, many of them will be extremely vulnerable and may find it quite difficult to express themselves.

The advocacy is really there. It may in fact have the beneficial effect of bringing a complaint to a happy resolution at an earlier stage. If a young person is in a situation where they are feeling that something is wrong and they are told that they have an informal stage to go through first, they may feel the need to take that straight through in order to be able to get the support that they will get at the stage where it becomes formal. We think that the benefits of having advocates for young people who can help them to distil what it is that they want to say—to distil what it is that they want out of a process—will actually reinforce this informal stage of a complaints process.

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