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Westminster Hall
Thursday 12 January 2006
[Mr. Edward O'Hara in the Chair]
Family Justice
[Relevant documents: Family Justice: The Operation of the Family Courts—Fourth Report from the Constitutional Affairs Committee, Session 2004–05 HC 116, and the Government's response thereto, Cm 6507.]
Motion made, and Question proposed, That the sitting be now adjourned.—[Tony Cunningham.]
2.30 pm
Mr. Alan Beith (Berwick-upon-Tweed) (LD): I am pleased to serve under your chairmanship, Mr. O'Hara, and to have the opportunity to debate the fourth report of Session 2004–05 of the Select Committee on Constitutional Affairs on family justice and the operation of the family courts.
The report was issued during the previous Parliament, which means that several of the Members who took part in preparing it are no longer in the House. Clive Soley, for example, is now Lord Soley, and is elsewhere, although he still takes an interest in these matters, as I am sure do the other Members who served on the Committee and others who are still in the House but are engaged in other Committees and in other work. The report was a very important part of our work, and we attached a great deal of importance to it. It certainly attracted a great deal of interest.
Our interest in the field began with our work on the Children and Family Court Advisory and Support Service for the third report of the 2002–03 Session. The situation at that time was such that we had to produce a very critical report that led to the replacement of the entire board of CAFCASS and a fresh start for what was then a very troubled organisation.
This report considers more widely the operation of the family courts. We took evidence from a wide range of organisations that represent families, mothers, fathers and children, as well as legal practitioners, academics and judges at all levels, from the magistrates court to the president of the family division of the High Court.
Since the report was published, we have had the Government's response, the draft Children (Contact) and Adoption Bill last summer, and the Joint Committee's report on that Bill. Conveniently, the Joint Committee was chaired by Clive Soley while he was still serving on the Constitutional Affairs Committee. That provided helpful continuity between the work of the two Committees. The Bill is now well on its way through the House of Lords, and we look forward to receiving it in the House of Commons.
The report examines the way in which the court system tries to deal with unresolved disputes involving the care of, and contact with, children where parents have divorced or separated. In the vast majority of families where breakdown occurs, the problems are resolved without the involvement of the courts. Courts
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become involved when there is a great deal of emotion, bitterness and mistrust, which court processes rarely dispel and often make worse. Raking over bitter disputes in an adversarial process does not make them easier to resolve, and the delays and enforcement problems inherent in the process can mean that an aggrieved parent is denied the very contact that they seek, and the child is denied their right to contact with both parents. Our first conclusion was therefore that the courts are not the best place in which to resolve complex family disputes and should be a last resort.
We heard a great deal in Committee and in public debate about non-resident parents who have persistently been denied contact with their children. Most, but not all, of those parents are fathers, many of whom have drawn the conclusion that the courts are biased against them, either because of the court's decisions or because contact has not been enforced. That view has led some to argue that the existing legal presumption, which puts the welfare of the child first, should be supplemented by a legal presumption that both parents should have contact with the children.
We found two serious obstacles to that view. First, many cases involve allegations of domestic violence or abuse, and those concerns cannot simply be overridden by imposing such a presumption without regard to the safety of the child. Secondly, and more generally, the judges expressed their concern about attempting to operate two legal presumptions at the same time. Dame Elizabeth Butler-Sloss says:
"we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which one takes precedence?"
We therefore recommended that another way should be found to assert the principle, which is enshrined in the United Nations convention on the rights of the child, that a child has the right to have contact with both parents. We recommended that that should be achieved by adding it to the welfare checklist in the Children Act 2004. What is the Government's latest thinking on this central point?
Mr. Philip Hollobone (Kettering) (Con): I endorse the right hon. Gentleman's point. In my constituency, I receive an increasing number of letters from fathers of young children who are in effect being denied access to their children. One of them has not seen his child at all for 18 months. I am sure that the sort of resolution that the right hon. Gentleman suggests would go a long way towards dealing with their understandable concerns.
Mr. Beith : The hon. Gentleman makes a fair point. That has been the experience of many of us in dealing with constituents, in addition to what we know of some of the more public cases. In that and in other respects we must deal with the matter without creating new problems or worsening existing problems in the process. As I develop my argument, it will become clear that there is a difficult balance to be achieved. We are dealing with human issues that affect our constituents.
We strongly supported shared parenting agreements and the extension of that approach into court settlements. We did not accept that there could be a pre-determined statutory template for the division of time that a child should spend with each parent, because that
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would put the child's welfare and wishes into a secondary position. We said that the amount of contact that a child would want might vary during their childhood. We also recommended a change in the law to give grandparents the right to apply to the courts without having to apply for permission, in recognition of the potential value to the child of their support.
We considered delay in the courts, which is of particular concern in cases that involve children. A long period without contact as a result of delay can lead to a situation in which the court no longer believes that it is in the child's best interest to resume contact. Delay can change the status quo that the courts must deal with.
Mr. Oliver Heald (North-East Hertfordshire) (Con): Does the right hon. Gentleman agree that one problem is that nowadays the courts treat as contact something that is very minimal? For example, sending a letter, postcard or Christmas card is called contact, whereas for most of the public it means a face-to-face meeting. Should not the courts, in any order that they make, try to set up an escalating programme of contact that leads to face-to-face contact?
Mr. Beith : The hon. Gentleman is right about the nature of contact, although I am not sure that the courts generally interpret it so narrowly. It would certainly be contrary to the public understanding of contact if such a minimal level was all that was meant. For most people, contact means quality time spent with their son or daughter. That is what it is all about. The situation that the hon. Gentleman describes may arise in cases where acute safety considerations lead, in effect, to a denial of contact and the maintenance of a minimal link by Christmas cards and so on. I have come across tragic cases where letters have not been delivered and Christmas cards have not reached people. That goes back to the early days of the problems at CAFCASS.
I am particularly worried, as are many of us, about the fact that if delay occurs it is not merely an inconvenience; the life of a child is directly and drastically affected. There is a risk of delay being used tactically by the other parent in the proceedings. The professionals all insist that tactical delay is not practised and that it is contrary to the principles on which they work. However, the perception is so widespread that we asked for more research. Until now, such research has been restricted by the closed nature of family court proceedings, but it is necessary.
As regards general court delays, we have asked for more effort to recruit specialist judges, continued improvement in case management, and a change in the way that CAFCASS operates. I should be interested to hear a progress report from the Minister on those points, especially in the light of a newspaper report that appeared just before Christmas using Law Society research to show that 70 per cent of relevant cases in London are held up by a lack of judicial staff. It said:
"The Law Society said that delays were due to insufficient "judge hours" being allocated to family matters and inadequate staff recruitment and training in family courts."
The Department for Constitutional Affairs admitted—I do not know whether it is news to the Minister—that
"there was a problem in London, which it blamed on a higher than forecast increase in cases. However, a spokeswoman said it is addressing the issue through initiatives such as the appointment of a case progression officer to the Principal Registry to improve case handling."
Clearly, we all want the problem of delay to be dealt with.
Central to our report was a recommendation about mediation, which we saw as a better way of resolving disputes in many cases. Anyone who is claiming legal aid can be required to consider mediation, but there is no such requirement on non-legally aided parties. We recommended that where it is safe to do so, all parties should be required to attend a preliminary meeting with a view to mediation. That is not the same as compulsory mediation, but it requires the possibility of mediation to be explored. The witnesses whom we saw said that such a process quite often leads to people accepting, at first reluctantly but after discussion more willingly, that mediation could help them. Our view was endorsed by the Joint Committee on the draft Children (Contact) and Adoption Bill, which commented:
"We recommend that the Government include within the full Bill a provision giving the Court discretion to refer parties to a mediation service in order to explore whether this could be a viable option in their case."
The Minister can advise us as to whether the powers in the Bill are sufficient to make this happen and, if so, will be used to make it happen.
The Government have been piloting a form of mediation with the family resolutions pilot project, but that seems to have been singularly unsuccessful in terms of the number of people taking it up, probably because of the lack of compulsion. Last summer, The Guardian carried a report, using figures that must now be completely outdated; it would be nice to have them updated. It said that nine months after the pilot started, only 47 couples had entered it, against an estimate of 1,000, and only 23 had completed the programme. That was pretty disappointing, and the figures cannot have improved all that much since then.
Many people have argued that the Government should pilot what is loosely called the Florida model, which involves an element of compulsion. Judge John Lenderman of Florida says:
"I'm totally convinced mediation should be mandatory. Every judge that I've talked to around the United States says mandatory mediation is the way to go."
Far fewer cases go to court in Florida. The US is not the only country that has compulsory mediation. Neither we nor the Joint Committee went so far as to recommend compulsory mediation, but we did recommend a compulsory meeting, at the court's discretion, to require people to consider the option of mediation and to be taken through the possibilities it could offer.
Mr. Heald : Would the right hon. Gentleman care to comment on the nature of the parenting plans that are used in Florida? When parents are first brought to the meeting they are shown the sorts of orders that the court would normally make if they do not reach an agreement. Expectations are much more realistic than one might find in British family courts.
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Mr. Beith : People are told what the likely outcome will be if they do not come to an agreement. That is not the normal process in a court proceeding. The solicitor acting for one side may tell them what the outcome might be if they do not agree, but the judge will not normally engage in that kind of process. That illustrates the fact that mediation allows for an approach that differs greatly from usual court proceedings.
The Committee felt that it would have been much better if a Florida-type model had been piloted, perhaps at the same time as the family resolution project. The Government said in their response that they felt it was
We thought that it might be made suitable, and I hope that the Government might have change their view since then. We are glad to have the Minister of State here with us this afternoon, and she can tell us more later.
I very much welcome the fact that through the Children (Contact) and Adoption Bill the Government were addressing the lack of effective and usable enforcement measures, which is another problem that would be faced by the constituents of the hon. Member for Kettering (Mr. Hollobone). They get the court judgment that to some extent meets what they believe they ought to have, but it then it is repeatedly not enforced. Clearly the courts will not make a bad situation even worse by sending a mother to prison for failing to carry out contact orders. A family already in crisis will be in an even bigger crisis if that course is taken.
The Bill offers some new avenues, including what I presume is intended to be an equivalent of community service—the unpaid work provision—and compensation as a possibility where a financial loss to the other parent has been caused. For example, a holiday may have been cancelled because the contact arrangements have not been adhered to.
Few things discredit the court system more than the perception that its rulings can be flouted with impunity; we have to change that perception. However, the powers of the court will not be sufficient in themselves to deal with the problem. The courts need to remain actively engaged in cases where contact orders are being ignored, and CAFCASS officers need to be proactive in supporting court orders and quickly bringing the cases back to court where necessary. We pointed out that the Government's own welcome proposals in that direction represented a radical change and a major new responsibility for CAFCASS, which will need more caseworkers with relevant skills and quite a change in culture to carry through the proposals. How confident are Ministers that that will be achieved?
One of the most difficult issues that we considered was that of safety and domestic violence. Groups representing victims—
2.45 pm
Sitting suspended for a Division in the House.
3.1 pm
On resuming—
Mr. Beith : When the Division was called, I was about to turn to one of the most difficult issues that we considered—safety and domestic violence. Groups
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representing victims of abuse, such as Women's Aid and the National Society for the Prevention of Cruelty to Children, focused on the inappropriate granting of contact where there was a fear, or indeed experience, of domestic violence, including violence against children. Groups representing non-resident parents argued that false accusations were frequently made to frustrate contact and that that was not adequately recognised by the courts. Resident parents with fears for the children's safety pointed to well-known cases of death and injury involving children who were in the care of the non-resident parent, but other witnesses pointed to the occurrence of child abuse, often by stepfathers or new partners, while children were at the resident parent's home. We found that there is a serious lack of research and reliable statistical information on the issue.
The Department has introduced gateway forms to identify at the earliest possible stage whether domestic violence is an issue. We said that that needs to be carefully monitored to address safety issues and to guard against some parents being encouraged to use the forms to raise unfounded safety issues, leading to more delay in deciding cases. Enforcement action by the courts should not occur when there are unresolved safety concerns, but false accusations should not be allowed to become a mechanism to frustrate contact. The Department needs to follow up the introduction of the gateway forms by examining how often violence or abusive conduct subsequently occur. The evaluation of the forms is due to be completed by June this year. Will it include such an assessment? If not, perhaps because not enough time has elapsed to assess the consequences, will further work be done? We recommended the development of a wider range of options for supervised contact, and the Department for Education and Skills has allocated extra resources to that work. What decisions have been taken on expanding it over the next two years?
Lack of transparency has been a major factor in creating dissatisfaction with the family justice system among those involved in cases. We found the rules on communicating the details of particular cases to be too strict. The restrictions on communicating details of family cases to those not involved apply to Members of Parliament handling constituency cases. The Minister of State became embroiled in the problem when her sister, who practises in the field, wrongly communicated details of a case to her. Although I think that she did so with the best of intentions, she faced a severe penalty. The restrictions have served to fuel the perception of bias and unfairness.
Some of the evidence that we received suggested that the lack of openness has prevented proper scrutiny of the work done by family judges and court officials and made it impossible to prove or disprove perceived unfairness. The Government have addressed those limitations in so far as they affect MPs, peers and a wide range of those to whom parents might wish to refer their individual cases to seek advice or make a complaint, and new rules came into force last October. However, there remains the wider issue, which is publicly recognised by judges, that the secrecy with which family court cases are dealt with is, in Mr. Justice Munby's words, "crippling public debate" and doing "serious harm". The restrictions are
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designed to protect children and families, but they are so extensive that, to quote Mr. Justice Ryder, they militate against
"public confidence in the sensitive balancing of people's rights and needs that is an essential component of the social contract of family justice".
He and other judges have delivered some judgments in open court, subject to restrictions to protect the identity of those involved, to help to deal with the problem. We welcome that. Greater transparency is needed so that the public can have a more informed picture of what happens in family courts. We want family court proceedings generally to be open, subject to the discretion of the court and appropriate protection. We await the Government's final view and the consultation paper.
The report considered very important issues affecting the lives of many children and separated parents. Some of those issues have generated heated and emotive public debate. There is a lot at stake for those most closely involved. In disputed cases, the non-resident parent—in most cases, but not all, the father—is deeply hurt and frustrated by the inability to maintain a relationship with and contact with his children. That is very painful for him.
The parent with whom the child lives may find the contact arrangements disruptive and may, in some cases, have fears for the safety of the child, particularly if there has been previous domestic violence. Resolving those issues will be much more difficult because of the bitterness, resentment and mistrust that is part and parcel of the breakdown of the relationship between the parents. At the centre of it all is the child or young person, pulled in opposite directions and expected to live according to rules set by a court while trying to grow up, learn and enjoy life. To the child, a delay in the system often means separation from a parent, grandparents, cousins or even brothers and sisters. That is impossible for the child to understand and may mean that relationships are lost altogether. A year's delay is an age in the life of a child. As a young person develops their own life and activities, the requirement on the orders of a court to be in a particular place for a particular time, perhaps a long way from home, may seem increasingly unacceptable. Sometimes we need to step back from the paperwork and the processes and look at this from the standpoint of those whose daily lives it concerns.
As the vast majority of parents recognise, the courts, by their very nature, are not well suited to organising people's family lives and resolving their conflicting emotions. If informal agreement cannot be achieved, the next best step is probably mediation. When that cannot be made to work and the courts become involved, we owe it to the children to make the system work for them as best we can. That is what many judges, court staff and practitioners are trying to do, and we have suggested ways in which they can be helped to do it as well as possible.
3.8 pm
Annette Brooke (Mid-Dorset and North Poole) (LD): I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) and the members of
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his Committee on producing an excellent report. It was well timed to some extent; there was a slight lack of synchronisation between some Government papers and the Select Committee's report, but I am glad that it has come together in a timely fashion.
I considered the title of the report, "Family Justice", and my experiences of constituency surgeries and thought, justice for whom? Are we talking about justice for parents or justice for the children? Somehow one loses sight of the fact that there was a family unit. We need to proceed in such a way that we retain the importance of a family, even though they might not all be located in the same residence. That is a very important objective.
Support for the family generally is very important and I would like to declare an interest, although I wish it was greater than it is: I am a trustee of Poole community family trust, which I do not think will have any funding in the near future. The principle behind community family trusts of working on relationship education prior to partnerships becoming permanent—by, for example, working through checklists and in particular through providing relationship education in schools, which happens in quite a lot of other ways—is excellent.
Those preventive measures are not part of the report, but are part of what I see as a lifetime raft of family support that can be accessed at appropriate times. When we consider the amount of support needed once a breakdown occurs, we realise that such early investment is crucial. It is clear that even if there is an irrevocable breakdown, if the parents have an amicable split the contact arrangements are that much easier to deal with. That is very important. I shall pick up on other aspects of support for families later.
Another aspect that does not relate directly to the report is the suggestion that this whole area is under-researched. Do we know the extent of contact denial or breakdown? I wonder whether the Government want further research in that regard. I know that there is the Office for National Statistics work, but people may feel that all the work should be much more extensive. It certainly needs to be done in a sophisticated way. The evidence that I have seen is that rather different answers are given by the resident parent and the non-resident parent. Perceptions are different, which makes careful research all the more important.
Sadly, some parents reach the point of irrevocable breakdown. The report and the Government response are all about how well the processes work in those circumstances and what we can all do—there is a great need for consensus in this respect—to improve them. As a background to the comments that I shall make, I want to make it clear that we would support the presumption that the welfare of the child is paramount. We would certainly want to take on board the United Nations convention on the rights of the child. In particular, the views of children should be sufficiently taken into account. I am also referring to the right of the child to be cared for by parents, the parents' right to exert parental responsibility in allowing their child to develop and evolve their capacity—parental responsibility is all-important in this—and the child's right to contact unless it is in their best interests not to have contact.
Now that we have had "Every Child Matters" and the Children Act 2004, we have at the back of our minds achieving the five all-important outcomes for children.
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However, I have structured the order of my response slightly differently. I put safety issues at the top of my list of things to talk about, because I thought that they were all-important. I wanted then to consider mediation, contact, enforcement, resources and transparency, and I think that I have listed those issues according to my order of priority.
The Minister has made a very big contribution to tackling domestic violence, and we have discussed the issue at great length. As regards contact and the safety of children given the frequent history of violence in those cases that come to court, the often-cited statistic is that in 2003, 16,000 cases involving domestic violence came before family courts, but only in 601 were contact orders refused. It is a difficult question whether domestic violence is under-recorded—some groups feel strongly that it is—or over-recorded. I shall return to that question.
I am pleased to congratulate the Government on the fact that the availability of supervised contact centres is improving but, as the report points out, much more is needed in that regard; the current provision is inadequate. I am pleased that the Government responded favourably to the point made in the Committee's report about thinking about more innovative solutions: using children's centres and extended school and looking at facilities in different ways. I have no idea whether the resources that the Government are allocating will be adequate; I hope that they will.
We have long felt strongly that any contact activity should be subject to careful and separate risk assessment to minimise possible risk especially to children and also to individuals involved, particularly women. The Joint Committee responsible for scrutiny recommended that before making contact or enforcement orders the court should explicitly be required to consider the safety implications for both the child and the parent of such an order. I am pleased that in the other place there has been an agreement to introduce mandatory safety assessments where accusations have been made—the Minister will correct me if I am wrong, and I look for clarification in her response.
My right hon. Friend the Member for Berwick-upon-Tweed mentioned the gateway forms. Why are we getting more reports of domestic violence? Have the forms encouraged people to come forward and say something or are people using domestic violence as part of the unfortunate game? I have had a very sad constituency case. My constituent suggests that the case is entirely trumped up; he has never been involved in domestic violence, but he feels that the form has affected the outcome of his case. He is particularly aggrieved because he feels that he has never had a chance to put his side. The mandatory risk assessment will be helpful, because I imagine that both sides would at least have an opportunity to present their points. That would all be part of the assessment and would be healthy for such difficult cases.
Mr. Beith : May I point to a further difficulty that occurs in such cases, which the risk assessment would have to consider? When the breakdown has been attended by a degree of low-level violence, possibly involving both partners, which is of no threat to the children and the children have never seen it let alone
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been the victims of it, such an assessment is difficult to make. However, if we do not make it, we create a presumption that if the slightest element of violence has ever occurred between the two parties, one party can never see the children again. That cannot be a reasonable conclusion in all cases.
Annette Brooke : That is quite interesting. My right hon. Friend anticipated my next point, in his usual, instinctive way. The safety issue needs to be revisited over time, because no family is static, and people can go on programmes if there has been concern. It also needs to be revisited because there are additional strains as time goes on and domestic violence may occur when it has not done so in the past.
Safety considerations are also important before going down the mediation route. Mediation has to be the priority. The Government have made a good start. We can criticise the choice—which product the project has been used for and which it has not, but there is now much more emphasis on mediation and an understanding that it has to be better than ending up with warfare and conflict, where the child becomes a pawn. We need to use mediation as an opportunity to strengthen those relationships and make sure that the outcome is best for the child, and does not merely serve the interests of the parents. It might be good for the parent to see the child, but if it involves hundreds of miles of travel, that should be considered. Considering the child first is all-important.
The 10 per cent. of cases that reach the courts are those in which the people need sustained support and help with problem solving. That might seem like a small percentage, but it represents a large number of cases—annually, there are 40,000 applications to the courts over child contact and 70,000 breaches of child contact orders—and that must concern us greatly.
To emphasise the point about early intervention, the consultation document issued by CAFCASS, "Every Day Matters", contains some really good points. It says:
"CAFCASS (and other agencies) frequently intervene too late, long after parents' attitudes have hardened against one another, or long after one parent has created a new household, excluding their former partner. Indeed, many attitudes have hardened long before the first court application, hence the need for even earlier intervention where possible. Arguments about the fine detail of contact arrangements occupy huge amounts of scarce professional time, often unproductively. Once a court application is made, there is a clear risk of an adversarial model of law being started up".
That illustrates why we have to put such emphasis on early intervention. However, we have also to make information easily accessible. The point was made earlier that that is not always the case—there might be booklets, but they might not be the best format for those who seek to access information. It would be interesting if the Minister would comment on the type of information that is available to parents—whether, for instance, there are videos as well as printed leaflets.
University of East Anglia and other research indicates that many of the parents represented by the 10 per cent. of cases are very young, poorly educated and on low incomes with extremely young children. Partly because of their lack of education, they often find it difficult to communicate not only with each other but with those who try to help them. There might be a deep
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lack of trust between the parents, a history of violence or poor parenting skills—parenting skills play a very important part in such situations before they become adversarial—giving rise to worries about the vulnerability of the children.
In the draft Children (Contact) and Adoption Bill, the Government attempted to find a different way to resolve the issues. We welcome that, and would like as many as possible to be resolved through mediation, although we agree with the Government that it cannot be made compulsory. One can put two people in a room with somebody, but if they are not prepared to participate, one cannot make it work. However, we support the case for a compulsory referral meeting about mediation. I would be interested to have an update on that. Any meeting would need to take account of the principle that the welfare of the child is paramount.
We have already mentioned the family resolutions pilot project. I know that there was general disappointment when it appeared that very few cases had been referred, because there had almost been a presumption that everybody would be referred to the project. That was not the case. That led me to ask a parliamentary question, in response to which I was told in March 2005 that 71 couples were referred to the pilot project—14, correctly, because of domestic violence. I eventually received a breakdown—it must have been difficult to obtain the figures—and found that 18 parents had already reached agreement and did not need to go, and in one case there was only a residence dispute. So the list went on. We are never going to get 100 per cent. referral, but even 71 cases is a long way from the sort of numbers that we would like to see.
We spoke earlier about the Florida project, comparing it with what the Government are doing. It is important to wait for the full report before reaching too many conclusions about the project. I am supportive of it, although I realise that people may have good reasons for not attending. The report is due to be published in March. Perhaps the Minister can tell us a little more about it before full publication.
It would be helpful if the court application triggered compulsory attendance at the preliminary meeting. At that introductory session—the couple might choose to meet the mediator separately—the options for mediation could be outlined, including offers of other parenting help. That information could be given to the parents face to face, which I suspect would be the most efficient way.
I believe that the first meeting should be free; if not, cost could be a barrier. I understand that couples for whom the mediation is funded must meet, but I do not know what happens if one partner is on legal aid and the other is not. That must be taken into consideration, as it could be another barrier. We need to give couples the greatest possible encouragement to attend that first meeting, and we must try to remove possible barriers.
It would help if that first meeting could be held before going to court. That may cause a little difficulty, but perhaps the court hearing could be postponed. It might cause delay, but an earlier referral meeting might be more productive. I know that judges would like to see CAFCASS engaging in more conciliation.
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We have mentioned safety, which is all-important, and mediation, counselling, parenting classes and the other supportive elements, but what about the contact itself? It is difficult to know how big the problem is. It is obviously a high-profile issue. We know that people feel aggrieved, and we have probably all heard stories from friends saying how difficult it is and that, on the surface, they appear to involve genuine grievances. We cannot just brush that aside and say, "Well, it's okay. We are doing all these other things. It's going to be all right." We need to address the question of contact. We should bear in mind the fact that the United Nations convention on the rights of the child says that the child has the right to direct and regular contact with both parents unless it is contrary to the child's best interests.
It is generally acknowledged to be in the child's best interests to sustain a full relationship with both parents. Obviously, in some cases it will not be—for instance, if there a risk of harm. Indeed, we have heard that relationships involving conflict can be immensely damaging for the child caught in the middle. We certainly should not be too prescriptive. I would not like to go down the 50:50 route, saying that that would be a fair starting point, because every case is different. However, I feel that there should be a bit more than we have now. Parents should be able to assume that contact should take place in most cases.
Difficult discussions have taken place on the Floor of the House, and in the other place on consideration of the Children and Adoption Bill. Even Resolution—the new name for the Solicitors Family Law Association—which gave evidence to my right hon. Friend's Committee, appeared to have difficulty with the concept. Its written evidence suggested that there should be a first presumption and then a second presumption—the child first, but a second, lower-order presumption relating to the right to see both parents.
This is a difficult matter, and we need to grapple with it. The Committee made a recommendation to insert a statement into the welfare checklist of the Children Act 1989 that the courts should have regard to the importance of sustaining a relationship between the children and a non-resident parent. That is a valid point, and the Government's response leads me to understand that they will consider it. As the response was printed some time ago, I would like the Minister to tell us whether any progress has been made on that. It seemed from the evidence that people were coming together around that proposal, and that it could actually work.
We are repeatedly told that the assumption of reasonable contact is established in case law, but there is no certainty about that. We should try to find some wording that could be added to the Children and Adoption Bill so that there can be clarity and guidance for parents. However, I accept that discussions in the other place have been difficult. I know that there are lots of booklets; I think that Bridget Lindley is involved in producing booklets. However, I am unsure whether that alone can provide the answer.
My right hon. Friend spoke about bias. With the delays that have occurred in the past, it has been almost a self-generating bias. If the non-resident parent has not had contact for six months or longer, resolution is harder to achieve. The outcome is then almost a self-fulfilling prophecy.
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We have been looking at the idea of there being a default model contract arrangement that can be applied in the absence of agreement until an order can first be made—while, of course, also putting in a lot of safeguards. That would give some clarity, so that parents could have a reasonable expectation. Every case will be different, and millions of cases will be considered. The idea is not for there to be a template, which my right hon. Friend's Committee rejected. It would not be as rigid as that; it would just provide something so that the delay can be cut down.
Abuse of children is an important subject, and the Government are committed to tackling it in many ways. It is my impression that in good situations with CAFCASS the views of children are brought in and dealt with very well; the Minister might have more evidence about that. However, I also have the feeling that that is operated patchily in different areas across the country; that is only hearsay—it is not evidence. The ideal is the shared parenting that the report refers to. I like the following quote from "Every Day Matters":
That makes us think about things.
Enforcement is an important matter, and the best interests of the child must be considered. It is good that the Government moved to put in other enforcement measures to try to tackle this issue, which has led to much conflict.
On resources, the report contains a telling point. The table on page 20 shows the number of High Court judges in the different divisions, and the percentage increase between 1979 and 2004. There was a 12.5 per cent. increase in the family division, a 54 per cent. increase in the chancery division and a 57 per cent. increase in the Queen's bench division. I am not a lawyer, so will the Minister say whether those figures reflect the growth in casework? Given the resources, surely judge power is important.
We know that delays have been caused because of CAFCASS, which, in "Every Day Matters", is almost putting on a brave face. It says that it does not have enough resources, but that it has proposed new solutions. We must be concerned about resources for CAFCASS. I asked a parliamentary question concerning the average amount that is spent on training for people who work for CAFCASS. Obviously, a number of people are self-employed, but the response showed low figures such as £390. That would not buy many training courses. The figure increased to £600 in one year, but it was back down to about £300 in the last year for which I was given figures. Things have moved forward, with good proposals for the reform of CAFCASS, but I am worried whether it will be adequately resourced.
I agree with everything that was said in the Select Committee report about transparency. We need openness. It will help with the difficult cases that we deal with at our surgeries. When people consider matters unfair, they can challenge them in some way. Although we often focus on the fact that non-resident parents suffer so much, as so many cases show, to balance matters it is interesting to note than, on the other side of the coin, resident parents sometimes become aggrieved when non-resident parents do not turn up on time or do not take the opportunities that are presented to them.
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To return to my first point, it would be good if comprehensive research were undertaken so that we knew where the greatest problems lie.
3.37 pm
Mr. Oliver Heald (North-East Hertfordshire) (Con): I am pleased that we have had the opportunity to debate such an important issue. I join those who paid tributes to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the other members of the Select Committee for their report "Family Justice: the operation of the family courts". I agreed with much of what the right hon. Gentleman and the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said. Relationship education is important, as is access to early intervention. A lack of education and parenting skills is a problem in many cases. It is fair to say that the Minister has a lot of work in progress on the issues set out in the report.
There are now between 150,000 and 200,000 separations a year; 30 per cent. of children are from a family in which there has been a separation. Usually, 80 per cent. of children remain with the mother. There is a lot in what has been said about the need for more information about what happens—particularly to contact—when a family breaks down. I welcome the major worthwhile research projects undertaken by Baroness Ashton about what happens in contact cases. I agree that courts should be the last resort. If mediation, some other form of conciliation or consensus building is possible, that is obviously the best way forward.
My experience of family cases has shown that often those who end up contesting them are people who feel deeply wounded by the facts and reasons for the separation and cannot drag themselves away from the extent to which they consider that they have been wronged in the process. Other issues that must be considered are finance, housing and concerns about security. We should not forget that, although the welfare of the child is paramount in such cases, the parents are vulnerable when the cases come to court or are being sorted out.
It is worth paying tribute to the lawyers, CAFCASS workers and judges who work in the area. Although it is often said that it is an adversarial area, the mood of a family court is different from that in other courts. There is, these days, a mood among family lawyers of wanting to be consensual, to reach agreement and to find a way through a difficult experience for the parties involved. Often, it is not that the lawyers hold things back, but that the parties have no expectation of what the reasonable extent of an argument over contact should be. Often, one party will feel that there should be absolutely no contact, but the other party will feel that there should be a great deal more contact than a court would normally suggest, or that many of us would think was reasonable. Against that background, it is right to consider it a difficult area.
The Green Paper on parental separation, which came out in June 2004, made clear what the extent of the damage can be when parental separation is badly handled. I agree that if an amicable settlement can be reached and both parents are actively involved in the welfare and raising of the child or children, the
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outcomes for everybody are much better. However, the reality is that an amicable settlement is not always possible. Domestic violence is a concern. There is a problem, as the right hon. Member for Berwick-upon-Tweed said, of weeding out the cases in which there really is a safety issue from those cases that—although there are depths of despair in the relationship and parties may have come to blows—are different from cases of genuine abuse in which there is a worry and a fear about the safety of the children. It is difficult, without a finding of fact from the judge, to make such an assessment. That is a point that the hon. Member for Mid-Dorset and North Poole made.
One of the worries that I have—the right hon. Gentleman made the point—is that there are a lot of delays in the courts. He referred to the Law Society survey that showed that seven out of 10 cases in central London suffer from delays. Some of the examples that were given by the Law Society were rather striking. One case concerned Mrs. B, the mother of an autistic child, whose marriage broke up. She went away for the weekend and the husband built a wall in the family home, separating her from the main part of the house and confining her to a restricted area. She applied for an injunction to protect herself and to make him remove the wall. It took 10 months for the application to be listed. I am sure that the House will agree that that is not an acceptable length of time for such an urgent case. The Law Society has rightly launched a campaign to speed up the listing of family law cases.
There are a lot of reasons why such cases are delayed. One reason—I know that the Government are looking at it—is that many judges have to add family work to their other duties, so that insufficient hours are available for the judges to deal with family cases. Something must be done to tackle that problem. Suggestions have been made that a streamlining of the system and more focus on mediation would improve matters. However, nobody should be in any doubt that it is an urgent problem that must be tackled. Another problem that leads to delays is that contact has become a much wider ambit of actions than it used to be.
When the term access was first used, it was about face-to-face contact between a parent and a child. Courts are interpreting contact to mean everything from a letter once a year, or a birthday or Christmas card, to staying contact, where the child stays overnight with the parent. That is a wide set of disposals. If a contact order is made that involves only writing letters or a phone call, it is inevitable that the parent who wants contact will come back to court. Rather than the court taking one bite at it and giving that sort of contact for a period and then the case coming back to court and another order being made, we should have guidelines under which there can, in more cases, be an escalating schedule of contact that goes from that minimal contact to something more meaningful. I hope that Ministers will consider that in relation to the Bill that is being considered in the House.
As the hon. Member for Mid-Dorset and North Poole said, the right to reasonable contact—at the moment, it is a right to contact—is important. She suggested guidelines that fall short of being absolutely set in stone, which the Select Committee does not want, but that are pretty clear. That would be helpful. If the court felt that
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it was under a duty to make orders that went from something minimal to something more substantive, rather than taking several bites at it, the delays could be less and those who are dissatisfied with the system would feel more satisfied. More substantive orders at an earlier stage would be good for the system generally.
I move to the issue of professional advisers unnecessarily delaying proceedings. That is not really what happens. Obviously, from time to time people say that it happens, but generally, it is the lack of court time and the willingness of courts to make tiny orders on contact rather than more substantive orders that leads to the delays that we have.
The role of CAFCASS has been mentioned. There has been a dire period as far as its work is concerned, but it is crucial, and I hope that some of the difficulties can be resolved. At one time, CAFCASS was devoted to writing long reports at great length. That was such a lengthy process that it gummed up the whole proceedings of the courts. I hope that it will be possible to have shorter, oral reports made in court and a much more problem-solving approach, and that that will lead to CAFCASS being able to do the job more effectively.
Mr. Heald : The hon. Lady is probably going to make the point that I was about to make: that we cannot make those changes without proper resources. That is a concern.
Annette Brooke : Does the hon. Gentleman think that CAFCASS is capable of being reformed? Are there signs that we can have some confidence that we should keep that institution?
Mr. Heald : We need to keep the matter under review, but I think that it is making progress. Some of the people who work for CAFCASS are absolute jewels—people who do an incredibly difficult job extremely well, but that has not been the overall perception of the organisation. It is right that we should expect high standards from it, and I certainly do not disagree with the Select Committee report on CAFCASS, which pointed to some appalling problems. As with everything, it is easy to ignore the fact that, in extremely difficult jobs, there will always be people who do not reach the top standard, but we should not forget the ones who do. There are some good people working in the family law arena.
Will the Minister comment on the way in which the courts will be streamlined to reduce delays? Obviously, some cases will have to be determined by the courts, regardless of all activities that are put forward to encourage mediation and the like. Will she confirm that there is no intention to remove the role of judges, district judges and magistrates from the system? Such an assurance would be helpful. There will always be a class of case where they are needed.
The Government also need to concentrate their efforts on issues such as the crisis in legal aid. My hon. Friend the Member for Huntingdon (Mr. Djanogly) asked questions about that last summer and received the reply on 27 June at column 1332W of Hansard that a third of the firms dealing with family law had given up
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doing legal aid work in the previous five years. That is clearly worrying in terms of access to justice. I would be grateful to hear what the Minister intends to do about it. I know that Lord Carter is examining the issue but, even so, the fall is dramatic.
I am also worried about court fees. This week, the Government have confirmed a massive increase in fees. Parents trying to secure a contact order will have to pay a court fee, which has increased from £30 to £175. On 10 January, the president of the Law Society, Kevin Meehan said:
"This places a heavy burden on low income families who simply want the best for their children. The financial benefits of the courts being self funded have not been demonstrated and so this looks like another stealth tax".
The Law Society is also concerned about two other effects. The first is the effect on the legal aid budget, where there will be less money available for services. The other is the effect on local authorities when they have to apply for a care order. The cost of applying for such an order has increased from £50 to £150—a rise of 200 per cent. It is difficult to work out how that can be in the interests of family justice. I would be grateful to hear the Minister's comments on that.
On the question of mediation, we are not convinced that the family resolutions pilot project is the best way of tacking the issue. We support the idea that there should be early intervention. The well known family barrister, Caroline Willbourne, who is now a district judge, suggested looking to the early interventions project in Florida two or three years ago, which has been mentioned. The essence of it is that couples were shown at an early stage the sorts of orders that a court would make if they did not reach an agreement on contact. They were known as parenting plans and were effective in giving guidance to people about what the reasonable ambit of argument might be. A couple who were not very educated in these matters and who were robustly arguing with one another at least knew what the reasonable area of argument was. It was a successful scheme in Florida. It concentrated minds and gave parents an early idea of the realistic ambit of debate.
Interestingly, the chairman of the Family Law Bar Association, Philip Moor QC, is cited in paragraph 100 of the report. He stated:
"We strongly support the Early Interventions Pilot Project (which has become the Family Resolutions Project). There is a slight problem with that and that is in our view the parenting plans were a good idea and we liked the idea that you have a sort of template for these cases and that the parents that went into the system knew that unless there was something pretty exceptional in the case the template was the sort of order that the court would be thinking of making. We thought that set things out pretty clearly for them at the beginning and that is a project that we would like to see carried through . . . We would like to see the parenting plans in there and we would like it to be pretty well known that that is what the judges are going to do if the mediation breaks down and there are no good reasons for a change from the parenting plans."
Of course, Philip Moor QC is extremely experienced in this area of law. The Minister knows quite a lot about it and is certainly capable of finding out a good deal about it very easily. I do not know if I ought to declare that Caroline Willbourne was in my chambers, but she knows about this area, and so does Mr. Moor. The Minister has good access to people who know about this subject.
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If somebody does not understand the system, it is helpful to give them a clue at the beginning of the process about what the sensible area of argument is. I will not go on too much more about it, but it would be worth getting that sorted out.
The parenting plans that the Government have brought forward are worthy, but wishy-washy. The plans say that there is no template for contact, and although they say some good things, they are not really focusing enough to be any use to the practitioner who is talking to a parent when the need is there to explain things in a simple or straightforward way. The point is that it is not being dealt with as the Florida project was.
My right hon. Friend the Member for Maidenhead (Mrs. May), who was dealing with this issue until November, received information in November saying that of the 62 couples who participated in the project from September 2004 to September 2005, only half completed all parts, despite the fact that hundreds of thousands of pounds were devoted to it. If that fact is taken together with the information put forward by the hon. Member for Mid-Dorset and North Poole about how few took part, it is a worrying picture for the pilots. Most people who are involved in family law think that there is something there that could be built on, but it is probably a bit more like Florida and a bit less like the family resolutions pilot.
I shall turn now to the question of presumptions. Obviously, the presumption that the welfare of the child is paramount is important and should be the main focus of a child's case. Having said that, however, something needs to be done to get the idea of co-parenting, including contact being reasonable and being expected, and the right of the child, more firmly up the list of things that a judge considers in such cases.
I am not sure that the welfare checklist is enough on its own, so I welcome what the hon. Member for Mid-Dorset and North Poole said about the statutory right to reasonable contact being somewhere in the Bill. Something like that would be a good way forward, particularly if it were backed up by the sort of guidelines about which we have been talking.
I think that we could move more in the direction of compulsory mediation and, as far as the court system is concerned, we need to open up the closed doors a bit more. I agree with the Minister that the culture of secrecy has not done much to instil confidence. If we are going to be able to scrutinise this area, something needs to be done. Indeed, something is being done.
The Select Committee concluded that although there is disagreement as to whether all the criticism of the system of family justice is justified, it is widely agreed that reform is needed. We agree with that and look forward to hearing from the Government the full extent of how they intend to proceed. However, we recognise that a lot of what is going on at the moment is work in progress.
3.58 pm
The Minister of State, Department for Constitutional Affairs (Ms Harriet Harman) : May I start by thanking the right hon. Member for Berwick-upon-Tweed (Mr. Beith), the Chair of the Select Committee on Constitutional Affairs, for his work and for the work
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that the Committee has done on family justice? Without the work of the Committee, it would be difficult for us to find our way forward.
I say this not as a platitude, but because the Committee's work in this area is essential and without it progress would be incredibly difficult to achieve, not just because this is an area where a lot of professional issues need to be picked through. In a way, that is the fodder for all Select Committees and all Departments. However, this is, possibly uniquely, an area of intense emotional personal conflict, which all of us as Members of Parliament, and our constituents, are engaged with.
When such things happen to families, they are passionately and intensely emotionally concerned, and at a high level of conflict. That feeds into an acrimonious public debate, with accusation and counter-accusation about how the system is working. That being the situation, what is needed, and what we are fortunate in having in the Select Committee, is a place where such issues are brought together on a cross-party basis and where light can be shed without heat, but with commitment and expertise.
Although it is for us as the Government to take responsibility for CAFCASS, the courts and what the courts do operationally, and although we are responsible for bringing legislation to the House, in that highly conflicted atmosphere, the way that the Constitutional Affairs Committee deals with family justice issues gives us an opportunity to make progress that we would not otherwise be able to make. I want to thank the right hon. Member for Berwick-upon-Tweed for the work of the Committee as I turn to the report that we are discussing.
I shall focus my comments on the four issues that the right hon. Gentleman raised, which are highlighted in the report: openness, enforcement, judicial continuity and delay.
Mr. Beith : I am grateful for the Minister's kind comments. It is worth adding to the list of reasons why the Select Committee process is helpful: thanks to the undertaking we worked out with the previous Lord Chief Justice, the judges are very happy to come to the ordered atmosphere of the Committee and give us the real benefit of their experience so that Parliament can hear what judges, from the High Court to the magistrates court, experienced in dealing with such matters, have to say. We find that hugely beneficial.
Ms Harman : I agree. It is to the Committee's credit that the judges feel confidence in it. By their actions and preparedness to attend, the judges show that the Committee is seen as a space in which people can put forward their views and be listened and responded to in a committed and sophisticated way.
I do not want to pre-empt the debate on Second Reading and in Committee on the Children and Adoption Bill, which will come to the House of Commons shortly. I am not sure that I can add value by rehearsing what will be discussed then. Many important issues will be debated in the context of the clauses of that Bill, and some points to which I do not respond precisely will be the subject of legislation.
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However, I shall start by breaking that rule and talking about the paramountcy of the welfare of the child. The Government and I agree with, understand and accept the point made to the Committee by Dame Elizabeth Butler-Sloss, the former president of the family division. We are always tempted to make many things paramount. The Government love to make plenty of things a top priority, and if we counted up our priorities, we would see that they were crowded at the top. However, when judges look at a case, paramountcy needs to mean what it says. A number of things cannot be paramount; if something is paramount, that means it is the top concern. There cannot be two top concerns, only one, and that is the welfare of the child.
We agree with Dame Elizabeth's view on that. The debate around other issues such as the undesirability of contact when violence is involved creates an atmosphere in which light is generally shed before the decision about what is in the best interests of the child is made, as does the debate about the importance of children having contact with both parents, the resident and non-resident. All those things are paramount issues for debate, but when it comes to the process in court, we take the view that we should not disturb Dame Elizabeth's formulation, which is that there is one chief consideration—the welfare of the child—although the other issues are important.
I would like to talk about openness, enforcement and judicial continuity and delay. I start with openness, an issue on which the Select Committee has made a real contribution. I think that openness will make a difference. Family courts are moving inexorably from being completely cloaked in secrecy to being in the open, and the Constitutional Affairs Committee plays a pivotal role in that transition. Let me say why that should be the direction of travel, and why we should move promptly in that direction.
Of course the anonymity of the child will be important, but we know from criminal cases, such as those in which the victim has been subjected to a sexual offence, that it is possible to have open court proceedings with anonymity for the victim. It is possible to have open-court family proceedings with the child remaining anonymous. Actually, that is possible now under the court rules, because the judges always have discretion to waive the automatic presumption of the exclusion of the public and reporting restrictions.
Mr. Heald : The right hon. and learned Lady will agree that it has always been possible to report a family case on appeal because of that power of discretion; all the reports of family cases in law reviews anonymise so that the legal principle can be made public. There is no real reason why that should not happen with other, lower courts.
Ms Harman : Precisely. The hon. Gentleman points to the anomalies, as did the Select Committee. The rules about secrecy and the restriction on reporting and attending family courts are incredibly complex. For a start, that means that they are often breached by accident. Also, it shows that there cannot be huge points of principle involved. Otherwise—the hon. Gentleman rightly alluded to this—why is it possible to report cases, subject to anonymity, in the Court of Appeal and the High Court, but not in the lower courts?
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Part of the problem is that the rules change when one goes up to appeal and sideways between different proceedings, so they are complex. It is not just that, as the hon. Gentleman said, the rules are complicated and inconsistent; there are two further reasons why the trajectory away from secrecy to openness is right. First, as is highlighted in the Committee's report, there is a sense in which the secrecy restricts individuals who are parties to the case. It might deter people from seeking the help that they need, if they are not able to talk to people about their case.
The judgment of Mr. Justice Munby in Re B reminded everybody that, before we changed the rules in response to that case, constituents were not allowed to come to see Members of Parliament about such cases. No woman was allowed to come in and say, "Social services have applied to take my children away," because she would have been breaching the law, although it happened all the time as a matter of course, because people wanted help and support. They wanted to share their concerns and air their sense of injustice, but the law prohibited that, which was obviously ridiculous and wrong.
We were all fully aware of the experience of a woman coming in and saying, "My husband's violent, yet the court have ordered contact." I am also aware of men coming in saying, "I never laid a finger on her. The child loves me, but I've been denied contact." However, all that was unlawful under the rules, which were honoured more in the breach than in the observance. The Munby judgment has precipitated a change in that regard.
However, it is not only the issue of who individual parties can speak to that makes openness imperative; there is also the matter of public confidence. The courts and their work have been overlaid with accusation and counter-accusation. For example, there is the accusation that the courts too readily grant contact to violent fathers. However, there is no sense in which anybody can think of anything other than a few anecdotes, because everything is, by definition, secret and private.
The courts then face the opposite accusation—that fathers are denied contact. However, there is no sense in which anybody can rebut that criticism; they cannot know whether, or to what degree, it is right or wrong, or whether everything is perfectly fine. All the judgments are being made with the utmost sensitivity and common sense and on the basis of the evidence, but because they are made behind closed doors, it is impossible to counter the accusations that the courts are not doing justice in the way that we, by law, ask them to. Openness therefore goes hand in hand with public confidence in the justice system. Justice must not only be done, but be seen to be done. It must not be seen to be naming the child or the family, but it must be seen to be done.
With that in mind, we have already changed the rules with regard to Members of Parliament. My noble Friend Baroness Ashton, who takes the lead on these matters in our Department, has announced a public consultation on the issue, prompted by the Select Committee. She intends to publish that consultation in late February or early March, and it is already being worked on. Thereafter, there will be the possibility of rule changes or further legislation. The judiciary are well involved in the discussions, and I am sure that progress can be made.
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Of course, it is open to the judiciary to introduce that bit of openness now, under their inherent jurisdiction to decide what goes on in their courts and using their powers to make orders under the various statutes. I therefore think that we shall see openness in the future. The Select Committee has been pivotal in this process and will no doubt remain so.
I find it difficult to disentangle and deal separately with the questions of enforcement and delay. On enforcement, public confidence and justice reside not in a court order being made, but in that order being carried out. Therefore, public confidence will not attach to a justice system if it makes the right order, but that order is not carried out. We are in no doubt about the importance of enforcement. The Bill will deal with some enforcement issues and with the remedies that will be available to the courts. Those remedies will stop short of imprisonment, but they will add to the courts' ability to ensure that orders are enforced.
One of the key issues raised earlier was the frustration of orders as a result of delays. Such delays mean that it becomes more difficult as time goes by to make the order that one might have made had the case come to court earlier. Prompt hearings and enforcement therefore go absolutely hand in hand. The current president of the family division is greatly concerned that there should be an urgent hearing to review a case within 10 working days when contact has not taken place as ordered. The next question is how often that happens. What matters is not what is in the guidance or the orders, but what happens. We will get back to the Committee in due course about the effect of that guidance and how much it can be kept to, which is critical.
Mr. Heald : One of the points that Lord Howe made in the other place—it is all there in Hansard—is that his research shows that the outcome of about a quarter of contested cases does not involve face-to-face contact. A contact order may be made for a letter or Christmas card, or there may be no contact order at all, but a quarter of all cases seems to be a very large number. On the question of delay, does the Minister agree that one problem is that courts are making orders that are too insubstantial to start with, and that there should be a schedule of contact that escalates to substantive contact, so that there is no temptation constantly to return to court to ask for a little more?
Ms Harman : As I said, what is important is the ability to return to court if that is necessary for enforcement. The hon. Gentleman's point will be discussed further when the Bill comes to this House, as it involves the substance as opposed to the process, but I will give the Committee further information when we can see to what extent cases—the vast majority, I hope—operate within 10 working days.
Two causes of delay have been mentioned. One is the London problem and the other is the question of insufficient judge days being available and not enough judges being appointed to the High Court. There is a particular problem in certain parts of inner London that besets many public services there. The question is whether we can take advantage of extra capacity, or at least of capacity that is available further away, the extent to which it is difficult to solve the recruitment and retention problems in inner London, and whether we are
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making best use of the capacity that is within travelling distance, perhaps just on the outskirts of London. There is also the question of using specialist family magistrates who have the capacity to deal with such cases. As I said, we are conducting pilots in London in which cases are moved to courts that have capacity.
Mr. Beith : We were quite surprised to find only one magistrates court judge—or stipendiary magistrate, as we would call them—engaged full-time on family work in the country. One or two more such appointments might help to deal with the situation in inner London.
Ms Harman : I might write to the right hon. Gentleman and copy my response on whether that position has changed to other Members who are in the Chamber.
Another matter referred to by the Committee is the problem of judicial continuity, and therefore of delay and enforcement. The process will take longer if the judge has to read all the papers from scratch, and enforcement will be more effective if the judge has a deeper understanding of the case because he has been involved with it from the outset.
There has been a view that a grip needs to be taken by good case management at the earliest possible stage, and that there should be judicial continuity. The president's private law programme also issued guidance on that in January 2005. The question is whether the rate of judges per case is unacceptably high, and whether the measures that have been taken for good case management are working to bring down the number of judges in any one case.
I have agreed with the president of the family division, in direct response to the point made by the Constitutional Affairs Committee about judicial continuity, that we should do a quick dip sample to tell us the rate of judges per case in five court centres. We shall provide the Committee with that information and measure it again in due course to give us a sense of the numbers. Otherwise, as the Committee heard, there is concern about judicial continuity, but no sense of whether it is very bad only in some cases, or is a problem in all, or of whether it is getting better or worse. That has been a helpful prompt to some progress on that matter.
As to the matter of a sufficient number of judges, we have just completed a review of the work of the High Court and are consulting on proposals to make better use of High Court judges. It is clear that a good proportion of the cases that go to the High Court could be heard by circuit and district judges. We must deal with capacity and allocation, and the question of whether work that circuit judges are doing could go to magistrates if there is sufficient capacity.
The right hon. Member for Berwick-upon-Tweed and the hon. Member for Mid-Dorset and North Poole (Annette Brooke) raised the issue of domestic violence. Obviously, every case must be judged on its merits; in questions of contact, the interest of the child is paramount and the facts of the case must dictate the outcome. However, we now understand that it is very unlikely, in cases that involve domestic violence by the father against the mother, that the child is not affected.
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It is most likely that the child witnesses the violence. All too often, the child is physically caught in the crossfire. Even if the child does not witness the violence, they are in a room nearby and hear it.
It used to be said that if a woman was being beaten by her husband, she should stay with him for the sake of the children. We have thought better of that and decided that, more often than not, children will be damaged by being brought up in a household where there is domestic violence, not least because fear is ever present in such households. Being brought up by a mother who lives in fear for her physical safety must have an effect.
A good friend of mine, talking about the domestic violence suffered by her mother at the hands of her father, said that when her father came home from work, she and her mother would listen to the sound of his key in the lock, because that would tell them whether the mother was going to get a beating. Even on the days when she did not, and the key went smoothly into the lock, with no sense of anger or whatever was conveyed by its sound, there was still fear. Much of the work that has been done has been to recognise not only the higher than previously acknowledged prevalence of domestic violence, but its effect on children.
I speak of a father being violent to a mother because for the most part that is what happens. It is not a 50:50 split between mothers being violent to fathers and fathers to mothers, as one can tell from the homicide statistics. Obviously, everything else is subject to reporting vagaries, but one thing that is not subject to those vagaries is the homicide statistics, as one can count the bodies and look at the gender. Domestic violence and the overwhelming majority of domestic homicides and injuries that are serious enough to put the victim in hospital are still mostly perpetrated by men against women.
We were asked about the monitoring and evaluation of the gateway forms. At present, we need sufficient cases to get a sense of how things are working, what are the outcomes and what orders are made.
On mediation, we all say that we wish that we could force people to agree with each other and we all know as we say it that it is a contradiction in terms. The hierarchy of desirability is, first, that parents agree, which is in their best interests and, of course, those of the child, and that they never go near the family justice system; secondly, that the parents seek mediation if they cannot agree; thirdly, that there is a court process; fourthly—the least desirable—that there is a court process followed by enforcement proceedings. We are all on the same page in that respect and there is a healthy ferment of discussion about the best way to proceed.
Mr. Heald : Although it is impossible to force people to agree, it is important for there to be some pressure for them to talk at an early stage. If they do not talk to each other, they tend to talk to other people, often those who do not have much clue about how these matters should be resolved. They make allegations to their lawyer that the lawyer then makes to the lawyer on the other side; it goes round in a great circle. The allegations that they make and the things that they say are not necessarily
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what they would wish to say face to face to the other party. To avoid the hardening of attitudes, it is useful to get in early and make them talk.
Ms Harman : I can only agree that mediation or conciliation is needed at the earliest possible moment. The effect of being involved in a court process can often harden attitudes the further things go on, and we want to counter that. It was the theme of the Green Paper that we published in July 2004, which focused on resolving matters before people are at daggers drawn in court, and as the hon. Gentleman said, on ensuring that an even smaller minority go to court, because issues are satisfactorily resolved in other ways.
There is no instant solution and no single way of doing things. We must look at international experiences, as the hon. Gentleman advised. That is a good suggestion; we must consider practice and pilots. We all agree what the outcome should be, but we must keep looking at what actually works.
The capacity of CAFCASS was raised and the Chairman of the Select Committee spoke about the changes in CAFCASS and the work of his Committee in highlighting the problems that exist. I join the hon. Member for North-East Hertfordshire (Mr. Heald) in acknowledging, as the Committee does, that it is a really important area of work. There are some extraordinarily dedicated people working in this difficult field and they have to take a great deal of responsibility. However, we cannot just say, "This is important work and people are doing a heroic job," and not ask ourselves whether the system is as good as we know it must be for the sake of children and families.
The question of resources has been raised. I am glad to hear that the hon. Member for North-East Hertfordshire is in full-on spending mode. Clearly the new broom of the Tory Leadership—[Interruption.] I thought that the hon. Gentleman was arguing for reduced court fees and increased spending on conciliation and CAFCASS. Clearly I got that wrong.
Mr. Heald : It is important to recognise the situation that people going to the family courts are in. The Lord Chancellor made some concession to that in his statement earlier this week. My points were about the way in which the court fees are dealt with. It is right to give particular attention to the family courts when it comes to trying to keep the fees at a reasonable level. I would be amazed if the Minister were about to tell us that she is not going to give sufficient funds to CAFCASS.
Ms Harman : It clearly was a mistake for me to go off the rails and make a spiteful party political point. I regret it. The hon. Gentleman is right, of course. CAFCASS was allocated a budget of £107 million, a £12 million—12.6 per cent.—increase over its 2003–04 budget, particularly so that the backlog of unallocated cases, which the Constitutional Affairs Committee drew attention to, could be cleared. It was decided to sustain that increase in 2005–06 because we know that resources are an issue.
Everybody has acknowledged that there is a great deal of work in progress, so let me finish where I started, by assuring hon. Members of the Government's concern about the issue, our commitment to dealing with it and
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our continued focus on it. However, we accept that our ability to take work forward in this area is not only informed but enormously helped by the approach of the Constitutional Affairs Committee and the climate that it has created, as well as its detailed, specific suggestions. Therefore, I should like to thank all those—many of them, as has been pointed out, no longer Members of the House—who were involved in preparing the report. I look forward to more good work from the Committee in future.
4.33 pm
Mr. Beith : With the leave of the House, I should like to take a moment to thank the Members who have participated today. They might have been few in number, but they are high in quality and in their commitment to the subject. My hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) ranged over many of the issues that I had raised plus one or two others, and the hon. Member for North-East Hertfordshire (Mr. Heald), speaking on behalf of his party, reflected his personal knowledge and experience in a constructive way.
Not only has this debate been constructive, but the process in which we are engaged is constructive too. We are egging the Government on to pay extra attention to issues that we all think are important and need attention. We are reviewing what the Government have done so far, and saying what we hope they will do in the near future, alongside the judiciary and agencies such as CAFCASS, and we are trying, as the Minister kindly said, to channel the emotions and anxieties that attend such matters into an effort to get the system to work for children. That is what this is all about.
The Minister has said that a number of issues will best be resolved when she and her hon. Friends come to address us about the Children and Adoption Bill on Second Reading and in Committee. Some of them may be the issues on which we feel that we have not got much further today; perhaps we will do so then.
Let me pick up on a few of those issues. I am still not clear about the Government's thinking on what to do, having recognised that one cannot have two legal presumptions. The paramountcy of the welfare of the children cannot be disturbed by an alternative presumption. That is my view, that of my Committee and that of the Minister. But how do we best reflect the United Nations charter right that the child should have the opportunity of contact with both parents? It is in the interests of the child in most cases for that to happen. By what process can we best do that? We used the Children Act welfare checklist, but other suggestions have been made. We need to clarify how best we can achieve that. I still need to know where Government thinking is going on how far we can get people to the table to consider mediation, using an element of compulsion to get them to that point. That will come up in the context of the Bill.
There are one or two other issues where we want to hear more about progress, but we have had some definite announcements today. For example, the transparency consultation paper will come out at the end of February or the beginning of March. We have had a helpful indication that there will be a sampling of what happens in five court centres on the continuity of judges. That, too, is very helpful. We have had an
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indication that the Minister will get back to the Committee on whether the system is getting cases back into court within the 10 days that we want to achieve. Those are all positive steps forward. They illustrate a constructive process, which will go on.
There are a few aspects of this matter that have passed beyond the remit of my Committee: the primary responsibility for CAFCASS now rests with the Minister for Children and Families, who has been
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moved since we started all this into the Department for Education and Skills and therefore to some extent into the purview of that Select Committee. We have continued to be interested because CAFCASS is a servant of the courts for which the Department for Constitutional Affairs is responsible. We will certainly continue to take an interest in these matters, as will the hon. Members who have spoken today. I am grateful to everyone for their participation in this process.
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