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Grandparents (Access to Grandchildren)

11 am

Mr. Stewart Jackson (Peterborough) (Con): This debate is about families in Britain today, in all their variety and complexity. It is also about human rights and the value that we place on people whose love for their family is unconditional and who have hitherto felt excluded from decisions about their own lives. Family life in this country is not just about the nuclear family; it is about the wider or extended family, as well. Unfortunately family policy and the workings of family law often ignore the role of the extended family, in which grandparents play a vital part, nurturing and protecting children and acting as carers, role models, links to the past of the family and bridges to the future.

There are 13 million grandparents in the United Kingdom, each with an average of 4.4 grandchildren. One in five children is looked after by a grandparent, 60 per cent. of child care is provided by grandparents and three quarters of the UK population has a family of three generations or more. The care undertaken by grandparents would have an equivalent day-care cost of £1 billion, yet grandparents are becoming the proxy victims of family break-up, feuds, separation and divorce. Each year divorce affects 150,000 children, two thirds of whom are under the age of 10. Some 200,000 non-custodial fathers have lost contact with their children. Given that custody is vastly disproportionately awarded to mothers, paternal grandparents are particularly affected, and are estranged from their own grandchildren through no fault of their own. Up to 1 million children are in that position.

The human cost of family breakdown falls on the extended family, too. I pay tribute to the right hon. Member for Birkenhead (Mr. Field), who has kept the issue at the top of the political agenda in the context of a study entitled "Britain's Pensioner Parents: the quandary of parenting your grandchildren", which was published in June 2005. I thank him for his continuing support for organisations such as Grandparents Plus, the Grandparents Association and the Family Rights Group. He has also kept the issue alive with early-day motion 601—"Grandparents who act as parents"—which I was privileged to sign with 54 other hon. Members last July.

The case for reform, both financial and legal, is compelling. It is a matter not only of arcane legal issues, but of human rights, natural justice, fairness and equity, as well as economic and practical good sense. It is also about respecting people whose love for their children's children can make estrangement so painful that some of them are suicidal as a result.

Mrs. Nadine Dorries (Mid-Bedfordshire) (Con): My hon. Friend talked about human rights and legal issues. I should like to make a point on behalf of my constituents, Mr. and Mrs. Jennings. At a time in their life when their income is diminished—they are coming up to retirement—they have, through no fault of their own, found themselves sole carers for two very young grandchildren, both under the age of five. To their horror, what Mr. and Mrs. Jennings and other grandparents have found—the right hon. Member for
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Birkenhead (Mr. Field) has highlighted the issue—is that in taking on the official role of foster parents, they are not entitled to the same rights as foster parents who are not related to their foster children. They do not have rights to the same income, allowances or benefits as unrelated foster parents. As a result, they find themselves bringing up their grandchildren in greatly diminished circumstances—worse circumstances than if their grandchildren had gone to foster parents who were not members of the family. Does my hon. Friend agree that that issue needs to be addressed and answered by the Minister?

Mr. Jackson : I thank my hon. Friend for her intervention. Later in my speech, I shall make further reference to the points made by the right hon. Member for Birkenhead in his report about the financial burden of being de facto foster parents, often as a result of alcohol or narcotics abuse.

Whatever the intention behind the Children Act 1989, its practical ramifications have led to a de facto presumption against grandparents' access to their own grandchildren. Grandparents have very few legal rights. Section 8 of the Act forces them to go through two legal hurdles to secure legal access to their own flesh and blood. They have no automatic right to apply for a contact order, but must first obtain the permission of the court so to do. That is more difficult if the child is already fostered or adopted, and legally next to impossible if the parents are not married. Can one imagine the heartache of being separated from a grandchild who has been adopted, and, as a result of a prescriptive contact order, being allowed to send that grandchild a Christmas card only if the words "Nanny" or "Grandad" are not written on it? That is the action of a callous state machinery inflicted on people who are as much the victims of family disintegration and breakdown as their grandchildren.

When a child is taken into care, the local authority has a duty to promote contact with the family as long as that is not incompatible with the welfare of the child or children. Section 23(6) of the 1989 Act imposes a responsibility on the local authority in respect of children who are looked after so that the presumption of care lies with family and friends in the first instance, and only then with foster carers and adopters. However, that is clearly not happening in practice. Often social services departments do not regard grandparents as a priority; rightly, they do not wish to be seen to be offending foster parents or adopters. In fact, we are seeing less, not more, parity between non-family and family carers. As of 30 December 2005, foster carers can apply for a residence order or special guardianship order without seeking leave if a child has been living with them for 12 months, but family and friends cannot do that unless they are already registered as foster parents.

According to experienced family law solicitors and data from the Grandparents Association and other helplines, the legal costs of leave to apply for a contact order—not including the contact order itself—can run to between £250 and £1,000. Many grandparents lack the means to meet those obligations and the confidence to cope with the legal system. Some live in relative poverty and therefore forgo the proper legal representation that would assist them in a traumatic and emotional process. Even after going through such a
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process, there is no guarantee that the contact order will not be breached. The experience in Scotland, whose Parliament has recently debated the Family Law (Scotland) Bill, suggests that parenting agreements and a grandparents charter are fine in principle if one thinks that the only way to overcome the problems is through mediation. However, only legislation—or the amendment of it—is appropriate to safeguard grandparents' rights and bring fairness and equality into this aspect of family law.

Let us consider the financial impact on grandparents who are struggling to fulfil their child care role as foster carers, especially in cases where the parents are absent. Under section 105 of the 1989 Act, a private arrangement for relatives to care for a child can be agreed with the consent of the parents, but invariably attracts no financial support from the local authority. The same applies when a local authority facilitates an informal placement of a child with family members: under regulation 38 of the Fostering Services Regulations 2002, grandparents can be financially unsupported for weeks or months. Even a residence order allowance is discretionary. Only when grandparents or other relatives are assessed as foster carers under section 23(2) of the 1989 Act will they attract a fostering allowance, and even then there is sometimes pressure from the local authority for them to apply for a special guardianship order, after which the financial help will cease.

In his report, the right hon. Member for Birkenhead presents eloquent testimony to the heroic efforts of the decent people in his constituency on the Wirral who have given up the prospect of a relatively comfortable, if not rich, retirement—or indeed a quiet retirement—to care for their grandchildren. The bulk of them receive barely £30 from the state for each grandchild that they look after. That is not taking into account any legal costs such as care orders. Generally, research shows that family carers are poorer—some live in poverty—and older and are more likely to be single parents than "stranger foster carers", which is an emotive term that I do not like, but it is used officially.

Tim Loughton (East Worthing and Shoreham) (Con): I am listening with great interest to what my hon. Friend has to say. Does he agree that despite the best endeavours of all those of us who were involved in the Adoption and Children Act 2002, which brought great changes to adoption and fostering services, still not enough priority is given to extended family members, particularly grandparents, in taking on the role of foster carers or the new role that they have under that Act? Does he not agree that it is preferable that we should look to extended family members to take over the children of a family that has broken down before having to look to foster carers or adoptive parents, who do not have the family connections? The reality now is that such an approach is not taken nearly enough.

Mr. Jackson : I thank my hon. Friend for his timely and helpful intervention. I agree wholeheartedly that anecdotal and empirical evidence shows that despite the good intentions underlying the Children Act 1989, social services, which are quite often under financial or time pressure and do not wish to alienate foster parents because they have difficulty in recruiting foster parents
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and adoptive parents, choose the path of least resistance, which often excludes extended family members.

What is to be done? I urge the Minister to examine the following modest but important proposals. First, the Government should remove the unnecessary and iniquitous requirement to obtain leave to apply before a contact order may be sought under section 8 of the 1989 Act. Such an action would not require primary legislation and could be enacted by secondary legislation.

Secondly, the Government should re-examine section 17 of the 1989 Act and issue regulations so that all children who cannot live with their parents and are cared for by family and friends should have a right to assessment. That will examine the financial aspects of grandparents' care for their grandchildren. Similarly, section 23 of the 1989 Act needs to be adhered to in practice, not just in theory. Above all, we need consistency across local authorities and other agencies on the issues of payments made under section 17 of the 1989 Act to family carers.

Thirdly, section 10 of the 1989 Act should be amended to provide parity between family and non-family carers—for example, by reducing the residence criterion for the former from three years out of five to one year out of three. That would still screen out unsuitable carers, but would maintain the strong bond between applicants and children.

All of those proposals can be contained within a new set of principles governing placements, which would inform placement decision making by local authorities, and enforce the requirement on courts, local authorities and others to give careful consideration to and to act on the principle that any non-family placement should proceed only if it has been demonstrated that care in the family network would not both promote and safeguard the child's welfare. That would correct the present legal imbalance.

In conclusion, the Government have an opportunity today to offer hope to those whose voices have not been heard—to those who are working for the state by proxy, sustained by selflessness and dedication, whose sole aim is to give their kin the very best start in life, sometimes at the cost of their own health and well-being. I trust that the Minister will grasp this opportunity and justify that hope.

11.15 am

The Parliamentary Under-Secretary of State for Education and Skills (Maria Eagle) : I congratulate the hon. Member for Peterborough (Mr. Jackson) on obtaining this well timed debate—not that much time passes without a Bill or Act with "children" in the title coming before the House. In that sense such debates are always well timed.

I see the hon. Member for East Worthing and Shoreham (Tim Loughton) in his place. Legislation to deal with contact issues and some aspects of the way in which the courts deal with these matters will be introduced in the House soon. The debate is well timed in that sense, too.

I congratulate the hon. Member for Peterborough on the thoughtful way in which he presented his case. I shall say a little about the present position and try in the time available to me to respond to the points that he made.
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The Government recognise and value the important role that grandparents play in their grandchildren's lives. Whether families are together, divorced or otherwise, grandparents play an essential part in the upbringing of any child lucky enough to have them. No one disputes that. We know that grandparents can make a vital emotional, and sometimes financial, contribution to the lives of their grandchildren.

Many grandparents are already involved in the care of their grandchildren—the hon. Gentleman quoted some statistics—and most children see their grandparents as important figures in their lives and enjoy the time that they spend with them, perhaps because with their grandparents they can get away with a little more than they would with their parents. That in itself can contribute to happy childhoods. Such elements are essential to the children's development and future lives. I want to make it clear that there is no dispute about the grandparents' importance in the lives of their grandchildren.

The hon. Gentleman suggested that the voices of grandparents are not heard. I understand the points that he made about how courts can appear. Many people, not just grandparents, feel that their voices are not heard when they have to deal with the courts. However, the Government do listen to the voices of grandparents and their organised groups—he referred to the Family Rights Group and the Grandparents Association. I have had the benefit of meeting many such groups and I always examine their contributions to the reports that are prepared by various forums in the House, whether as part of pre-legislative scrutiny or by Select Committees.

The Government listen to the organised grandparents' groups, which have made some of the points that the hon. Gentleman made. We have been known to fund grandparents' organisations to produce advice sheets and resource packs for local authorities that are engaged in work force training. The hon. Gentleman mentioned work force issues and the culture and approaches taken by some of the professions that traditionally deal with family breakdown and looked-after children.

I do not accept that the voices of grandparents are not heard by Government. I understand why many grandparents, because of their personal experience and that of others, might feel that their voices are not heard sufficiently or that their being heard has not resulted in all the aims of their various campaigns being achieved, but I do not accept that we do not listen. We do listen, and it is important that we do.

The hon. Gentleman asked about the requirement that grandparents must have the leave of the court to apply for a contact order. He suggested that the balance struck in the Children Act was wrong. I remind the House that at the centre of the 1989 Act—a landmark piece of legislation which remains at the heart of the way in which we deal with issues of safeguarding children and the lives of children—is the paramountcy principle. The interests of the child are paramount when making decisions on often difficult and emotive cases of family breakdown and on what should happen to children who, for various reasons, can no longer live with their parents.
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We must always bear that important principle in mind—the interests of the child are paramount. I believe that absolutely. That principle is an important factor in our approach to all such matters and it has implications for the approach taken by the courts. The main implication of the principle is that, as it says on the tin, the needs and interests of the individual child is paramount in each set of circumstances and must remain so. Inevitably, that may conflict with other groups' interests. Fathers' groups have been campaigning—more vocally recently—and suggesting that family courts do not treat them fairly. They say that there should be changes to the way in which the Children Act should work, particularly in respect of the paramountcy principle.

The paramountcy principle must be paramount if it is to live up to its name. The interests of the child must be paramount. Although the principle does not negate the interests of grandparents, the courts must put the interests of the child first and foremost.

Mr. Stewart Jackson : I am grateful to the Minister, who in her reasonable and fair-minded way is answering my speech point by point. However, removing the requirement to seek leave would not necessarily breach the principle of the paramountcy of children's rights and their long-term welfare. It would simply represent a tidying-up exercise and an attempt to return some parity and fairness to a difficult situation that can be traumatic for grandparents.

Maria Eagle : I do not deny that grandparents can be adversely affected by the break-up of their children's families, or that that they can feel distressed and left out if, as a consequence of the break-up, they start to lose access to their grandchildren. The 1989 Act recognises that, even if there is parental opposition, it could be in the interests of a child to maintain contact with their grandparents. No one has a veto. The parent does not have a veto. Subject to the paramountcy principle, the court will take into account the importance of grandparents and other relatives to the lives of children.

Tim Loughton : This issue is a hoary old chestnut, and if the Minister and I come up against each other during consideration of a new children and adoption Bill, we shall deal with the subject in detail. However, will she acknowledge that the paramountcy of the welfare of the child—a principle to which we all adhere—is not compromised by access to non-resident parents and grandparents? In the right circumstances, access to a loving family member, be it grandparent or father, should contribute to a child's welfare. Those ideas are not mutually exclusive. This has been a bone of contention between us before. Does the Minister now acknowledge that that is right?

Maria Eagle : As we discuss these matters in general terms, it is not possible to say whether that is right. In some circumstances, the paramountcy of the child's interest could be compromised by access for grandparents, other relatives or non-resident parents. The role of the court is to take the law as Parliament sets it down and to apply it to individual cases. As an ex-lawyer, I am wary of putting myself in the place of the
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judge. We lay down the general principles and the courts will in good faith apply them to individual cases as they arise.

The Government are not convinced that the safeguard of requiring leave to apply should be removed. We must do what we can to avoid involving children in unnecessary court proceedings, especially adversarial court proceedings, which can be distressing and bewildering for adults, let alone children. Such proceedings are costly, too. Removing the requirement would immediately bring in four more parties to start court proceedings. I am not saying that that would happen in every case, but it could, and the court must have a way to screen cases if, knowing all the circumstances, it feels that proceedings are unnecessary. Without the court having an initial opportunity to consider whether there would be any likely benefit to the child, it is difficult to understand how it could do that in each individual case.

This is an important matter and we will have an opportunity in the not-too-distant future to explore it in more detail. I suspect that the hon. Member for East Worthing and Shoreham and I will engage in debate in another forum. However, it would not be fair of me to suggest today that the Government are convinced of the need for change.

The hon. Gentleman will remember that during the passage of the Adoption and Children Bill, a commitment was made to consider what changes to guidance and secondary legislation would be necessary to ensure that the application for leave process did not turn into a huge barrier. The process is meant to be not a costly, horrendous and huge barrier, but a safeguard to ensure paramountcy of the child's interests. The Department for Education and Skills is considering the issue, and I expect consideration to be completed sometime this year. I know that that is rather vague.

Mr. Stewart Jackson : I am grateful for the Minister's patience—I know that time is short. May I press her on the two specific issues, which I mentioned at the end of my remarks, relating to the review that she has announced today? Will that review consider section 17
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of the Children Act 1989, which deals with the right to assessment and section 23, which provides the presumption in favour of family members?

Maria Eagle : I fear that the hon. Gentleman has misheard me, or perhaps I did not speak clearly enough. The review to which I referred was provided for during the passage of the Adoption and Children Bill in 2002, as the hon. Member for East Worthing and Shoreham will recall. It was to consider whether the perceived barrier that the obligation to apply for leave represents could be minimised as much as possible. Let me make it clear that I am not announcing a review today. There are quite enough ongoing reviews of that area of law without the hon. Member for Peterborough thinking that I am announcing another one. However, we will have further opportunities to consider that issue and others relating to how to make contact work and making it easier.

The new Bill, which will be introduced fairly soon, will cover contact for grandparents. Sometimes the reason why grandparents cannot see their grandchildren is that parents do not comply with the contact order. The new legislation will assist grandparents by giving the courts new and wider powers, rather than just the sledgehammer of imprisonment, to ensure that when the court has ordered contact and it is in the interests of the child—that is what the order means—it goes ahead. The new legislation will be of great benefit to many grandparents who have contact orders to see their grandchildren but cannot do so, particularly when the court is reluctant to resort to imprisonment. It is difficult to argue that imprisonment of the resident parent is in the best interests of the child.

We know that there are difficulties and I hope that the new Bill will address them satisfactorily. I am sure that we shall have a chance to discuss the issues in more detail during the passage of that legislation. We are short of time, so I conclude by congratulating the hon. Member for Peterborough again.

11.30 am

Sitting suspended until half-past Two o'clock.

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