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Mr. David Kidney (Stafford) (Lab): Child contact disputes can be tremendously painful and affect everyone involved in them. They can leave long-lasting damage in their wake, so it is in everyone's interest to keep them to a minimum. For families, it is a deeply personal and private decision whether parents should live together or separate, and, if they separate, what arrangements should be made for caring for their children. We—as the decision makers—and the agencies and courts that affect those people's lives should be very aware of the difficulties that people have in engaging with the state when they have to make those private decisions.
I have often wondered about the preparations that we make for having children. I cannot recall going on a parenting course and I have never had any help with the tricky questions that have arisen from time to time as I have raised my children. People have expected that I will naturally know what to do because I am a parent. That is the case for many people.
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As we consider how, through the Bill, we can reduce the number of painful disputes and the severity of those that we cannot eliminate, the starting point for our deliberations should be much further back. The Bill may not be able to cover some of my interests, such as a universal parenting support service, but we should remember that services for parents in difficulty are woefully inadequate. There is some preparation. The external assessment process for adopting and foster parents may prepare them for what is to come. Some people attend marriage preparation courses, during which they may give some thought to their future duties and responsibilities as parents.
I want to draw the House's attention to a little-celebrated change in the law eight years ago, whereby unmarried parents who jointly register the birth of their child both acquire the joint parental responsibility automatically accorded to married parents under the Children Act 1989. Many people have overlooked that change. I asked my local register office why we could not have a ceremony to mark the registration of a birth and was told that there was one but not many people asked for it. Such a ceremony could be an occasion for parents not only to celebrate the joy and pleasure that they will derive from parenthood, but to learn a little about their duties and responsibilities, which is relevant to our debate about parents' responsibilities for the welfare of their child when they are in dispute.
The Children Act is that rare bird—a good law passed by a Conservative Government. We should recognise the success of a long lasting, wise law. The concept of joint parental responsibility, much overlooked in today's debate, has been extremely successful. The statistic has become hackneyed in our debate today, but in nine out of 10 cases parents who separate come to their own agreement about the future care of their children, because they exercise their joint parental responsibility. Most of our focus has been on some of the cases in the other 10 per cent. The existing law is sound, but some of the practices about which we have heard today are unacceptable. We need to give thought to them in designing legislation to improve the situation.
When parents separate, children benefit from a continuing relationship with both of them, provided that it is safe. The Children Act makes the welfare of the child rather than the rights of the parent the paramount consideration for the family courts. Both parents have equal status and equal value in the eyes of the court. When I was involved in such a case as a lawyer, the court was certainly gender-neutral.
Mr. Simon Burns (West Chelmsford) (Con): Will the hon. Gentleman give way?
Mr. Kidney: I am happy to give way to the newcomer to the debate.
Mr. Burns: I am grateful to the hon. Gentleman, although I am not that much of a newcomer as I have been in the Chamber for almost an hour.
There is a slight problem with the hon. Gentleman's use of the word "equal". When people separate and try to set up arrangements for their children, under existing law—whatever lawyers may say—it is in fact the mother who has care of the children and will decide when the
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father sees them. That is why many agreements are made without problem. Fathers fully understand that they cannot fight in the court for a 50:50 arrangement because the court will not give it to them.
Mr. Kidney: I respect the hon. Gentleman's opinion, if what he has just said is his opinion. However, I profoundly disagree with everything that he says about the assumptions that fathers and courts make. I think that he is wrong on both counts.
Mr. Burns: I do not know the hon. Gentleman's background and whether he has ever been put in such a position, but may I tell him that, for most fathers who have found themselves in that position and have had to negotiate a deal, what I have said in my earlier intervention is, in fact, the case?
Mr. Kidney: I do not want to extend this discussion, but for 20 years I was a practising solicitor in the family courts and dealt with a great many cases that involved divorce and the care of children. My experience in those 20 years was that the two situations that the hon. Gentleman describes were very infrequently relevant factors in the cases in which I was involved.
The law is clear, but the current systems for resolving disputes must be improved, which is what we set out to achieve with the Bill. There is clearly a need for specialist family services to provide support as part of the overall system with which I want to deal, and even for compulsory family services for some families, such as those in conflict, those with addictions and, perhaps, mental health difficulties, and certainly in cases of family violence.
In general, in cases where disputes that involve children occur during the breakdown of a relationship between the parents, the first port of call should be mediation. We need not wait for a breakdown in communication before mediation takes place. It is a structured process, whereby a couple are helped by an impartial third party—the mediator—to negotiate their own decisions for the long-term benefit of their children.
Research has shown that five hours of mediation can promote sustained contact and an ongoing relationship between parents and their children. A long-term study of outcomes in the USA was referred to in a briefing that we have received from National Family Mediation and which resulted in a book called, "The Truth about Children and Divorce" by Robert Emery, who says that, 12 years after the event, 30 per cent. of parents who had attended mediation were still in weekly contact with their children, as against just 7 per cent. who had been through litigation.
Mediation should be, in the words of National Family Mediation, the routine method for resolving child contact disputes early if the family have not already reached their own agreement. I agree with the Grandparents Association that mediation should also be available to grandparents and other relatives who have been involved in children's care.
I asked a question earlier about the funding of mediation, because that is relevant if there are barriers to something that could be successful and save costs downstream. Publicly funded solicitors' clients are
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required to consider mediation unless it is unsafe—for example, because of an allegation of domestic violence—before they can go on to receive further legal help with their court cases. In the past, they may have received legal aid. For those clients, mediation is free. No contribution is required from them, and there is no suggestion of a statutory charge being placed on their property after the case has finished.
Andrew Selous : In the hon. Gentleman's experience of cases where such matters come to court, do the courts sufficiently take into account the importance to the child of grandparental and other extended family relationships, or are they not considered sufficiently seriously by the courts?
Mr. Kidney: The point that I want to pursue in a little while is that the enemies of dissatisfied parents, grandparents and wider family members are usually obstacles that are nothing to do with what the court would decide if it had a fair opportunity to make the decision. Those obstacles are things such as cost, which I am about to mention, and whether those people can get into the proceedings.
Delay in the court process is also an obstacle. By the time that a judge makes the final decision some way down the line, circumstances may have changed so much that what everyone thought would be a fair outcome a year earlier no longer seems appropriate. I want to talk about how to sweep away the obstacles of cost and delay to get a fair outcome. It is my experience that if grandparents can get themselves in front of the court, their argument gets a fair hearing.
I was explaining how a person with legal assistance gets all the mediation for free, but a person who does not qualify for legal aid gets none of it for free. A person who already thinks that that is unfair and that, if the mediation does not work, lawyers in the court case will have to be paid, will worry that mediation involves a wasted cost and will be reluctant to incur that in the first place. The first thing to address is: if mediation is such a successful route and might save lots of costs later, is it not worth investing something in the mediation process for both parties to make it an attractive solution for the early resolution of disputes?
I would need to be in the position of the Minister and her officials and have the budget in front of me to make an assessment on the actual design. There are a number of choices. We could continue to load the cost on to the parents with a system of assistance from public funds, depending on how low the parents' income was, or we could have a publicly funded system, but with contributions from some parents, in the way in which NHS dental contracts now require contributions from some patients. Either way, we need to remove the obstacle.
If mediation has not been tried or has been tried and failed, the courts will be involved. The Children Act 1989 states clearly, very early on, that any delay is likely to prejudice the welfare of the child. It is my experience that that is definitely so and, unfortunately, that that happens too often. The Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for
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Lewisham, East (Bridget Prentice), in answer to a question from me, wrote that Government-commissioned research shows that
"almost a quarter of cases have two or more repeat applications and about a third of these are the result of enforcement issues, while over a half are . . . driven by the need to have a previous order updated."—[Official Report, 28 November 2005; Vol. 440, c. 170W.]
My central argument is that such delay distorts the decisions that judges can make at the end of the case because new situations might develop in the time that it takes to get there. Sometimes the delay in effect decides for the judge what the outcome can be. That does not seem like the fair solution that people thought that they would get when they started court proceedings much earlier.
What does the Bill do to reduce delay? On its own, it is silent about that, but it introduces a new power to direct parties to undertake a contact activity—information sessions, classes and counselling. It is possible that that could be the first thing that a court orders immediately after somebody applies for a decision. In that instance, if something comes of the information sessions, classes and counselling, it might bring about an early resolution of the dispute and achieve a satisfactory outcome for both parties. That will depend on the order being used and resourced so that things happen quickly, as well as whether the parties feel that they get sufficient help through that route to resolve their dispute. Clearly, the approach will not work if parties retain hardened attitudes.
On the resources to make the approach work, it has been mentioned in the debate that, in some parts of the country, there are contact centres and admirable voluntary schemes where such work is undertaken very well. Mention has also been made of the Children and Family Court Advisory and Support Service. I hesitate to say that CAFCASS will make that approach work because we have also heard that it has to carry out the new risk assessments, administer the reformed family assistance orders, presumably carry on its current role regarding inquiries and reports to courts and, hopefully, fully resource its public law cases, which are an important priority for it.
I do not know how many other Members have received a briefing from the probation officers' trade union—the National Association of Probation Officers—that describes a budget crisis at CAFCASS last summer, management cuts this year and a stand-still budget next year. That does not sound like the basis for CAFCASS being in a position to help us to make a success of the new orders and thereby reduce the delay that is causing so much harm in some cases. If delay continues, the current dissatisfaction, of which we are all well aware, will grow.
Some say that there is an alternative in the approach of early interventions. I found the explanation for early interventions in an article in the Family Law Journal, family law 455. It refers to a report of a seminar in London in April 2003 called "Early Interventions—
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Towards a Pilot Project". It contains many references to the presentation that day from the Florida judge, John Lendermann, under the title "How and Why Most American States Changed to Early Interventions". His article describes how it was based on a statutory requirement for frequent and continuing contact founded on child development research. He said that children did better when both parents were kept in their lives. He added that the basis of the whole scheme is well publicised in parenting plans setting out cycles of contact in the average case.
I have some difficulty with the concept of the average case. The problem with these few cases is how highly individualised they are in terms of the needs and demands of the parties to them. Nevertheless, the judge said that the combination meant that American parents knew what sort of orders the courts might make in the absence of exceptional circumstances, and that by implication they concentrated more on making a success of the alternative. It is clear from that description, as it should be in this country, that allegations of domestic violence should be taken out of the process immediately and dealt with separately by courts.
In the judge's scheme in Florida, the remaining cases are streamed through a two-stage process. The first is that separated parents are mandated—I think that that means that they are made—to go to group parent educational classes where their post-separation responsibilities to their children and each other are explained to them. They are given the opportunity to agree a parenting plan and exit system. For the remainder—what the judge describes as resistant parents—he says that they are obliged to attend a single session of contact-focused mediation. He says also that Florida has a standard standing temporary order, which is issued in every case, binding the parties to maintain contact prior to the first hearing. The judge describes in his article that therefore only a minority of cases, mostly involving serious issues, need further intervention. Florida's overall caseload was up and costs were down. Enforcement was a rarity and delay was negligible. Most disputes were resolved within a few weeks.
There are some difficulties in what is described. When the hon. Member for East Worthing and Shoreham (Tim Loughton), who spoke from the Opposition Front Bench, gave the House his presentation, I thought that he was trying to move towards a situation in this country where costs would be down, enforcement a rarity and delay negligible. That is an outcome that I would like very much to achieve with him. However, I do not think that the Bill will achieve all of those things. We need to consider what more might be needed.
As a summary of my view, I think that there should be robust systems for screening for domestic violence. There should be specific procedures to deal with those cases once they are identified. We should hear the families' views, including the children's views. We should certainly consider the separate representation of children in appropriate cases. We need to identify those cases where continuing contact has already been shown to be in the beginning of the case in the child's best interests, and there is a danger that that continuing contact will cease unless something is done at the early stage of the case and not at the end of it. That was the point that I wanted to raise.
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The more that I listen to this debate, the more I appreciate how crucial the new amendment in the other place could be for risk assessment, which will be undertaken if clause 7 becomes part of the Act. I have described both domestic violence cases and cases in which contact should clearly be maintained during court proceedings, otherwise it would be lost and a decision made against the court's wishes. All those things can be identified in a robust risk assessment and targeted approaches designed as a result, and I hope that that will happen in future. Children's welfare certainly includes protection from physical and psychological harm, so our systems of dispute resolution must be vigilant so that they can detect cases of domestic violence. It is important not to put parents in danger, even at the early stage, as I mentioned, of mediation, and certainly not during the proceedings. It is important not to put children at risk of harm through contact before the risk assessment is made.
The new family court application forms will protect children from domestic violence, as will the extension of the definition of harm to include impairment due to seeing or hearing ill-treatment of another. Following the amendment that was made in the House of Lords, we have gone further in the Bill and introduced risk assessments. We have made attendance on domestic violence perpetrator programmes a possible condition of contact, but we still need to ensure that there is an assessment before every step of the proceedings and that we act on the result, so that there is clear reporting and prioritising of cases.
We have limited enforcement powers, including fines and imprisonment for contempt of court, but those powers are not often used, for the reasons that hon. Members have given. The courts will be able to order community-based enforcement, unpaid work and financial compensation paid by one party to another, but there are many uncertainties about the new powers, some of which we have discussed. While I support the extension of enforcement powers, those uncertainties reinforce my strong view that we must sweep away obstacles that arise early in the process, such as delay and cost, so that we can deal with more disputes more effectively.
Part 2 deals with adoption. The Joint Committee that considered the draft Bill and the Joint Committee on Human Rights both recommended that the Bill should require the Secretary of State to pay particular regard to the United Nations convention on the rights of the child when deciding whether to impose special restrictions suspending inter-country adoptions from a particular country. I very much agree with that suggestion, which would provide an important safeguard to ensure that the power to issue special restrictions is exercised in conformity with, and in support of, the convention.
The Bill is necessary because of the difficulties relating to some contact disputes, as we well know. It goes in the right direction, as most speakers have said. It has been improved in the other place and, in my view, it could be improved still further in the House. My strong wish is that we continue this debate in Committee and hammer out a position from those that have been articulated today to make the Bill much better and much more effective in reducing those disputes.
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4.58 pm
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