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“imagined the courts to be ‘scary places’ with judges who have the capacity to ‘punish’ their parents. Some children worried that one or other of their parents could be sent to prison for behaviour for which they themselves felt responsible, such as refusing to go on a contact visit.”
In other words, children internalise the conflict going on around them in the court, often after repeated court visits. That must have a damaging effect, and we know from other legislation that cognisance must be taken of
the damage inflicted on a child who witnesses such conflict. That is especially true in situations involving domestic violence, but account must be taken of the fact that a child is also damaged who is pulled between parents in the course of repeated court cases about contact. We believe that, in order to address such concerns, the stage of the proceedings covered by clause 4 needs a much stronger focus on children.
The focus on parents rather than children in clause 4 also fails to acknowledge that the circumstances of a child’s safety and welfare might change substantially by the time that the enforcement stage is reached. In many cases, that might be a year or more after the court hearing in respect of the original contact order. Many things can happen in such a long time: the conflict between the parents can escalate, as can the risk to the child, who might be damaged or even abused in that period. It is therefore essential that we reassess the risk to the child at that point.
As it stands, the Bill assumes that the child’s safety and welfare is addressed when the original contact order is made, and that another check is unnecessary. That is badly thought through, however: children are put at greater risk because there is a long gap after the original contact order is made, and also because there is the potential for conflict in repeated court appearances.
To refocus the clause on to children rather than parents, an amendment was moved in the other place requiring the courts to consider the views of children and any risk of harm. The Minister in the other place agreed with the content of the amendment, and said that the Government were “entirely sympathetic” with its objective. However, the amendment was rejected, with the Minister claiming that the standard welfare checklist of the Children Act applied and that the amendment was therefore unnecessary.
However, I am advised by children’s charities, and especially the National Society for the Prevention of Cruelty to Children, that the standard welfare checklist does not apply. It is therefore essential that the safeguards are reintroduced into clause 4, to minimise the risks to children. That is the purpose of amendment No. 21.
I turn now to amendment No. 16, which deals with the separate representation of the child in contact order proceedings. The National Youth Advocacy Service published a review of 52 cases involving 95 children whom it represented in family proceedings. It found that, when children are represented, the outcome—for the child and for both parents—is infinitely better than when there is the sort of longstanding conflict that inevitably arises, and which we have discussed already.
We talked about the need to find a middle way through the conflict between parents. Amendment No. 16 would facilitate that by focusing on the views and needs of the child, and taking the debate away from the tussle—the tug of war or the tug of love—that goes on between parents over their children. It would put the child’s views at the centre of decisions made by Parliament and the courts in respect of these terrible cases.
In their research, NYAS caseworkers studied cases involving intractable disputes—the toughest cases coming before the courts, which form 98 per cent. of the organisation’s work load. Of those cases, 52 per
cent. had been before the courts for more than three years, and 16 per cent. for between seven and 10 years. It is hard to imagine the impact that repeated court hearings over such a long period about where a child is to reside must have on the people involved. What conflicts would emerge for the child? What feelings would those children have during such a protracted period?
The NYAS research found that ascertaining the wishes and feelings of the children concerned and actively and safely representing them to the parents could act as a catalyst for the resolution of longstanding, acrimonious and intractable disputes in ways that were effective both for the families and the children. Moreover, they were cost effective too, as they put an end to interminable court proceedings.
The NYAS research found that future contact arrangements were made successfully in 86 per cent. of cases, and that in 95 per cent. of cases the representation of the child’s wishes and feelings had a significant positive effect on decision making. In 89 per cent. of cases, the NYAS report on the child’s wishes and feelings coincided with the outcome of the proceedings. That shows that the court listened to the NYAS representations, and that they led to a satisfactory outcome.
That experience shows that representing the wishes and feelings of the child can have a very beneficial effect in resolving intractable disputes between parents. Parents can be brought to realise and acknowledge the true feelings that their child is enduring, with the result that both find it much easier to give up their entrenched positions. They are less likely to be locked into a battle of, “He said, she said”, and interminable arguments about the rights and wrongs of each party, perhaps going back over many years, with the digging up of old disputes and bitterness that inevitably occurs in such proceedings. All those things, which can go on for years in such cases, can be resolved because there is a focus on the needs of the child and their experience, giving parents the opportunity to step back from conflict. At the end of the process, they feel that a satisfactory arrangement has been achieved because the child was at the centre of the proceedings.
That approach also provides a more constructive foundation for future co-parenting. Relationships between the parents are much better after that type of process than if an ordinary conflictual court hearing had taken its usual course. There are beneficial effects all round as well as benefits for the future parenting of the child.
The results in the report were not a one-off; they were replicated by the mediation centre in Stafford and CAFCASS recently carried out a review of the outcomes of approximately 100 cases in which children had been similarly represented and which also reported positive outcomes. At the time of the review not one of those 100 cases had come back to court. The system was efficient and effective and enabled the achievement of good outcomes for all parties. The research shows a growing body of evidence indicating that instead of children’s representation being seen as an expensive add-on to court proceedings it could and should be seen as having the potential to bring long-running and
distressing disputes about residence and contact to an end in ways that are fair to parents and are in the child’s best interests.
In addition, by stopping the revolving door of proceedings that we see in case after case, such measures can make the court process much more cost-effective. To summarise the beneficial effects: cases where children were caught in intractable and long-running disputes would be brought to earlier resolution; the distress and harm suffered by children involved in the revolving door of continual proceedings would be limited; there would be a reduction in the potential for disputes between parents to become increasingly acrimonious—as it does over time—and in cases where there are questions about safety, separate representation of the child’s wishes and feelings provides information that is invaluable in helping the court to decide what is safe in the long term and what is in the child’s best interests. That representation provides objective information, rather than the hearsay that is sometimes expressed in court, which will distinguish the non-resident parent who poses no threat to their child from the minority who may pose such a risk.
Those outcomes are in the interests of both parents. By shortening contact disputes and by helping in the assessment of allegations about safety, they could also address some of the concerns from fathers’ groups, which were expressed earlier, that false allegations are being made. The emphasis is being put back on to the child’s welfare rather than on the grievances of father against mother or vice versa. The debate will be taken out of that battlefield.
The system would be cost-effective. Disputes can run for a long time and cases regularly return to court to incur significant financial and emotional costs to several parties. The cost of such court processes is prohibitive and when we add the costs incurred by other agencies—social services, children’s services, CAFCASS and so on—to support parents and children suffering from the dispute, we see that such cases cost a huge amount not only in emotional disturbance to the child but also to the public purse. The savings gained from minimising such costs would offset the cost of providing separate representation for the child.
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I am not proposing that all children be separately represented in proceedings, which is one argument that has been made against the proposal. I am asking that section 122 of the Adoption and Children Act 2002 be implemented, thus giving children a potential right to be represented. That right can be exercised at the discretion of the court in circumstances specified by the court rules and guidance in the legislation, which could act as a filter for the number of cases using separate representation of the child. The NSPCC, a key advocate of the proposal, expects that no more than 1,500 to 2,000 cases a year will be separately represented. We know, from the Government’s research, especially the research recently commissioned by the DCA, that they believe that separate representation can be effective.
The DCA report, published in March, recommended an amendment to the Bill to ensure that children are separately represented in enforcement proceedings.
That is the aim of the amendment. We are working in accordance with the DCA research and its specific recommendation for such a provision. Time after time in the debate, we have observed that there is a lack of research and evidence on many aspects of the Bill, and I welcome the commitment given by Ministers in Committee to carry out further research. However, separate representation is one area where we have a clear steer, because research has been carried out, so it would be perverse to ignore what little research there is when it gives us the positive recommendation that representation of the views and feelings of the child can have a beneficial effect.
It is also essential that we give judges a consistent message about our views on representation of the child. Section 122 of the 2002 Act is an essential part of the framework of provisions available to the courts, but without a clear statutory provision for separate representation of the child’s interests other parts of the Bill will be undermined; for example, it is no good making accurate risk assessments if there is no one to put the child’s case in court. Ambiguity about the implementation of section 122 and the way in which separate representations are dealt with in the Bill means that we risk sending confusing messages to judges.
The amendment therefore seeks to enhance the compliance, consistency and effectiveness of decisions on the representation of the child’s views. We have a long history of legislating for the separate representation of children but, sadly, we do not have such a good history of implementing that legislation. Separate representation provision was incorporated in section 64 of the Family Law Act 1996, but it was shelved. In 2002, Parliament made the case for the separate representation of children in the Adoption and Children Act but, again, implementation has been delayed and perhaps postponed indefinitely. When are we going to do what we have repeatedly said we want to do in legislation and implement the representation of the child? The amendment benefits all parties, and it proves our determination to represent children’s views in such proceedings, so I commend it to the House.
Annette Brooke: I concur with everything that the hon. Member for Luton, South (Margaret Moran) said. It is easy to be led along other routes, but she rightly brought the debate back to focus on the interests of the child. She made some very powerful points indeed about the benefits for both the child and the parents of taking the child’s wishes on board. Her argument is not just emotional, as it is backed by clear evidence from the National Youth Advocacy Service and others. That should be our starting point, as we are here to do what is best for the child.
I support amendment No. 21, although we have proposed an alternative in amendment No. 18. Hon. Members who served on the Committee will recall that we had a long debate about the fact that the principle that the child’s interests should be paramount was not maintained in clauses 4 and 5, which caused some of us a great deal of concern. The hon. Member for Luton, South and I approached the issue from different directions, only to realise that we were saying the same thing. The hon. Member for Stockport (Ann Coffey) made a powerful case, in which she pointed out that the
child’s interests were taken into consideration when the contact order was made. I remained uneasy, however, about the fact that, under clause 4, someone may offer a reasonable excuse for failing to comply with a contact order. It could be a straightforward matter of an urgent hospital appointment, but I cited a constituency case in which a contact order stipulated that the father was to visit the child at the mother’s home. The mother is petrified of those visits—there are no two ways about it—and, although measures have been taken to return to court, that will take a worryingly long time.
Alarm bells therefore rang when I saw the provision for reasonable excuse, as I believe that the court must consider the primary interests of the child. The hon. Member for Stockport made a cogent argument in which she said that that had already been considered, but there was a strong case for restating the paramountcy principle. The hon. Member for Luton, South reminded us that in Committee we were told that the welfare checklist applies, but the NSPCC says that it does not. There is therefore a fundamental difference in opinion—either it does or it does not—so we need a clear statement in Hansard about the absolute truth before we move on.
In many ways, I prefer amendment No. 21 to our amendment, because it makes open reference to
“the wishes and feelings of the child”.
However, they both aim to achieve the same objective. I have put my name to amendment No. 16 because it makes an important proposal, which was first included in the Adoption and Children Act 2002. Time has passed since the introduction of that measure, so it is strange that it still has not been implemented.
It seemed to me that there was an absolute belief that the measure would be implemented. It was then deferred while the Department for Constitutional Affairs commissioned research, but that research has now been published and recommends that the separate representation of children is appropriate and beneficial in some cases. I cannot understand why one Department is saying one thing and, if the new clause is not agreed to tonight, another Department will be saying something different. It should be of concern to us that in this critical area, Departments are not saying the same thing. I hope that the Minister will reassure us that he is working closely with his colleagues in the DCA and that measures will be introduced to enable section 122 of the 2002 Act, at long last, to be implemented, because separate representation could be very beneficial in particularly difficult cases.
That idea has clearly been accepted for a long time and caution has been exercised. As the hon. Member for Luton, South rightly said, this is one area in which the research has been completed, although it is very poor that more research was not carried out, given that the consultation process started five years ago. The research was carried out by a Government Department, rather than a think-tank that could perhaps have been criticised for starting from a particular perspective. In essence, the Government recommended such an amendment, so if they do not agree with the precise wording of ours, I hope that the Minister will show us clearly the way forward on the important issue of separate representation.
Mr. John Gummer (Suffolk, Coastal) (Con): All of us are aware that in discussing these matters we are discussing, in a sense, the second-best option, and whatever our answers will be, they are liable to have untoward consequences and not cover the wide range of cases that we all come across in our constituency surgeries.
I rise briefly to support my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) in his desire for a change in the law to ensure that the resident parent has an ever-present understanding that the contact arrangements are serious and need to be carried through, and that if they are not that could have a permanent effect on the way in which arrangements for the children are made.
I have great sympathy with what the hon. Member for Luton, South (Margaret Moran) said—at some length—and I understand what she is seeking to do. However, in my constituency the fundamental problem is often that, following a court decision, the parent who has the maximum amount of custody frequently feels very little need to carry through the other part of the arrangements. In a sense, they sometimes think of it as a battle won and, having won it, they feel that almost any excuse—and sometimes none—is perfectly reasonable because the child has now been consigned to their care, rather than to that of their partner.
My hon. Friend the Member for East Worthing and Shoreham made an important point, because what he proposes in his new clause is clear and comprehensible to a very wide range of the people affected. At present, the law is such that, to a great degree, courts hesitate to impose a contempt of court order, which is the only means that they have of insisting on the agreement being carried through. Therefore, I commend the proposal to the House. It is important that the Government take it on board.
At the same time, I want to underline what several Members have said about the paucity of sensible information and research. The hon. Member for Mid-Dorset and North Poole (Annette Brooke) pointed out the surprising fact that, even when the research has been done, it does not seem to make a difference to the Government’s decisions. There are many other areas in this whole fraught consideration in which the research is just not there. We are therefore dealing with a difficult, delicate and damaging area of law with much less information that we would have in many less important areas.
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As we now live in a society in which the attitude towards marriage and the upbringing of children has become increasingly less serious and secure, to the disbenefit of the children, we have to spend more time and resources in ensuring that the decisions that we make in these circumstances are based on good science, so to speak, rather than anecdotal attitudes and efforts. In commending the proposal from my hon. Friend the Member for East Worthing and Shoreham, I ask the Government again to support what has been said in another place and to widen their determination to provide for the House in future the kind of information on which sensible decisions can be made in these delicate areas.
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