Children and Adoption Bill [Lords]

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Tim Loughton: Will the right hon. Lady confirm that she is saying that the only penalty against making a vexatious complaint that is found later to have no substance is that the supposed victim’s later evidence will be treated more lightly than it might have been? Does she not even go along with the proposal that is practised in parts of Australia, whereby a vexatious complaint, be it about domestic violence or a similar allegation, results in the costs of the case being awarded against the vexatious complainant? There is a tangible penalty when their case has not been proven and the complaint turns out to have been vexatious, notwithstanding all other reasons why a complaint may be justified even though the evidence for it may be difficult to prove.

Beverley Hughes: We may discuss vexatious complaints later. I shall be corrected if I am wrong, but as I understand it, the court is able to award costs. These courts are no different in that regard, and they are able to award costs in relation to the same circumstances as any other case, including vexatious or repetitious applications to the court. The power is not often used, but it is there for the court to take upon itself.

The hon. Gentleman has consolidated my general point that the courts have open to them the wherewithal to deal with the range of issues that both
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sides present to it. I hope that my hon. Friend the Member for Stafford will therefore feel able to withdraw his amendment.

Mr. Kidney: I thank my right hon. Friend for that excellent explanation of why she opposes the amendments.

On amendment No. 58, I said that I appreciate my right hon. Friend’s desire to allow the court the flexibility to make the right decision in the right case. However, when referring somebody for an activity to do with their abusive behaviour, it is important that the quality of the service to which they are referred is adequate. The flexibility to which she referred should not extend to there being a poor course of short duration with someone inadequately trained for such activities.

My right hon. Friend accepts that the training must be of proper quality, but she appears to feel that there is no need for the Bill to say so. I should like to consider that for our debate on Report, but for today, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Miller: I beg to move amendment No. 1, in clause 1, page 2, leave out line 14.

The Chairman: With this it will be convenient to discuss the following: New clause 2—Parenting time plans—

    ‘(1)   The Secretary of State must issue guidance for separating parents called parenting time plans (“the guidance”).

    (2)   The guidance must outline the kind of contact orders the court is likely to impose in a range of circumstances should parents be unable to reach agreement regarding contact with their child.

    (3)   Before publishing guidance under subsection (1), the Secretary of State shall consult and seek approval from—

      (a)   child development experts,

      (b)   the family courts of England and Wales, and

      (c)   any other person who appears to him to have an interest in the issue.

    (4)   The Secretary of State may not issue the guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.

    (5)   The Secretary of State may, from time to time, revise the guidance.

    (6)   A revised version of the guidance shall not come into force until the Secretary of State lays it before Parliament.

    (7)   Where either House, before the end of the period of 40 days beginning with the day on which a revised version of the guidance is laid before it, by resolution disapproves that version—

      (a)   the Secretary of State must, under subsection (5), make such further revisions to the guidance as appear to him to be required in the circumstances, and

      (b)   before the end of the period of 40 days beginning with the date on which the resolution is made, lay a further revised version of the guidance before Parliament.

    (8)   In reckoning any period of 40 days for the purposes of subsection (7), no account is to be taken of any time during which—

      (a)   Parliament is dissolved or prorogued, or(b)   both Houses are adjourned for more than four days.

    (9)   The Secretary of State must arrange for any revised guidance under this section to be published in such a manner as he considers appropriate.’.

New clause 13—Pre-court dispute resolution and mediation when the safety of the child is not an issue—

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    ‘Before section 8 of the Children Act 1989 (c. 41) insert—“7A   Dispute resolution and mediation before making a child contact order

    (1)   The President of the Family Division shall keep a register of mediators.

    (2)   The President may make regulations about the qualifications and conduct required for registration as a mediator under subsection (1).

    (3)   A person may not act as a mediator for the purposes of this section unless he is on the register.

    (4)   Before the court makes an order under section 8 about contact in cases where the safety of the child is not an issue, it must give a direction requiring each party to attend a meeting with a mediator arranged in accordance with the direction for the purpose of—

      (a)   enabling the mediator to explain the facilities and options open to the parties regarding parent education, parenting plans, dispute resolution and mediation in relation to disputes over child contact, and

      (b)   enabling a timetable for dispute resolution and mediation discussions with a mediator regarding reasonable child contact for both parents.

    (5)   The parties shall be required to attend the same meeting unless the court considers separate meetings to be more appropriate.

    (6)   The court may not issue a direction under subsection (4) unless it has issued a parenting time plan to each party, as provided for in section (Parenting time plans) of the Children and Adoption Act 2006.

    (7)   After a meeting held pursuant to a direction under subsection (4), the parties must attend such a course of dispute resolution and mediation as the mediator considers appropriate.

    (8)   A party’s failure to attend the mediation will stand on their court record and may form part of the basis on which the court makes an order under section 8.

    (9)   The mediator must give a certificate when, in his opinion, the parties have—(a)   reached a satisfactory solution, or(b)   failed to reach a satisfactory solution.

    In either event, the parties may then continue with any application to the court for an order under section 8.”’.

Mrs. Miller: It is important to raise these points, because the Bill specifically states:

    “No individual may be required by a contact activity direction . . . to take part in mediation.”

That is an important missed opportunity, because mediation is an important tool for resolving disputes between parents. By moving the amendment and removing subsection (6)(b), we could encourage more parents to use mediation as a way forward. If they do not consider it to be a way forward, perhaps the court should take note, because it is not only swifter and cheaper than the alternative, but provides more of a child-centred approach at the beginning of the process. A great deal of evidence from other countries proves that it can give better long-term outcomes. That international evidence points to the success of mediation and I hope that that shows the Minister that the amendment is worthy of consideration.

As the hon. Member for Stafford pointed out on Second Reading, evidence in the US shows clearly that just five hours of mediation can promote sustained contact and an ongoing relationship between parents and children. His contribution demonstrates that there is a general consensus that mediation could be an important way forward. This could constitute an important amendment.

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Mr. Kidney: I have a feeling that it was actually British, not American, evidence. I also made the point on Second Reading that if we cannot make things compulsory, because people want their day in court, we could consider making them routine. Has the hon. Lady now had an opportunity to see the evaluation of the family resolution pilots, poor though they might be? There is a good phrase on page 100 which relates to much more than mediation. It says:

    “in practice, however, programmes that acquire strong inter-professional support and become the standard local operating procedure may be almost as effective as compulsory schemes.”

Perhaps if we establish them with a good enough reputation people will use them.

Mrs. Miller: The hon. Gentleman makes an important point. There is a contradiction in terms in that one cannot make mediation compulsory; by definition, mediation requires both parties to be willing to come to the table in a constructive manner. If, as he says, we can make it routine, however, so that it is a generally accepted principle for the operation of the system, that could be an important way forward.

There are other examples of how mediation has created the right atmosphere to produce a good outcome for our children. Florida operates a dual system of parental education classes, supported by intensive contact-focused mediation for less easily resolved cases—again, with much success. The twin approach has been very successful not just in a minority of cases but in those involving serious problems when greater intervention is required.

Given that success, along with that of groups such as Relate and National Family Mediation, we welcome the provisions that move towards the availability of more mediation services, but Conservative Members feel that the Bill has a number of elements—the amendment deals with one of them—that may, perversely, draw people away from the pathway of mediation when they most need it. By removing those elements, the right atmosphere could be created—as the hon. Member for Stafford mentioned—for more routine mediation at the beginning of a court process, or before it is put in place.

New clause 2 provides for parenting time plans to outline the contact orders that the courts are likely to impose should parents be unable to reach agreements themselves. The provision would encourage parents to use mediation services to resolve their disputes amicably and swiftly, and would save people from some of the emotional turmoil, as well as some of the vast sums of money that are spent on litigation and court fees. All of that can only be in children’s best interests, which is what we have focused on throughout the sitting. Parenting time plans help “partners become parents”, a phrase that others have used elsewhere.

Many pressure groups have also mentioned the level of training and expertise that new mediators would need. New clause 13 succinctly addresses that point as well as a number of others relating to the operation of, and training for, the mediation system. Specifically, it
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provides for mediators to be registered centrally with the president of the family division and for the president to determine their necessary level of training.

I commend amendment No. 1 and new clauses 2 and 13 to the Committee as ways to encourage a better process in the Bill.

6 pm

Maria Eagle: I shall set out what I believe the amendment and the new clauses say. Having had a look at them and heard the hon. Member for Basingstoke, I am a little confused. She will correct me if I am wrong, but I thought I heard her say that mediation cannot be made compulsory. Having read the amendments, however, I think that that is what a couple of them seek to do. No doubt she will sort out my confusion, but if she did say that, and if that is the position of the Opposition, there is nothing between us.

Amendment No. 1 and new clause 13 appear to be intended to promote family mediation, which is a good thing that we would all welcome. They would enable the courts to direct people to take part in mediation as a contact activity, effectively allowing compulsory mediation. That is my understanding.

New clause 2 would introduce parenting time plans, which would guide separating parents toward certain contact arrangements. We have serious concerns about that. The arguments have been rehearsed in another place—we had a brief canter around them on Second Reading—about the effects of compelling mediation. We also have concerns about publishing templates for contact rather than simply encouraging mediation in the strongest possible terms and making sensible orders.

Annette Brooke: I share the Minister’s concerns about the rigidity of a template, but it must be possible at least to provide a range of examples, perhaps in pamphlet form, to give some guidance. Is anything along those lines available?

Maria Eagle: I shall certainly come to that point when I get to the appropriate bit of the amendment.

Amendment No. 1 removes the provision in clause 1 that no individual can be required by a contact activity direction to take part in mediation. Therefore, the amendment intends to allow the court to direct people to attend mediation as a contact activity. I shall not comment on the technicalities, as there is a bit of an issue over whether it would do that, but that appears to be the intention. New clause 2 proposes that the Secretary of State should produce guidance informing parents of the kind of contact order that the court is likely to impose in a range of circumstances.

Mr. Kidney: My hon. Friend is moving on from amendment No. 1, but I shall make what I hope is a helpful point. Mediation can start a lot earlier than the start of court proceedings, and the Law Society’s very good family law protocol says that where out-of-court independent mediation is readily available, solicitors should consider referring clients to such mediation
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before issuing an application at the court. That shows that the pressure is on for people to consider mediation first.

Maria Eagle: My hon. Friend is right. To the extent that such matters can be prevented from coming before the court as highly difficult and contested cases, that can only be entirely good for the parties concerned and the children involved. I concur with my hon. Friend: parties certainly should not wait until they get to the door of the court before they consider mediation, and there are various forums in which mediation can be sought earlier. I do not think that anybody on the Committee would suggest that encouraging that would be a bad thing.

On new clause 2, I was trying to say a little bit about our concerns about giving courts or parents the impression that they should try to adhere to templates. Obviously, it is a basic fact that the court must be allowed to consider what is best for the child in a particular case, in accordance with the paramountcy principle, and to order accordingly. It would not be helpful for us to create the perception that people are being pushed in a certain direction or that the circumstances pertaining to individuals’ cases will not be given due consideration because some multiple choice between a set of potential orders will be ticked by the relevant judge at the relevant time.

It would look a bit odd if the Executive laid down what the judiciary should do, which would be the consequence were the Secretary of State to produce guidance in the way suggested. That is a minor constitutional point, but none the less, it would look a little odd. That said, we recognise how important and critical it is that parents in difficulty do not feel that they are on their own and do feel there is support for them.

Parenting plans, which have been available for a number of years, have been produced and updated following extensive consultation, not only with parents, but with young people and stakeholder groups. Copies of the updated version are available from the Library and have been for a number of weeks. They contain case study examples of the kind of orders that might be made for certain, frequently occurring, situations. However, they do not attempt to impose a standard approach or suggest that parents in one situation ought to go for an X order, or if in a different situation, a Y order. Instead, they offer helpful advice by highlighting a range of issues that may be considered when contact arrangements are made and, we hope, agreement and conciliation are reached in order to make those arrangements.

As I said, parenting plans showcase examples and provide a comprehensive set of contact details of advice agencies, should parents want to seek additional help. That is a more constructive and non-coercive way of providing the kind of assistance that I am happy to accept lies behind the amendment proposed by the hon. Member for Basingstoke.

New clause 13 would make mediation compulsory before the court makes a contact order in cases in which safety is not an issue. It would also, somewhat oddly, require the president of the family division to
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regulate the mediation profession. I am not sure whether he would be interested in doing that, or whether the profession would be interested in having him do it. None the less, the new clause requires the court to direct parties to attend a meeting with a mediator before making a contact order when safety is not an issue

Clearly, there is an option for parents trying to get a contact order to have mediation. I think that everybody on the Committee would encourage them to do so. The Bill gives the court the power to require attendance at a meeting with a mediator through a contact activity direction, and we have taken steps elsewhere to offer the strongest possible encouragement to mediation. However, there is an issue about whether compulsory mediation is possible or desirable. Subsection (8) of the new clause suggests that a party’s failure to attend mediation—making the mediation compulsory—would be recorded in the court file and form part of the case evidence.

That raises some serious human rights issues, because it is established in case law that penalising a party for refusing to attend mediation, as the new clause suggests, is contrary to the right of access to the courts. We would be concerned about going that far, although it is of course normal practice for courts to consider the history of a case when deciding what order to make, including whether the parties were able to mediate. However, to formalise mediation as evidence in such a way would raise additional human rights concerns about access to the courts.

Tim Loughton: Notwithstanding what the European Court of Human Rights has to say, does the Minister agree that the system, as it stands, gives no real incentive for a partner to agree to mediation? One partner might come full of good will and say, “Yes, I am prepared to go to mediation”, while the other might say, “Under no circumstances will I go down the mediation route”. That would scupper the whole thing. Does she agree that there should be some system by which the partner who has shown good will to try to progress a solution should be advantaged by some recognition in the court system, while the other, who has frustrated it, should not come out on an equal basis?

Maria Eagle: I understand the hon. Gentleman’s point, but I am not convinced that it is helpful in extremely difficult cases specifically to advantage or disadvantage someone who does not agree to mediation. Mediation by its very nature requires both parties to accept responsibility to attempt to come to an agreement. We hope that that would be the case in many instances, and indeed it is, but to penalise a party for not accepting mediation is a different issue with other implications.

There are two strong objections to compulsory mediation. There will always be some contact cases in which mediation is unlikely to be of benefit. That might be because the parties are implacably opposed or in considerable conflict to such a degree that it will
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just never work, however long it is tried. In such cases, it would just be another way in which the battle goes on. In such circumstances, the compulsory requirement for mediation would simply lead to delay because it would not deal with the real issues or take into account the reality that there would not be working mediation.

There are slightly more subtle cases, where one party feels bullied or oppressed in some way, or pressurised by the other party. People must be given the choice of whether they want to sit in a room with another person to reach agreement on the issues, or whether they prefer to go to court. At the end of the day, that choice must be theirs, which is one serious objection to the compulsion included in the new clause.

Tim Loughton: I still think that the Minister is avoiding the subject. We all agree that mediation is a preferable route. We have all based our arguments on the foundation that if partners are willing to go to mediation and meaningful mediation takes place, it must be in the best interest of the partners and the children as well as expediting the time taken. The alternative is a long, drawn-out court case. If we recognise that mediation is the preferred option, which is why the Government have included such clauses in the Bill, then, in the scenario I cited, we must give some recognition to the partner who agrees to go along with it. If one partner is not prepared to go along with it, he or she will have to have a good reason why, which should be attached to the reporting mechanism and taken into account by the court.

Maria Eagle: We are talking in the context of a new clause and amendments that deal with compulsory mediation, and the hon. Gentleman seems to be saying that there ought to be punishment for not complying properly with that. That may well be his view, but the court is there to sort out contact arrangements in the best interests of the child, not to get sidelined into dealing with the dispute between the parties in the way implied by what he suggests.

The hon. Gentleman may not like to accept it, but there is an issue about the right of access to the court, which is set out in article 6 of the European convention. People need to be able to access the court, and if we are saying that one cannot do so without mediation, or that one must first go through a certain process that will delay results, we must consider such factors in respect of whether mediation should be compulsory. I agree with the hon. Gentleman that we all say that mediation is a good thing, but we are talking about whether it should be compulsory and whether parties should be compelled to mediate regardless of whether they want to.

6.15 pm

Mr. Jackson: I am puzzled by the perverse line the Minister is taking in setting her face against our amendment, given that she is coming up with anecdotal evidence, while my hon. Friend the Member for Basingstoke is looking at real studies undertaken internationally.

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I also think that the Minister is not considering the context. We are dealing with the 10 per cent. worst, most difficult and intractable cases before the family courts. On that basis, my party believes that it is important to consider the whole of the issue of mediation. I finish by noting that the voluntary situation demonstrably failed when it was tested in the family resolutions project.

Maria Eagle: I cannot remember the beginning of the hon. Gentleman’s remarks, as they were so long.

The Chairman: We will not get him to repeat them.

Maria Eagle: No, I would not want to encourage him to do that.

The issue is whether mediation should be compulsory. It is an important but narrow point. The hon. Gentleman thinks that compulsory mediation would work, but I have grave doubts about that. Perhaps it would assist him if I were to explain that there are some incentives in that direction. For example, parties who are publicly funded—60 per cent. of parties to contact disputes are so funded—must comply with the mediation requirements of the funding code to get funding. That prevents public funding from being granted until a mediator has assessed whether mediation is suitable, and, if so, engaged the parties in a course of mediation. That is not quite compulsory mediation, but it is an incentive and a push in the direction that the hon. Gentleman recommends.

When the parties issue an application for a contact order, they are highly likely to undergo in-court conciliation. Some parties may have already attended voluntary mediation at an earlier stage. Perhaps their solicitor sent them on a course before he issued the writ in the court; that is certainly what some of them would do. Forcing every party to contact proceedings to undergo yet another series of meetings would, in many cases, simply add to the delay and frustration caused in such disputes.

The most intractable cases are likely to be unsuitable for mediation and least likely to benefit from compulsory mediation, as they are much more likely to fail. We would get into the situation of punishing parties instead of trying to deal with sorting out the contact in the best interests of the child.

There is no consideration in the amendment for applications for contact orders when the parents have already agreed arrangements negotiated by their solicitors and simply want the court to make the consent order legally binding. It would seem daft to order mediation for such people, who would no receive no benefit at all.

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