Children and Adoption Bill [Lords]

[back to previous text]

Tim Loughton: The Minister is generous in taking interventions. Is she not in effect backing our point by saying that the most acrimonious 10 per cent. of cases are the most acrimonious because the two partners have not engaged in any sort of reasonable mediation process earlier on? They are the most inexperienced in the advantages that a mediation process may bring to them and are therefore the ones who need to be
Column Number: 76
compelled to a greater degree to take the mediation route, often for the first time. Such people would benefit from mediation the most, not the least.

Maria Eagle: The hon. Gentleman uses the word “acrimonious”. The key point is that acrimonious is a somewhat mild description of some of these cases. There is a question as to whether acrimony at that level can be dealt with by forcing parties to do something that one or other of them does not want to do. It could make things worse.

We have a slight difference of opinion, although there is no difference of opinion about the fact that mediation is a much better way forward than contested court proceedings, if it can be made to work.

Mrs. Miller: Does the Minister not think that there is a chicken and egg situation here? If the process does not set the right tone, people approach it in a more acrimonious way, whereas if we were to change the process and evolve to make it more conciliatory from the outset, those intractable mindsets—the acrimony that the Minister referred to—would in some way be abated.

Maria Eagle: The hon. Lady is probably right. There probably are a chicken and an egg somewhere, but I am not quite sure where. We do not seem able to agree on whether mediation, which we all agree is good, should be made compulsory or even whether it can be made compulsory because it requires some engagement by the parties. I suspect that it is not worth my trying further to convince Opposition Members that they are wrong and that I am right.

Ann Coffey: I was trying to think how mediation might work and imagining that the Conservative party had members who hated each other, which made their party dysfunctional, so they decided to force them into mediation. I invite Opposition Members to consider how effective that would be. Does my hon. Friend agree that there is a serious misunderstanding about the basis on which mediation can progress? There has to be a willingness at the start to mediate and to engage in order for it to be successful.

Maria Eagle: I agree. I will not be drawn to speculate which members of the Conservative party my hon. Friend is thinking of. There is a difference of opinion and I hope—

Tim Loughton: May I help? I can think of mediation that has been successful. We went through a mediation process that was called the leadership election; everyone was very happy with the result. The Minister’s party does not seem to have taken that route.

Maria Eagle: I am trying to be restrained, unlike the hon. Gentleman.

Tim Loughton: Let’s mediate.

Maria Eagle: I am not sure that I want to.

Annette Brooke: Rather than chicken and egg, the metaphor of taking a horse to water is more appropriate to the debate on whether compulsory mediation would work and the horse could be made to drink. I agree with
Column Number: 77
the Minister in that respect. The evaluation of the family resolutions pilot project has some sad conclusions and is very disappointing. It mentions such things as therapeutic mediation and scene setting. Will it not be crucial to give strong leadership and guidance on the importance of mediation?

Maria Eagle: I agree with the hon. Lady. There is probably no disagreement in the Committee about the importance of trying to facilitate mediation when that is possible. The only disagreement is whether making it compulsory will work and whether it is possible, given the situations that we are discussing.

I will wait to see whether I have convinced Conservative Members. I suspect that the hon. Member for Basingstoke will say that I have not done so.

Mrs. Miller: I am rather disappointed with the Minister’s response to the amendments, which were tabled to be helpful and to try to improve a process that clearly is not working. She talked through the situation as it is, but I feel that our role is to look at the situation as it should be. Our aspiration should be to improve the situation, not just to accept that things will continue as they are.

The Bill sets the tone for the way in which all the processes are dealt with. To ensure the best outcomes for children we should adhere to the objective of maximising the welfare of children, and try to improve things. We must have a higher aspiration than merely accepting the way things are.

We need to focus on the children and do as much as we can to stop these cases coming to court; the amendments, especially amendment No. 1, were tabled to try to achieve that. It may be a pedantic argument, but we are talking not about compulsory mediation but about routine mediation that becomes part of the process and is accepted practice, which may well take the sting out of the tail of some of the acrimonious discussions. There is ample evidence to show that where mediation is in place we can achieve a change in mindset. I simply do not accept the Minister’s thinking that a mindset cannot be changed.

I was also rather concerned that the Minister felt that, in many instances, we could prejudge the appropriateness of mediation. Just because two individuals are apparently at loggerheads or finding it difficult to resolve issues does not mean that ways forward cannot be found with a skilled mediator. It would be tragic if we did not do all that we could to find a more productive way forward. Therefore, I am not minded to withdraw the amendment; I would like to press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

[Division No. 1]


Jackson, Mr. Stewart
Loughton, Tim
Miller, Mrs. Maria
Wright, Jeremy


Column Number: 78
Brooke, Annette
Cawsey, Mr. Ian
Coffey, Ann
Eagle, Maria
Grogan, Mr. John
Hughes, rh Beverley
Johnson, Ms Diana R.
Kidney, Mr. David
Moran, Margaret
Russell, Christine

Question accordingly negatived.

Amendment proposed: No. 2, in page 4, line 4, at end insert—

    ‘( )   Before making such an order, the court must consider the time by when the specified contact activity can be provided by the person proposed as the provider and shall specify the period over which the contact activity is to be provided.’.—[Tim Loughton.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

[Division No. 2]


Brooke, Annette
Jackson, Mr. Stewart
Loughton, Tim
Miller, Mrs. Maria
Wright, Jeremy


Cawsey, Mr. Ian
Coffey, Ann
Eagle, Maria
Grogan, Mr. John
Hughes, rh Beverley
Johnson, Ms Diana R.
Kidney, Mr. David
Moran, Margaret
Russell, Christine

Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.

Clause 2

Monitoring contact

Question proposed, That the clause stand part of the Bill.

6.30 pm

Jeremy Wright: I want to express one concern about clause 2. I hope that the Minister will be able to deal with it because it has to do with the impact that the clause will have on CAFCASS officers, given the responsibilities to be imposed on them. My remarks have application to more than one part of the Bill, but I would not dream of extending them beyond clause 2 because I know that you, Mr. Hancock, would tell me not to. I shall confine myself to the clause and restrict my remarks accordingly.

As the Committee will note from the wording, the clause deals with the monitoring of contact and indicates that the court may ask an officer of CAFCASS or a Welsh equivalent to monitor a contact order and

    “to report on such matters relating to the individual’s compliance as the court may specify in the request.”

A range of different responsibilities, some onerous and some not so, could then be imposed on a CAFCASS officer as a result of a court order under subsection (2). Indeed, during the course of the debate in the other
Column Number: 79
place, Lord Adonis was asked about the monitoring of contact orders and how intensive it would be. His response was:

    “The intensity of monitoring would depend on the circumstances, but it could sometimes be as simple as a telephone call to the parties to check that contact has taken place. On other occasions it would be much more intensive, depending upon the circumstances of the case.”—[Official Report, House of Lords, 12 October 2005; Vol. 674, c. GC122.]

That, of course, must be right, in that on some days monitoring would be easy and on others it would be very much harder. Certainly a degree of scrutiny would often be required of CAFCASS officers and, conceivably, over a considerable period of time. Clause 2(6) also indicates that the period of time over which CAFCASS officers would have to maintain that scrutiny could be as much as 12 months.

The problem is that because extra burdens are going to be placed on CAFCASS officers as a result of the clause, one would naturally expect that extra resources would be available to them to meet those requirements. Unfortunately, that is not the case. It is clear from paragraph 71 of the explanatory notes that the Government do not intend to give extra resources to CAFCASS to meet the extra demand. In relation, first of all, to providing information on the availability of contact activities, it states that

    “it is anticipated that no net additional resources would be needed”,

and, later, that the

    “same applies”—

in other words, no net additional resources would be needed—

    “as regards notifying courts of a breach of a contact activity or an enforcement order, since the actual monitoring of these will be carried out by those directly involved in their administration, who will in turn notify CAFCASS.”

I accept that some of the primary information gathering will not be done by CAFCASS officers, but it is clear from the clause that they will have the responsibility of reporting to the court. That is made abundantly clear in subsection (7), which states:

    “It shall be the duty of the officer of the Service or Welsh family proceedings officer to comply with any requests under subsection (2).”

At the very least, the obligation on CAFCASS officers would be to write reports. As anyone who has any connection with either that service or other court-related services will know, the writing of reports is often time consuming and takes up a good deal of the time of the officers of such agencies.

I have concerns, which I invite the Minister to address, about the implications for the time and resources available to CAFCASS. We heard that CAFCASS resources will be stretched by the extra provisions in the Bill and by other responsibilities. I hope that the Minister will be able to deal with that.

Finally, the reason that I have expressed my concerns and that I suggest they are important is that the CAFCASS officer’s role is crucial. Unless the CAFCASS officer is doing his or her job in monitoring contact and picking up on where it is not happening as it should, nothing in the rest of the Bill dealing with the consequences of the failure of a party to comply with a contact order can be dealt with effectively. Those
Column Number: 80
matters depend on the information gathering of CAFCASS and on its reports being as full, and as quickly available, as they should be.

It would be profoundly undesirable, in the context of the Bill, if the monitoring was not done; it would lead to contact orders, and the various conditions attached to them, being regarded less seriously than they should be, as those involved would know that the beady eye of CAFCASS was not on them as often, or as scrupulously, as it we and CAFCASS think it ought to be.

Tim Loughton: I certainly support my hon. Friend’s observations. Clearly, if the contact orders and the directions that are part of the Bill are to be effective, they need to be scrutinised or, as the clause puts it, monitored. One criticism is that the onus for identifying a breach of a contact order and instigating remedial action in respect of it is often on the offended non-resident parent. That parent then has to go back to the court, having taken legal advice, and will usually have to pay a court fee for a new court appearance, which costs £140 in many cases, I gather. That is aside from all the associated costs. The parent will then have to petition the court to address the breach of contact order, and for a new contact order to be granted subsequently, or for some penalty to be attached to that breach of contact.

I fear that in too many cases there is purely a renewal of the contact order on the same basis, and a threat that if the offender does it again, they will be hauled back to court, where they will be told, “Don’t do it again.” A clear problem that has been identified—we will come on to this when we discuss enforcement orders—is that breaches of contact orders are not properly penalised and the threat made about what will happen if it is breached is not followed through. That is why we need a proper scale of meaningful and appropriate penalties. We would like more details from the Minister on how exactly the system will work.

It is quite right that it should be up to the court and its officers to monitor whether the contact order has been adhered to as intended, both by the parent with custody and by the non-resident parent who enjoys the terms of the contact order with his or her children. It should be up to the court to monitor that, and that is implicit in the Bill. Given the problems to do with the resourcing of CAFCASS, to which my hon. Friend referred, I am not reassured how effective the clause will be in practice. Just how extensive will the monitoring process be, given the postcode lottery in terms of the shortage of CAFCASS workers qualified to do that monitoring and other associated activities? Just how well will the system work in practice? I fear that it will still be down to the offended party to get on to the middleman or woman—the CAFCASS officer—and point out that contact has been breached, and to say, “What are you going to do about it?” The matter will then be taken back to court.

We are imposing a level of monitoring that should have been imposed in the first place, and potentially spinning out the time between applying to go back to court and getting a resolution of a new contact order by the CAFCASS officer, with him saying, “I have to
Column Number: 81
put my monitoring processes into effect to see whether there has been a breach or not.” That will only work if the monitoring officer—presumably from CAFCASS—is genuinely proactive and resourced accordingly to ensure that the monitoring is done and acted on in a timely way, if a contact order has been breached.

As my hon. Friend said, CAFCASS officers write some 33,000 court reports a year, which takes a considerable amount of time. We are rightly seeking to turn them into detectives as well as authors of reports, but I am concerned that this is one of many new roles being added to their already fairly onerous job. Bearing in mind the freezing of CAFCASS’s budget at a time when its workload is increasing not decreasing, that must have serious implications for its ability to do its existing job, let alone the additional roles that will be placed on it by the Bill.

I should like to hear the Minister’s interpretation of how the new system will work, what the role of the monitoring officer will be in initiating action after an investigated breach of contact, how that will significantly beef up the system to act as a deterrent against a party who is minded to breach contact singularly, or on a multiple basis, and how it will speed up the process of restitution if subsequent remedial court action has to be taken as a result of that breach having been investigated.

Beverley Hughes: The first thing to say is that the facility is open to the court to make a monitoring order, which will then require CAFCASS to monitor compliance. It is not about CAFCASS being a detective or being proactive; it is about the court, for one reason or another, having concerns about compliance and, because of those concerns, being able to require CAFCASS to monitor for any period up to a year. The court can make that request, as clause 2(5) says, at any time, either on making an order, or at some other point during

    “the proceedings as they relate to contact”.

It will be for the court to have concerns, for one reason or another, either because there has been a breach or because it anticipates a breach—probably the former. CAFCASS will not ferret around in a large numbers of cases to see if breaches are occurring. There is no reason for the court to intervene in arrangements if parents—either party—are not alerting the court to problems of compliance. If parents agree the contact that has been ordered, can develop that with agreement and are both happy, there is no reason for the court to intervene. It will mostly be an option for the court where non-compliance has occurred, or where it anticipates that.

We will have to see how many cases need to have a monitoring order. It is not obvious at this stage, for the reasons that I have set out, that monitoring orders will be necessary in a large number of cases. When ordered by the court, the activity required by CAFCASS will be proportionate to the questions raised in each case. As my noble Friend Lord Adonis said in the other place, it will not necessarily be burdensome in all cases,
Column Number: 82
but could initially be undertaken by phone or with a brief visit to check that the order was being complied with and that both parties were happy with what was happening.

6.45 pm

We will have to wait to find out about the work load, but we certainly do not anticipate a large number of cases involving much high-level, intensive activity. It is not about ensuring compliance but about monitoring and reporting back to the court. The court will take the necessary action if orders have been breached.

Tim Loughton: I am afraid that I am lost. I have not identified where the added value is to be found. Clearly, there will be many parents for whom continual monitoring is not necessary; they would both be happy with how the contact order was working and could, if a phone call was necessary, simply say, “Yes, everything is fine.” That would be the end of story. My interpretation of what the Minister is saying is that monitoring by the CAFCASS worker would come into play when one or other of those parties had made a complaint. I presume that at the moment they would make a complaint to the court, which would initiate fresh court proceedings. Under the Bill, they would be making their complaint to a middle man, the CAFCASS officer, who would consider the case, monitor the situation and then pass that information to the court. That seems a way of delaying the inevitable.

Beverley Hughes: No, the CAFCASS officer will become involved in his monitoring capacity as a result of a court order. The court will order the monitoring.

I was trying to respond to what I understood the hon. Gentleman to be saying, which was that CAFCASS officers would have to do a lot of detective work—he said that they would have to be proactive. The hon. Gentleman repeated only a moment ago that the CAFCASS officer would be the middle man, the person to whom people could complain and whose job it would be to ensure compliance without there being a monitoring order. That is not the case. The court will impose a monitoring order. That order will enable the CAFCASS officer to monitor and then report back to the court. One presumes that that will occur as a result of a complaint made to the court made by parents. The court will then institute the monitoring order. That is why I said that it will be for the courts to judge how many monitoring orders will need to be made. We shall have to wait to see how things progress

Jeremy Wright: The Minister seems to be making some fairly sanguine assumptions about the extent to which the order will be used by the courts. If the court has the power to make a monitoring order and to keep track of the contact order that it has made, it will surely wish to do so in a great many cases. The Minister referred to what Lord Adonis said in the other place. He said that some cases could be dealt with by a single telephone call, but that on other occasions it would be much more intensive. I repeat the point: if it is intensive, and the court uses the order, where is the money to come from to pay for it?

Column Number: 83

Beverley Hughes: I will now address the hon. Gentleman’s points. There is a process going on within CAFCASS, but before I go into that I shall say a little about funding.

We are working with CAFCASS to finalise the funding for 2006–07. Although the baseline of £100.8 million will be unchanged, we have identified additional capital funding of £1.8 million for a new CAFCASS IT system, and we are looking at other priority capital projects. That is important, because one of the processes that CAFCASS needs to continue—the chief executive has already made good progress—is refining the way in which it approaches certain cases. For instance, it needs to eliminate its backlogs—it has been given extra money with which to do that, initially for one year and then extended for two—and to put its business into a steady state. It has made great progress, and that has depended on its refining the ways in which it goes about some of its business. For example, it has reduced the arguably unnecessary amount of time taken on some cases in order to concentrate on more difficult work.

CAFCASS has done well in recent years in coping with rising demand and staying within budget. The chief executive has embarked on the process and that is showing results. Therefore, the process needs to continue so that it can get to the steady state in which it will be able to accommodate its extra responsibilities. I believe that it will do so, thanks to the process through which it is going and the additional resources that we have provided, which will help it, through the IT system, to refine the way in which it does things. It is critical that, through improved case management and a reduction in report writing, the judiciary should be able to assist CAFCASS in managing the demands that the courts make on it.

Annette Brooke: I discussed the reduction in report writing with a CAFCASS officer recently, and the point was made to me that the background work would still need to be done. Therefore, even if less time were spent on report writing, the time saving would not be as significant as is sometimes suggested.

Beverley Hughes: We will have to see what transpires. Although I agree in principle that the background work is part of the process, the chief executive and a number of the judges believe that reducing some of the demands at the report-writing end will make it possible to free up resources so that CAFCASS is able to concentrate on other things.

Jeremy Wright: By my count—the Minister might want to check this—the Bill contains five further requirements for CAFCASS to write reports. How can that be lessening the burden of report writing?

Column Number: 84

Beverley Hughes: We are talking about a much more general process—considering all the systems, including those that CAFCASS has already undertaken as part of its core business, not just the new responsibilities that will certainly come its way as a result of the Bill. The chief executive and the judges are concerned with the process. It is important to get CAFCASS into a steady state, but I am confident from the way in which some of the work is going that it will do so with its current business profile. If the hon. Gentleman were to look at some of the figures, which I will be happy to send him, he would see that as a result of the process on which the chief executive has embarked, the time spent on some of the activities is reducing. The demand has reduced as a result of the continuation of the process between the judges and the courts. In addition, the number of staff employed by CAFCASS increased between 2004 and 2005, so it has more capacity. I accept that we have to keep the situation under review. We all agree that CAFCASS is an important part of the arrangements to help us to address these issues, which are so important for children.

Mr. Jackson: Will the right hon. Lady give way?

Beverley Hughes: I will finish, if I may. The clause is about a new, important function in relation to the monitoring of contact orders, and it ought to be part of the Bill.

Mr. Jackson: There is a credibility gap between reality and the rosy picture painted by the Minister for Children and Families. On Second Reading, I alluded to the last figures produced by CAFCASS, which were included in a letter from the chief executive to me. The Committee will forgive me for mentioning them again, but they give a snapshot that shows that one in six cases were unallocated at the end of November. That is an important issue to consider before any further increase in work load is contemplated.

Beverley Hughes: The number of reports unallocated 10 weeks and less before court filing date for the month should be no more than the target of 4 per cent. of the work load. That is the key performance indicator for private law cases, and the target that CAFCASS has met. My latest figures show that in 2004-05, 3.7 per cent. of cases were unallocated, compared with 4.3 in 2003-04. The hon. Gentleman may want to pursue other figures from other kinds of cases, but I have given the information that I have, and it suggests that things are going in the right direction rather than the wrong one.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Cawsey.]

Adjourned accordingly at four minutes to Seven o’clock till Thursday 16 March at Nine o’clock.

Previous Contents
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2006
Prepared 15 March 2006