Children and Adoption Bill [Lords]

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Mark Williams (Ceredigion) (LD): As I think it is customary to say, I am delighted to serve under your chairmanship, Mr. Hood. My hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) is unavoidably absent. She is in Sweden.

Mr. Stewart Jackson (Peterborough) (Con): Sweden is avoidable.

Mark Williams: That is debatable.

My hon. Friend has left me holding the proverbial baby, which is not without risk itself, so we will wait to see what happens.

A poor risk assessment could be much worse than none at all. While I understand the sincere motives of the hon. Member for Basingstoke in attempting to define so tightly the situations in which a risk assessment is produced, we run the risk of placing too heavy a set of constraints on those charged with undertaking them, as the hon. Member for Stockport outlined.

11 am

I look forward to hearing what the Minister has to say on cause or reasonable grounds, but by any stretch of the imagination it is a hardening of the language, which would make it more difficult for CAFCASS to undertake such risk assessments. Although I support amendment No. 36, tabled by the hon. Member for Stafford (Mr. Kidney), I feel strongly that it should be for the trade officer to assess whether there is a risk. I see no justification for accepting amendment No. 45.

Maria Eagle: I shall try to deal with some of the points raised by the hon. Member for Basingstoke.

Clause 7, which was placed in the Bill in the other place, seeks to change CAFCASS’s current power to make a risk assessment into a duty to make a risk assessment in appropriate cases. That has led to a debate on what is meant by appropriate cases. The amendments come from slightly different positions, but they all deal with that aspect. I note that she shied away from amendment No. 53, but I shall say something about the effect of the amendments on the capacity and ability of CAFCASS to undertake risk assessment in appropriate cases.

The meaning of cause in this context is reason to suspect or believe. It might be information that the officer garners from within or beyond his professional contact with the family—things that become known to the officer. The hon. Member for Basingstoke was right, as was the hon. Member for Ceredigion (Mark Williams), to suggest that the current wording presents a lower threshold on whether risk assessment might be undertaken than “reasonable grounds”, as suggested in the amendment.

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The hon. Lady asked what the threshold was of cause for concern. No specific threshold can be included in the Bill. The phrasing leaves it to the professional judgment of the CAFCASS officer to come to a view, with training and appropriate guidance, on whether there is cause to suspect risk of harm. There is no doubt that a court would be pretty critical were a risk assessment to be done for no sensible cause or reason, and rightly so. However, I agree with my hon. Friend the Member for Stockport, and, to be fair, with the hon. Member for Basingstoke, that the professionals who work every day in the field obviously have a feeling for when the circumstances are right. We should not constrain them too much.

The hon. Lady expressed the fear that a trivial situation might trigger a risk assessment. Cause for concern is explicitly linked to the risk of harm. The 1989 Act specifically defines what harm means in the context of ill-treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill-treatment of another. That threshold is understood in case law, and the officer concerned will bear that in mind when making his judgment, which he will obviously do with guidance and appropriate training in professional practice.

Mr. Kidney: On the question of the threshold, does my hon. Friend agree with what I said to the hon. Member for Basingstoke—that there are two thresholds, one to trigger an alert and one for the risk assessment? National Family Mediation sent us a good briefing, which says that many people might tick the gateway form to say that they fear domestic violence, but that does not mean that mediation should never take place.

Maria Eagle: My hon. Friend is correct. I should have responded to his points, and I am grateful that he has reminded me to do so.

The hon. Lady’s amendment would have an impact on the intention of the clause as drafted. It would effectively undermine the power of CAFCASS officers to protect children’s best interests by raising to too high a level the hurdle for carrying out a risk assessment. In contrast, amendment No. 36 would ensure that it is clear in the Bill that risk assessments can be conducted at any point in the court process.

Amendments Nos. 45 and 53 would make it more difficult for CAFCASS to undertake risk assessments. That is different from the aim discussed in the other place, where the new clause was supported by all parties when it was explained that it would place a duty on CAFCASS to undertake a risk assessment whenever it has cause to believe that the child concerned is at risk of harm.

CAFCASS officers are professionals and experienced in picking up signs of domestic violence or abuse, and they are well qualified to judge when a risk assessment is warranted. They will not be making them in every case. The hon. Lady said that her party does not support that, and nor do the Government. If we raise the hurdle for a risk assessment and say that it can be carried out only when there are reasonable grounds, which is a higher hurdle, we are effectively saying that
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a court needs to assess whether there is a risk of harm before a risk assessment can be made, which is putting the cart before the horse—or, perhaps I should say, the court before the horse. It creates a danger that there may be cases of low-level or fairly well-hidden abuse that would be more likely to slip through.

Mrs. Miller: In defining cause, the Minister said that it would be based on risk of harm. Perhaps she inadvertently argued against herself in saying that “reasonable grounds” would mean that a risk of harm would need to be established. Perhaps she could help me understand the difference between the two things. She said, in respect of one measure, that a risk of harm would need to be established for “reasonable grounds”, but earlier she said that in establishing cause, the risk of harm would need to be established. I think she said that the two things are similar.

Maria Eagle: I misled the hon. Lady if I said that, because they are not similar. There is a clear difference between the hurdle that would be established by the use of “cause”, and the one established by “reasonable grounds”, which is a higher hurdle. Perhaps that is what she and her colleagues are aiming to create—I suspect it is—because amendment No. 53 goes even further and proposes a trigger for a risk assessment based on

    “reasonable grounds to suspect that there is a significant risk of significant harm.”

She did not dwell on that for the understandable reason of not going through a load of arguments made in a previous debate. However, “significant harm” is well understood in the 1989 Act; it is the threshold that justifies compulsory intervention in family life. That is quite a high threshold, because the state does not just bust into family life as soon as there is any slight concern. The words “significant harm” provide for a significantly higher threshold.

I fear that if the wording in amendment No. 53 were put in the Bill, it would force CAFCASS officers to accept a lower level of abuse that does not noticeably impair the child’s development or is not significant. Therefore, the officer would not even be able to conduct the risk assessment and would, basically, be ignoring the provisions on risk assessment, which are meant to increase child safeguarding.

The phrase “significant risk”, which is also in amendment No. 53, is much less well understood. It implies that there is a point at which there is a risk to the child, but it is acceptable not to make an assessment of that risk because it has to be significant. Presumably, anything below that threshold could be safely ignored on the basis of the wording that the hon. Lady proposes. I do not accept that and do not believe that it would be in line with the paramountcy of the child’s welfare for those words to be included. We want a risk assessment to be made when there is any sensible professional judgment that there is a probability of the child being harmed. The clause as drafted does that.

There is another problem with amendment No. 53. Proposed subsection (6) says:

    “the child’s physical safety, or”

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safety from

    “sexual abuse”

are to be the only grounds for risk assessment. That is a backwards step from the welfare checklist and the protections that currently exist for the child. By clarifying the definition of harm in the 1989 Act, the Adoption and Children Act 2002 recognises that it should include impairment suffered as a result of witnessing violence to another. Amendment No. 53 would remove the recognition that it constitutes harm for the purposes of deciding whether there should be a risk assessment.

Opposition Members are anxious that we should not assume parents are bad or dangerous simply because they have separated. We do not do that and we do not intend to do that, but domestic violence is raised in a significant proportion of contact disputes. It is therefore right to give CAFCASS the duty to get to the bottom of those issues and to let the court know whether fears are well founded and, if so, how they can be addressed so that parents can get on with the job of parenting.

Amendment No. 36 would place a duty on CAFCASS officers and Welsh family proceedings officers to conduct a risk assessment whenever they are involved in private law Children Act proceedings and have cause to suspect that the child concerned is at risk of harm. I have sympathy with the motivation behind the amendment. It is right that at any time during proceedings, if risk of harm is suspected, a risk assessment should be done and provided to the court.

The clause requires CAFCASS or a Welsh family proceedings officer to carry out a risk assessment if, in the course of carrying out any function in private law proceedings under the 1989 Act,

    “the officer is given cause to suspect that the child concerned is at risk of harm”.

That can be at any stage of proceedings and so the amendment is not necessary because it is already covered by the clause. I hope that my hon. Friend the Member for Stafford will accept that. For those different reasons, I resist the amendments and ask the hon. Lady to withdraw the lead amendment.

Mrs. Miller: I thank the Minister for taking the time to clarify the Government’s position on those aspects of the Bill. Before I address her points, I should like to say that at all points in our discussions we are all agreed that the welfare of the child is paramount.

I beg to differ with the Minister about the purpose of the amendments, particularly on setting the threshold for a risk assessment. They were intended to clarify, not to change the threshold. Clarity is vital in all legislation, but all too often it is lacking. Perhaps her comments will help those who have to interpret the Bill in practice to do so in the spirit of the Committee.

The hon. Member for Ceredigion, making his cameo appearance in Committee, said that a poor risk assessment is better than no risk assessment at all. I categorically disagree with that and perhaps we will come on to that. It is vital that risk assessments are undertaken professionally and accurately. As I said, they are not isolated from the welfare of the child, but are fundamentally linked to it.

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I am glad that we have had this debate. It will be useful to those who have to implement what we are simply talking about. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Kidney: I beg to move amendment No. 37, in clause 7, page 12, line 20, after ‘child’, insert

    ‘and undertaken in accordance with the Code of Practice issued under section 8B’.

The Chairman: With this it will be convenient to discuss the following: Amendment No. 38, in clause 7, page 12, line 20, at end insert—

    ‘(4)   A court shall not make an order under section 8 until it has considered the results of the risk assessment required by subsection (1) and is satisfied that the arrangements will be safe for the child.’.

New clause 21—Risk assessments: screening—

    ‘(1)   After section 8 of the Children Act 1989 (c. 41) insert—

    “8A   Pre-court checks

    (1)   On receipt of any application under section 8 of the court shall direct that the relevant pre-court checks are undertaken to screen for indicators of risk to the child’s safety and well-being.

    (2)   The court may ask an officer of the Service or a Welsh family proceedings officer to undertake any checks for the screening required by subsection (1).

    (3)   It shall be the duty of an officer of the Service or a Welsh family proceedings officer to comply with a request from the court under subsection (2).

    (4)   A court shall not make an order under section 8 until it has considered the results of the screening required by subsection (1) and is satisfied that the arrangements will be safe for the child.

    (5)   Pre-court checks to screen for indicators of risk required by subsection (1) and any subsequent risk assessments under section 16A shall be undertaken in accordance with the Code of Practice issued under section 8B.

    8B   Code of Practice

    (1)   The Secretary of State shall prepare, and from time to time revise, a Code of Practice regarding screening for indicators of risk and regarding risk assessment as required by section 16A.

    (2)   Before preparing the Code of Practice or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.

    (3)   The Secretary of State shall lay copies of the Code and of any alteration in the Code before Parliament; and if either House of Parliament passes a resolution requiring the Code or any alteration to be withdrawn the Secretary of State shall withdraw the Code, and where he withdraws the Code, shall prepare a Code in substitution for the Code which was withdrawn.

    (4)   No resolution shall be passed above in respect of a Code or any alteration after the expiration of the period of 40 days beginning with the day on which a copy of the Code or alteration was laid before that House; but for the purpose of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

    (5)   The Secretary of State shall publish the Code as for the time being in force.”’.

11.15 am

Mr. Kidney: The two amendments are in my name and those of two of my hon. Friends. New clause 21 is in my name and that of my hon. and learned Friend the Member for Redcar, who we established last week is not a member of this Committee. Amendment No. 37
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would introduce into the clause the need to carry out risk assessments in accordance with a code of practice. Risk assessments will be a new formal process in the children’s and family proceedings covered by the Bill.

I am sure that CAFCASS officers and Welsh family proceedings officers and their predecessors, the court welfare officers, would tell us that they have always considered risk in the course of their duties in family proceedings. However, the Bill is introducing a new, formal requirement of risk assessment.

It is worth reminding ourselves of the October 2005 report from HM inspectorate of court administration, “Domestic Violence, Safety and Family Proceedings”, which established that the courts already operated an informal presumption of contact. Paragraph 3.9 says:

    “The presumption of contact was evident in all the practice sessions observed during this inspection and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases.”

While it may be argued that we already have an informal system of risk assessments and people who are very experienced at doing them, we are now importing risk assessments formally into the law. I would not like to import with them defective risk assessments, as described in that HMI report. Establishing from the outset some standards for carrying out those risk assessments is important.

I would like to give one other illustration of why guidance would be helpful, from the latest briefing from National Family Mediation, which I mentioned to the Minister a few minutes ago. “The role of accredited mediators in risk assessments” describes how mediators already have their own, well-attested risk assessment protocol for when they are giving mediation.

My example to the Minister was this. In the context of court proceedings started before mediation was undertaken, the mediator might see the gateway form from the court with a tick in the box asking whether there were any concerns about domestic violence. The mediator would carry out a risk assessment to determine whether or not mediation should go ahead, or whether it was too dangerous for either of the parties or for any children involved. Mediators would say that they are already experienced in risk assessments. In the briefing, they ask whether the risk assessments must be carried out by CAFCASS officers alone or whether the Government intend that the expertise of relevant others can be called upon. What they are saying is that people other than CAFCASS officers have something to offer in the process, but only if somebody is going to give guidance that that may be the case.

The briefing tells us that in two recent pilots, in courts at Cambridge and Bromley, mediators worked alongside CAFCASS officers in their duties, which, in Bromley’s case, reduced the need for formal report by 60 per cent.—an enormously successful rate. We need to know whether there will be guidance—a code of practice could give that guidance—as to whether people can assist CAFCASS officers in carrying out risk assessments.

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I jump next to new clause 21, because that proposal introduces the idea of a code of practice, inserting a new section 8B into the Children Act 1989 requiring the Secretary of State to prepare and from time to time revise a code of practice for carrying out such an assessment. It is an open process, involving consultation, laying the code or revision before Parliament and an ability for Parliament to vote to have the code or revision withdrawn.

In addition to those two, amendment No. 37 and the new clause, amendment No. 38 is a significant statement of what ought to be the obvious: when a risk assessment has been carried out and provided to the court, the court ought to consider the assessment before making an order.

Nothing in clause 7 says that at the moment. That is of course implied; it would be a foolish court that took no notice of a risk assessment that had been asked for or received—clause 7 does require one to be produced for the court. For completeness we ought to have a chain of a process, which starts with the spotting of the risk, then the carrying out of the risk assessment and the court taking that risk assessment into account before making an order. If we set a firm chain in place, that will make clause 7 a very effective process indeed.

Together, the two amendments and the new clause represent a strengthening of the process for risk assessment, which was first introduced into the Bill in the other place.

Maria Eagle: I am grateful to my hon. Friend for his succinct and, as ever, pertinent points made in moving the amendment standing in his name and that of my hon. Friend the Member for Luton, South and my hon. and learned Friend the Member for Redcar, who is not on the Committee.

I hope that I can reassure him. Before answering his questions, I want to say a little about the combined effects of the amendments. One would be that for all applications to the court under section 8—that is, in all residence, contact, prohibited steps and specific issues cases—pre-court checks would have to be undertaken and a risk assessment carried out in line with a code of practice published by the Secretary of State. No order for contact, even indirect contact, could be made before those steps had been taken. If we went through that procedure for all section 8 cases, delays would increase because CAFCASS would have to do a lot of unnecessary work in cases where there was no issue or concern about safety or risk.

The Committee will be aware that the Bill introduces a significant new measure in clause 7, which places a specific duty on CAFCASS to undertake a risk assessment and provide its results to the court whenever it is involved in private law proceedings under the Children Act 1989 and has cause to suspect that a child is at risk of harm, or at any other stage of its involvement.

Amendment No. 38 is of particular concern because it would introduce a presumption of no contact unless it was first proven that such contact would be safe. It would exclude an order for supervised contact or even indirect contact and would require the assessment of safety, even when parents were, for example, seeking a
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consent order or there was absolutely no cause or reason to suspect that harm was an issue in the particular circumstances of the case.

I appreciate that my hon. Friends are concerned that we should ensure that courts not only receive risk assessments—the results of which clause 7 requires CAFCASS to give to them—but consider them when making their decision. I can offer some reassurance on that. The 1989 Act already provides in section 1(1) that when making a decision as to the child’s upbringing, the child’s welfare must be the court’s paramount consideration. In so doing, the court must consider the issues covered by the welfare checklist in section 1(3). As a result, the court would be failing in its duty if it did not consider the risk assessment provided to it by CAFCASS. That would be very strange and would amount to a court behaving unreasonably, which almost never happens.

Courts should also have regard to the Children Act sub-committee guidelines for good practice in parental contact cases when there is domestic violence. Those guidelines make it clear that the court should make an order for contact only if it is satisfied that the safety of the resident parent and the child can be secured during and after contact.

The guidelines were recently reinforced by a Court of Appeal judgment in the case re H in which Lord Justice Wall stated clearly what courts must do when faced with a contact application when domestic violence has been alleged.

I am aware that there have been arguments that CAFCASS needs greater powers to undertake standard pre-court checks—for example, to find out whether a party in a contact case has any criminal record relating to violence against children—and I agree that it is entirely right that the courts must have all the relevant information available to them when making their decisions. It is certainly the aim of CAFCASS to carry out pre-court checks in every case for which they are appropriate. I can reassure my hon. friend that CAFCASS has the power to carry out those checks as part of their functions set out in section 12 of the Criminal Justice and Court Services Act 2000. Section 13 of that Act enables CAFCASS to make arrangements with other agencies—this relates to the point that my hon. Friend the Member for Stafford made—to obtain the necessary information. There is no reason why, because the Bill places the duty on CAFCASS, it should be precluded from calling on relevant experts in fulfilling that duty, and we would expect them to do so. I hope that that reassures my hon. Friend.

New clause 21 would require the Secretary of State to produce a code of practice and to lay it before Parliament for approval. There is nothing wrong with codes of practice. The Department for Education and Skills produces reams of codes of practice and there is absolutely nothing wrong with them per se. My concerns about the new clause are more about the presumption of no contact that would flow from the arrangements taken together, to which I do not believe the Government could agree.

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If we are to make changes to primary legislation, it is important that they are strictly necessary. It is normal and usual for codes of practice and good guidance to be outwith the primary legislation.

CAFCASS now has sufficient and expert guidance in its domestic violence toolkit, which is part of its strategy to improve practice in domestic violence cases. It is professional, technical guidance for all its professional staff and I hope that my hon. Friend accepts that that is an appropriate place for guidance and good practice. It is a task best handled by those with experience in the field rather than it being set in a code of practice in statute.

Ensuring that risk assessment is carried out in conformity with guidance, too, is a professional matter. Practitioners will be required to comply with risk assessment standards, which will be demonstrated under appraisal and supervision. It should be possible to ensure that standards of risk assessment and the way in which it is undertaken can be relied upon as being of the highest level.

I assure my hon. Friend that we will put in place a system to monitor adherence to that policy, and CAFCASS intends to ensure that it is properly done. I hope that I have demonstrated not only how seriously we view the risk of harm to children, but that we are not ignoring the problems that have arisen in respect of current practice. We have taken measures to deal with those issues, as has CAFCASS. We are taking further steps, but they do not all have to be included in legislation. I hope that my hon. Friend is persuaded to withdraw his amendment.

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