Children and Adoption Bill [Lords]

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Mr. Jackson: In the present circumstances, under section 23 of the 1989 Act, social workers and others are already disregarding the primacy, for want of a better word, of family members, often for very practical reasons and with the best intentions. For instance, they do not want to upset foster carers or they have difficulty with resources and recruiting doctors. In my experience and that of many organisations in this field, they are already disregarding the importance of extended kin. That is an important point for the Minister to bear in mind when she says that the interpretation is too loose.

Maria Eagle: If I understand the hon. Gentleman correctly, he seems to be talking about public law. The Bill concerns private law cases; I believe such arrangements would be outwith the scope of the Bill, and it would be wrong to include them. He primarily wants to deal with private law issues on separation, which, because of the way in which the new clause is drafted, would extend into the public law sphere. I understand his general points, but it is not appropriate to include his new clause in the Bill. The courts need to consider cases on the facts and to focus on the needs of individual children. They should not make presumptions that cut across paramountcy and do not reflect the individual child’s needs.

The hon. Gentleman made a few points with which I would like to deal. He referred to the debate that we had in Westminster Hall, which I know reflected concerns among the grandparents’ lobby and among those from more extended families, of which I have an understanding. He said that the need to apply provisions under section 10 of the 1989 Act are biased against extended family members and he was supported in that regard by what my hon. Friend the Member for Stafford said.

We believe it is important that non-separated parents are protected against section 8 applications by grandparents and other extended family members. We are trying to make provisions for those who have to deal with contact issues and matters relating to the
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conflict involved in break-ups. My Department has extensive discussions with grandparents’ groups and other family organisations and we are not aware of any evidence that the leave to apply hurdle is proving an obstacle to grandparents in cases where parents have separated.

I have heard voiced before the concern that relatives are unfairly blocked from seeking contact because they have to seek the court’s permission to apply. I am perfectly willing to consider individual cases that are brought to my attention and I understand that hon. Members would not want to name individuals in the Committee. It is perfectly open to them to contact me outside the Committee.

Grandparents and others must seek the court’s permission before applying for a contact or residence order. The intention is not to set an unreasonably high hurdle, but to put in place a safeguard to prevent inappropriate and vexatious applications. In practice, applications for permission to apply are normally made simultaneously with an application for contact—that is my understanding of the situation—meaning that there is no added delay, and they are almost always granted. However, it is appropriate that this theoretical hurdle exists so that cases where an application might involve a child in court processes unnecessarily can be prevented.

I have heard it said that there is an increased cost because grandparents might have to seek separate permission to apply and pay court fees twice. They do not have to pay court fees twice. The applicant only pays a single fee and they would not have to pay a separate fee for the contact application and the application for permission to apply: it can be done at the same time. I am obviously willing to hear from Members outside the Committee about specific cases where their experience is different. The hon. Member for Peterborough made a reference to a cost of £250 to £1000, which sounded like legal costs to me. We all have to pay lawyers if we go to court; that is an unfortunate fact of life. Although there are some Committee members who have done rather well out of it—including, in a previous life, me, not to put to fine a point on it. [Laughter.] I am not about to argue that lawyers should not be paid—not a popular thing to say—but when I was practising, I at least tried to discourage people from going to court if there was any opportunity to avoid it. There is no doubt that costs can add up once adversarial court proceedings begin. I cannot comment on whether people have had to pay more lawyers’ fees, but it is quite possibly true.

The hon. Gentleman referred to our earlier Westminster Hall debate about those issues, and suggested that I had made some time-limited undertakings to him. I shall have to read them to ensure that I meet whatever time limits I set myself in that debate. I am not in a position to answer that point, but I shall undertake to deal with it outside the Committee.

On the basis that the new clause has unintended consequences for the legislation, I hope that the hon. Gentleman is willing to withdraw it. I emphasise that I thoroughly understand and concur with his concerns
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that grandparents and suitable members of the extended family should be able to stay in touch with their grandchildren and relatives after the separation of parents, even if the situation is difficult. We support that.

The provisions in the legislation are not confined simply to parents, whether resident or non-resident; they could also apply to other family members who have an interest in the child’s life. They could apply to grandparents and members of the extended family. The hon. Gentleman ought to remember that the Bill applies in that sense.

Mr. Jackson: I have listened carefully to the Minister, and, in fairness, she has taken on board my concerns. In particular, she discussed the two issues on which I pressed her. We await developments, particularly on what “some time this year” means. There are nine months to go, but we live in hope. We have had a very good debate and heard a very helpful intervention from the hon. Member for Stafford—I say that genuinely—and the Minister had dealt with things in her usual logical and fair way. On that basis, and with the caveat that we will debate the matter on Report and later, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3

Pilot scheme on early intervention

    ‘(1)   The Lord Chancellor shall run a pilot scheme better to protect the post-divorce and post-separation family ties of children by providing for intervention before the court makes a contact order with respect to the child.

    (2)   The order shall designate courts to participate within the scheme.

    (3)   When a designated court is approached to make a contact order, the court must provide to the parties—

      (a)   a set of guidelines, indicating in broad terms the levels of contact appropriate in the main categories of cases, in the absence of good reason to the contrary, accompanied by an enjoinder to maintain reasonable contact wherever possible,

      (b)   the date of the first hearing,

      (c)   an instruction to attend a meeting with a court-appointed mediator to develop a parenting plan which must include the amount of time each party will spend with the child,

      (d)   an explanation that parties who do not file the agreed parenting plan must then—

      (i)   attend a parent education meeting, and

      (ii)   attend contact-focused dispute resolution and mediation

    as decided by the court appointed mediator, before the parties may continue with any application for a contact order, and

      (e)   a statement that litigation should be a last resort.

    (4)   Parties who do not wish to ask the court to make a contact order may also make use of the mediation and education facilities of the pilot scheme.

    (5)   The court shall take into account the willingness of each parent to participate in the scheme.

    (6)   The pilot scheme must start no later than six months after this Act receives Royal Assent and must run for no longer than two years.

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    (7)   The Lord Chancellor must direct the President of the Family Division to report to him as to the operation of the pilot scheme.

    (8)   The report under subsection (6) must include an assessment of the extent to which the pilot scheme has achieved the objectives set out in this section.’. —[Tim Loughton.]

Brought up, and read the First time.

Tim Loughton: I beg to move, That the clause be read a Second time.

The Chairman: With this it will be convenient to discuss the following:

New clause 17—Allocation of cases—

    ‘(1)   In any family proceedings in which a court has power to make an order with respect to a child, when allocating proceedings the court shall, upon receipt of an application relating to a child, have regard to—

      (a)   minimising delay to proceedings, and

      (b)   minimising the cost of proceedings, as far as is reasonably practicable.

    (2)   In deciding how to allocate proceedings in accordance with subsection (1), a court shall have regard to the availability of—

      (a)   mediation provided by an independent third party,

      (b)   mediation and conciliation provided in court,

      (c)   court time for the early determination of any disputed questions that arise within the proceedings, and

      (d)   the range of provisions available for providing the court with further information before making any decision.

    (3)   In deciding how to allocate proceedings in accordance with this section, a court shall have regard to any risk assessment provided in accordance with section 16A of the Children Act 1989 (c. 41) and shall, in the absence of such an assessment, consider whether to request such an assessment before proceeding.

    (4)   Rules of court may be made in order to set out the procedure for arranging hearings and making decisions in accordance with this section, including—

      (a)   the making of any application to a court,

      (b)   the arrangements for any hearing,

      (c)   the timing of hearings,

      (d)   the notification of any decisions made to the parties involved and others, and

      (e)   any other matter ancillary thereto.

    (5)   At any stage in any family proceedings to which this section relates the court may, upon the application of any party or of its own motion, arrange a further hearing to consider further the arrangements for the allocation of the case.’.

New clause 24—Contact orders: meeting with mediator—

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

    “8A   Contact orders: meeting with mediator

    Applications for a contact order under section 8 must be stayed, unless by order of the court, until the applicant has attended a meeting with a mediator and the mediator has certified that mediation is not suitable to resolve the issue which is the subject of the application.”’.

Tim Loughton: New clause 3, which stands in my name and those of my hon. Friends, is quite important. It is concerned with the thorny issue of the early interventions pilot, about which there still remains a mystery. Perhaps we shall get to the bottom of it in the Minister’s response.

12.15 pm

To recap, a group of eminent practitioners put together the early interventions pilot a few years ago. It was submitted, fully designed, to the Government on 8 October 2003 and addressed the problem of how to avoid disputing couples going to long, drawn-out
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and acrimonious legal cases. The pilot was founded on the presumption of reasonable contact and was designed largely by English lawyers and judges. It was based on the 1997 guidelines of the Association of Family Court Welfare Officers, which sought to promote a presumption of meaningful and reasonable contact—reasonable being a word that we have sought to insert in the Bill in numerous places. The guidelines were developed following a 1995 complaint against a report of the family court welfare service, the body that preceded the children and family court advisory and support service. In that case, it was shown that officers of the family court welfare service had not acted under strict guidelines, so their professional body drew up extensive guidelines based on the presumption of meaningful and reasonable contact. Building on those guidelines, a lot of work was carried out by a group of practitioners on what became the early interventions project.

To illustrate the calibre of that group, let me list the members who prepared one of its proposition papers. The chairman was district judge Nicholas Crichton, who is well known to many hon. Members for the innovative family court that he runs in Wells street in London’s west end. I have witnessed it at first hand; it is a model of how the system could be speeded up. The pre-planning group that he chaired included Dr. Hamish Cameron, a consultant child psychiatrist; Audrey Damazer, clerk to the justices of the inner London family proceedings court; Diane Elliott from the Institute of Family Therapy; Joan Hunt from the Oxford family policy unit; Brian Kirby from CAFCASS; Ruth Smallacombe, a mediator of Family Law in Partnership; the then chief executive of CAFCASS and Veronica Carter, formerly chief clerk in the Official Solicitor’s Department; so the early interventions project for the resolution of private law family disputes enjoyed fairly heavyweight input.

That proposal went forward. It contained some eminently sensible, practical and workable suggestions and was based on a heavyweight conference held in March 2002 at the Royal Society, involving involved many judges. That was entitled “Early Intervention—Towards a Pilot Project”, and was chaired by Mrs. Justice Bracewell, who gave a keynote address that supported what became the early interventions project.

In October 2003, the proposals went to the Department for Constitutional Affairs. However, somewhere between the DCA and the Department for Education and Skills, in which the Minister for Children and Families is based—she has as part of her remit this whole area, including the control of CAFCASS—the early interventions project disappeared. Its existence was later denied. It was said that the pilot had never existed, or that it was the family resolutions pilot project by a different name.

The trouble is that it was not the same thing in practice. In September 2004, the Government put into effect the family resolutions pilot project, which was to last a year. They anticipated that there would be several thousand takers for this new attempt at keeping acrimonious cases out of the courts. The pilot
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ran in three centres—Brighton, London and, I think, Sunderland—but there were not thousands of cases. By the time it ended in September 2005, there had been only 62 referrals from the three areas over the year. Barely half those cases completed the programme. Nearly a third of referrals dropped out before the first session, and a small number dropped out later. Nearly three quarters of non-completed cases were due to parents not attending the sessions. Most cases took longer to complete the programme than the target 12 weeks.

We were promised an appraisal of the family resolutions pilot project. Coincidentally, on the morning of the Bill’s Second Reading, unbeknown to Conservative members of the Committee, the findings of that project were produced. Fortunately, that came to light on Second Reading, during which we had to request the Minister to furnish the Front-Bench Members involved in that debate with the findings. Late in the day, we eventually got those findings, which I now have in my hand. I will not go back over the arguments as to why we got them so late in the day. Certainly, they make interesting reading.

To say that the project has been damned with faint praise is perhaps an underestimate. The best comments that we could get on it were:

    “The overall effectiveness of the pilot was variable. On some issues it was hard to make a judgement.”

One conclusion was:

    “The pilot has not produced a clear blue print for the future development of services, but it has provided a number of important pointers for future developments within the family justice system and beyond.”

In short, the project was a complete, total and unmitigated disaster. As an article in The Guardian on 30 May said:

    “In short, it’s a waste of time.”

It need not have been a waste of time if the Government had stuck to the original intention of seeing through the early interventions pilot project, into which a lot of work had gone.

We want to be helpful to the Government. Their family resolutions project has failed, and we need to get it back on track. I suggest that we do that by seeing through the original project, and that is what new clause 3 is based on. It will designate courts to participate in the scheme. Those courts will issue a set of guidelines to parents involved, suggesting appropriate levels of contact in various cases, in the absence, of course, of good reason to the contrary; there must always be that safeguard. The court will clearly set the date of the first hearing and will give an instruction that the couples should attend a meeting with a court-appointed mediator to develop a parenting plan. In another new clause, my hon. Friend the Member for Basingstoke has set out ideas for parenting plans.

The instructions will also explain that those parents who do not go along with the parenting plan will have to attend a parent education meeting and

    “attend contact-focused dispute resolution and mediation.”

That is set out in subsection (3)(d)(ii) of the new clause. It also makes it clear that

    “litigation should be a last resort.”

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Subsection (5) is crucial to the scheme, saying:

    “The court shall take into account the willingness of each parent to participate in the scheme.”

That pilot project requires a degree of compulsion. We think it essential that the warring couple be pointed in the right direction and be required to go through a number of preliminary stages, so that they exhaust every opportunity to come up with a solution to, and resolution of, their differences in the interests of the children. That can then form the basis of an agreement, which means that long drawn out acrimonious legal cases are avoided.

As we have discussed, mediation cannot by its essence be based on compulsion, but we believe that it should be compulsory for a couple, and certainly for the initial stages. If they still opt out, and if one opts out in particular—this is the rub—the court should take account of that when making a subsequent judgment if the legal processes are continued with because no other course of action is available. In effect, brownie points should be available to those parents who comply with the suggested process.

In everything that the Government have designed for their voluntary and rather limp mediation process, my fear is that if one parent shows good will and wants to go along with mediation but the second parent sets his or her face against it from the start and wants nothing to do with it, the process will fall and court proceedings be carried forth. However, surely the person who wanted to go the extra mile with mediation should receive some recognition of their willingness to do so. Under subsection (5) of the new clause such a scheme would account for people’s willingness to go along with what is seen as a better way of avoiding court conflict.

We are suggesting doing what the Government should have done in the first place, which is to establish a pilot. We want not to set down in law what must happen, but to set the framework for a pilot. At the end of that, which would presumably last for a year or so and could be based on a sample pattern similar to that of the family resolutions pilot project, but hopefully with more people taking it up at the outset, we can make a proper assessment of what will work. There is a lack of research in this country and in others on why contact orders fail and what we can do to improve the system, to ensure that when they are granted, or, preferably, when pre-court agreements are made, they are fair to all sides, and all sides will go along with them.

New clause 3 seeks to restore what the Government were apparently looking to put in place and what I think they wanted to put in place, but which went astray somewhere between the DCA and the Department for Education and Skills and was replaced by a thin, pale imitation. However, what was originally proposed would have stood a much better chance of succeeding, and on that basis I am pleased to propose that new clause 3 be added to the Bill.

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Mr. Kidney: Someone contacted me recently and asked whether I would be so kind as to tell them who had put me up to new clause 17, and provide them with a copy of the briefing that I must have been given to enable me to speak to it. I was happy to tell that person that new clause 17 is entirely my own work and that there are no such people and no such briefings, although I acknowledge with grateful thanks the help of the Committee Clerk in ensuring that I put it technically in order.

New clause 17 represents my response to the twin obstacles to contact in the cases of obstruction that I identified on Second Reading. They were the possible deterrence of cost when one side does not have the benefit of public help with their costs and the delay in proceedings that makes the outcome a foregone conclusion if it takes too long to get a court decision. That is why new clause 17(1) makes clear references to the court’s responsibility to minimise costs and delay. How does the court do that? My argument is that, quite apart from my previous point about always considering mediation even before court proceedings begin, the court should, when we reach the stage of an application’s having been made, take early action to allocate cases appropriately.

Reading the evaluation of the family resolutions pilot project that the hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned, I was impressed with the reference to a case in Newcastle county court, where the CAFCASS officers immediately respond to applications to the court. Within two weeks they write a report to the court, which is available at the first directions appointment, with a summary of what they have found out ahead of that appointment. New clause 17 asks what is to be done with all that good work, the results of which the judge will have. That is why I suggest in subsection (2) that all the options are there for the court to consider and that it should decide which of them to use. The options exist already or will be put in place under the Bill.

12.30 pm

In relation to previous amendments, I said that the court should always consider the effects of risk assessments and subsection (3) of the new clause reminds the judge to have regard to any risk assessment at the allocation stage. That does something to overcome the Minister’s objection to amendment No. 38, because the court can make a decision on allocation based on a risk assessment that has been received and, if there has not been one, the court has simply to remember to decide whether a risk assessment is needed before proceeding further.

I have also set out that the rules of court can then decide the procedures that people have to follow. Because of the dynamic nature of such situations, it is important that, having made an allocation, the court considers whether it needs to return to it later, and that is set out under subsection (5) of new clause 17. To know whether the new clause would have the right effect, it is worth considering a couple of findings to which we have referred more than once in our debates to see whether they point in the same direction.

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The University of Oxford family policy briefing 3, which the hon. Member for East Worthing and Shoreham drew to our attention last week, stated that a number of matters could be taken into account, the first of which was that

    “Caution is needed about legislative change. The case for amending the Children Act may be stronger in relation to domestic violence . . . Introducing a presumption of contact is more problematic.”

The briefing reminds us that

    “Post-separation parenting is a very neglected area”

and that there

    “would be widespread support for a programme aimed at improving service provision.”

It also states:

    “However policy develops it is vital to keep the focus on the needs of children”.

All of us can agree with those objectives.

Having regard to the hon. Gentleman’s recent comments, I do not know whether what I am about to say is controversial, but the evaluation of the family resolutions private project contains some valuable recommendations, the first of which is that the

    “family justice system should develop a range of parenting interventions including basic parent education and higher conflict education and therapeutic interventions.”

It says that, alongside parenting focus, there need to be processes for dispute resolution and child involvement. It recommends that a small number of demonstration projects should be set up and tested. Those are recommendations, but within the text there are some helpful comments, one of which was to the effect that it would be worth exploring the possibility of enabling solicitors to refer parents to parenting groups whether or not an application had been made to the court. That would be a useful addition to the present powers.

The project also said that programmes that acquire strong inter-professional support and become the standard local operating procedure may be almost as effective as compulsory schemes. That was my point last week when I referred to interventions such as mediation. We do not have to make them compulsory under law if we set up a system that is regarded as the routine of which everyone makes use because it is helpful.

I accept that my new clause would not do all those things. Indeed, I think there is frustration in the room that the Bill does not cover those matters and that a lot is left to the trust of Ministers to carry out. As the hon. Member for East Worthing and Shoreham said about the early interventions projects, we sometimes feel a lack of involvement and knowledge about what has happened to something that we thought was a good idea. I still feel we need to do something with the Bill that gives Parliament a little more influence over such matters and allows for the sorts of things to which I have just referred. They may not be contained in the amendments before us today, but there is still time for us to get it right.

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