Children and Adoption Bill [Lords]

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Mark Williams: There is widespread agreement in Committee that pre-contact order mediation is something that we value and applaud. New clause 24
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tabled by my hon. Friend the Member for Mid-Dorset and North Poole and me would make a meeting between parties compulsory. We understand the need to encourage parents to consider mediation before taking matters to court and to keep the child’s welfare at the forefront of their minds. However, the point at which we deviate, I guess, from the Conservatives, is on the question of the need for mediation to be compulsory. We believe that there must be willingness on the part of both parties if mediation is to be valued.

We agree with the Conservatives about new clause 3(1) and the inadequacies and inconclusiveness of “Making contact happen or making contact work?” We believe that there should be a new pilot scheme, but the focus of our work is that mediation must be voluntary if it is to be truly effective. I see a flurry of watches, so I shall sit down.

Maria Eagle: I shall remember in future that the hon. Member for Ceredigion can be made to sit down simply by waving a watch at him.

I hope that I can deal with the points that hon. Members have raised on the new clauses tabled by the hon. Member for East Worthing and Shoreham and my hon. Friend the Member for Stafford.

To paraphrase the hon. Member for East Worthing and Shoreham, he suggested that there had been some kind of mysterious shift, or hijacking, and that what was the early interventions pilot suddenly became the family resolutions pilot. His thesis was this: “Now look, with the evaluation, which they did not even let us have, what a mess it is.” That is a paraphrase of his speech and rather more succinct than he managed, but I shall try to deal with his points.

I shall break the matter down into the suggestion that the early interventions pilot was hijacked in some way, and changed mysteriously by civil servants into something else, and the points about the family resolutions pilot. The events happened before my time as a Minister, so I am not speaking from personal experience, but I have looked into what happened, because of what I have heard said about it. I assure the Committee that there was no hijacking of a fully formed early interventions pilot that would have been wonderful, so that it could be watered down and changed into something else that did not receive such a glowing evaluation even if it did provide some value.

It may be easiest if I make the points that Mrs. Justice Bracewell made when she gave evidence to the Constitutional Affairs Committee inquiry on family justice and the family courts. She was deeply involved, as were other judicial figures such as District Judge Crichton, to whom the hon. Gentleman referred, who runs a slick operation at Wells street, which I have visited and had a look at.

First, Mrs. Justice Bracewell said that both she and District Judge Crichton were key players in supporting and implementing family resolutions pilot schemes, which she said had received judicial support and enthusiasm from figures such as them. She continued by saying:

    “It was unfortunate in retrospect to change the name from Early Interventions to Family Resolutions, although there were sound reasons for doing so. This change caused misunderstanding
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    in that supporters of the Early Interventions project wrongly concluded that a different scheme was being piloted and that the aims and ethos of the Early Resolutions project was being abandoned in favour of some less effective scheme.”

She was on the steering committee for the implementation of the family resolutions pilot project, and said:

    “The Family Resolutions project has not been produced in-house by civil servants. There has been judicial input throughout and the result is a team effort.”

I assure the Committee that there was no sudden transformation of what had been a perfect scheme, perpetrated by civil servants somewhere between the DCA and the DFES. Before the pilots started, the steering committee that was implementing them had studied what was happening in various jurisdictions and designed a scheme that it believed to be suitable for our jurisdiction. That is all that happened. I hope that Mrs. Justice Bracewell’s words reassure the hon. Gentleman to some extent. We shall see whether they do when he winds up.

As to the impact of the family resolutions pilot project, it is true that, at 62, the number of cases that underwent the pilot in the three areas—he did recall those correctly—was disappointingly low. We had hoped that there would be a pool of 1,000 or so parents with cases at those three places who could be asked if they wished to take part. The potential figure for those who might wish to take part was derived from the recorded number of contact applications to the family courts in those three pilot areas over the previous three years.

In fact, as it happened, the number of applications in the year of the pilots fell. It was lower than in the previous three years and so the pool was smaller. Participation was not compulsory and that is the point at issue in new clause 3. Of course, once referred parents were on the pilot they were not obliged to stay. If they managed to get a settlement that was suitable for their family, we were not going to suggest that they should stay the course to the end and not get their consent order. Cases were unsuitable where there was domestic violence, harm and abuse, and we know that there have been such allegations in 25 per cent. or so of cases. That will have contributed to the figure, but I do not resile from the fact that the numbers of participants were disappointingly low.

The new clause sets out a further set of pilots, which relates in part to what my hon. Friend the Member for Stafford said. He was right to identify that cost and delay are among the factors that deter parents and family members from participating and so perhaps not dealing with such issues as swiftly as they might otherwise be able to do. I congratulate my hon. Friend on new clause 17, which, even if it has had some assistance from the Clerk, is a pretty decent bit of drafting compared with what we sometimes see.

The early interventions pilot clause, if I can call new clause 3 that, was moved by the hon. Member for East Worthing and Shoreham. We have already rehearsed some of the arguments about proposals for compulsory arrangements in advance of court
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hearings and how that might engage article 6 of the European convention on human rights. We have also rehearsed the idea that such a new clause might constrain the court’s freedom to consider each case on its own merits with the paramountcy principle firmly in mind.

We have also had some discussion about the idea of contact guidelines ending up as default templates for dividing up time. I have made it clear that we do not want to impose such things. Although parenting plans might be helpful in making suggestions, we do not want to start being prescriptive.

We think that the findings from the evaluation, mixed though they are, will help us to develop the content and format the contact activity provisions in the Bill. The provisions are about trying to support parents in understanding more the importance and value to their children of continuing contact with both parents, and ensuring that post-separation parenting can be supportive as possible for the children concerned for their benefit. We are all singing from the same hymn sheet in that respect. I suppose there is a difference in how we might go about it, as we have acknowledged before.

Tim Loughton: I am grateful for the detailed response from the Minister. We have not this morning discussed the thorny issue of the paramountcy of the welfare, although it has come into virtually all our other deliberations. How does the Minister think a new scheme that is a pilot and seeks to bring early resolution and to keep parents and discussions of their children out of the courts could in any way undermine the paramountcy principle? Will she give some examples of where that would happen if the new clause were put into effect?

Maria Eagle: We have discussed such issues before. The hon. Gentleman’s suggestions would require compulsory mediation ahead of court appearances, and would put the concepts of reasonable contact and of dividing up the child’s time between parents in a formulaic way ahead of the court making a judgment on the basis of the individual circumstances of the case. That is when we run into the dangers that I mentioned in respect of the hon. Gentleman’s proposals.

12.45 pm

One reason why the family resolutions pilot project differed in design and implementation from the early interventions proposals is that this country’s jurisdiction is different from those in countries where early interventions have been tried. The steering committee that dealt with the project was intent on making it fit into our framework of children’s law and courts—there was no attempt to water down the way in which the pilots worked. I hope that we can learn lessons from the project and improve the interventions that we make for families in deep conflict. I do not rule out the possibility of another pilot project in future, but it would not be sensible to specify such things in legislation. We have undertaken to continue looking at the lessons that can be learned and will do so.

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On new clause 17, let me compliment my hon. Friend the Member for Stafford on his drafting skills. We see the importance of a lot of what he suggests, but it is not necessary to put a new clause in the Bill to introduce a power to change the rules of the court. The rules made under the Children Act already include matters such as the making of applications and will be updated and revised to accommodate any new provisions that the Bill makes law. There is already a rule-making power in section 104 of the Children Act, so it is not necessary to put some of the new clause into the Bill.

On my hon. Friend’s point about costs, I can say that facilitating the early resolution of cases and encouraging resolution without full court hearings is the best way to reduce costs and delay for the parties. Although costs will ultimately be determined by the issues in dispute and the amount of legal work that must be done, taking the sting out of some of the bitter disputes that end up taking a long and winding route through the court will clearly be important in reducing delay and cost.

My fear about new clause 24 is that it would introduce compulsory mediation by denying access to the courts in any case where, following an initial meeting, a mediator does not rule out mediation. There is a rather neat sidestep, which might work, to avoid the point about article 6 of the European convention on human rights and preventing access to the court. However, we still have concerns, which we rehearsed earlier, about compulsory mediation. We do not believe that it is possible or right to force people to mediate against their will; indeed, in some circumstances, it might be unsafe to do so.

An amendment identical to the hon. Gentleman’s new clause was debated in the other place and the primary concern was to offer a level playing field between privately and publicly funded applicants, because the latter are under a greater obligation than the former to consider mediation. As my noble Friend said in that debate, the issue is worth considering and could be addressed by altering the application form that is used to apply to a court for contact orders. That will then require people, including those who are unrepresented or privately funded, to state on the form whether they have discussed using mediation or gone on to use it. If the court is not satisfied with their answer, the Bill gives it the power to direct the person to attend a meeting with the mediator to consider whether mediation might be useful. My hon. Friend the Member for Stafford has made several points about the value of mediation, with which we all agree. The point at issue, however, is whether it should be compulsory.

To conclude, new clause 3 would unnecessarily restrict the court’s discretion to consider each case on its merits. New clause 17 is extremely worthy, but I hope that I have been able to reassure my hon. Friend that we are doing what we can to prevent delay in the system and that there are improvements, so his new clause is not needed in addition to the Bill. New clause 24 would tend to cause delay and, more fundamentally, introduce compulsory mediation. We
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have had our debates about that, and cannot support it for the reasons that we have given. With those points in mind, I hope that the hon. Member for East Worthing and Shoreham might consider withdrawing the new clause.

Tim Loughton: I am grateful to the Minister for giving a fair degree of detail in her response to our proposal. Before I respond to her points on new clause 3, I will say that I have sympathy with the new clause tabled by the hon. Member for Stafford, particularly its aim to minimise delay to proceedings, which is such a big problem and which exacerbates many other problems once a dispute has arrived in the court system.

I am rather frustrated by the Minister’s failure to entertain the principle of what we are trying to put forward. The point of the new clause, and one of our main contentions of the weakness in the current system, is that the way in which the system works is not clear enough. Time is the enemy of resolution. Far too many warring couples go to court unaware of how the system will work and what penalties might be invoked against them if they frustrate the system. There are also those who are a bit more savvy and are intent on using the system to frustrate the claims of an ex-partner. That is why we have said all along that the ground rules must be made absolutely clear and as up-front as possible. When ex-partners arrive at court, they should be left in no doubt as to what they can expect, what is expected of them and what will happen if they do not go along with the rules.

If early intervention were mandatory, and parents knew exactly what was expected and that the early intervention project was mandatory and was for the benefit of their child, that would resolve early many issues that would not then need to go to court. I repeat that the early intervention project was put together by a great many people with far greater knowledge and experience in the field and in the legal world than I have, with those principles at heart. Caroline Willbourne, the Family Law Bar Association’s designated expert on contact issues, wrote in November 2004 in Family Law:

    “The Early Intervention project, as formally submitted, was fully specified, properly designed and costed. And it commanded across-the-board professional support.”

She went on to state that the family resolutions scheme, based on the “every case is different” approach, was the complete antithesis of early intervention.

The early intervention scheme had a large number of heavyweight experts behind it and was properly thought out with everything eminently clear from the beginning for all participants to see and take note of. It set out clear guidance on how the procedure should take place. I fully appreciate that that was before the Minister’s time in the Department, but a better explanation should have been given to all who put a lot of work into the early interventions project as to why, where and how it went off the rails. Those who were involved, including Mrs. Justice Bracewell, were sold a pup. They were told that the two projects were identical in all but name. Clearly, what resulted in the
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family resolutions pilot project was very different from what had originally been intended in the early interventions pilot. No one is in any doubt that at some stage the former was dropped and the latter produced somewhere.

The early interventions pilot was, to a large degree, based on some of the early resolutions work in Florida, where the success rates are rather interesting in terms of the number of cases that are resolved before a long, drawn-out court process. The Minister’s assertion that the family resolutions pilot project involved a disappointingly low figure is an understatement if ever there were one. She gave various excuses why the anticipated pool of around 1,000 couples turned out to be no more than 62, but, by any measure, the difference is enormous. In that year, it seems, people in Sunderland, London and Brighton lived together in rather greater harmony and resolved any disputes about their children without recourse to the courts. Why such harmony broke out in all, or parts, of those places at that time, I do not know. Perhaps the Minister can enlighten us if she really claims that that is a reason why those figures were such a complete, unmitigated disaster.

The Minister says that the new clause would not help the situation, but has not addressed the detail of the suggestion. She also says that it would unnecessarily restrict the power of the courts to consider each case on its merits, but I remind her that we do not seek to put it into the Bill in open-ended form. The intention is purely to run a pilot. If, at its end, it is as unsuccessful as the family resolutions pilot project, the Minister can rightly go back to considering another solution. We are trying to come up with a
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helpful suggestion of how we can progress this matter without tying the Minister’s hands entirely. The early interventions pilot was not given a proper trial or fair wind.

I am grateful for the Minister’s praise of our drafting skills. I have to say that the drafting of the new clause is not down to me; my hon. and noble Friends came up with it. The new clause clearly sets out how the courts should embrace the scheme, produce a set of guidelines, specify the date of the first hearing, and instruct couples to attend a meeting with a court-appointed mediator. It also sets out what should be done if a parenting plan is not agreed: parties should attend a parent education meeting, and contact-focused dispute resolution and mediation. It also sets out that a statement should be given that litigation should be a last resort. All that is set out clearly. Anybody coming to court with such a dispute, when faced with all that, would be left in no doubt of what was expected of them, and what would happen if they did not go along with the preferred action.

I am very disappointed that the Minister has not looked more favourably on what was actually her idea in the first place. We shall not push the motion to a vote at this stage, but I would certainly like to come back to the new clause on Report, because we think it fundamental to sorting out many of the problems that the Bill aims but fails to sort out. For the time being, I reluctantly beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.

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