Section 41(1) provides for a 12-month period, and section 41(2) makes the fathers, or any guardians, consent necessary. However, none of those jurisdiction requirements was met when the English courts were allowed to deal with my constituents case. The English court had no jurisdiction under legislation governing those matters, but it granted the order anyway. Despite that fact, subsequent hearings, all the way to the Court of Appeal, upheld the order. It is clear from the judgments that the provisions of the 1986 Act were not fully considered. As I have said, my constituent acted on his
own behalf and had no expert legal advice, and I would hope that the court would take that into consideration. The assumption seems to have been made at every level that after 12 months residence, the child automatically assumed habitual resident status in England. Nowhere, in any of the judgments, was section 41(2) considered, and at no point did any judge make it explicit that the court took over the fathers rights under section 41(2) by, for example, pleading the paramountcy of the interests of the childs welfare.
My constituent believes that his rights as a father have been taken away from him by the courts. It seems that at no stage in his contact with the legal process, whether with solicitors on both sides of the borders, or with the courts, was there a full understanding of the way in which section 41 should operate. Will the Minister address that issue? I have been intimately involved with this case over the past few years, and it makes me very concerned about the way in which, not only this case, but other similar cases, should be dealt with. Scotland has a completely separate legal system, which is entitled to be recognised.
I should like to raise another issue about the operation of the legislation, and the way in which it can prevent a speedy resolution to often very difficult problems. I spent many years as a solicitor in Scotland specialising in family law, so I have some experience of the issue, and know how sensitive the courts need to be and how difficult the issues are. My constituents position all along has been that the English courts have no jurisdiction and that the case should be dealt with in Scotland. He was advised on both sides of the border that if he made any plea in the English courts for residency or contact, he would put at risk his position on jurisdiction. He was presented with a dilemma. He feels strongly about the jurisdiction issue, and he has pursued it. Apart from the initial error by his London solicitors, he has made no attempt to apply for a contact or residency order. That has worked against him in several ways. He lost the argument about jurisdiction in the English courts, and the judges have made it clear that they are not sympathetic to his case, because they regard the jurisdiction issue as a distraction. He regards jurisdiction as a fundamental issue, and as a Scottish lawyer, so do I.
The 1986 Act exists to regulate processes within the different jurisdictions in the UK, but it seems that it can be ignored at will. That is difficult enough to accept, but if my constituents advice that he would prejudice his position by presenting a case for residence or contact is correctI believe that it isthe Government should address the issue. It is in everyones interests to ensure that family proceedings have as little bureaucracyI put that in inverted commasas possible. If artificial impediments such as a preliminary plea or jurisdiction can prejudice fundamental issues such as residency or contact with a child, I hope that the Government would want to deal with the matter. I ask the Minister to look at it carefully.
The solicitors initially consulted on both sides of the border and the judge of first instance appears to have acted in complete ignorance of proper jurisdiction in all aspects of the legal process. In such difficult and sensitive issues as residence or contact with a child, the law must be considered and applied meticulously and sensitively.
My own experience dealing with family matters in Scotland is that that is generally done, but the Minister will be well aware of the various concerns raised principally by groups representing fathers in custody cases, some of whom have gone to extreme lengths to make their point. My constituent has avoided that, and he has applied himself to studying the legal issues and presenting his arguments, which is the appropriate way to proceed. However, from my considerable contact with him I know his intense disappointment, frustration and sense of unfairness at how his case has been dealt with in every part of the legal process.
As far as my constituent is concerned, the law is explicit about what is intended. He thinks that his rights have been bulldozed in a way that he finds difficult to understanddespite his substantial experience of the law, he is a lay person and not a lawyer. I submit that it is not good for the legal process and not good for the system that that perception should prevail. The case is difficult and the fathers choice might not be one that all of us would make, but he feels strongly about the issue. He feels even more strongly that the system is unfair and makes it difficult for people in his position to get the right treatment.
At the end of the day, a young child has been denied contact with her father for several years. The case is likely to progress to Europe, delaying the matter further. The Government should address the issues, and I am anxious that the Minister should do so. I appreciate that she has not had advance sight of my speech, so it will be difficult for her to respond in detail. I do not expect her to do so, but I would be very pleased if she were to write at a later stage.
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I congratulate my hon. Friend the Member for Aberdeen, North (Mr. Doran) on securing this debate; the subject must be a harrowing and difficult one for him and for his constituent. Any case that involves the relationship of a child with its parents has to be dealt with to the highest possible standards and with the greatest sensitivity. I shall, of course, respond in writing, giving details that I may not be able to provide during our debate.
Although many parents separate amicably and make good parenting arrangements thereafter, we all know that conflicts can arise from separation that are upsetting for all involved, particularly the children. In the vast majority of cases in England and Wales, parents make appropriate and adequate provision for bringing up the children, including making contact arrangements. Usually, they do not need recourse to the courts to achieve that. It can be done in a perfectly amicable, adult and sensible fashion. The Government do their best to give them additional support whenever possible, such as providing better information or promoting alternative dispute resolution services.
In Parental Separation: Childrens Needs and Parents Responsibilities, which was published two years ago, we set out a range of measures to help yet more separating parents in England and Wales. That document dealt with improved access to quality information, and advice to separating parents that was tailored to their individual needs. It provided an increased focus on delivering
practical assistance and legal help, as well as signposting other appropriate services. It tackled linked problems, to allow parents to find a non-court-based resolution when it was safe to do so, and it proposed the development of alternative dispute resolution services.
Inevitably, some cases come to court. The early identification of harm, with early dispute resolution meetings in appropriate cases, is extremely important. We do everything that we can to encourage the parties to attempt mediation, and, as far as possible, we give greater support to help families make contact work. Section 8 of the Children Act 1989 provides for courts in England and Wales to make four types of orders. A residence order governs where the child will live, and a contact order governs whom the child will see. A specific issue order provides for certain actions to be takenfor example, the child must attend a specified school. A prohibited steps order says what must not happenfor example, that the child's home must not be outside a certain area. Section 11 of the Act provides for certain conditions to be attached to a contact order.
In 2006, more than 90,000 such applications were made, and more than 100,000 orders were made, as many cases result in more than one order being made. For example, a resident parent may apply for a residence order and the non-resident parent may, in response, apply for a contact order. The court may also make an order of its own motion, without an application being made, if existing family proceedings are already before it. A residence order may be shared if the child spends significant periods of time with both parents; and there may be variations in the type of contact for holidays, weekends, overnight stays and so on.
There is a fairly comprehensive package of appropriate contacts for the child. However, it is incumbent on me to sayI know that my hon. Friend agreesthat whatever is decided, it has to be done in the best interests of the child. That is the focus of all our policy on children and contact through the court system. It is always possible that the court can order contact only by telephone or letter or, indeed, that no contact may be made. That is rare, and such an order would only be made if there was any indication that the child would be placed at significant risk.
In recognition of the fact that those cases are private proceedingsthat is, that a parent has asked the court to intervenethe court may also order that there should be no order. Such orders are not common, but where parents have an agreed arrangement, it might be better for the child for no order to be made. When section 8 residence and contact applications are made, and where the proceedings are contested, the courts must take into consideration the factors listed in section 1(3) of the 1989 Act, which are known as the welfare checklist. The list is not exhaustive, but it is generally regarded as the minimum that the court would be required to consider. Most importantly, it includes the ascertainable wishes and feelings of the child; their physical, emotional and educational needs; the effect that the changes in circumstances might have on them; and their age, sex and background, as well as other characteristics considered relevant. Any harm that they have suffered or are at risk of suffering clearly has to be taken into account, as well as the parents ability to meet their needs.
Families end up in court because they cannot agree arrangements between themselves. In some cases, there
are serious welfare concerns: domestic violence is an obvious example. In January 2005, we changed the application procedure for section 8 cases to ask applicants and respondents about any risks of harm to the child. If there is an indication of risk, the application forms are sent to the Children and Family Court Advisory and Support ServiceCAFCASSwhich will conduct certain checks, undertake a risk assessment and advise the court accordingly. From 1 October this year, that is a statutory duty for CAFCASS. I hope shortly to publish an evaluation of the effectiveness of that procedure.
In other cases, there may be concerns about parental drug or alcohol abuse, or mental health problems. The courts can order CAFCASS to consider those matters. It can also ask for a medical expert opinionfor example, from a child psychiatrist if it is possible that the child has mental health problems as a result of the conflict. CAFCASS is available to try to help conciliation between the parents. Often, parents reach an agreement in those cases.
We conducted a piece of research, following parents through the two-year process. The evidence that we have received suggests that that was a positive way of trying to move things forward. In most cases, an agreement about contact was reached or the cases were closed. I hope that in ongoing cases we can continue to improve our services, using that method to ensure that appropriate conduct is arranged. My hon. Friend mentioned the issue of jurisdiction. He cited the Family Law Act 1986, and the fact that deemed residence is only for a yearafter that, the general rules apply. After one year, the child could end up being habitually resident in another part of the United Kingdom.
Bridget Prentice: My hon. Friend is right: parental consent is necessary. He has already mentioned the case of his constituent, who has had to deal with some apparently bad advice that he received early on. That is being dealt with separately, but I am happy to write to my hon. Friend with some views on how he might progress the matter, if appropriate. The problem is that the child may become habitually resident in another part of the United Kingdom, and it would be for the courts to make a decision, still with the interests of the child at heart. My hon. Friends constituent made the application within the year, so section 41, as he mentioned, would apply. If he had not done so, section 41 would become irrelevant. However, even where the order is made in the wrong jurisdiction, it has to be obeyed until discharged, and case law ensures that that is so. The individual could apply to the English court to have that order discharged or, indeed, to the original, correct court.
In the short time available, I should like to pick up a couple of other issues raised by my hon. Friend. It is not right to say that the Act is ignored whenever that suits the court. The Act is designed so that the order protects the child at all times. Courts with jurisdiction can make orders that are recognised and enforced in other parts of the United Kingdom. However, a subsequent court can make a new order, which could supersede the earlier one, but only if it has proper jurisdiction and it is
in the childs welfare interests. That would apply on either side of the border. As my hon. Friend pointed out, historically, Scotland has its own legal system, which differs in substantial ways from that of England and Wales. That is why we have made provision to deal with contact and residence cases in which people live on different sides of the border. It is possible for two sets of proceedingsone in each jurisdictionto be under way at the same time. The legislation applying to contact and residence cases in Scotland is different, but both the Government and the Scottish Executive are united in the view that children should have contact with both parents, as long as it is safe and in the best interests of the child.
Finally, there is no bias against fathers in the Children Act. Parents with parental responsibility are treated equally. As I said, the welfare of the child is paramount, and that applies in England, Wales, Northern Ireland and Scotland. The Act is designed to support proper decision making for children, by ensuring that the cases are heard in the most appropriate forum. My hon. Friend has given me a number of details that I want to look at more closely. I will write to him, insofar as I can comment on cases before the court. As he knows, I am limited in what I can say, but I will do my best to give him as much information as possible on that particular case.
Mr. Mark Harper (Forest of Dean) (Con): It is a great pleasure to serve under your chairmanship, Mr. Bayley, and I am pleased to see the Minister in the Chamber. The purpose of my debate is to focus on the way in which Ministers are held accountable by the House, primarily through written questions and statements.
As the Minister will know, I have been in correspondence with the Leader of the House over the rather poor performance of a number of Ministers in answering written parliamentary questions on a named day. Let me set out the reasons for my concern. I asked all the Departments how good they were at giving substantive replies to named day questions. Some Departments do extremely well, and it is fair to say that the Prime Minister and the Leader of the House give a substantive reply to 100 per cent. of questions on the named day, which is very good.
Unfortunately, the same is not true at the other end of the spectrum, in Departments that cover important policy areas such as defence and work and pensions. Only 22 per cent. of questions to the Ministry of Defence received a substantive reply on a named day, while the figure for the Department for Work and Pensions is only 30 per cent. Interestingly, both Secretaries of State are part-time, as they are each responsible for two Departments. When the right hon. Member for Kilmarnock and Loudoun (Des Browne) is wearing his defence hat, he manages to answer only 22 per cent. of named day questions on the due day, but when he is wearing his Scotland hat, he manages a much more impressive 85 per cent. In the same way, when the right hon. Member for Neath (Mr. Hain) is operating in his capacity as Secretary of State for Work and Pensions, he answers only 30 per cent. of questions on the named day, while the Wales Office, which admittedly has a much smaller number of questions to deal with, manages to answer them all on time.
Members have a limited number of ways of holding Ministers to account, one of which is questions, so it is not good enough for Ministers to answer only a fifth of questions on the due day. That is bad enough, but it is difficult to obtain data on the issue. I know from experience that Ministers do not miss the due date by a day or so; often, we do not receive a substantive answer on the given day, and we have to wait for it for a week or two weeks. Departments do not seem to take seriously the importance of answering Members questions on time and as fully as possible.
Although that may be due to changes in the machinery of government and to reorganisation, neither the Department for Children, Schools and Families nor the Department for Innovation, Universities and Skillsboth Departments emerged from the former Department for Education and Skillscould give me the information that I sought, because they simply have no tracking system capable of telling them when they answered questions. I have written to both Ministers concerned, because if those Departments cannot monitor their performance, I do not see how they can be confident of discharging their responsibilities to the House.
I suspect that the Parliamentary Secretary will not be surprised to learn that the Home Office could not answer my question before prorogation, and still has not done so. Its performance in dealing with Members of Parliament is pretty lamentable at best, and it is the only Department that could not answer my question at all. That is not good enough, and I have raised the issue with the Leader of the House, who promised to take action. I would therefore be pleased if the Minister could explain what action has been taken and whether we are likely to see any improvement.
I have a couple of examples to illustrate the sort of questions that do not get answered, and which raise important issues about the way in which we are governed. We all know about the problems at Her Majestys Revenue and Customs and about the loss of child benefit data. Over the weekend, on a much smaller scale, a similar problem was reported at the Department for Work and Pensions. Discs containing a lot of sensitive information about thousands of customers were left with an ex-contractor, who was no longer entitled to have them. The information was unencrypted and not kept securely, so there were clearly some lapses in information security. I tabled a number of questions about the issue to the Department for answer on a named dayMonday 26 November. I specifically asked the Secretary of State what procedures his Department had put in place to deal with the transfer of personal data, what personal data he has provided to bodies such as the National Audit Office, what personal data belonging to members of the public is stored by his Department and other agencies, and what discussions he has had with his Departments agencies about how they keep information secure. I received a holding answer but, a week later, I still have not received a substantive answer.
They were not complicated questions, and the answers about the procedures that are in place should be available today. One would hope that, given the recent focus in government on information security, it would not be difficult for a Department such as the Department for Work and Pensions, which holds data on millions of members of the public, to answer some simple questions, and direct me to the document or website that sets out its procedures for looking after personal data. The fact that I have not had an answernot even part of an answeris rather poor, and shows that there is a gap.
There are slightly more amusing responses that show the seriousness, or lack of it, with which Ministers deal with the House. I tabled some questions to the Secretary of State for Work and Pensions about the support provided to the Under-Secretary of State for Work and Pensions, the hon. Member for Stevenage (Barbara Follett), who also has responsibilities in the Government Equalities Office. I asked the Secretary of State some straightforward questions about what discussions he had had with the Leader of the House on the Under-Secretarys ministerial role, and what support was available to her from the Department. The Under-Secretary herself responded with a holding answerperhaps reasonably; she may not know what discussions the Secretary of State has been having with the Leader of the House.