Tim
Loughton: It is slightly unfortunate that new clause 13
has been grouped with new clauses 17 and 18, which the hon. Member for
Mid-Dorset and North Poole will be speaking to in more detail; I will
just touch on them.
New clause 13
is another new clause that was tabled and debated in the House of
Lords; it was originally tabled by Lord Northbourne. He sought to
clarify and embed in law the responsibilities that a person assumes
when they accept the responsibility of caring for a child who will live
with them as a result of a residence order. It is critical for the
child and for the parents of that child, who the child is not living
with, that the child receives the parenting that they need. So this is
purely a probing amendment to engage in a discussion of what parenthood
is all about and what the responsibilities of parenthood are.
The Minister
and I can haveindeed, we have hadendless debates about
over-nannying states and ill-equipped parents and so forth. Actually,
however, it is fundamental to the Bill to establish what qualifies
somebody to take on the role of a parent if the birth parents are
deemed to be no longer capable of doing that.
The reason
that I raise this issue now is that, at the end of the debate in the
Lords, Lord Adonis indicated that the Government were prepared to look
at it further and I just wondered whether there has been any progress
since then. Therefore, the Minister will have the opportunity to update
the Committee if there is anything to report back on.
New clauses
17 and 18, grouped with new clause 13, are in the name of the hon.
Member for Birmingham, Yardley and other hon. Members, and I have added
my name to those of my hon. Friends who are supporting them. These new
clauses address an issue that has been the subject of much debate in
the press and on which we had hoped that there would also have been
some movement in Government as a result of the consultation that took
place on the transparency of the family courts. However, that
consultation largely came to nothing, so they deal with the problems of
transparency within the family courts.
I
have strong reservations about the watertightnessthat is not a
good word to useof the family court system. I have sat in on
family courts and my hon. Friend the Member for Crewe and Nantwich may
wish to make comments about his much greater personal experience. There
is great pressure on the officers and agencies that are privy to family
court proceedings, not least on social workers. There is a large
turnover in social workers attached to cases. I have given the example
of when I sat in court for a day and the judge told me that all the
social workers he had seen were different from the ones who had started
the cases he was judging. For those reasons, there is a propensity for
mistakes to happen and for wrong records to be taken. That can easily
happen, but often those wrong records are not corrected and erroneous
information is resurrected later in proceedings. Because different
social workers are often involved, that information is taken as
gospel. It
is essential that we provide for far greater transparency in family
court proceedings so that when mistakes are made they can be
challenged. It is important that it is seen to be challenged and that
the correct information is seen to be put on the record to the
satisfaction of all parties involved. I recognise that that must be
done sensitively. I am not coming up with a blueprint for how
transparency in the family courts could be achieved. Such procedures
would have to take account of the childs right to anonymity and
of whether members of the public should be allowed in to see the court
proceedings. That raises all sorts of potential issues. For example, a
vexatious neighbour might want to make mischief by sitting in on family
court proceedings. That could cause
problems. Despite
those problems, it should be possible to publish court proceedings for
the appropriate people so that there is a greater chance for scrutiny.
Connected persons might wish to say, Hold on, thats not
true, or This was thrown out at an earlier
stage, or It was pointed out that that was not
true. That would improve the
system. I
understand why reform of the family court system was largely terminated
when the Leader of the House was responsible for it. I had a private
meeting with her when she was very keen to progress this issue. The
confidentiality of childrens concerns was an important factor.
That was an interesting angle that not many people had considered at
the outset. However, the problem still remains. We see it as
constituency MPs, when it is usually aggrieved fathers who come to us.
Some of the more militant of them unhelpfully get involved with the
organisations that we can all think of, but which we need not name.
That escalates the matter, which is in nobodys interests, least
of all the children about whom we should care
most. The
new clauses would lay down a framework for publishing court proceedings
and for determining who had access to them. I thought that we had
addressed part of this issue in the Children Act 2004. At that time,
the sister of the Leader of the House was involved in a case where she
unwittingly disclosed information about a family court case to her,
which was deemed to be against the law. I thought that we amended the
2004 Act. I tabled an amendment whereby constituents could discuss
their cases with their MP without falling foul of the confidentiality
of the family courts. I understand that there are still
problems.
The
new clauses would start the ball rolling to improve the transparency
of, and therefore the confidence in, the family court system. These are
probing new clauses so the Minister can say why they may or may not be
practical. Perhaps he might explain what it would take for changes to
be made in the system to give greater assurances to the many aggrieved
people who come to us because of the court
proceedings.
Mr.
Timpson: I know from my own experience that there has been
an increase in the number of written judgments issued and approved by
judges in controversial family law cases, particularly those that have
then crept into the criminal arena such as cases of non-accidental
injury. There has also been an increase in cases being judged worthy of
publication through bad practice, not only from local authorities, but
from other agencies. Does my hon. Friend therefore agree that a
presumption that there would be a written judgment in a family case,
unless there was good reason not to do so, such as for public interest
immunity or the particular sensitivity of the case, would at least be a
starting point in opening up the family courts to a more transparent
way
forward?
Tim
Loughton: My hon. Friend makes a very good point, which is
obviously born out of his experience in this area. Clearly something
has to be done. Many hon. Members from their own experiences both with
their constituents and in their professional and legal backgrounds have
a contribution to make here. It is not a subject that will go away. An
increase in the publication of written judgments will go some way to
allay the suspicions that things are being swept under the carpet.
Again, as with our last debate, I am being careful not to scaremonger,
but this is an increasingly widely touted concern that needs to be
addressed. I will not detain the Committee for any longer. Hon. Members
want to make some comments and then we want to hear what the Minister
proposes as a way
forward.
Annette
Brooke: I would like to place on record that I am not in
the business of pandering to the media or any other people.
Nevertheless, cases come to light. There are questions and it is
difficult to answer the accusations at times in the current situation.
It would be for the greatest good if we could manage to progress
openness and transparency in some way. I was keen that we should have a
discussion in Committee because that is the most appropriate way to
tease out some ideas on the way forward. I was quite taken with the
suggestion from the hon. Member for Crewe and Nantwich, which I have
also heard made by
judges. I
am a little bit concerned about new clause 17 because it does not seem
to cover the welfare of the child. However, I appreciate the sentiments
behind it and I want more openness. A lot of progress was made and the
former Constitutional Affairs Committee published a report on family
courts. There was a lot of evidence on how we could progress to more
openness. Of course we must respect the views of young people because
we are repeatedly saying that we should seek their views, but I feel
that we should try to find a way around this to dispel the myths and
suspicion. New
clause 18, to which I put my name to ensure that it was discussed, has
some rather important elements. We have to assume that there will
occasionally be a miscarriage of justice. There will occasionally be
mistakes by medical experts. There will occasionally be mistakes
by social services staff. It concerns me that
although wild allegations are around us all the time, if we could just
put some more checks and balances into the system, we might be able to
tighten it up
more. The
specifics here, which seem fairly reasonable to meI am ready to
be contradictedare that someone should be able to go to the
police if they have evidence contrary to that which has been provided.
An example was given of two parents, one blaming the other for
maltreating the child. Although the silence aspect has been addressed,
false allegations could be made, and somebodyperhaps a family
membermight want to go to the
police. There
is also an issue about the right of the party whose child might be
taken away to see a further expert witness. I see the problem with
thatthey could go on and on with expert witnessesbut
there are a few well-documented cases in which the judge, when
publishing his views, has acknowledged that a wrong medical procedure
took place that led to a whole sequence of events. It is easy to see
that once one gets on the treadmill and it is suggested that an injury
is non-accidental, it can colour everything that happens. I would
always want to put child protection firstthe welfare of the
child is paramountbut there should be scope, for example, to
bring in ones own expert witness so some assessment could be
made in court.
1.45
pm The
new clause also includes Members of Parliament and their equivalents in
other parliamentary bodies. Many of us thought that that was dealt with
by an amendment to the Children Act 2004, but I am told that that is
not the case. It puts Members of Parliament in a difficult position
when people come to our surgeries and we are not sure what we can do or
whether we should be hearing the evidence. Some clarity on that is
needed. Surely somebody can be acknowledged who is totally trustworthy,
so people can bring information to them and seek their
advice. Those
are just a few comments. I genuinely want to tease out as much as we
can in Committee, because I suspect that we will return to the issues
on Report, and I would like to get as much on record here as
possible.
Kevin
Brennan: I understand the hon. Ladys comments. As
the hon. Member for East Worthing and Shoreham pointed out, my hon.
Friend Lord Adonis undertook to consider clause 13 further, and we have
done so. At the specific suggestion of Lady Butler-Sloss, the
Government sought the views of the president of the family division of
the High Court and, through him, other senior judges with experience of
family cases and members of the Family Justice Council. The common view
of those experienced practitioners was that they have had no
difficulties managing cases using the current wording of section 3 of
the Act, which defines parental responsibility
as all
the rights, duties, powers, responsibilities and authority which by law
a parent of a child has in relation to the child and his
property. A
number of senior judges who were consulted further foresaw problems
with a fuller definition such as the one proposed. For example, such a
definition would
risk becoming a focus of conflict or a cause for further argument
between parents, both of whom say that the statutory definition
entitles them to do something unless prohibited from doing so. The view
is summed up in a letter of advice sent to Lord Adonis by the president
of the family division saying that the proposed amendment
is neither
necessary nor
helpful. He
believes that
to introduce
and define a new concept of the responsibilities of parenthood in the
form of amended section 8(4A) will create scope for argument and
confusion in an area in which none of the many judges I have canvassed
at all levels has ever found the existing definition to present any
practical difficulties.
The
Government have also considered referring the matter to the Law
Commission, recognising that the commission itself recommended the
current definition in its 1988 report Family Law: Review of
Child Law: Guardianship and Custody. However, setting to one
side the time that it might take to hear further from the commission,
the view of those consulted was that, in the absence of any substantive
concerns about the current position, such a referral is
unnecessary. It
is worth noting that during the course of the consultations, our
attention was drawn to a leading judgment by the then Mr.
Justice Wall, in the case of Re F (Shared Residence Order)
[2003] 2 FLR 397, which set out an extended list, the contents of which
might be relevant in residence order cases. That case law approach is
echoed in one of the parenting plans, Putting Children First -
a planner for separating parents, which was published by my
Department and is now distributed primarily by the Children and Family
Court Advisory and Support Service, with more than 70,000 copies
distributed last year.
I believe
that the intention behind the new clause, as was made clear when it was
first considered in the other place, is to assist the courts, parents,
relatives and, above all, the children who might become the subject of
residence order proceedings. It would do so by ensuring that those
acquiring parental responsibility by that route are clear about what
they are taking on and that they are suitable to fulfil that vital
role. That is an extremely laudable aim, but given the strength of the
advice we received and the expertise of those whose views have been
provided to us by the president of the family division, the Government
have concluded that those whom we want to assist, namely the children
involved, would be better served by the continuation of the status quo
in this case and that there are positive advantages to that position. I
am sure that the Committee will understand that. The president has
advised
that the
full range of powers and duties of the parent...change and develop
as both the child and the law and practice of parenting change and
develop. The
Government accept that view and consider that there should not be a
refinement or further iteration of the meaning of parental
responsibility within the
Act. On
new clause 17, I understand the sentiments expressed in the debate and
that the new clause is intended to make the family courts more open by
requiring them to provide written judgments to all parties in family
cases and allowing those people receiving judgments and other documents
to publish them further, potentially even in the
media. The arrangements for providing judgments in
family courts depend on the level of the court involved, as I am sure
hon. Members know, and
courts are always required to explain their decisions to the parties,
but there is no requirement in the county court or the High Court for
the explanation to be given in writing; often, they are only given
orally and a tape recording is made. It is only in the family
proceedings court that there is a requirement to produce and issue
written reasons to the parties. Like the hon. Member for East Worthing
and Shoreham and other hon. Members, I have sat in on those courts and
observed the proceedings.
The Ministry
of Justice has consulted twice, as hon. Members will know in recent
years, on increasing the openness of family courts, and central to that
has been the recognition of the need for better provision of
information about the work of the family courts. It needs to be
accessible to those who are involved in the proceedings, but it is also
important that more information is available to the general public, for
the reasons hon. Members have outlined during the debate. We need to
help people to understand how the courts make those difficult and
important decisions so that the public can have confidence in the
family justice system.
The decision
on whether to publish judgments or permit information from a case to be
published more widely rests with the courts. In broad terms, it makes
that decision by balancing the best interests of the child with the
interests of justice and the public interest in the issues raised by
the case. It will include consideration of the rights of the parties
and the media to freedom of expression under article 10 of the European
convention on human rights and the European convention on the rights of
the child, as well as consideration of the parties rights to
privacy under article 8 of the convention on human rights. When the
Court of Appeal or the High Court considers the case to have
significant public interest, it is common practice for the judgment,
which is anonymised to protect the interests of the parties,
particularly the children involved, to be published in the law reports
and on the British and Irish Legal Information Institute
website. We
want to encourage more judgments to be published, but need to balance
that with the demands that publication places on the efficient
operation of the system. We must not risk further delays in the family
courts when we have been working hard to reduce delays. Those delays
directly impact on the children and parents involved in proceedings.
Last summer, the Ministry of Justice announced that it would be
piloting written judgments when a final order is made in certain family
cases, and I can confirm that an announcement about those pilots will
be made to the House after the summer.
New clause 18
would amend the Children Act 1989 so that the courts could not prevent
the disclosure of evidence to the police or any regulatory body. It
would make such disclosure lawful while the proceeds are ongoing and
make it lawful to provide information to an MP, a Member of the Welsh
Assembly or a Member of the European Parliament. It would also make
disclosure lawful for obtaining advice, performing research and
ensuring law enforcement or compliance with regulatory proceedings. I
understand that the new clause is intended to enable people who find
themselves and their children in family proceedings to make wider
disclosure of information from those proceedings than is currently
possible without potentially being in contempt of court.
The
disclosure of information for those involved in family proceedings is
an issue that interests hon. Members
across the House. I understand that the intention is to overcome some of
the problems faced by people involved in family proceedings who wish to
disclose information or documents that form part of the proceedings to
their MP, for example, for any number of reasons. I understand the
concern that prompted the new clause. The changes that have already
been made are not entirely complete, because there is a problem with
what can be disclosed to an MP while proceedings are
ongoing. For
are a number of reasons, I cannot agree to the new clause. First, in
October 2005 we changed the rules of court that govern the disclosure
of family court information, making it easier for people involved in
family proceedings to get advice and support and to disclose certain
information in given circumstances without the prior permission of the
court. Those changes sensibly allow people to share information
legitimately with close family members, McKenzie friends and health
professionals. We also made changes so that people can share
information with the police to help with a criminal
investigationas the hon. Member for Crewe and Nantwich
mentionedor to protect children. People may also share some
information with their MP to investigate a complaint or raise a
question of policy or procedure. Those changes have helped people to
get help and support. They have also made it easier for people to make
a complaint to the General Medical Council. After seeing three years of
the changes in action, we think that further changes may be needed.
That is why in June last year, the Justice Secretary consulted further
on the rules and whether further changes were
needed. The
second reason for not accepting the new clause is that this is a
difficult and sensitive area, so we must be careful in our approach. We
must balance one individuals right to privacy against another
individuals wish to share documents or details of court
proceedings that might breach that privacy. As hon. Members are aware,
many of the documents we are talking about contain highly sensitive and
personal information, including medical records, details of
peoples mental health status and so on. We need to be alert to
how damaging it could be for an individual if such information was
disclosed inappropriately. However, we must also keep it in mind that
people involved in family proceedings will often seek advice and
support, and we must ensure that they can do so in a simple and timely
manner. That is why we consulted on disclosure last
year. As
I have mentioned, the Government will make an announcement to the House
after the summer, following the consultation, and make further detailed
proposals. In developing our policies, we want to work with the Family
Procedure Rule Committee on any amendment to court rules. Given that
work is ongoing and that there is an impending announcement from the
Ministry of Justice, it would be premature at this stage to consider
accepting new clauses 17 and 18. I think that we are all travelling in
the same direction and want to achieve the correct balance. In the
light of what I have said, I hope that hon. Members will not press the
new
clauses.
|