Children and Famlies Bill

Memorandum submitted Magistrates’ Association (MA) (CF 07)

The Magistrates' Association represents the views and experiences of family magistrates sitting in Family Proceedings Courts (FPCs) in England and Wales. There are over 5 – 6,000 family magistrates selected from all backgrounds, age groups and ethnic groups. They are unpaid but receive special training for family court work. Sitting as a bench of three, family magistrates - with their legal adviser - make final decisions and orders for both public and private law applications.

The MA would like to present our views on how aspects of this Bill below will affect family courts in practice. Our views have been formulated from our specialist Family Committee, which contains representatives of family magistrates drawn from all over England and Wales.

Children and Families Bill – summary

· Adoption – we feel there should be a provision in the Bill to have the child’s voice heard during the adoption process.

· Ethnicity – whilst ethnicity should not necessarily be an overriding consideration in a child’s adoption it is important that this should be given due regard.

· Contact - the court should continue to be able to consider contact arrangements on application from parties if they disagree with the LA position to ensure that the child’s best interests are protected and there should be a greater range of sanctions for parties who breach contact arrangements.

· Mediation - it is not clear in what circumstances the requirement for a mediation, information and assessment meeting would not apply and we feel the situation where domestic violence is involved should be specified within this Bill.

· Parental involvement – we support the principle of cooperative parenting but we believes that the current amendment is potentially damaging to children’s best interests as it appears to compromise the welfare principle by elevating the rights of parents.

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· Timescales - we believe that 26 weeks for care cases should provide a reasonable target that does not tie the court’s hands. Based on the individual case, it is the responsibility of the court to decide length. We are also concerned that the proposal for specific extensions to this timescale for 8 weeks could create delays.

· Care plan – we feel the court should retain the ability to consider other aspects of the care plan than just permanence considerations where it is necessary in the interests of the child.

More detail on these and other points is below.

Part 1

Adoption

General comment:

1. There appears to be no provision for the rights of children in the adoption process to have their voices heard. This is especially relevant if adoption processes are being accelerated, which is generally in children’s best interests.

Clause 2: Repeal of requirement to give due consideration to ethnicity: England

2. The MA is concerned that while ethnicity should not necessarily be an overriding consideration, the repeal of this section would have the effect of prohibiting local authorities from giving proper consideration to ethnicity where appropriate as one of a number of considerations. Encouraging adoption from all sections of the community requires as much flexibility as possible in the context of the needs of each child and the ability of prospective adopters to meet those needs, but to exclude consideration of ethnicity could act against a child’s best interests.

2.1 We note that Section 46 says adoption agencies need to have regard to background relevant characteristics including racial origin.

2.2 We would like to see clearer guidance on the consideration of ethnicity as one of several factors in the process of adoption.

Clause 4: Adoption support services: personal budgets

3. Although it is not strictly for us to comment, the MA supports the insertion of a clause that enables LAs to prepare personal budgets. Agreed costs should be adequate in all cases.

Clause 7: Contact: children in care of local authorities

4. Ref (3) - amendment to 6A –

Section 34 of the Act refers to contact arrangements of a child in care. The court usually agrees the contact arrangements and indeed is required to consider the issue of contact.

4.1 Under 34.4 the Local Authority can refuse contact for up to 7 days, but thereafter it is a court order. The court should continue to be able to consider contact arrangements on application from parties if they disagree with the LA position to ensure that the child’s best interests are protected.

4.2 Consideration should be given to having a greater range of sanctions for parties who breach contact arrangements in these circumstances

Clause 8: Contact: post-adoption

5. This reflects an increase in various types of post-adoption contact with birth families but consideration should be given to the consequences and sanctions for parties breaching post-adoption contact arrangements as this can have serious adverse consequences for children concerned.

5.1 We would suggest attaching a written warning, similar to that which already applies to private law orders under s8.

Part 2

Family Justice

Clause 10: Family mediation information and assessment meetings

Requirement to attend family mediation information and assessment meeting

6. Ref (1): The MA supports the overall objective of promoting the resolution of disputes away from court wherever possible. We therefore support the provision requiring the person who proposes to make the application to first attend a meeting to receive information about mediation and other means of resolving a dispute without going to court.

6.1 We believe this compulsory attendance should apply to all family cases including those that are not funded by legal aid.

6.2 We suggest that this proposal be evaluated by the Ministry of Justice in the light of the impact of the new restrictions on legal aid in private law cases that come into effect in April 2013. The evaluation should take place after the changes have been in effect for at least 6 months.

6.3 Some parties may have difficulties in meeting the cost of the MIAM and this may affect the requirement for them to attend so the impact of this should be reviewed after an appropriate period.

6.4 Ref (2) (a): It is not clear in what circumstances the requirement for a mediation, information and assessment meeting would not apply. This appears to be subject to the consequent Family Procedure Rules, but it is important to clarify these exceptions.

We feel the situation where there is evidence of domestic violence is so serious that this should be a specific exemption within the legislation.

6.5 It is important to be clear who has the power to decide whether the requirements have been met before a court application can proceed. The MA believes that this is a judicial rather than an administrative decision.

Welfare of the Child: Parental Involvement

Clause 11: Welfare of the Child: Parental Involvement

7. Ref (2) proposed 2A

The MA believes that this amendment is unnecessary and potentially damaging to children’s best interests as it appears to compromise the welfare principle by elevating the rights of parents.

7.1 The proposed amendment about the presumption for involvement of each parent unless the child is at risk of suffering significant harm is unnecessary. There is already a general presumption that both parents should be involved in a child's upbringing. But there is a danger that the new provision could be interpreted as requiring some form of shared parenting in terms of residence.

7.2 Any shift in emphasis away from the paramountcy principle could cause problems for the court over the degree and amount of involvement. Representations could become very complex and could lead to an increase in contested applications.

7.3 In addition the amendments do not take into account parents who have not had a meaningful relationship with the other parent or the child. Under current legislation all circumstances are considered and a structured decision is reached in the best interests of the child - not the parent(s).

7.4 There is no need to change this current position. The MA therefore proposes that this amendment is deleted.

Clause 12: Child arrangements orders

8. The MA supports the replacement of residence and contact orders by the Child Arrangements Order to help focus attention on children’s needs and reflect the paramountcy principle and lessens the perception of ‘winners and losers’ in court cases.

Clause 13: Control of expert evidence, and of assessments, in child proceedings

9. The MA supports the principle in this provision that the use of expert witnesses has to be necessary to assist the court in resolving the proceedings and the provisions contained in Clause 13 which enable this. If the local authority pre-proceedings work and its application are well prepared the need for expert evidence is clearer.

9.1 We support the principle that the court should be in full control of the admissibility of expert evidence.

9.2 However, regarding the factors mentioned in Subsection 7 (g), including cost, the MA is concerned that placing too much emphasis on the cost of expert evidence could create difficulties and risk compromising the welfare principle.

9.3 While costs are an inevitable consideration, if the court deems that certain expert evidence is necessary to assist in its decision making, cost alone should not be sufficient to exclude that evidence and we feel that guidance to this effect should be made clear in the Family Procedure Rules.

9.4 (11) The MA supports the changes in relation to Section 38(6) assessments, with a similar requirement to be ‘necessary’.

Clause 14: Care, supervision and other family proceedings: time limits and

Timetables

10. The MA supports the principle of the 26 weeks time limit for the majority of public law cases. However, there will inevitably be some cases where the best interests of children require that this time limit is extended.

10.1 We believe that 26 weeks should provide a reasonable target that does not tie the court’s hands. Based on the individual case, it is the responsibility of the court to decide length. We support a practice direction being issued with guidance for cases that would require completion in over 26 weeks.

10.2 (3) (7) We have no objection to the need for specific justification for any extensions beyond 26 weeks, but such justifications should not be prescriptive or exclusive, and allow courts sufficient flexibility in the circumstance of each case.

10.3 The parameters for deciding whether cases are exceptional and require extension beyond 26 weeks need to be set out in a practice direction to enable case management decisions to be made justly.

10.4 (3) (8) We believe that this provision should be amended to delete the specific time period for extensions, but to substitute a requirement that the court when granting an extension beyond 26 weeks does so only for a specific reason that is in the best interests of the child concerned, and that a timetable is set out accordingly, with a clear expectation of how long that extension is likely to be. Our reasoning and additional points on this are below:

10.5 The MA is concerned that the proposal for specific extensions for 8 weeks (or any other specified period) could create problems. In particular there is a risk of delay for possible contested hearings over such extensions focusing on the process rather than the substance of the care application. Any decisions on extensions should be firmly for the court to decide with the best interests of the child remaining paramount.

10.6 If applications are properly brought by the Local Authority with pre-proceedings work carried out and assessments done, it should be possible for the timetable for the child to be agreed so that exceptional and complex cases requiring longer than 26 weeks can be identified early on, if this is in the best interests of the children and would not be detrimental to their wellbeing. In such cases it would still be necessary to set an end date for the conclusion of the case based on the timetable for the child.

10.7 Hearings to assess any extension to the 26 weeks should be time limited to focus on essential matters only.

10.8 It is not clear whether there is a limit on the number of such successive extensions that can be granted.

10.9 It is unclear whether there will be a right of appeal against refusal and if so what would be the route of such appeals.

10.10 (4) The MA supports the proposal to end the 8 weeks limit on Interim Care and Supervision Orders in the context of the other new provisions. However, we are concerned that the inability of parties to challenge ICOs once they are made could lead to more contested ICO hearings.

Clause 15: Care Plans

11. Ref (1) (3A) (a) The MA agrees that the court is required to consider the permanence provisions of the care plan.

11.1 (b) However the MA is clear that the court should retain the ability to consider other aspects of the care plan where it is necessary in the interests of the child.

11.2 We therefore propose that this wording is amended to say that courts should consider the remainder of the care plan, where such consideration is necessary in the best interests of the child.

11.3 The provision that the court is ‘not required’ to consider other aspects of the care plan is too vague and could be interpreted to mean that the court should not do so.

11.4 In many cases the care plan, or one or more aspects of it, are crucial issues as to whether parents will agree (or at least not oppose) orders or fully contest them. If the court is excluded from any significant consideration of care plans, it could actually end up with more cases being fully contested and therefore add to delay rather than shortening proceedings.

11.5 Therefore, there needs to be a balance between courts not trying to micro-manage care plans, whilst taking into consideration aspects that go to the heart of the local authority application. Every case is different and should be treated on its merits with full regard to the paramountcy principle.

11.6 The MA supports the proposal with regard to the court’s consideration of contact arrangements.

March 2013

Prepared 6th March 2013