1 Introduction
1. On 12 September 2012 we announced our inquiry
into Pre-legislative scrutiny of the Children and Families Bill,
prompted by the Government's publication of draft clauses on family
justice.[1] The clauses
followed publication of the Family Justice Review's final report,[2]
and the Government's response to that report. We had considered
some of the issues within our report Operation of the Family
Courts,[3] namely:
a general overview of the Family Justice Review's interim report;
underpinning principles (including consideration of legislating
for shared parenting); encouraging the use of mediation in resolving
matters before they reach court; case management; and expert witnesses.
2. Relationship breakdown and the care proceedings
process are highly emotive areas. Throughout our inquiry we have
kept at the front of our minds that the primary purpose of all
interventions in family relationships must be to protect the safety
and wellbeing of children, and that this principle should guide
our conclusions and recommendations on the draft clauses. We have
endeavoured to consider the voice of the child in what is an adult
designed and led process, either by specific questioning in relation
to mediation, or by taking into account evidence from groups that
represent children, or analysing research that asks for children's
views.
3. We also recognise, as stated by many of
our witnesses, that this is the start of a period of great change
for the family justice system with the coming into force of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012, the
proposed creation of a single Family Court in the Crime and Courts
Bill, and the proposed changes to family justice, in both public
and private law, that are the subject of this inquiry.
4. Our terms of reference focused on the questions
arising directly from the draft clauses. The draft clauses make
provision for the following areas of family law:
- Mediation Information
and Assessment Meetings;
- Child arrangements orders;
- The use of expert evidence;
- The introduction of a 26 week time limit in care
cases;
- Judicial scrutiny of care plans;
- Administration of divorce cases;
- Shared parenting.
5. The Government asked us to report in early December[4]
and intends to introduce its Children and Families Bill in January
2013. Our timetable has been influenced by the publication date
of the family justice draft clauses in September 2012, the conclusion
of the Government's consultation on enforcement of court orders
and co-operative parenting[5]
in September 2012, and publication of the Government's response
to the Co-operative Parenting Consultation and the late publication
of the draft clause on shared parenting in November 2012. It has
not proved possible for us to meet the Government's request that
we report in early December, but we nevertheless expect our recommendations
to be taken fully into account by the Government before they introduce
the Bill.
6. The Bill will cover a wide variety of topics relating
to children and families, of which the family justice clauses
will form one part.[6]
The Bill does not cover some areas of family law or practice which
some of our witnesses[7]
would like to see included in statute, for example, Family Group
Conferences on which we commented favourably in the Operation
of the Family Courts.[8]
We have not been able within the timetable for this inquiry to
look beyond scrutiny of the draft clauses.
7. We received 67 submissions from witnesses, as
well as considering the responses to the Co-operative Parenting
Consultation. We took oral evidence from the witnesses listed
at the end of this Report. We are grateful to all those who took
the time to contribute to our inquiry.
8. As stated above, on the topics of shared parenting
and enforcement we received copies of responses to the Co-operative
Parenting Consultation. We had expected to receive draft clauses
on both areas; in the event, we received one clause on shared
parenting, and on 21 November 2012 were told by Lord McNally,
Minister of State at the Ministry of Justice, that further consideration
was being given to the question of enforcement of Court orders.[9]
Without receiving a draft clause to scrutinise, and with the short
timetable imposed by the Government's proposed legislative timetable,
we did not call for oral evidence or consider any of our own written
evidence on this topic (although we did have the Co-operative
Parenting Consultation responses which included a variety of views
on general enforcement policy issues), and we do not make detailed
recommendations within this Report.
9. Chapter 5 contains the draft clauses with the
revisions we recommend should be made before the Bill is introduced,
except for the small number of recommendations which are not suitable
for transposition immediately into a revised draft clause because
further analysis or data collection is required. We thank the
Legal Committee of the Greater London Family Panel for their submission
which contained suggestions for detailed drafting amendments,
some of which we have adopted.[10]
Lessons learned
10. The time available for this inquiry was very
short. The first set of draft clauses were published in September,
and in order to publish our Report before Christmas we have had
to reduce the amount of time given to our witnesses to respond
to the Call for Evidence, and the number of evidence sessions
we would normally hold.
11. It is fortunate that many of the topics covered
by the draft clause had already been considered by us in our Report
Operation of the Family Courts, and also in the work of
the Family Justice Review; we are grateful for their work in this
area. Without this background work, completion of our inquiry
within the Government's timetable might not have been possible.
12. Our inquiry process was also helped by the Government's
agreement to send us the consultation responses to the Co-operative
Parenting Consultation; this sped up our processes considerably.
We recommend that the Government
consider agreeing to share consultation responses for all pre-legislative
scrutiny inquiries.
13. It was unfortunate that the clause on shared
parenting was produced much later than the other draft clauses;
indeed we were required to rearrange our evidence sessions to
accommodate this delay. We
recommend that, in future, all draft clauses are published for
the start of a Committee's inquiry, particularly where a Committee
is working to a shorter inquiry timetable.
14. We expected to receive a full set of Impact Assessments
for all the draft clauses, but did not in respect of the draft
clause on shared parenting. Impact Assessments are an important
source of information in the pre-legislative scrutiny process,
both to challenge policy and the drafting of clauses, and also
to provide answers to questions raised by our witnesses, removing
areas of doubt about policy and doing away with a need to ask
questions to resolve these areas of doubt of our witnesses or
Ministers in our oral evidence sessions. We
recommend that Impact Assessments are published for all draft
clauses at pre-legislative scrutiny stage.
15. We thank
the Ministry of Justice and Department for Education for their
speed in answering our questions throughout the inquiry, and in
particular, the Ministry of Justice for producing additional annexes
to its written evidence in answer to our queries. However, legislative
change in an area which affects so many children and families
ought to be considered in an orderly and measured way, and Parliament
cannot ensure this unless Government at every level acts accordingly.
1 Department for Education and Ministry of Justice,
Draft legislation on Family Justice, Cm 8437, September
2012. It consists of nine draft clauses and one draft schedule,
referred to in this Report as the 'draft clauses'. Back
2
Family Justice Review, Final Report, November 2011 (from
here on referred to as the Norgrove Report). Back
3
Justice Committee, Sixth Report of Session 2010-12, Operation
of the Family Courts, HC 518-I, referred to in this Report
as Operation of the Family Courts. Back
4
Letter from Sarah Teather MP, Minister of State for Children to
Sir Alan Beith, Chair of the Justice Committee, 5 July 2012 (not
published). Back
5
Department for Education and Ministry of Justice, Consultation:
Co-operative Parenting Following Family Separation: Proposed
Legislation on the Involvement of Both Parents in a Child's Life,
launched June 2012. (from here on referred to as the Co-operative
Parenting Consultation). Back
6
Other parts of the Bill have been published in draft and scrutinised
by other Committees. Back
7
Ev w76 [Note: references to 'Ev wXX' are references to written
evidence in the volume of additional written evidence published
on the Committee's website] Back
8
HC (2010-12) 518-I, para 88 Back
9
Qq 143, 144, 154, 155 Back
10
Ev w69 Back
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