Pre-legislative scrutiny of the Children and Families Bill - Justice Committee Contents

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 CourtsBack

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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© Parliamentary copyright 2012
Prepared 14 December 2012