Conclusions and recommendations
Lessons Learned
1. We
recommend that the Government consider agreeing to share consultation
responses for all pre-legislative scrutiny inquiries. (Paragraph
12)
2. 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. (Paragraph 13)
3. We recommend that
Impact Assessments are published for all draft clauses at pre-legislative
scrutiny stage. (Paragraph 14)
4. 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. (Paragraph
15)
Data
5. We
are pleased to note the progress that has been made within the
family justice system to improve data collation and analysis,
for example the new Care Monitoring System; however, this affects
only the public law sphere. We recommend that the Government ensures
that the effect of the individual draft clauses is recorded and
analysed as well as the combined effect of the draft clauses.
We have found the evidence of the Australian Institute of Family
Studies to be extremely detailed and helpful on a number of private
law topics, as did the Norgrove Report and various organisations.
We recommend that the Government considers providing funding for
a similar scale project within England and Wales, to pool research
and provide a platform for future policy formation and discussion.
(Paragraph 18)
Public Law
The role of local authorities
6. All
our witnesses agreed that accurate, comprehensive and detailed
pre-proceedings work was vital to reducing delay within the care
proceedings process; we agree. As part of this Inquiry we have
not given detailed consideration to social work training, but
we commend the work of the Tri-borough Pilot and Hampshire County
Council in assessing, training and managing their social work
teams to reduce delays. We recommend that their models of social
work and social worker training are disseminated to all local
authorities as examples of effective good practice. (Paragraph
34)
7. At local authority
level we consider that a 26 week time limit is beneficial and
feasible in the majority of cases. In terms of the concerns raised
by the Kinship Care Alliance, we consider that this forms part
of the wider discussion of the need for high quality and comprehensive
pre-proceedings work by local authorities. Where such work is
performed competently and efficiently, we do not think that wider
family members or family friends will be excluded from the process.
However, this is an area where we recommend that the Government
reviews the practical effect of the clause over its initial period
of operation to ensure that kinship carers are not excluded from
the Local Authority or Court decision-making. (Paragraph 35)
In the Courts
8. We
welcome and commend the extensive work to enhance judicial training
that is being undertaken. (Paragraph 37)
9. We agree with the
Family Law Bar Association that [lack of flexibility in granting
extensions to the 26 week limit] is a practical problem, that
will simply build further delay into the system as cases that
are clearly likely to take longer than 26 weeks are repeatedly
referred back to the Court in order for extensions to be granted.
We also agree with the NSPCC that where intervention projects
have been proved to be effective, such as the Family Drug and
Alcohol Court in London, they must be allowed time to work with
children and families, without needing to apply for extensions
mid-programme. This should apply equally to cases where it is
clear that the behaviour of the parent or parents has changed
or will change to allow the child to remain with its parents.
(Paragraph 43)
10. We recommend that
[...] draft clause [4] is amended to increase flexibility and
allow judges to identify cases that are likely to take longer
than 26 weeks at case management hearings throughout the proceedings,
and to take such cases out of the 26 week timetable and/or to
allow directions to be given beyond 26 weeks, rather than requiring
constant re-listing and fruitless, taxpayer-funded, extension
hearings. We consider that allowing limited flexibility for the
disposal of applications for care or supervision orders, but greater
flexibility in making interim care and supervision orders [...]
has the potential to create a disjointed judicial case management
process. (Paragraph 44)
Drafting revisions
11. We
recommend that the Government redrafts clause 4 to follow the
Norgrove Report recommendation that "The power to set a time
limit should be introduced in primary legislation. Secondary legislation
and guidance should specify the actual time limit and provide
the operational detail." Given the importance of the timetable
and the need for parties to be aware of and contribute to any
decision to vary the limit, we further welcome the confirmation
from the Government that the affirmative resolution procedure
would apply to the secondary legislation varying the time limit.
(Paragraph 51)
12. Consideration
should be given to changing the word 'exceptional' to a more neutral
term or removing it so that the clause reads "[...] extensions
are not to be granted routinely, and require specific
justification". (Paragraph 52)
Cafcass
13. The
primary responsibility for parliamentary monitoring of Cafcass
as an organisation rests with the Education Committee, but we
will continue to take a close interest in its impact in the Court
system. (Paragraph 55)
INTERIM CARE AND SUPERVISION ORDERS
14. We
conclude that [the provisions in draft clause 4 on interim care
and supervision orders are] a useful legislative change, which
allows flexibility for judges in effectively and proportionately
managing cases. As to the concerns that the clause may make it
more difficult to involve the wider family and friends of the
family, we consider that improvements to pre-proceedings work
should enable kinship carers to be involved at an early stage
in the care process. (Paragraph 61)
EXPERTS
15. It
is not clear to us why the permission test for experts [in draft
clause 4] is "necessary to assist the court to resolve
the proceedings justly" whereas the test for the 26 week
limit extensions is "necessary to enable the court
[...]" [our emphasis].
We recommend that the Government explains the need for different
wording, or chooses only one word for consistency. (Paragraph
63)
16. The draft clause
applies to public and private law cases, and indeed it is appropriate
and sensible for a single permission test for expert evidence
to apply to all cases involving children. The Impact Assessment
states that the Government has "[...] assumed that the changes
will not affect how experts are used in private law cases involving
children." We recommend that the Government clarifies whether
the definition of "children proceedings" will be the
same as current Family Procedure Rules Part 12, or whether a new
definition will be recommended for insertion into Part 12 or another
Part.
(Paragraph 64)
17. We [...] conclude
that the draft clause on experts is a proportionate response,
but that its effective operation in practice will be dependent
on improvements in social worker training, assessment skills,
reporting and presentation. We are concerned by anecdotal reports
that judges are already applying the test in the draft clause
in deciding applications for permission to rely upon expert evidence,
and that the test is being applied too strictly. We recommend
that the Ministry of Justice monitors whether the number of successful
appeals against case management decisions refusing expert evidence
increases in order to assess whether the test is being applied
too strictly. (Paragraph 72)
18. We make the following
recommendations for further smaller revisions to draft clause
3:
a. 3(2) and (5) - the two sub-clauses appear
to be the same. We recommend that (5) is deleted;
b. (9) - whilst helpful within Explanatory Notes
a number of definitions are already defined elsewhere within the
Children Act 1989 and should not be repeated here. In addition,
it is not clear why "authorised applicant" has been
used rather than "authorised person" as in s.31 Children
Act 1989; if there is a difference it should be explained in the
Explanatory Notes. (Paragraph 73.b)
Legal Services Commission (LSC) funding
19. We
share the concern of our witnesses that statements of the type
made by the LSC about trends in the number of hours requested
to undertake expert assessments when based on anecdotal information,
are unhelpful unless supported by robust evidence, as they can
come to be repeated as fact. (Paragraph 77)
20. We recommend that
the Government urgently reviews the system of payments by the
LSC to experts. We further request that firstly, the Ministry
of Justice provides us with a detailed response to the criticisms
raised by our witnesses, and confirm that Wall LJ's guidance is
being followed by the LSC, and secondly, that they provide us
with a further update on progress made to meet the criticisms
by the end of April 2013. (Paragraph 78)
Judicial scrutiny of care plans
21. We
conclude that the draft clause on care plans should be revised
to make express reference to contact with the birth family, as
recommended in the Norgrove Report. We consider that the concerns
of groups such as the NSPCC about the restriction of the judge's
scrutiny role are apposite as to the draft clause on paper; however,
the evidence we received from the Family Judiciary and from Ministers
is that in practice judges will retain a discretion to look beyond
the permanence provisions, where they think it is appropriate
to do so. If such a level of flexibility is retained by the words
"is not required to consider" of proposed new s.(3A)(b)
we doubt whether the draft clause will have any effect in refocusing
judicial scrutiny. We suspect that, similarly to the draft clauses
on the 26 week time limit and new permission tests for experts,
if the quality of social work reports and care plans improves,
judges are likely to have confidence in focusing solely on the
permanence provisions of the care plan, exercising a wider scrutiny
beyond permanency issues in appropriate cases. (Paragraph 86)
22. We are encouraged
by the Minister's evidence to us on the steps being taken to improve
the performance of Independent Reviewing Officers, and would like
to receive copies of the reports of the reviews which the Government
has commissioned in April 2013. (Paragraph 90)
Private Law
Mediation
23. Much
of the detail of draft clause 1 as to the operation of family
Mediation Information and Assessment Meetings (MIAMs) will be
set out in the Family Procedure Rules, and we found the submission
from the Government on MIAMs helpful in clarifying that the "Government's
wish is largely to mirror the detail of the current Practice Direction".
We agree with the Government that, because of the level of procedural
detail needed, it is appropriate that the detailed operation of
the draft clause is set out in the Family Procedure Rules rather
than in primary legislation.
(Paragraph 93)
24. The Government's
evidence to us made clear that they will ask the President of
the Family Division to agree to amend the current definition of
domestic abuse in the Pre-Action Protocol to mirror that in the
Legal Aid, Sentencing and Punishment of Offenders Act 2012 in
the provisions for exemption from MIAMs. We welcome this clarification.
(Paragraph 96)
25. We conclude that
well-trained family mediators should be just as able as legal
practitioners to identify cases of domestic abuse that should
be exempt from MIAMs or mediation; however the responsibility
for filtering out domestic abuse cases from the MIAM process should
not solely rest on mediators. We ask the Government to consider
the options suggested by our witnesses, and to work with recognised
mediation organisations to clarify what advice mediators should
seek and from whom, if they are concerned about a party's welfare,
and then put that agreed system into place. (Paragraph 100)
26. The MIAM process
is an assessment and information providing meeting, and any opportunity
for the voice of the child to be heard must be considered within
these parameters; however, the child's voice is important and
may have a role in persuading parents to mediate, or to focus
discussion within the MIAM. We recommend that the Government look
again at the MIAM process with recognised mediation organisations
to produce guidance on how the child's voice can be heard within
the MIAM, with such guidance being applicable to all mediators
undertaking MIAMs (not just those that are members of recognised
mediation organisations). (Paragraph 101)
27. We again recommend
that privately-funded mediators should have to meet the current
requirements for mediators undertaking legal aid work set by the
Legal Services Commission. This must be a priority and should
be included in the draft clause. (Paragraph 103)
28. We agree that
court officers should not be deciding upon the merits of whether
a party has complied with the MIAM process or not, but, the draft
clause as currently drafted does not make this clear, and leaves
the process open to the problems identified by the Association
of Lawyers for Children and other witnesses. The draft clause
should be revised to clarify that where a decision about the merits
of compliance must be made, that is a decision for a judge. (Paragraph
107)
29. We conclude that
there is no obvious alternative to the placement of the trigger
for MIAM attendance than at the Court application stage, particularly
for privately-funded parties. We note National Family Mediation's
evidence to us that 83% of people go to a lawyer first, and we
conclude that early MIAM attendance is best encouraged by the
Government working with legal practitioners and mediators, to
try to encourage and disseminate best practice. It is not something
which is suitable for translation into the draft clause.
(Paragraph 109)
30. We recognise the
difficulty in requiring compulsory attendance at a MIAM by a party
who, as a respondent, may have no wish to attend Court; however,
we ask the Ministry of Justice to work with the Family Judiciary
to develop a consistent practice across the Courts in adjourning
cases for MIAM attendance. We recognise that each case will be
different, and that in many cases, delay for compulsory respondent
MIAM attendance will not be suitable, but we consider that there
should, in practice, be an equal and universal requirement for
MIAM attendance for applicants and respondents. We do not recommend
inclusion of the requirement in the draft clause, because we conclude
that as a matter of Court practice and procedure, it is more appropriately
included within the Family Procedure Rules. (Paragraph 112)
31. We are pleased
that the Government has confirmed that legal aid funding will
be available for the MIAM as well as mediation. (Paragraph 115)
32. We recommend that
the Government considers the inclusion of a time-limited exemption
to prevent parties from having to pay for repeat MIAMs before
applying to the Court. We have considered the National Family
Mediation's suggestion of three months, but consider this to be
too short where parties have engaged in MIAM and mediation, and
therefore are unlikely to need to be provided with repeat information
about how the process operates. We suggest the inclusion within
the Family Procedure Rules, Pre-Action Protocol, Annex C, of a
period of six months, after which there would be a potential benefit
in their dispute being re-assessed for suitability for mediation,
and we ask the Government to discuss this recommendation with
the Family Procedure Rules Committee. (Paragraph 119)
33. We ask the Government
to clarify what policies and practical measures will be in place
to assist the group of litigants in person who are not entitled
to legal aid or considered suitable for mediation.
(Paragraph 120)
34. We make the following
recommendations for further smaller revisions to draft clause
1:
a. 1(1)(d) - replace "deal with" with
"issue", to accurately reflect Court procedural terminology,
and clarify that this relates to relevant family applications;
b. (4) - we ask the Government to clarify why
two definitions are needed for applications falling within the
section: "family application" and "relevant family
application". Either one should be deleted, or the differences
more clearly explained, preferably by the use of different terms.
The terms used should also be consistent across (1), (2)(c) and
(d). (Paragraph 121.b)
Parental time arrangements
CHILD ARRANGEMENTS ORDER (CAO)
35. We
think that it is unlikely that a change to the wording of orders
from "residence" and "contact" to "child
arrangements order" will remove the perception of winners
and losers within the family courts, although a change of terms
would not, in itself, be objectionable; the effect of this change
must be considered in combination with the other private law reforms.
Our main concerns relate to how, from the drafting of the clause
and the mixing of the different elements of living and spending
time with, the Court is to record what ultimately it needs to
decide, namely, with whom a child is to live, and the time and
type of communication they will have with the non-resident parent.
The mixing of the different elements of the order makes the clause
much more complex and confusing, particularly for litigants in
person. We agree with the Association of Lawyers for Children
and Family Law Bar Association that shared residence orders are
a better way of removing perceptions of winners and losers than
CAOs. (Paragraph 130)
36. It is likely that,
with time, the terms of Child Arrangements Orders will become
sufficiently established so as to prevent misunderstandings arising
in cross-jurisdictional cases, but, in the medium-term there is
the potential for problems because the looser language of the
draft clause makes the meaning of the subsections more debatable.
We therefore recommend that the individual elements of the CAO
are separately set out within the draft clause, leaving one order,
but with clearer contents; and secondly, that the clause sets
out that the person with whom the child is to live has rights
of custody for the purposes of the Hague Convention and other
relevant international family law treaties. (Paragraph 138)
37. We ask the Government
to look again at the potential practical problems with interpretation
of the draft clause in light of how the international law relating
to children operates. We are not reassured by the Minister's answer
that, as long as the body of the Court order makes clear where
the child will be living there should not be any implications.
The issue is one of delay and confusion - the draft clause must
avoid parents being required to appeal their cases in foreign
courts because the custody rights granted by the CAO have been
misunderstood in that country's lower Courts, as other parents
have had to before them. (Paragraph 139)
SHARED PARENTING
38. We
fully support the principle that, where there is no potential
harm to the welfare of a child, both parents should be involved
in that child's life. The doubts we expressed in our former report
related to the desirability of enshrining that principle in legislation.
We have examined the issue afresh in the context of the wording
of the draft shared parenting clause published by the Government
and the evidence which we have received on it.(Paragraph
146)
39. Analysing the
responses we received from the Minister, it appears to us that
the draft clause has been included not to effect any change in
Court orders but to tackle a perception of bias within the Courts
that we have previously concluded has no basis in fact, and in
the hope of influencing parents to agree to make provision for
shared parenting rather than risk entering the court process.
(Paragraph 153)
40. We note the Government's
decision to give further thought to the issue of enforcement,
although any draft clauses must be subject to rigorous parliamentary
scrutiny, and time must be allowed for that scrutiny to take place.
We consider that resolution of problems of enforcement is more
likely to change perceptions than the draft clause on shared parenting.
(Paragraph 154)
41. Additionally,
and in relation to perceptions, in our Report Operation of the
Family Courts we considered media and public access to the family
courts and recognised the need for transparency in the administration
of justice. We ask the Ministry to provide an update as to the
Government's policy in this area and any plans they have to legislate
for greater transparency and openness in the family court.
(Paragraph 155)
Does the draft clause detract from the paramountcy
principle?
42. Changes
to the law on shared parenting must ensure that they do more good
than harm. It is generally agreed that the involvement of both
parents in a child's life is normally beneficial and in the interests
of the child, but as the incidence of abuse cases in the Courts
and across population studies show, it is not beneficial in every
case, and therefore we do not consider that it can be "presumed".
We therefore maintain significant concerns about the draft clause
on shared parenting. (Paragraph 169)
43. We consider that
the types of cases that require a court order rather than resolving
by consent, be that with or without the help of lawyers or mediators,
are precisely the types of case where there are the highest levels
of conflict. These include a range of scenarios from physical
abuse, to an inability to co-operate to make joint decisions on
important issues for the child. We are concerned that the draft
clause will be applied across these sorts of cases, which would
not necessarily be in the child's best interests. We think that
children benefit from the current ability of the courts to make
individualised decisions as this allows a court to take all the
circumstances into account and prioritise the welfare of the child;
a good example of this is the case of A v A referred to
by Mrs Justice Pauffley in her evidence to us. There is a danger
that the introduction of a second presumption will take the attention
of the Court, but equally importantly the attention of parents
(who will often be litigants in person), away from determining
what is in the child's best interests and on to double rebuttal
on the grounds of harm. (Paragraph 170)
44. Subject to a request
for clarification, we do not have concerns about a double rebuttal
in theory, although as to its use in practice, we echo concerns
raised by Professor Judith Masson in her consultation response,
that litigants in person are unlikely to be able to marshal and
present evidence other than their own testimony, and would now
have two steps to go through. (Paragraph 171)
45. Whilst we are
pleased that the clause refers to "harm", if the Government
chooses to proceed with the draft clause we recommend that they
make the following revisions for the purpose of clarity. Firstly
that "unless the contrary shown" is either defined separately
or through proposed subsection (6); the intention should be made
clear that there are two stages to the rebuttal. Secondly, the
Government should give consideration to whether an amendment similar
to that in Australia in 2012, needs to be added to the clause
to make clear that of the child's welfare is paramount and should
be given the most weight. (Paragraph 172)
46. Our witnesses
were not sure what effect the draft clause would have on the content
of court orders; however, we concur with the consultation response
of HHJ John Mitchell where he said that there is a danger that
the presumption will be used by advocates and judges where they
feel undecided or overwhelmed. A statement setting out the paramountcy
of welfare over the shared parenting presumption might prevent
this problem occurring. (Paragraph 173)
Is the draft clause likely to be misunderstood
as a right to particular amounts of time?
47. We
agree that on its face the draft clause on shared parenting does
not give or imply rights to equal time, but we think that many
parents will misunderstand the clause as giving such rights because
of the use of the word "involvement" without definition,
and because of the use of a presumption.
(Paragraph 177)
48. If the Government
proceeds with its intention to include the draft clause in the
Children and Families Bill as introduced, we recommend the Government
make clear, preferably before introduction of the Bill, what effect
they intend the draft clause to have on Court orders. We also
recommend that the draft clause is revised firstly to include
a definition of "involvement" setting out that it does
not give or imply a right to a set amount of time, and secondly,
and to avoid any possible confusion, the short title, although
not a material part of an Act, is changed to "Parental involvement".
If "involvement" is not defined, we expect that the
Appeal Courts will be required to define it. (Paragraph 179)
What effect will the draft clause have on the
number of cases requiring court orders?
49. The
draft clause will be implemented at a time when there will be
other factors at play affecting the number and length of private
family law cases. There will be increased numbers of litigants
in person in the family court system, but at the same time, a
push to move cases into mediation. We think that it is likely
that the effect of the draft shared parenting clause will be an
increase in cases in the short term as parents, lawyers and the
Courts work out how the draft clause operates in practice. We
draw no conclusions as to whether litigation will increase or
decrease in the medium and long term because there is no statistical
analysis that we can draw on that is directly applicable to the
combination of changes that we have described. (Paragraph 184)
Will the draft clause change perceptions of bias
within the family courts?
50. In
our view, it is unlikely that the draft clause on shared parenting,
on its own, will change perceptions of bias within the family
court system, many of which are entrenched. It is possible that,
in combination with changes to MIAMs and Child Arrangements Orders,
there may be an overall improvement however slight in perceptions,
but on balance, we think that is unlikely. Although the draft
clause could lead to a few parents reaching agreement because
their perception of the likely outcome of the Court process has
changed, given the fact that these will be cases in which there
is already a high degree of conflict, this is also unlikely. (Paragraph
187)
51. We have considered
the problems raised by individuals who provided evidence of their
experiences, and we believe that the absence of enforcement of
court orders is a bigger factor in the perception problem than
the content of those orders. This makes it regrettable that the
Government has not brought forward draft legislation on enforcement
for us to consider as part of this pre-legislative scrutiny. Considering
our conclusions on all four questions, we maintain significant
concerns about whether the draft clause is a necessary or desirable
legislative change. (Paragraph 188)
52. We consider that
any legislation on this subject, when interpreted objectively,
should retain the paramountcy of the welfare of the child, and
should prevent shared parenting orders being made where the child
is at risk of harm, and/or where, whatever the level of parental
involvement, that involvement would not further the welfare of
the child. The problem, as we identify it, is how the clause will
be subjectively interpreted by parents who appear before the Court,
or who agree arrangements for residence and contact without a
Court order, but on the basis of what they understand the law
to say and mean. The distinction is one of technical drafting
versus the practical effect on real families. We recognise concerns
about the inclusion of the draft clause, and we consider that
if the Government includes the clause in the Bill as introduced,
the revised wording which we suggest may reduce the likelihood
of its effects being misinterpreted. (Paragraph 189)
Divorce
53. We
conclude that draft clause 8 contains appropriate and necessary
legislative changes. (Paragraph 191)
54. We conclude that,
on the balance of the evidence we received, draft clause 7 does
not remove an important safeguard for children, and we consider
that the changes are likely to be merely administrative. We recommend,
however, that the Government monitors the changes to ensure that
if the problems suggested by some of our witnesses arise, they
are identified and appropriate safeguards are re-introduced either
in statute or by changes in Court procedure. (Paragraph 197)
55. We are pleased
to see that the Family Judiciary's recommendation that legal advisors
complete [... ] administrative work on uncontested divorces under
the supervision of a district judge has been adopted in the Impact
Assessment. (Paragraph 199)
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