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

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)


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)


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)


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)


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


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


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)


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)


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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Prepared 14 December 2012