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Lord Hardie: I apologise for not being here at the commencement of the proceedings today. I had not intended to speak, but I rise to support this amendment.
In dealing with Amendment No. 114, the Minister said that the Government were taking seriously the principle of listening to children and I was heartened to hear that. However, in the context of court proceedings, I believe it is appropriate that the court should be enjoined to listening to the needs of children, and to take into account the wishes of the children. They should have regard to the age and understanding of the child in question. I also believe it is appropriate for the court to give consideration to the need for separate representation for a child in appropriate cases.
I suspect that the matter may already be covered by legislation because there are provisions in Scotland which do so. I was somewhat surprised to see this amendment but ask that if the matter is not covered, the Government should accept it.
Baroness Howarth of Breckland: I support the amendment. With due deference to where the noble Baroness, Lady Scotland, believes we are at the moment, I am concerned about the difficulties that there are in understanding the differences between public and private law, and the apparent differences in the rights of children under private and public law. I want to be sure that the needs of children are seen as paramount in all these situations; that the child's welfare is considered first and foremost. That principle is contained in the 1989 Act and it is written into this Bill—which, it is to be hoped, will become an Act—that the child's welfare must be paramount throughout his life. I notice that the Bill refers only to "his", but sooner or later we will get the language right. I hope that we will achieve that kind of framework.
I wish to raise a point in regard to good developmental practice. We know from research that when children are involved in situations such as divorce, friction within families, being moved, adoption, and so on, they do better when they have had help and support throughout the process. Thus separate representation— having someone who is there on their behalf and listening—can help them to express views. Many of us who have listened to children over the years know that, when asked about choice, they find it very difficult to make choices at times of crisis in their families. A separate, independent person listening to them can often help them to sort out those choices and make them. That is why I support this amendment.
Baroness Scotland of Asthal: I thank all noble Lords who have spoken. I agree with my noble friends Lady Massey and Lady David, and the noble Earl, Lord Listowel. However, in family proceedings, a court in which a question arises in regard to the welfare of a child should consider evidence about his or her wishes and feelings in the light of his or her age and understanding. This is a crucial aspect of the proceedings.
I should say to my noble friend Lady Massey that children are not disadvantaged at the moment in private law cases. We understand the need for compliance in relation to the European Convention on Human Rights. Indeed, our legislation at the moment makes adequate provision to ensure that we do not breach Article 6.
However, we have to look at not only the provisions of this Bill but at the legislative framework in which this Bill will fit. We have to look at it in the round. I can reassure the noble and learned Lord, Lord Hardie, that, as in Scotland, we have these provisions covered for England and Wales. We have not been dilatory in relation to our English and Welsh citizens.
Provision is already catered for in the welfare check list included in Section 1(3) of the Children Act. It is not an optional consideration; it is mandatory and assists the court in its paramount consideration of the child's welfare.
The Earl of Listowel: I thank the Minister for giving way. Is she aware of the concern that, following the Court of Appeal's ruling in re A v N in 1996, the welfare of the child is not the paramount consideration when a parent is being sentenced for failure to comply with a contact order? Is she further aware that there is concern that the case law in this matter seems to have worked against what is in the Children Act and that the interests of the child and consideration of the paramountcy of the welfare of the child is not being put into practice?
6.15 p.m.
Baroness Scotland of Asthal: I cannot accept that the paramountcy of the best interests of the child is not being put into practice. Of course I accept that where a court is having to deal with a contempt—which is a breach of a court order to comply—the court will have to consider whether there has been a breach and the most appropriate sanction for that breach.
In relation to the second issue, the court will take into account the paramount best interests of the child and certain issues have to inform that judgment. If the parent is a perfectly one and has not behaved in an abusive or otherwise dilatory way towards the child, it may considered that the child's continuance in the relationship with that parent is in the child's paramount best interests. The mother's frustration of that has to be taken into account. Members of the Committee will know that the courts often use breach as a way of discussing this issue with the parents and imprisonment is only used as a last resort—usually when everything else has failed.
Thus, the paramount best interests of the child may involve a combination of many different factors which the court must ultimately balance. The court must consider whether the mother is likely to purge her contempt, if they find her in contempt. It must also discover what is the best and most appropriate way to deal with the contempt, which I understand can be a difficult balancing exercise. In making any decision in relation to the child, as opposed to in relation to the parent, the child's best interests remain the paramount interests that the court has to take into account.
Section 1(3) of the Children Act runs throughout all private law cases. The welfare checklist will be applied in all proceedings set out in Section 1(4) of the Children Act—that is, when making, varying or discharging Section 8 orders, such as contact, residence, specific issue or prohibited steps orders, or making, varying or discharging care or supervision orders under Part 4 of the 1989 Act.
Subsection (7)(b) of the Amendment No. 116ZA requires a court, again in any family proceedings in which a question arises in respect of the welfare of a child, to have regard to the evidence before it on the need for separate representation of the child. Once again, we absolutely agree that this is an important consideration, which is already provided for in the existing system. In specified proceedings under Section 41 of the Children Act, such as care or supervision
order cases, both a CAFCASS officer and a solicitor are appointed on behalf of the child, and the child is a party to the proceedings.As we set out on Monday on Amendment No. 117ZZA, moved by the noble Earls, Lord Russell and Lord Listowel, children's views are already put before the court in private law proceedings within the independent CAFCASS officer's report. My noble friend Lord Hunt reiterated earlier today the provisions in relation to Rule 4.11B, in particular Rule 4.11B(5), and its consequences.
I want to comment briefly on the family proceedings rules. There are advantages in issues being dealt with within the family proceedings rules. In practice, those rules can be changed as the practice and understanding changes in relation to how best we can meet children's needs. It is a much more flexible tool. It enables the subtraction of some things that are obsolete and no longer necessary, and amendment in relation to changes that are perceived to be productive and constructive to the benefit of children and their families.
The practice in recent years has involved wide consultation in relation to the family proceedings rules, and it has been the result of the efforts of many who are directly involved in the treatment and care of vulnerable children, together with those professionals and judicial and other officers who have been entrusted with the charge of this delicate issue. Therefore, it is a very good tool for us to have available to us in order to meet the needs of children.
As I explained on Monday, and as my noble friend Lord Hunt reiterated today, the Government are currently undertaking a scoping exercise before undertaking wider consultation on how children are represented in private law Children Act proceedings. Our current plans anticipate a full consideration commencing later this year. It was emphasised effectively during the helpful debate on this issue that we had on Monday that the mechanism for allowing a child to be separately represented is already in place. We want to identify what more can be done to ensure that the voice of the child is heard more effectively.
The noble Baroness, Lady Thornton, who I see is now in her place, was concerned that we were needlessly consulting. I appreciate that we do not want to delay this issue but the best way of hearing the child's voice is by, first, consulting those organisations working in the field who represent children and families to obtain their detailed views and proposals for change. If we fail to do that, we are doing what those in this Committee have urged us not to do; that is, failed to listen to what the children say about how best to help them. That is an important issue, because I know that all Members of the Committee are anxious to get this right.
Subsection (7)(b) of the amendment refers to an order for separate representation. We have assumed that the intention of this part of the amendment is that where a court makes a child a party to the proceedings it may appoint a children's guardian. In those circumstances, the amendment would make such
proceedings specified proceedings within the meaning of Section 41 of the Act. As I have said, the court may already make the child a party to the proceedings and, once made a party, the child, through his or her solicitor, may apply to the Legal Services Commission for public legal funding. It is best that we retain flexibility in the private law sphere, especially in advance of any wider consultation on the most appropriate representation of children in private law cases.I hope to reassure the noble Earl, Lord Listowel, because he asked whether the children will be represented in cases where the mother is potentially threatened with imprisonment. Currently, in those cases, it is usual to consider appointing a CAFCASS officer, formerly a court welfare officer, before committing any carer. Of course, it would very much depend upon the nature of the commitment. I can think of a case a long time ago in which there was a brief commitment—it was a commitment over lunch—for the mother to consider her position but in which a CAFCASS officer was not involved. However, in the majority of such cases, a court is regularly advantaged by having a CAFCASS officer to assist in what is best in the interests of the child.
I remind Members of the Committee that, even in those cases where no one makes an application for a CAFCASS officer to be appointed, the court can of its own volition request the assistance of a CAFCASS officer to get that sort of advice if it feels that it is shortly to make an order that may impinge adversely on the best interests of the child. So there is already ample scope for that.
I hope that I have been able to reassure the Committee that the Bills—I say "Bills" because I am speaking not only of this Bill—already contain adequate provision. It is perhaps quite easy to misunderstand the position. One must consider the entire framework. Not all provisions are necessarily found in one Bill, and it is unnecessary to replicate provisions that are already well understood and in place.
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