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Lord Campbell of Alloway: My Lords, I support all the amendments in the group for reasons that I have given at some length previously, both in Grand Committee and on Report. I support both their spirit and substance. The problem is, what is to be done? The Lord Chancellor is concerned that adequate regulations should be made. I am not certain he is totally satisfied that on an objective review they could not be improved.
Few regimes cannot be improved if one takes another look at them in the light of these amendments. Without being at all critical, I would not say that the present structure of the regulations is perfect or that it ever could be, but it could perhaps be improved.
Once it has been improved, there is still the question of whether the regulations are being applied. That is a problem under the existing structure. It is possible that the Lord Chancellor could take steps to seek to ensure, when he has revised the regulations, that they are more regularly applied in the courts. I look for a sympathetic response from the Minister.
3.45 p.m.
Baroness Howarth of Breckland: My Lords, I too support the amendment. I have listened with care to the arguments put by the Minister, whom I respect greatly. I understand her wish to change cultures, to
increase training and to use other methods to achieve those ends. Despite that, I am still convinced that it is important that the amendment is accepted.I have a list of legal precedents in relation to the position in Europe and how we stand in relation to the various conventions. They have been outlined and I do not intend to go through them again. The other legal arguments have been made clearly. I speak on behalf of children to whom I have listened in their dozens over the lines at Childline; families I have met; and CAFCASS officers and others to whom I have spoken in recent years.
Many children feel that whatever is happening to them in court, they are simply not being heard. They often feel that they do not want to choose between parents; the Minister has made that point on a number of occasions. But if one talks to them on the telephone about that choice, it is clear that whatever help they are receiving in thinking through it, they need legal advice to sort out the issues and the pros and cons of how they take forward the issues through the courts.
They know emotionally how they feel, but they do not necessarily know how to interpret that emotion in relation to the arguments that will be put in an adult forum. I was involved in the discussions about Section 64 of the Family Law Act 1996. During the passage of that Act through the House of Commons, great emphasis was placed by the government—then in opposition—on the need for separate representation of children involved in private law proceedings. They were listening carefully to what various organisations were telling them about children's voices.
At that time, there was consensus. I am interested to know why that consensus is no longer accepted. If the debate at that time was supported by those involved in the debate now, why is it now not possible to accept the amendment? The non-implementation of the Family Law Act has effectively halted development in this area. The Bill provides an opportunity to implement those long overdue changes and to make sure that we hear children. Many of them feel that their voices have not been heard, and indeed, in difficult cases, that they have not been protected.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I thank all noble Lords who have participated in the debate; they feel like old friends. I compliment the noble Baroness, Lady Thomas, on her sterling heroic effort. The whole House was urging her on.
I greatly sympathise with the spirit of the amendments and agree that the wishes and feelings of children must be heard when important decisions are being made about their future. The noble Baroness, Lady Howarth, spoke about the need to listen with acuity to what children have to say; that is very important. The question of how we carry out that listening is of equal importance.
The amendments seek to provide the power to extend the definition of specified proceedings so that children can automatically be separately represented by children's guardians and solicitors either in cases
identified by the courts as requiring such a level of representation or in classes of proceedings to be defined by rules of court.I hope that I can reassure noble Lords by saying as clearly as I can that these amendments are unnecessary. I am grateful for the compliments that have been showered upon me about my erstwhile participation in these cases on the ground. Having looked at the legislation, I was most careful to assure myself that that which needed to be on the statute was in fact there. I can assure the House that if it were not, I would have been as discontent as others who have spoken.
Section 41(6) of the Children Act 1989 already provides the definition of "specified proceedings" to be extended by rules of court, and the Family Proceedings Rules 1991 provide that any child in any family proceedings can be made a party to proceedings and be separately represented. The welfare check list in Section 1(3) of the Children Act requires the court to have regard to the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding. That is not an optional consideration; it is mandatory. Therefore, the issue for the court is how best to meet that obligation in the best interests of the child.
The court has a number of options. It can make the child a party to proceedings. As I have said, it can already do that in any family proceedings. It can appoint a guardian, who will now be a CAFCASS officer, for any child in any family proceedings. The court can ask a CAFCASS officer to report to the court on the welfare and best interests of the child. The Family Proceedings Rules specifically provide that the report must cover the matters in the welfare check list, which includes the child's wishes and feelings.
Only last year, we amended the rules to place an additional duty on any children and family reporter; namely, to notify the child about the contents of the report, including any reference to the child's own views and the recommendations. It is right that we would anticipate that CAFCASS officers would take that responsibility very seriously and would do exactly what the noble Baroness, Lady Howarth, outlined in helping the children to understand the proceedings and ensure that they know their views have been listened to and will be properly represented and reflected.
When decisions are being made about the state intervening in a family life, such as in a case with care proceedings or in placement proceedings under the Bill, it must be right that children are separately represented. However, it is less clear that a formulaic approach works in private law family matters. As I said earlier, and as others foreshadowed, not every child will want to be a party to proceedings. Some children may specifically not want to be drawn into a dispute between their parents. For some children, this could feel like being asked to choose between two parents both of whom they may love very deeply.
In other cases, the child may actively want to participate and have a view that either of the parents may be incapable of putting dispassionately on his
behalf. We need a flexible child-centred approach that meets each child uniquely and the court must be allowed to consider what is right for each individual child. The noble Baroness, Lady Thomas, inquired about making placements in adoption cases and asked whether that would be a specified proceeding. Subject to further consultation, we do not intend to make adoption proceedings specified proceedings because under the Bill the majority of issues will be resolved before the adoption hearing.While the amendments add nothing to existing legislation, I agree that we must consider whether the existing arrangements are operating consistently and effectively in practice. Noble Lords who highlighted that point are right and the noble Earl, Lord Listowel, was right in saying that it is an issue. That is the essence of the debate.
That point was also made in this year's concluding observations of the Committee on the UN Convention on the Rights of the Child about the representation of children in family proceedings. The committee expressed disappointment about the extent to which the provisions already contained in the Children Act were being consistently used, but were not disputing the merits of the legislation. That is precisely the point that we intend to address in consultation. We want to ensure that the full range of ways in which children can have a voice in decision-making regarding their future is considered and used consistently. The noble Baroness, Lady Noakes, asked when that will take place. We are already working on a consultation paper and we hope to begin consulting around the end of this year. Therefore, creative work is being done on that.
During Grand Committee, my noble friend Lady Thornton was concerned whether we were needlessly consulting. I want to make two points about that. First, we shall not consult on whether children are able to be separately represented. As I hope I have made clear, that is already provided for in the current system. We want to address the concerns raised in the debate and in a scoping study that we have already undertaken with organisations representing children to inform the scope of full consultation.
In summary, it seems to us that those concerns fall into two broad categories. First, that the existing arrangements are not used consistently. It may be that we need more specifically to define the types of case in which a child should be separately represented, or a CAFCASS officer appointed. If so, we already have the necessary powers to do that. Secondly, we have focused too narrowly on legal representation and have not taken account of the fact that children experiencing family breakdowns may have very different needs. That point was made by the noble Baroness, Lady Howarth.
A child may need information or advice about how to raise concerns with his parents, for example, or about the legal process and what it means. He may simply want a friendly face to talk to and to support him through the process. We must consider whether we need a greater variety of tools to ensure a flexible system in which children of all ages and levels of
maturity have the opportunity to express their views and to be heard in a manner in which they feel comfortable. That is what we want to consult upon.Existing legislation already provides for children to be separately represented in any family proceedings and for the definition of "specified proceedings" to be extended by rules of court. Therefore, we have what provision we need in that area. But we want to ensure that we make the best use of those wide powers so that the system works as effectively and as efficiently as it can. I agree with the noble Lord, Lord Campbell of Alloway, when he says that we can always make good better.
I believe that we will be able to achieve the best outcome only if we consult fully especially with children and their families. I do not believe that we have moved away from the consensus we have in relation to children; we are working creatively and constructively with all those who seek better to manage disruption in children's lives so that there is a better outcome. And we thank all those organisations because without them, our policy would not be as robust as it currently is.
I assure noble Lords that these areas are covered and that the consultation will be productive. I can reassure the noble Baroness, Lady Thomas, that we are compliant with international conditions. I will explore them now if she wishes, or I can write to her.
4 p.m.
The Earl of Listowel: My Lords, before the Minister sits down, is it true that while courts can apply to CAFCASS under Section 9(5) for the help of a children's guardian, it is at the discretion of CAFCASS whether or not it provides a guardian? Perhaps the Minister could write to me. It would be helpful.
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