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Baroness Morris of Bolton: The motion in my name to oppose the clause stand part is, in part, due to our stance on the Bill. As my noble friend Lord Howe has explained, with the wrong presumption underpinning the current family law system, there is little the Bill will do but reinforce the problems that already exist. However, while we are calling for, and remain committed to, a radical reform in family law, we do not want to miss the opportunity to scrutinise the proposals that the Government are making and enable the Minister to explain in more detail the intentions behind the clause.
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We have already had a considerable debate on the monitoring of contact. The Joint Committee highlighted that the Green Paper Parental Separation acknowledged that to play a more active problem-solving role CAFCASS would have to change the way it operates. For that to be effective, the judiciary thought that the level of funding is crucial. In reply to an earlier question, the Minister said that this would be looked at in the spending review. Can he explain if the Government still envisage CAFCASS taking on this role, or will they consider independent operators, or perhaps a combination of both?
Does the Minister feel that problem-solving and mediation should be carried out by the same individuals who write the court reports, or should confidentiality be linked to mediation? Will he explain on what basis the Government chose a period that may not exceed 12 months in subsection (5)? Picking up on the views of the noble Baroness, Lady Howarth, what work has been done to see whether there are any detrimental effects of monitoring and how intrusive it will be in the life of the child and the other family members? I share the noble Baroness's view that the state has to be extremely careful not to overstep the fine line of intruding in family life. What criteria will the courts use to decide if they should call for monitoring? Will it be accepted in every case?
The Earl of Listowel: It has been argued that the monitoring of these orders would be carried out by the CAFCASS officers. They would be able to do that because they would be writing shorter and more appropriate reports, so there would be no need for any additional resource. I know some practitioners who are concerned because CAFCASS officers' reports are very important. Perhaps they could be shortened in some cases, but these are often extremely delicate cases and the right sort of information is important. I should like an assurance that careful thought has been given to this rebalancing.
The Minister referred to a report yesterday. I am not sure whether he meant the report that I have here, which looked at CAFCASS and found some problems in some areas. I have not yet had a chance to discover the criticisms in this report, but do they help us to understand how well the reports are being written at the moment, or whether they can be shortened? That would interest me.
Baroness Pitkeathley: Lest the Minister and the Committee run away with the idea that CAFCASS can do all this extra work with no extra resources, let me make it clear that CAFCASS officers are extremely skilled and experienced. Many of them are already writing reports that would be most appropriate in these cases.
CAFCASS is committed to the principles in the Bill and to providing a better service, principally to children but also to their families. Our ability to deliver what the Bill requires with existing resources, however,
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is dependent on changes in behaviour and practice by others, the court system and local authorities, which we are working with very closely.
Baroness Barker: Given that the contact which is to be monitored in this section includes the new range of contact activity orderswhich are by their very nature a lot more complex than that which has gone beforehow have the Government arrived at the assertion that the reports that will be written will be much shorter and therefore take less time to complete? I did not understand that when I saw it in the background briefing. Can the Minister tell us?
Baroness Howarth of Breckland: If judges tell us that they only read the first two pages and the last page of 50-page reports, then there is serious concern about the content. It is clear to some of our professional staff, who have been looking at this, that information can be presented better. Lawyers would know that.
Lord Adonis: In bringing this disjointed debate to a conclusion at the end of our second day in Committee, perhaps I may first describe the provisions of Clause 2 and then reply to some of the questions that have been raised.
Clause 2 inserts new Section 11H, on page 5 of the Bill, into the Children Act 1989 to enable the court to require a CAFCASS officer or a Welsh family proceedings officer to monitor compliance with a contact order. The court may ask the officer to monitor whether those with obligations under the contact order comply with the contact order and may ask the officer to report to the court on such matters as the court may specify in its request. The court must specify the period of time for which the officer is to monitor contact, up to a maximum of one year.
The noble Baroness asked, "Why one year?" It is because our discussions with CAFCASS and the judiciary lead us to conclude that in the overwhelming majority of cases a judgment can be made by the end of that period as to whether or not the order is being observed. Indeed, it may well lead to the matter returning to the court well before the end of that one year. However, as I said in reply to an earlier debate, it would be up to the court to extend the periods in new Section 11H(5) for longer at the end of that one year if it believed that further monitoring would help to ensure compliance with the order. The court may order any individual who has a role in the contact order in question to take steps, which the court will specify, in order to enable the CAFCASS officer or the Welsh family proceedings officer to carry out the monitoring required by the court.
As to the length of reportsan issue to which the noble Baroness, Lady Barker, referredas I understand it, the emphasis on moving to shorter reports is a part of CAFCASS's own professional strategy. This is based on the belief that, rather than the often lengthy reports it has at the moment, it should have succinct reports which are more focused
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on recommendations to the court, based on work with children and less on the producing of elaborate reports for their own sake.
The provisions of new Section 11H relate solely to monitoring compliance with the terms of the contact order; they do not relate to monitoring compliance with a contact activity condition or direction. This addresses another point made by the noble Baroness. The monitoring of contact activity directions and conditions is provided for under the provisions of new Section 11G, which is inserted by Clause 1. The ability to order monitoring of compliance with a contact order will be a significant additional power available to the courts, the effect of which will be to encourage people to make contact orders operate successfully. The fact that people know that a breach of a contact order will be reported back to the court will in itself be a strong incentive to comply with the order. It will also assist non-resident parents, many of whom currently feel that the court offers them little or no support once it has made its order and that no statutory authority exists to ensure that orders are complied with.
The president of the Family Division issued the Private Law Programme in January 2005, which provides guidance to the courts about handling private law cases, including advice on dealing with applications for enforcement. The programme establishes good practice guidelines for the courts to assist families through active case management, avoidance of unnecessary delays, monitoring and reviewing outcomes and enforcing court orders. The programme suggests that CAFCASS should be able to bring cases back to court in appropriate circumstances and the provisions contained in the Bill will assist in making this approach work.
The noble Baroness raised two other issues in her opening remarks. First, as regards the confidentiality of mediation processes. mediation is expected to be confidential. Views expressed in mediation would not subsequently be introduced into court proceedings. Secondly, she asked how intensive monitoring would be. The intensity of monitoring would depend upon the circumstances, but it could sometimes be as simple as a telephone call to the parties to check that contact has taken place. On other occasions it would be much more intensive, depending upon the circumstances of the case.
This new section also enables the court to order CAFCASS to report to the court when monitoring reveals that there has been a breach of the order. The court will then have the option of re-listing the case for a directions hearing so that a way forward regarding the issues relating to the breach may be determined. This provision ensures that the court has the option of keeping an eye on compliance with a contact order and of bringing the parties back to court where necessary. This will be of considerable help to both the courts and
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the parties concerned. The facility for the court to order monitoring of compliance with a contact order is an important part of the provisions of the Bill.
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