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Baroness Howarth of Breckland: My Lords, I should probably have said all that I am going to say when I spoke about mediation. I have a great deal of sympathy with the noble Baroness's amendment, but I have concerns that I need to express. I am speaking as a practitioner, rather than as the deputy chair of CAFCASS, so this is a personal view. I am deeply concerned that when we are having discussions about mediation, we do not become locked in a series of activities that will be of no help to many families. The phrase "dispute resolution" is much better, and many of the families that we deal with understand the kind of intervention where someone is trying to talk with them round a table in a different way. I sat on the Select Committee and listened to associations dealing with mediation and the problem is that they are talking about a passive, non-interventionist type of mediation that will be very unhelpful to many of the families that cross the thresholds of the court and CAFCASS.

I also want to express some anxiety about the way we move forward. It might be appropriate for me to do so here and on the record. At the moment, CAFCASS is engaged in a number of new programmes. We have cases being dealt with by dispute resolution and the number needs to be increased nationally because we are having enormous success. That is what is reflected in the Napo document. When we intervene, we are successful. We know that casework works. Mediation may not, but casework works in Staffordshire, Colchester, Leeds, Norfolk and many other places.

I am anxious that the work is split between two major departments: DfES and DCA. With £7 million on the table and CAFCASS resources as they are, I make the point to the Minister that we are doing a great deal of work on a very under-resourced budget. I had to make that point at this moment.

Baroness Walmsley: My Lords, before the noble Baroness sits down, can she explain to the House what she means by the statement that casework by CAFCASS works and mediation by other organisations does not? It is not clear to me.

Baroness Howarth of Breckland: My Lords, I am sorry if I gave that impression. There are many good mediators who work with that form of mediation and for some people it works. With families where there is drug or alcohol abuse or issues of aggression, that type of passive mediation is not always the best type of intervention. I am worried about having a register that has one sort of people. I am not saying that mediation does not work and I apologise if I gave that impression. It works for some people. What we want
 
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is a wide enough register that is not so restrictive that we lose out on a range of new initiatives that will make a difference.

Baroness Pitkeathley: My Lords, I support what the noble Baroness, Lady Howarth, said. My slight worry is that these amendments are channelling us too far down a mediation route and do not look sufficiently flexibly and widely at alternative forms of dispute resolution. In some of the very successful dispute resolution schemes that CAFCASS is running—I am sorry that I cannot resist saying that we would run a great deal more if we had more money—the new way of working allows the parties to focus on specific issues and allows children to be much more involved so that we can hear the voice of child in some of these ways of resolving disputes.

6.15 pm

Baroness Ashton of Upholland: My Lords, I do not think that any noble Lord who has spoken is terribly far away from any other noble Lord who has spoken on this amendment. I accept that mediation is very important and can prevent people ending up in court, but I also accept that there are other methods and other players who need to be involved and who can also do a fantastic job in preventing that. I take the point about the voice of the child perhaps being more easily involved through CAFCASS than it would be through traditional mediation methods. I have already indicated that we will think more carefully about the question of a register of mediators.

As a Minister, I work in Europe on European civil justice and I know that within the European Union we are looking at the question of mediators and mediation. I need to think again about how we reconcile the different issues while not putting an onus on the president of the Family Division that I do not think would work.

I have a slight difficulty because the amendment requires compulsory information sessions in every case. The noble Baroness, Lady Walmsley, says that the Bill already allows for these information sessions to be made compulsory in that the contact activities may include,

"sessions in which information or advice is given as regards making or operating arrangements for contact with the child, including making arrangements by means of mediation".

I do not want to put on the face of the Bill that this should be done in every case because it will catch cases where parents were able to reach agreement without needing mediation. Furthermore, it would not give the courts flexibility to decide that an information session was not appropriate in particular circumstances. I do not think that we are very far apart, but I do not want to go the extra mile and say that we should do this in all circumstances at all times.

(6)The difficulty with Amendment No. 15 is the European Convention on Human Rights. While I can see the logic of saying that no application can go forward unless a mediator has pronounced it mediation-unsuitable, it would be successfully argued that that would prevent access to the courts if a person
 
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were to refuse to undergo mediation. I do not think we could do that. If somebody did refuse to participate, it is, in theory, contempt of court. The reality is that if the court believed that an information session and mediation was important and that the parents had come because they wanted to sort out contact disputes, it would take very seriously the issue of whether somebody did not participate.

Although on an individual basis I can see that this would not cost very much, in 2004–05 the cost of 14,355 publicly funded family mediation was £14.2 million. Each individual case is not very much money, but I do not have a back pocket with extra money that I could put into this for parents who might be profiled like me or other noble Lords, who could afford to pay and who should do so as part of the process of trying to sort out their contact arrangements. Although I take the sentiment very well, the reality would be different. While I have enormous sympathy with the amendments, I do not want to go as far as saying that we would do this in every case.

New Section 8A provides that cases can only go forward after mediation, but we run straight into the difficulty that that would, in theory, deny people access to the courts, and cause me difficulties in the European Court. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Walmsley: My Lords, I thank the Minister for her reply. I shall take back the point about the European Court, and I would not wish to press an amendment that would run into that difficulty. I will take advice on that before the next stage of the Bill.

I am sorry that the Minister will not go as far as we would like to go. The amount of money she has mentioned is substantial, but it is for all mediation, not just for the meeting about mediation, which would cost considerably less than the figure that she quoted. We are talking about a much smaller amount of money than that. I maintain my opinion that it would be money well spent. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 14:

Before Clause 1, insert the following new clause—

"DEFAULT CONTACT ARRANGEMENTS
(1) The Secretary of State shall by regulations establish a range of contact arrangements, to be known as "the default contact arrangements", appropriate for children of different age groups.
(2) In the case of any child, following the separation of those having parental responsibility for that child, the default contact arrangements appropriate for the age group of that child shall be deemed to have been agreed between those having parental responsibility for the child unless and until either—
(a) those with parental responsibility for the child agree any other contact arrangements for the child (with or without the assistance of a mediator or other outside agency); or
(b) the court otherwise determines.
(3) If a person having parental responsibility for a child applies for an order which would have the effect of excluding contact between the child and any other such person, the court shall deal
 
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with any such application as quickly as reasonably practicable, (having regard to the requirements of section 7A of the Children Act 1989 (c. 41))."

The noble Baroness said: My Lords, I apologise for my late appearance today. I had to be elsewhere earlier this afternoon. Amendment No. 14 concerns a matter we have not hitherto discussed. Its origins lie in our discussions in Grand Committee and those that we on these Benches have had with a wide range of practitioners. We did not consult CAFCASS but could have done so. In its report Every Day Matters it stated:

"CAFCASS favours a strong expectation that parents, with support, will reach agreements about future arrangements for their children and it supports a shared parenting framework in cases where there is no indication of risk to the child. Contact levels should normally be substantial, including overnight and weekend stays, if a relationship between a child and his/her non-resident parent is to be maintained and properly developed. Having said this, continuity of care is important, especially for babies and very young children, and the needs of each child have to be considered irrespective of general policy positions".

That report talks repeatedly and at length about the need to act quickly when people separate in order to establish patterns of contact and behaviour which are in the best interests of the child.

The amendment seeks to do a number of things. First, it recognises that there cannot be a universally suitable set of contact arrangements. Every case and the circumstances of every family will differ to some extent and there is a wide range of contact arrangements, varying from very limited contact in some unusual cases to fully shared parenting in other unusual cases. Nevertheless, there is a reasonable contact arrangement pattern which suits the circumstances of many families where parents live separately, particularly where the non-resident parent is in full-time work. In answer to a previous set of amendments the noble Baroness said something similar. Typically the pattern involves staying access every other weekend, for up to half the school holidays and every other Christmas and Easter. In addition, weekday access one day a week is quite common. Different arrangements often apply when children are very young, particularly for babies or where one parent lacks the necessary skills to care for a baby.

Some of the problems with the current law have been alluded to in other amendments. There is no statutory model to which parents can look for guidance on the structure they might choose to agree between themselves or what arrangements might be regarded as being fairly typical. Some resident parents discourage or oppose contact on the misguided basis that a child would be better off without it.

Practitioners have told us that, when people separate, the issue of property and which parent has the house are frequently bound up with the question of who will have contact with the child. The lack of any default contact arrangements makes resident parents who are opposed to contact less amenable to advice about the likely outcome of a court application for contact. Some non-resident parents are discouraged from applying for contact in the face of opposition by a lack of confidence about the outcome of such an application.
 
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In the absence of a set of default contact arrangements, unless there is an agreement to vary them or an order of the court, a resident parent can impose his or her will on the non-resident parent, unless the resident parent makes an application to the court. While such an application is pending, there is a tendency for the status quo to become established in a way that not only may not be in the best interests of the child concerned, but which also may be difficult to change once the matter comes to court.

Therefore, we seek a set of default arrangements which parents, when they split up, can access easily. The provision would be in the Bill rather than being buried in case law. It would urge them to reach a framework for contact which suits them. They can vary it. And it would be in the best interests of their child. Parents are free, if they wish, to agree any other arrangements they choose at any stage. The court will approach every application for contact on its facts, without any statutory presumption. So the paramount interests of the child in the particular circumstances of each case will continue to govern the court's decision making.

So, in summary, the amendment seeks to put in place an anticipated arrangement which separating parents will know about and which they can use to come to an arrangement which is in the best interests of the child. I beg to move.

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