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Baroness Walmsley: My Lords, I thank the noble Lord for his reply, and the noble Baroness, Lady Morris of Bolton, for her cautious support. I am grateful to the Government for saying that they will go away and look at this matter, but it is a pity that we cannot sort it out in your Lordships' House. However, that may be due to the fact that today's proceedings have been brought forward to fill a gap in business, which means that we have all been rushing around in the past five days to try to sort ourselves out. But I am most reassured by the Minister's reassurance and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Walmsley moved Amendment No. 2:
"MEDIATION
After section 8 of the Children Act 1989 (c. 41) (orders with respect to children in family proceedings), insert
"8A MEDIATION
Applications for a contact order under section 8 must be stayed, unless by order of the court, until the applicant has attended a meeting with a mediator and the mediator has certified that mediation is not suitable to resolve the issue which is the subject of the application.""
The noble Baroness said: My Lords, at earlier stages of the Bill we moved a number of amendments aimed at encouraging mediation as we believe that, if a couple can be convinced that mediation may help them, and if they then go through mediation with a well qualified mediator, we will be able to keep a lot more families out of the courts. What is more, an arrangement that has been laid down by agreement is much more likely to be adhered to by both parties and therefore there will be less need for all the new sanctions the Government are introducing in Clause 1.
In response to our Amendment No. 15 at Report stage, the Government told us that it would fall foul of the Human Rights Act because it limited access to justice. Noble Lords will remember that it said that parents must meet with a mediator to have the benefits of mediation explained to them before they could
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apply to the court for a contact order. Our purpose in having this condition pre-application to the courts was, first of all, to introduce the mediation idea early, but also to do it before one person became the litigant and the other the respondent. Once a woman metamorphoses into a litigant and her former husband or partner becomes the respondent, or vice versa, the whole atmosphere changes and becomes much more confrontational. We had hoped to avoid that.
We also hoped to bring more equality into the system since Section 11 of the Access to Justice Act 1999 says that couples who are publicly funded have to undergo such a meeting before they can apply to the court. Noble Lords should note that that measure does not apply to those who are self-funded or who are litigants in person. It seems there is one law for the rich, who can afford the cost of their own litigation, and another for the poor, who have to apply for legal aid and have no access to justice without it. I would suggest therefore that if our amendment falls foul of the human rights legislation, then so does Section 11 of the Access to Justice Act 1999. I call upon the Minister to explain to the House why it does not. Besides, our earlier amendment would have only delayed access to the courts by a few days and would not impede it altogether.
Although we would really prefer our previous amendment, in an effort to be helpful and propose something that certainly would not fall foul of human rights legislation we have proposed this amendment, which says that application must be stayed until a meeting with a mediator has taken place and the mediator has confirmed that going ahead with mediation would not be fruitful. Staying the hearing of an application until some event or other has happened is not unusual. It is done all the time and I see no reason why it should not be done in this case. In the interests of getting more couples into mediation and in the interests of ironing out the inequality in the current law, I do hope the Minister will be able to accept this amendment. I beg to move.
Baroness Howarth of Breckland: My Lords, I rise simply to seek clarification in relation to some of the questions that the noble Baroness's amendment has raised. In particular, I am concerned that there seems to be very unequal access to justice if there is one law for one group of litigants and another for others. If we are focusing on the needs of children, as this Bill is supposed to focus, and if CAFCASS is supposed to focus on the needs of children, presumably the access to that kind of mediation should be equal between them. So I seek clarification on that.
I also thought that we had firmly said in the course of our discussions that the first, almost compulsory, meeting, would concern unequal access. This also links to a great deal of the work that CAFCASS is undergoing with regard to conflict resolution. Presumably, there will be equal access to the kind of conflict resolution that happens at the early stages.
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I understand exactly what the noble Baroness wants to achieve and would be grateful for clarification from the Minister.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, it will not have been recorded in Hansard, but my noble friend Lord Adonis and I can hear the noble Baroness's voice, and know that she probably ought to be in bed with a rather large hot whisky. I am extraordinarily grateful, because it is a sign of her commitment to children, and to the passage of this Bill, that she is with us this evening. I want to put that on the record, because I am well aware of the position. I will therefore try to be as helpful in return as the noble Baroness has been with my noble friend and me in all our discussions during the passage of the Bill.
I completely agree with the principle behind the amendment. I understand that we should offer all parties the strongest possible encouragement for mediation. As the noble Baroness knows, I am the Minister responsible for mediation within my own department, so I could not agree more with the sentiment. She and the noble Baroness, Lady Howarth, have raised the discrepancyif I might call it thatbetween what happens in publicly and privately funded cases. I recognise that there is a discrepancy, and that we need to look further at this, as well as at the issue of those who choose to be unrepresented, who are a significant group in this whole process.
It will not surprise either noble Baroness to learn that we do not think legislation is necessarily the way to address this point. We do not want to ensure that everyone always attends a meeting; there will be good reasons why the courts may decide that is inappropriate. It may be the history of the case, the particular circumstances or the individuals involved. Noble Lords will know how important it is for the courts to have the discretion to address this matter.
When someone seeks public funding, they are in theory able to access a court without public funding, so we are not falling foul of Article 6 of the ECHR. I accept, however, that individuals who have public funding do not necessarily in practice have the funds to be able to afford to do so in their own right. The issue of a level playing field is something we need to consider.
I am not sure I completely agree with the noble Baroness, Lady Walmsley, about how the atmosphere changes at the point of court. I wonder if she would agree that the atmosphere changes at the point at which you decide to go to court. There is a process where people get to the moment of deciding it is the only way through. It may be cathartic in those circumstances, but it is most likely to be the point of conflict where there is nothing else to be done. I do not suggest that the noble Baroness is wrong at all, but the point might be slightly earlier in the process, and does not affect the point she raisesindeed, it may strengthen it.
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This may sound like a rather bureaucratic solution to a problem of policy, but we want to look at the forms people fill in. Noble Lords will know that before people come into court, they fill in a form. We are interested in altering that form to say something like, "We want you to say whether you have met a mediator to discuss mediation, or indeed have gone on to mediation"and, perhaps more importantly, "If not, why not?". The courts could be allowed, in the way they look at the evidence before them about what would be best for these families and circumstances, to consider the answers that have been given and take them into account. In other words, if a court is not satisfied with the answers, the Bill gives it the power to direct that person to attend an initial meeting with a mediator.
We think the process of strengthening what people have to give by way of information beforehand, together with ensuring that the courts understand that they have this power and that this might be a piece of evidence to put before them in order to make that decision, is probably a better route, only because we think there will be circumstances where the court should not order that someone attend a meeting on mediation.
Building on what the noble Baroness, Lady Howarth, said, I want to say that the work CAFCASS is doing, which is part of the family programme published in January by the President of the Family Division that deals with the way we manage cases, includes referral to in-court conciliation provided by CAFCASS. We have just received, and will shortly be publishing, new research on the effect of in-court conciliation, which CAFCASS intends should be available in all casesexcept, as noble Lords will understand, those that involve safety issues. We think that is an important part of this whole process, and I hope it partly addresses the points raised by the noble Baroness, Lady Walmsley.
I can tell noble Lords that research so far suggests that in-court conciliation is highly effective, with over 70 per cent of those taking part reaching settlement. If we are able to develop that and roll it out across the country, which is our ambition along with our colleagues in CAFCASS, that will be an additional part of the process to achieve what I know is very dear to the noble Baroness's heart: keeping people out of court if there are ways of dealing with the issues beforehand, for the benefit of the adults and, especially, the children. That is part of the process we think will make a big difference. It is also worth saying that there has been an increase in the proportion of orders overall that are made by consent. Nearly half of the cases46 per centthat go to court are now being settled by consent between the parties.
I take nothing away from what the noble Baroness has said. We need to think about the level playing field. We think that by doing something about the information that goes into the courtthe evidence base that the courts make their decisions onrequiring the adults to think about why they have not gone to mediation will help us solve the problems for those people for whom mediation would be a solution.
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I hope that by doing this, together with the in-court conciliation rolled out through CAFCASS, we will have addressed the noble Baroness's concerns. We will of course keep her informed. On that basis, I hope she will feel able to withdraw her amendment.
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