Thursday 24 May 2012
[Sandra Osborne in the Chair]
[Relevant documents: Sixth Report from the Justice Committee, Session 2010-12, and the Government response, Cm 8189.]
Motion made, and Question proposed, That the sitting be now adjourned.—(Mr Djanogly.)
Sir Alan Beith (Berwick-upon-Tweed) (LD): It is a pleasure to serve under your chairmanship, Mrs Osborne.
Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement re-enforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.
The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.
This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary of the court system is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.
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In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.
Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.
On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.
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Sir Alan Beith: The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:
“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”
We referred to the evidence from Australia that “the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”
The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.
The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.
When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.
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In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.
We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.
We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there “should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”
The Government state that they are “mindful of the lessons which must be learnt from the Australian experience” and their stated aim is that that the “presumption of shared parenting will…enhance the prospect of an agreement between parents”.
The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best-interests tests.
We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.
We mentioned the signposting of advice and contact opportunities and said: “There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”
We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as “a potential source of capital for charities” and called on them “to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.
That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce
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crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.
Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.
I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.
There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:
“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”
We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.
We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.
The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to
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return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.
I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.
Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.
Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:
“Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored”.
The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.
A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.
On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to
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go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.
The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.
Mr Llwyd: The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.
Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.
Sir Alan Beith: The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.
I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.
The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government
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review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.
I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.
The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.
On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.
Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.
Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.
The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less
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compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.
John Hemming (Birmingham, Yardley) (LD): I was pleased to hear my right hon. Friend’s speech, and to read his Committee’s report, but there are areas where we are still getting things badly wrong, and perhaps the direction of Government policy is making things worse rather than better. I declare an interest. I am involved in Justice for Families, which looks at public family law in the English and Welsh jurisdiction, although people from outside that jurisdiction also contact us. Parents are involved, not surprisingly, but we are also contacted by teenagers who are trapped in the care system and want to escape, but cannot find a way of doing so.
Recently, I worked with a number of care leavers to form an organisation called Care Leavers Voice. People tend to think of care leavers as those in their teens or 20s, but I am talking about professional people in their 40s and 50s. Having perhaps the best perspective of what it is like to be a child in care, and having gone on to have a professional career and the confidence to speak out, they feel that their voice is not being heard. The family justice review was dreadful because it consisted only of people who operated the system; no one on the panel represented the people who went through the system.
I hope that my right hon. Friend does not mind me being mildly critical. Although his Committee’s report is more balanced than the family justice review, it is not as balanced as the report of the Select Committee on Education, which took evidence from a much wider range of people on the operation of the child protection system. Whichever way we look at the matter, it is necessary to listen to both sides—not just those who earn money from operating the system, but those who go through the system and have personal experience. A great difficulty with a secret system is that there may be a bit of data about what is going on, but unless people are like me and have seen lots of individual cases, they do not know precisely what is going on.
I am also associated with the Grandparents’ Association, which is very good, and has said that grandparents find the system traumatic. I deal with grandparents who operate the system. If a grandparent wants to express their voice directly to the judge in a case, that is a challenge. They can apply to be a party, but if they want to use a lawyer to do so, they do not receive non-means-tested legal aid, and probably do not receive legal aid at all. It costs £5,000 to £10,000 just to try to be a party. My organisation and my contacts help people to be litigants in person so that the grandparent can go to court and talk to the judge. Grandparents will give evidence about what is going on to whoever is interested in listening to them, but if they are unable to speak directly to the forum where a decision is being made, they are excluded. Great-grandparents such as Phil Thompson are irate about how they and their families have been treated, but the system does not listen to
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them, because they are excluded from evidence sessions, and panels such as the family justice review take no account of them.
A group of adoptive parents who have encountered difficulties with the unresponsiveness of the system are working with Justice for Families. They have a slightly different problem, which has been reported recently in the Sunday Express by Ted Jerry, who is a very good journalist and specialises in this area. We must listen to the people who go through the system, as well as to those who earn money to operate it. As I said, the Select Committee report is more balanced than the family justice review, which might as well not have been started.
The integrity and scrutiny—and secrecy—of the system are a key part of the matter. One assessment is that about 1,000 children are adopted each year who should not be adopted. For example, a woman had 10 children taken away from her in one area, but had a child in another area, and when she was sent home a social worker’s assessment was that there was no risk whatever. She is doing quite well with that child, but why was the state spending £250,000 per child on having them adopted in one local authority area, when she went home with a child in another local authority area. Other than the local authority being responsible for the decision making, is the system sufficiently robust when something substantially different occurs? Is there any quality control on decision making? Clearly, there is not.
Although the Family Proceedings (Amendment)(No. 2) Rules 2009 were generally good, the part relating to journalists with a National Union of Journalists card in the court was futile because they were not allowed to report anything. Further, the reversal in 2010 of Clayton v. Clayton was completely garbled and a mistake. However, that does not mean there is no merit in greater public scrutiny, which is important in two areas. First, academic scrutiny is key. We have had only one report so far, by Professor Jane Ireland, who found that about two thirds of the psychologists’ reports that she encountered were rubbish: if the judge had relied on them, the decision would have been unreliable and should have been challenged through the appellant system. We have only one report because they must be authorised, but there is no reason why academic researchers should not have de facto, anonymous access to expert evidence in the family courts.
I was lucky to be drawn sixth in the private Member’s Bills ballot, and one proposal in my Bill will be to allow academic access to secret proceedings, so that in both the family courts and the Court of Protection, which is really a family court, expert evidence can be challenged. The Daubert procedure in the US is used to appeal expert opinion to experts, and that is a good process. Professor Ireland, with other professors, has recommended that for the UK. It would be one way of starting to get some quality into the decision making based on expert opinion, but we are some distance away from that.
A good example, published recently in the Daily Mail, is Lucy Allan. The same psychologist produced two reports on her. One, without seeing her, was for the local authority; in another, having seen her, she said completely contradictory things about the same person. In one she said, without seeing her, that the mother was a great danger to her child; in the other, she said that the mother was perfectly okay—that was because she was
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being paid to say that. Information from that psychologist was used to make a life-changing decision, and that is an absolute scandal.
Academic access to expert reports should not be subject to a complex and expensive approval process. It should happen almost de facto. Our care system does not do well, and other countries’ care systems do far better. Our system does not do well because of lack of accountability—not just public accountability, but academic accountability.
There is also merit in allowing retrospective review of the proceedings of family court cases. In one case, a mother was deemed to be a bad mother because she fed her baby on demand, instead of in a routine, so the baby was adopted. We should be able to talk about that. It is absurd that psychologists can reach conclusions about people and their merits as parents without even seeing them. I see a hell of a lot of such cases, and they are not acceptable. Such things need to be considered publicly, which fits with the evidence provided in the family court report. This is not about identifying people; it is about knowing what is going on and what is being done in our name. If we believe in parliamentary sovereignty we must know what is going on, even if we do not know precisely to whom it happened. That is important.
There is a rule in Parliament that a Member cannot criticise a named judge without having tabled a motion in their name. There is, however, no rule to say that one cannot praise a named judge, so I wish to praise Nicholas Mostyn and recommend that people read the published judgment of A County Council v. M and F  EWHC 1804 (Fam). We do not know who M and F are or which is the county council, but under the circumstances, we do not need to know. By looking at that case, however, we see the challenges faced by the judges when dealing with expert evidence, particularly when that evidence is contradictory. The case I have mentioned shows an excellent judgment that all judges should read and consider because it goes into some really difficult issues.
I know of eight cases involving the issue of expert evidence and vitamin D, and I am working with the excellent solicitors Brendan Fleming in Birmingham to look at those. Again, the issue is scrutiny of expert evidence. In the Wray case in London, Jayden Wray sadly died from a mixture of shaken baby syndrome—SBS—and metaphyseal fractures as a consequence of vitamin D deficiency. In that case, it was proven that the triad of symptoms occurred not under the care of the parents but at a later stage, and that is critical. There have been many SBS cases, including that of Keran Henderson, which was a criminal case and is reasonably well known as it attracted quite a bit of publicity. It is an interesting area, but because these things have gone on in secret, we do not know about them. Recently, I have put pressure on the Government to review those cases that involve vitamin D deficiency. They have avoided the question, but we will see where it goes in the future.
I encounter quite a bit of private law because public law and private law can interrupt each other. My hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) spoke for the Liberal Democrats on this issue some time ago, and we are pleased to see her
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back in Parliament. She proposed that before anyone goes to court, the default position should be that if parents split up they do not have to go to court to establish a court order for residency. Delay is one of the difficulties—that is where the report is entirely right—and causes a problem. If we start with a default position that places a duty on both parents to keep in contact with the child—except for in really exceptional circumstances, which do occur from time to time—we would be in a much better situation than we are at the moment where people first have to apply for a court order.
One difficulty of mediation is that if people can get a better deal by waiting for the adversarial approach, why would they bother with the mediation and take it seriously? There must be something for parents to agree on during mediation, and the recent work on encouraging mediation by the Child Maintenance and Enforcement Commission was important. It is a mistake always to separate issues of finance and of the child in question. From the parents’ point of view, those things are not separate and indeed are associated. Often, the mother gets residency of the children and the father goes into a mood and says, “Well, I’m not going to pay if I don’t get contact”, and people get into a massive row. If we managed to bring those things together, that would be far better.
We are trying to do something therapeutic and, particularly in public family law—although it is the same in private family law—we have the therapeutic objective of trying to do what is best for the child or children under the circumstances. That is not best handled through an adversarial family court system where everything gets piled up and there are hundreds of sheets of paper. Anyone who has seen one of those cases will know the absurd amount of paperwork involved, which often merely repeats things from other documents. That does not help.
The report referred to the family group conferencing approach, which is far better. We need to strengthen case conferences so that the procedure is not abused by the practitioners. The Webster/Hardingham case from Norfolk is well known as a miscarriage of justice, but it started out as an abuse of process and procedure in the case conference at Norfolk county council. If that abuse had been picked up at that point, three children would probably not have been wrongfully adopted. It was a case where one of the family went off to Ireland—I think it was in about 2006. The case went to the Court of Appeal, which effectively accepted the likelihood that there had been a miscarriage of justice.
We must analyse where decisions are taken. Although rubber-stamped by the courts, often decisions are taken initially in the local authority during the case conference or adoption panel, or whatever. If we can improve the decision-making process at that stage, and provide a more therapeutic environment in which one can bring the grandparents without them having to pay £5,000 or £10,000 to get along in the first instance, we can start trying to work things out. That would be far better than the current system, which is dreadfully remote.
One care leaver who is in his 40s told me that when he was a child in care, he used to try and find out who was taking the dreadful decisions that affected him. He never could find that information, however, which is one of the difficulties in the system. The people to whom things are being done have no idea how the
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random decisions that affect them are being made. Early intervention is great, but we need to know what and how that is done, and ensure that it achieves positive things. A lot of this is an issue of detail, which is crucial.
Let me turn to the Children and Family Court Advisory and Support Service because I have some difficulty in public law proceedings with working out the added value of the guardian ad litem. A Gillick-competent child should have a solicitor and the guardian should fall away, although in practice that does not always happen. I was pleased to see that Julia Brophy gave evidence to the Committee. If we look at her work, there is an argument for what happens in Ireland where an independent social worker report is commissioned, rather than having the entire panoply of the guardian operation. That raises a question about private family law proceedings, in which I think it would not be a bad idea to do much the same.
We have got to the stage where CAFCASS is so over-worked that we are not getting a lot of continuity. Government policy is going the wrong way in trying to reduce the use of independent social workers; perhaps we should be getting rid of CAFCASS and using independent social reports instead. Given the cost of CAFCASS, that would make the Treasury happy. One difficulty with trying to speed up a machine for miscarriages of justice—which is what the system is doing at the moment—is that although it makes it run faster, it does not get any better, and there is great difficulty with that. We should be able to get better decisions taken at case conference level, and not have to worry so much about everything being done on paper.
Judicial continuity is an interesting question. Someone told me recently about one person involved in a vitamin D miscarriage of justice who was warned by her barrister that if she appealed to the Court of First Instance, that would upset the judge in her case and he may not look favourably on her in the future. There are questions about whether judicial continuity undermines the appellant process. If someone’s barrister says that they should not appeal a case because the judge will be upset, and they then have to go back in front of the same person, that raises an issue. In fact an application was put to the European Court of Human rights, about whether that prejudges a situation. Again, a difficulty is that we are trying to do therapeutic work, where continuity is crucial, in a legalistic environment in which an attempt is being made to work out whether what is being done is within what has historically been called the margin of appreciation—or, these days, the procedural protections of the European Court of Human Rights. The idea of the margin of appreciation seems to be coming back to a certain extent. As to what the courts should be trying to work out, my ideal solution would be akin to the Swedish one, which is driven by a case-conference-type mechanism—very much a therapeutic environment—which is subject to judicial review, rather than bunging a case in front of the magistrates, who generally just rubber-stamp what the local authority says.
The point about rubber-stamping is important. There are statistics on the outcomes of cases, and they almost always go the local authority’s way. We can take it two ways: we can say, “Well, actually, social workers and care professionals are so much better than the Crown Prosecution Service in their judgments that it is not surprising that things almost always go the way of the
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local authority.” When the CPS thinks that there is evidence in criminal proceedings, to support a verdict beyond reasonable doubt, perhaps half the verdicts in contested cases will be guilty, and half not guilty. In care proceedings there are different outcomes; a care order is sometimes given, or no order may be given, but the local authority’s thesis is rejected in only about 0.27% of cases, on, I think, the 2007 figures. That is a bit of an exaggeration, because other things can happen. The local authority can withdraw the application, as happens in many cases. If the local authority thinks things are going badly, it might withdraw.
We need, also, to consider section 38 of the Children Act 1989. It does not require evidence so much as reasonable grounds to believe that a child may be at risk; given that once an interim care order is given, a final care order is very likely, is that threshold acceptable? Should it not be changed to require an evidence test at some earlier stage? As to delay and its effect on children, the point is what happens if we have a system which, for all that it matters, is much cheaper and much the same in outcomes as rubber-stamping what the local authority wants, which is what happens most of the time. That has an effect on the child. If, say, a newborn baby is taken from the mother and put into foster care, that has a real impact. The work of Professor Michael Rutter is crucial in that area. He looked on the period between six and 18 months as the golden period for a baby. A large proportion of babies taken into care are taken into care well before then. If they get reactive attachment disorder, as many of them do, it is not caused by bad parenting initially but by what the state does—simply on the basis of the timing.
There is a long way to go. I congratulate the Committee on obtaining some representations from people affected by the system, but for this debate I would emphasise that in future, the Government and Select Committees—and I congratulate the Select Committee on Education—should, please, listen to the people to whom things are done, and not just those who earn money doing things to people.
Mr Andy Slaughter (Hammersmith) (Lab): I am delighted to respond on behalf of the Opposition to this debate about the Justice Committee’s report on the operation of the family courts and the Government’s response to it—not least because I am doing so under your chairmanship, Mrs Osborne. I congratulate the Committee on the production of such a thorough and detailed response to what is clearly one of the most important areas of our legal system.
I am sure that the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who was here for a short time, is a valuable member of the Committee. Having spent several months working with him in Committee on what became the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I know that he is assiduous and shows great integrity. Also, unusually on that Committee, his rhetoric matched his voting record, which was not often the case for Government Back Benchers.
I also thank the Chair of the Select Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), for his speech, which, although made in his usual gentle way, was still forensic. It raised a number of
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issues, to which I am sure the Minister will respond. His points about delay, shared parenting and the evidence base were all well made and are all substantial concerns.
All I would say about the right hon. Gentleman’s comments on secrecy in the courts is that we were expecting some news about that today, with the introduction of the Justice and Security Bill in the House of Lords. The right hon. Gentleman is right that the balance between the protection of the interests of open justice and those of participants is a fine one in all cases, including those in the family courts. It is a pity that the Government are struggling once again to bring forward legislation, even when it has been announced in the media the week before.
I want to comment on another issue that the right hon. Gentleman mentioned—restrictions on advice and the increase in the number of litigants in person. I should say that I am grateful for briefings for the debate from the National Society for the Prevention of Cruelty to Children, and Resolution, which also raised those issues. First, however, I want to make some general comments.
The importance of the review cannot be stated more clearly than by citing one of the facts in it—that 36 children were killed in 2009-10 by their parents; and that, between 1995 and 1999, in “80% of all homicides where the victim was an infant under the age of one, the killer was a parent, and in ‘virtually all’ the remaining 20% the killer was a family member, friend or someone who had care of the infant”.
I am sure that everyone present today will be able to name at least one high-profile example of a child tragically killed by those who were supposed to be looking after them. Furthermore, even when a child is not physically harmed by their parents, a violent relationship between parents has been found to have a significant long-term negative effect on the child’s emotional well-being.
The courts therefore have a crucial role, not just in trying to ensure that a child has access to their parents on terms that are acceptable to both and also beneficial to the child, but, all too often, in ensuring that children in dangerous situations are given adequate care and protection. It could not be more important to get this matter right. The previous Government took great steps towards ensuring that the family courts were more accessible and came to more informed decisions, and that alternatives to the adversarial nature of court hearings were found.
We should also acknowledge that in some areas the Government are continuing in that vein, thanks largely to the Justice Committee’s report and the family justice review carried out by David Norgrove. Both identified weaknesses in the operation of the family courts, and the Government’s willingness to consider at least some of the recommendations made in them, and the move towards increased mediation and a more child-centric system, are to be commended.
Unfortunately, however, as with so much to do with the Government, seemingly well meant policies have potentially severe consequences, and, as ever, there is a catch. In their response to the Justice Committee’s report, the Government promised that legal aid would remain for cases where there was evidence of domestic
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violence. Yet they had to be dragged kicking and screaming through, I think, two lost votes and one tied vote in the House of Lords, during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to acknowledge properly a definition of domestic violence that would give the protection of legal aid to those who so badly need it, and to extend the evidential criteria. Eventually, there was substantial movement on that, but there were still glaring omissions. Therefore there are clear cases where victims of domestic violence will not continue to benefit from legal aid, including in private family law cases.
The Government are right to believe that mediation is preferable, and keeping family law cases out of the courts through an agreement between parents is always to be encouraged. Yet for those people who cannot achieve that, and who need legal assistance, the 2012 Act again reduces their chance of receiving proper legal representation. To complicate matters further, the increase in the number of litigants in person, the Government’s replacement of face-to-face services with telephone advice and the dramatic decrease in counter hours—by two thirds, in many cases—mean that the amount of support available has decreased.
I have seen—in part of the Resolution brief for today’s debate, I think—a letter from Her Majesty’s Courts and Tribunals Service, dated 9 January. It advised that the measures such as the curtailment of the counter service and so on had been implemented without “any significant issues being raised by our court users”.
However, as Resolution points out, it has been informed by many court users that phone calls and e-mails are “regularly” not answered. We have the Kafkaesque situation in which no longer having a service available means that complaints and queries are not being registered and dealt with. For an individual already faced with the daunting prospect of representing themselves in legal proceedings, that removal of a source of advice could be the difference between a decision that benefits a child and one based on the inability of one side adequately to represent themselves.
I disagree a little with the comment by the right hon. Member for Berwick-upon-Tweed that sometimes legal aid can create an imbalance. That may be so in a minority of cases, but on the whole, the impecunious party—the party more in need of representation and not able to afford it, who is often the mother—needs access to legal aid so that both sides can be properly heard.
I practised for only a short time as a family lawyer, but I cannot think of any other area of law in which I practised where the intervention of advocates often resolved cases. Quite often the parties going to court would go not only as other litigants in person do, with an imperfect understanding of procedure and the law, but with a real animus against the other side and almost a willingness to continue the family argument through the court process. In the vast majority of cases, the intervention of lawyers—sometimes at an early stage and sometimes at the door of the court—is a way of drawing up consent orders, of resolving matters that otherwise and in the future would have to go before the judge.
One of the crucial points raised by both reports and various others over the years is the importance of limiting delays. A recent survey of Resolution’s members
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found that when one party is representing themselves, cases usually take longer. Indeed, 48% of respondents said that it can be more than twice as long as when both parties have legal representation—a point borne out anecdotally by the comments of the right hon. Member for Dwyfor Meirionnydd.
The removal of access to counter services cannot possibly improve that situation and will almost certainly lead to even longer delays. Further delays will be caused by the fact that counter services will no longer be available to check applications—a major issue, given that incorrectly completed applications are often rejected by the courts. Aside from those delayed decisions, which were described as “unacceptable” by the Government in their response to the family justice review, it is easy to see how that could also lead to a delay in identifying a child’s safeguarding issues.
My colleagues and I have been approached by representatives from a number of organisations with concerns that mirror the Opposition’s fears on these issues—that one cannot hope to improve services while simultaneously taking an axe to budgets across the board. The Government can talk all they want about a commitment to limiting delays and improving the service provided by family courts, but those improvements will not be found if the crucial background services, such as counter services, are removed.
I will not repeat the many excellent points made by the Chair of the Select Committee; I am sure that the Minister heard them and will respond to them. I hope that he will listen to the comments of the Select Committee and those that I and others with an interest in these matters have made, and will feed them back into the Government’s ongoing development of their justice policy.
The Opposition will not unnecessarily oppose anything that will genuinely improve the operation of our family courts, but the Government need to take notice of the many organisations that have expressed concerns that further delays will ensue as a consequence of the steps that they have taken and that those measures might be counter-productive. The Government should be working to ensure that the family courts work for everyone, not just those who can find a resolution to their problems before coming to court or those who have the means to pay privately for legal advice.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): There have been relatively few speakers this afternoon, but the speeches have been of a very high quality. I congratulate the Justice Committee and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing the debate. I am grateful to all right hon. and hon. Members for their valuable contributions. The Government recognise that it is simply unacceptable that some children wait more than a year for a decision to be made about their future and that some parents can use the court process to inflame further conflict with their former partners. The hon. Member for Hammersmith (Mr Slaughter) referred, rightly, to the terrifying consequences that can arise. That is why our programme of reform, underpinned by the findings of the Justice Committee’s report and the family justice review, is so important.
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I shall deal first with the points made by my hon. Friend the Member for Birmingham, Yardley (John Hemming). He made a significant contribution on a topic in which he has consistently shown significant interest. To take up his concern about the FJR’s legitimacy, I can tell him that it did have cross-party support, having been initiated by the previous Government and continued by the current Government. David Norgrove consulted very widely here and in other jurisdictions. The Grandparents Association, which was the example that my hon. Friend gave, submitted evidence and that was certainly considered. I simply cannot accept that the FJR was constrained in the evidence that it sought or considered.
John Hemming: My argument is that the panel itself did not have someone from Families Need Fathers, the Grandparents Association, Justice for Families or any other of the organisations that represent those people to whom things are done.
Mr Djanogly: My hon. Friend makes his point. He will appreciate that, on that basis, many hundreds of organisations could have been included in the body.
Two key pieces of legislation will support our proposals for system change. The children and families Bill, announced in the Queen’s speech, will help to deliver the Government’s commitment to supporting children and families by making it easier for parents to share caring responsibilities and by supporting some of the most vulnerable children, including those in care or whose parents have separated.
John Hemming: I thank the Minister for giving way again. Will the Government consider the proposal from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) of having a default position in the children and families Bill so that there is no need to go to court to establish a default position?
Mr Djanogly: I will come on to that.
The Crime and Courts Bill, introduced on 10 May, contains provisions that will establish a single family court. That is a direct response to a recommendation made by the family justice review. The creation of a single family court will simplify the court process and make it more accessible for families using the system. It will be more transparent and will facilitate the allocation of family law cases in the most effective and efficient way.
In the area of public law, we have already made a commitment to implement many of the review’s recommendations. Where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay. That is why we intend to introduce a six-month time limit for all bar exceptional cases. I can confirm to my right hon. Friend the Member for Berwick-upon-Tweed that that is a limit, not a goal. Where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the children and families Bill.
To answer my right hon. Friend, who mentioned time limit delays, the judge will have to give reasons for the delay in open court. In that way, a picture of performance and weaknesses in particular parts of the country will become apparent and will build up over time, which will
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mean that action can be taken to address a particular problem in a particular area. There are a number of steps to support that.
The Justice Committee and the family justice review, and my hon. Friend the Member for Birmingham, Yardley, highlighted the need to cut the number of expert reports used in court proceedings.
John Hemming rose —
Mr Djanogly: Will my hon. Friend let me make some headway, and then he can come back on what I say?
Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.
To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.
We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.
John Hemming:I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS.
Mr Djanogly: I will come on to CAFCASS in due course.
My hon. Friend said that a default residence contact position would avoid the need for court orders. The problem with that is that it is a one-size-fits-all approach; it would not focus on what the child needs. A very
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young child may have quite different needs from an older child, for example. If parents are in dispute about child arrangements, and the matter requires a court decision, it is right to focus on the child’s needs at that point. That is the current position and we intend to retain it.
John Hemming: The point is not that we should have an unchangeable default position, but that we should start from a position whereby it is the duty of both parents when they separate to maintain contact with the child. The difficulty is that the current position often creates a de facto situation; basically, residence moves with the child and the legal process takes some time to catch up, but in the meantime, in very traumatic circumstances, the relationship between the child and one of the parents has decayed. It is not that the solution is inflexible, but that we start from a minimum position that could be varied.
Mr Djanogly: I hear what my hon. Friend says, and I am not entirely sure that it is incompatible with what I said. I will take a further look at that.
We must improve the quality of the submissions made to courts by local authorities. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. We will strip out bureaucracy and duplication. On care planning, we will introduce legislation through the children and families Bill to make it explicit that the court should focus only on issues essential to its deliberations. We will also remove the bureaucratic processes connected with the renewal of interim care orders and interim supervision orders. Where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.
That work is supported by Her Majesty’s Courts and Tribunals Service, which has allocated a further 4,000 sitting days to the county court exclusively for family work, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out. That is an increase of 8,000 extra county court sitting days compared with 2009-10 and a major increase in family court capacity. That somewhat disproves what the hon. Member for Hammersmith said about Government cuts. We have not been cutting the service, but have been significantly increasing the resources added to it. Her Majesty’s Courts and Tribunals Service has ring-fenced the family allocation in the magistrates courts, ensuring that days intended for families are not lost on criminal hearings.
All right hon. and hon. Members will agree that simply allocating more court days will not solve the long-term issues identified by the family justice review. All the work will be underpinned by more robust data, an issue highlighted by the Justice Committee last year, as my right hon. Friend pointed out. I agree that it is key. Without figures, we can only reform by way of anecdote based on single issues. That is not an adequate position.
With judicial support, Her Majesty’s Courts and Tribunals Service is rolling out a new management information tool. For the first time, it will track the care case process from start to finish at court level. Although it applies only to those cases entering the system from 1 April, it will provide important data about where delays are currently occurring in the system and why they have
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arisen. Importantly, the tool will drive changes in behaviour by allowing local areas access to their own data, so that information can be used to identify performance barriers.
John Hemming: That would be an excellent tool. Will the tracking system track the release of the printed judgment to the parents, who often do not receive a judgment on which they can appeal?
Mr Djanogly: I will come back to my hon. Friend on that point.
We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.
On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.
We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.
The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.
Sir Alan Beith rose —
Mr Djanogly: I will just finish this point. This change is not about equality in the time that a child spends with each parent after separation. Every family and every child’s circumstances are different and the courts will continue to make decisions on that basis.
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Sir Alan Beith: There have been quite intensive discussions about this issue in government. In trying to use the law as a signal, there is a danger that the courts will be obliged to take into account a further element of complexity when making a judgment. The signal that it gives some parents in dispute may be that there is another point on which they can engage the court in order to keep the case going. It is more likely to do that than to give a signal to parents about what they themselves should do.
Mr Djanogly: The right hon. Gentleman makes a fair point. This was what came up in Australia. The Government have looked carefully at the lessons of the Australian experience of legislating in this area, which was highlighted by the family justice review. Direct comparisons with the experience in Australia are misleading; it is certainly not our intention to mirror the structure of the Australian legislation or to create new layers of complexity in our existing system.
Contributors all mentioned the importance of early intervention. I agree with my right hon. Friend that it is an essential component in solving this issue. The Department for Work and Pensions, the Department for Education and the Ministry of Justice are working closely together on this so that a parent’s first port of call will be an online hub that will provide practical information and advice and will signpost appropriate services.
We have introduced measures to strengthen consideration of mediation and to explore how that can work alongside parenting programmes and other interventions to help parents focus on a child’s needs. I will say a bit more about mediation later. In addition, we are working to develop parenting agreements as a tool to help parents agree arrangements that are child focused and practical.
DfE is providing an early intervention grant worth about £2 billion, which is flexible funding for local authorities to spend on their early intervention priorities from Sure Start through to crime prevention. The Justice Committee will know about the Youth Justice Board and the custody pathfinder projects, which give pilot areas custody funding up front for the under-18s. That will incentivise local authorities to intervene early before young people become serial offenders.
Many other cases could be settled away from court. Too many people go to court to resolve their private disputes and fail to grasp the fact that the court is required to focus on the child’s welfare needs. That may mean that neither parent is happy with the decisions that are made. For many such parents, the family courts are not the best way of settling disputes about a child’s future. Mediation can be quicker and cheaper, and can provide better outcomes, especially if compared with drawn-out court hearings. It is important that mediation is considered at the earliest opportunity before positions become entrenched. An amicable solution is better than a litigious one.
Referrals to mediation in publicly funded cases are up by nearly 12% since the introduction of the pre-application protocol last April. However, I remain concerned about the protocol’s effectiveness in privately funded cases, and there is a need to tackle inconsistencies in approach across the courts. That is why we will make statutory changes to make it a prerequisite that anyone who wishes to begin court action must first attend a mediation information and assessment meeting to find
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out about and consider mediation. We remain committed to make public funding available for mediation through legal aid for those who are eligible and expect to fund an additional £10 million for mediation services.
I should point out to the hon. Member for Hammersmith that the Government have no plans to stop making available legal aid for children where they are a party to family proceedings. Various hon. Members mentioned litigants in person. We accept that the reforms will mean an increase in litigants in person. However, unrepresented parties have always been a feature of the justice system—some because they cannot afford representation and others because they choose not to be represented. Paying for a lawyer, whether out of private pockets or public funds, is not always necessary. Judges make significant efforts to assist litigants in person, explaining procedures and what is expected of them. We estimate that about 40% of private law children’s cases involve one or more litigants in person. The proportion in divorce cases is much higher than that.
Mr Slaughter: Will the Minister accept that replacing advocates with litigants in person can typically increase the length of a case by up to 100%. If he does not accept that there is robust evidence of that, should the Government not collect such evidence and make their assessment of what the changes will mean for the length and cost of a case?
Mr Djanogly: From a review of the literature, we know that sometimes these cases can take longer, but not always. Sometimes they are actually quicker. The picture is complex. However, we expect fewer cases to come to court in future because there will be 10,000 extra family mediations, which will help offset any additional burdens on the courts from dealing with litigants in person. Overall, we do not expect a likely increase in litigants in person to lead to significant additional burdens on the court.
In recognising that there is an existing problem with litigants in person—no matter what happened in the Legal Aid, Sentencing and Punishment of Offenders Bill—we are seeking to improve the system by introducing single family courts, which will provide one route into the system that people can understand; by changing court processes so that they are easier and quicker to understand; by introducing a new child arrangement order; by creating processes to deal with breach of order more quickly and effectively; by simplifying and streamlining the divorce process; and by improving the information made available to the public. In addition, support for separated and separating parents will be provided through new web and telephone services led by the Department for Work and Pensions, which will provide trusted independent information suited to people’s needs. The web service will be commissioned in 2012 and the telephone service in 2013.
Other practical steps include welcoming the Civil Justice Council’s report on self-represented litigants that was published late last year. It contained a number of practical and pragmatic recommendations, many of which are applicable to the family as well as the civil courts. We are working with the CJC and the Family Justice Council on how to take these matters forward.
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Recommendations include guidance to court staff on how to deal with unrepresented parties and information about pro bono assistance. We have also made funding available to support this work, some of which is being used to support the expansion of the Personal Support Unit, a charity based in the Royal Courts of Justice, which provides volunteers to accompany people to court and to fund guidance produced by not-for profit organisations specifically tailored to unrepresented parties. We envisage the funds being used on online tools, guides to the court process, including on video content, and other initiatives, and we are working with relevant organisations such as the citizens advice bureau to that effect. These will all be in place before the legal aid reforms take effect. These changes are radical and cannot happen overnight, nor can they happen in a family justice system that lacks leadership and coherence.
We agree with the family justice review and with my right hon. Friend the Member for Berwick-upon-Tweed that transferring CAFCASS to the Ministry of Justice will bring court social work closer to the courts and make it easier to improve the whole system’s performance. We will transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice by the end of this spending review period. I should say that CAFCASS’s performance has improved significantly in recent times, but I agree with him that moving CAFCASS will not be enough; integration of services will be key.
Crucially, we are already putting in place the governance arrangements that will drive those changes. We have established the Family Justice Board, which brings together senior figures in the core organisations within the family justice system. The board will give family justice national leadership and visibility, and will be led by an independent chair and supported by a performance improvement sub-group and a young people’s board. We are also establishing new local family justice boards to drive momentum at a local level. The new national governance arrangements will provide a more joined-up family justice system and ensure consistency between national strategy and local delivery. Together, the new structures will have a clear remit to focus relentlessly on system performance.
[Mr Joe Benton in the Chair]
In taking forward work to improve the system’s efficiency and effectiveness, we must not overlook the need to make it more responsive. We are considering how we can simplify processes further and provide practical information to help unrepresented parties navigate their way through the system, as I described earlier.
My hon. Friend the Member for Birmingham, Yardley mentioned CAFCASS and guardians, in the context of the child’s voice being heard. We agree with the FJR’s strong views on the centrality of children’s interests and endorse the panel’s proposals on listening to children’s voices and ensuring that their wishes and feelings are taken into account. We will put the child back at the centre of the system. We take seriously our obligations to promote and implement the UN convention on the rights of the child, and throughout our proposed reforms, we will introduce practical measures to ensure that children’s voices are heard. The Family Justice Board will have a key role to play in supporting children’s right to have their voices heard, which is why one of its
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sub-groups will be a young people’s board, building on the benefits gained from the CAFCASS young people’s board.
There has been considerable debate over the years about the opening up of family courts. Slightly different positions have been stated today by right hon. and hon. Members, whom I accept all care passionately that we get it right. Understandably, there are many different views on the subject, and there is a balance to be struck between confidence and privacy on one hand and publicity on the other. The challenge is balancing the need for public scrutiny with the parties’ need for privacy. I accept that the current position is unsatisfactory.
The Government’s response to the Justice Committee’s report last year, as my right hon. Friend the Member for Berwick-upon-Tweed restated today, accepted the recommendation that the provisions in part 2 of the Children, Schools and Families Act 2010, which allow for greater reporting by the media, should not be enacted. As the Committee recommended, one lesson learned from the outcome of the last attempt to achieve transparency in the family courts is that a solution to this important and contentious area of policy should
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not be rushed. Given the issues at stake, we will work to find ways to achieve greater transparency in the family courts.
The work that the Government are doing to implement change in response to the Justice Committee’s report and the recommendations of the family justice review represents a broad and ambitious programme of reform, as I hope I have explained to some extent today. The programme that I have outlined shows our commitment to providing a modern family justice system where delay is the exception rather than the norm; one in which people are supported to resolve disputes themselves as early as possible and away from the court if possible; one that is coherent and well led by the Family Justice Board, with buy-in from all partner agencies: in short, a family justice system that children and families can trust and rely on. I know that all right hon. and hon. Members share that objective, and I am grateful to them for their contributions to this debate.
Question put and agreed to.
Meeting started on Thursday 24 May at 2.30pm. Ended at 4.04pm
Operation of the Family Courts, Sixth Report from the Justice Committee, Session 2010-12, and the Government response, Cm 8189
Government Response to Justice Committee’s Sixth Report of Session 2010–12: Operation of the Family Courts Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty On October 2011