Westminster Hall: Constitutional Affairs Select Committee, 'Family Justice: Operation of the Family Courts'

Speech by Annette Brooke MP on Thu 12th Jan 2006

Annette Brooke (Mid-Dorset and North Poole) (LD): I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) and the members of his Committee on producing an excellent report. It was well timed to some extent; there was a slight lack of synchronisation between some Government papers and the Select Committee's report, but I am glad that it has come together in a timely fashion.

I considered the title of the report, "Family Justice", and my experiences of constituency surgeries and thought, justice for whom? Are we talking about justice for parents or justice for the children? Somehow one loses sight of the fact that there was a family unit. We need to proceed in such a way that we retain the importance of a family, even though they might not all be located in the same residence. That is a very important objective.

Support for the family generally is very important and I declare an interest, although I wish it was greater than it is: I am a trustee of Poole community family trust, which I do not think will have any funding in the near future. The principle behind community family trusts of working on relationship education prior to partnerships becoming permanent—by, for example, working through checklists and in particular through providing relationship education in schools, which happens in quite a lot of other ways—is excellent.

Those preventive measures are not part of the report, but are part of what I see as a lifetime raft of family support that can be accessed at appropriate times. When we consider the amount of support needed once a breakdown occurs, we realise that such early investment is crucial. It is clear that even if there is an irrevocable breakdown, if the parents have an amicable split the contact arrangements are that much easier to deal with. That is very important. I shall pick up on other aspects of support for families later.

Another aspect that does not relate directly to the report is the suggestion that this whole area is under-researched. Do we know the extent of contact denial or breakdown? I wonder whether the Government want further research in that regard. I know that there is the Office for National Statistics work, but people may feel that all the work should be much more extensive. It certainly needs to be done in a sophisticated way. The evidence that I have seen is that rather different answers are given by the resident parent and the non-resident parent. Perceptions are different, which makes careful research all the more important.

Sadly, some parents reach the point of irrevocable breakdown. The report and the Government response are all about how well the processes work in those circumstances and what we can all do—there is a great need for consensus in this respect—to improve them. As a background to the comments that I shall make, I want to make it clear that we would support the presumption that the welfare of the child is paramount. We would certainly want to take on board the United Nations convention on the rights of the child. In particular, the views of children should be sufficiently taken into account. I am also referring to the right of the child to be cared for by parents, the parents' right to exert parental responsibility in allowing their child to develop and evolve their capacity—parental responsibility is all-important in this—and the child's right to contact unless it is in their best interests not to have contact.

Now that we have had "Every Child Matters" and the Children Act 2004, we have at the back of our minds achieving the five all-important outcomes for children. However, I have structured the order of my response slightly differently. I put safety issues at the top of my list of things to talk about, because I thought that they were all-important. I wanted then to consider mediation, contact, enforcement, resources and transparency, and I think that I have listed those issues according to my order of priority.

The Minister has made a very big contribution to tackling domestic violence, and we have discussed the issue at great length. As regards contact and the safety of children given the frequent history of violence in those cases that come to court, the often-cited statistic is that in 2003, 16,000 cases involving domestic violence came before family courts, but only in 601 were contact orders refused. It is a difficult question whether domestic violence is under-recorded—some groups feel strongly that it is—or over-recorded. I shall return to that question.

I am pleased to congratulate the Government on the fact that the availability of supervised contact centres is improving but, as the report points out, much more is needed in that regard; the current provision is inadequate. I am pleased that the Government responded favourably to the point made in the Committee's report about thinking about more innovative solutions: using children's centres and extended school and looking at facilities in different ways. I have no idea whether the resources that the Government are allocating will be adequate; I hope that they will.

We have long felt strongly that any contact activity should be subject to careful and separate risk assessment to minimise possible risk especially to children and also to individuals involved, particularly women. The Joint Committee responsible for scrutiny recommended that before making contact or enforcement orders the court should explicitly be required to consider the safety implications for both the child and the parent of such an order. I am pleased that in the other place there has been an agreement to introduce mandatory safety assessments where accusations have been made—the Minister will correct me if I am wrong, and I look for clarification in her response.

My right hon. Friend the Member for Berwick-upon-Tweed mentioned the gateway forms. Why are we getting more reports of domestic violence? Have the forms encouraged people to come forward and say something or are people using domestic violence as part of the unfortunate game? I have had a very sad constituency case. My constituent suggests that the case is entirely trumped up; he has never been involved in domestic violence, but he feels that the form has affected the outcome of his case. He is particularly aggrieved because he feels that he has never had a chance to put his side. The mandatory risk assessment will be helpful, because I imagine that both sides would at least have an opportunity to present their points. That would all be part of the assessment and would be healthy for such difficult cases.

Mr. Beith : May I point to a further difficulty that occurs in such cases, which the risk assessment would have to consider? When the breakdown has been attended by a degree of low-level violence, possibly involving both partners, that is of no threat to the children and the children have never seen it let alone been the victims of it, such an assessment is difficult to make. However, if we do not make it, we create a presumption that if the slightest element of violence has ever occurred between the two parties, one party can never see the children again. That cannot be a reasonable conclusion in all cases.

Annette Brooke : That is quite interesting. My right hon. Friend anticipated my next point, in his usual, instinctive way. The safety issue needs to be revisited over time, because no family is static, and people can go on programmes if there has been concern. It also needs to be revisited because there are additional strains as time goes on and domestic violence may occur when it has not done so in the past.

Safety considerations are also important before going down the mediation route. Mediation has to be the priority. The Government have made a good start. We can criticise for which product the project has been used and for which it has not, but there is now much more emphasis on mediation and an understanding that it has to be better than ending up with warfare and conflict, where the child becomes a pawn. We need to use mediation as an opportunity to strengthen those relationships and make sure that the outcome is best for the child, and does not merely serve the interests of the parents. It might be good for the parent to see the child, but if it involves hundreds of miles of travel, that should be considered. Considering the child first is all-important.

The 10 per cent. of cases that reach the courts are those in which the people need sustained support and help with problem solving. That might seem like a small percentage, but it represents a large number of cases—annually, there are 40,000 applications to the courts over child contact and 70,000 breaches of child contact orders—and that must concern us greatly.

To emphasise the point about early intervention, the consultation document issued by CAFCASS, "Every Day Matters", contains some really good points. It says:

"CAFCASS (and other agencies) frequently intervene too late, long after parents' attitudes have hardened against one another, or long after one parent has created a new household, excluding their former partner. Indeed, many attitudes have hardened long before the first court application, hence the need for even earlier intervention where possible. Arguments about the fine detail of contact arrangements occupy huge amounts of scarce professional time, often unproductively. Once a court application is made, there is a clear risk of an adversarial model of law being started up".

That illustrates why we have to put such emphasis on early intervention. However, we have also to make information easily accessible. The point was made earlier that that is not always the case—there might be booklets, but they might not be the best format for those who seek to access information. It would be interesting if the Minister would comment on the type of information that is available to parents—whether, for instance, there are videos as well as printed leaflets.

University of East Anglia and other research indicates that many of the parents represented by the 10 per cent. of cases are very young, poorly educated and on low incomes with extremely young children. Partly because of their lack of education, they often find it difficult to communicate not only with each other but with those who try to help them. There might be a deep lack of trust between the parents, a history of violence or poor parenting skills—parenting skills play a very important part in such situations before they become adversarial—giving rise to worries about the vulnerability of the children.

In the draft Children (Contact) and Adoption Bill, the Government have attempted to find a different way to resolve the issues. We welcome that, and would like as many as possible to be resolved through mediation, although we agree with the Government that it cannot be made compulsory. One can put two people in a room with somebody, but if they are not prepared to participate, one cannot make it work. However, we support the case for a compulsory referral meeting about mediation. I should be interested to have an update on that. Any meeting would need to take account of the principle that the welfare of the child is paramount.

We have already mentioned the family resolutions pilot project. I know that there was general disappointment when it appeared that very few cases had been referred, because there had almost been a presumption that everybody would be referred to the project. That was not the case. That led me to ask a parliamentary question, in response to which I was told in March 2005 that 71 couples were referred to the pilot project—14, correctly, because of domestic violence. I eventually received a breakdown—it must have been difficult to obtain the figures—and found that 18 parents had already reached agreement and did not need to go, and in one case there was only a residence dispute. So the list went on. We are never going to get 100 per cent. referral, but even 71 cases is a long way from the sort of numbers that we would like to see.

We spoke earlier about the Florida project, comparing it with what the Government are doing. It is important to wait for the full report before reaching too many conclusions about the project. I am supportive of it, although I realise that people may have good reasons for not attending. The report is due to be published in March. Perhaps the Minister can tell us a little more about it before full publication.

It would be helpful if the court application triggered compulsory attendance at the preliminary meeting. At that introductory session—the couple might choose to meet the mediator separately—the options for mediation could be outlined, including offers of other parenting help. That information could be given to the parents face to face, which I suspect would be the most efficient way.

I believe that the first meeting should be free; if not, cost could be a barrier. I understand that couples for whom the mediation is funded must meet, but I do not know what happens if one partner is on legal aid and the other is not. That must be taken into consideration, as it could be another barrier. We need to give couples the greatest possible encouragement to attend that first meeting, and we must try to remove possible barriers.

It would help if that first meeting could be held before going to court. That may cause a little difficulty, but perhaps the court hearing could be postponed. It might cause delay, but an earlier referral meeting might be more productive. I know that judges would like to see CAFCASS engaging in more conciliation.

We have mentioned safety, which is all-important, and mediation, counselling, parenting classes and the other supportive elements, but what about the contact itself? It is difficult to know how big the problem is. It is obviously a high-profile issue. We know that people feel aggrieved, and we have probably all heard stories from friends saying how difficult it is and that, on the surface, they appear to involve genuine grievances. We cannot just brush that aside and say, "Well, it's okay. We are doing all these other things. It's going to be all right." We need to address the question of contact. We should bear in mind the fact that the United Nations convention on the rights of the child says that the child has the right to direct and regular contact with both parents unless it is contrary to the child's best interests.

It is generally acknowledged to be in the child's best interests to sustain a full relationship with both parents. Obviously, in some cases it will not be—for instance, if there a risk of harm. Indeed, we have heard that relationships involving conflict can be immensely damaging for the child caught in the middle. We certainly should not be too prescriptive. I would not like to go down the 50:50 route, saying that that would be a fair staring point, because every case is different. However, I feel that there should be a bit more than we have now. Parents should be able to assume that contact should take place in most cases.

Difficult discussions took place on the Floor of the House and in the other place when considering the Children and Adoption Bill. Even Resolution—the new name for the Solicitors Family Law Association—which gave evidence to my right hon. Friend's Committee, appeared to have difficulty with the concept. Its written evidence suggested that there should be a first presumption and then a second presumption—the child first, but a second, lower-order presumption relating to the right to see both parents.

This is a difficult matter, and we need to grapple with it. The Committee made a recommendation to insert a statement into the welfare checklist of the Children Act 1989 that the courts should have regard to the importance of sustaining a relationship between the children and a non-resident parent. That is a valid point, and the Government's response leads me to understand that they will consider it. As the response was printed some time ago, I would like the Minister to tell us whether any progress has been made on that. It seemed from the evidence that people were coming together around that proposal—that that could actually work.

We are repeatedly told that the assumption of reasonable contact is established in case law, but there is no certainty about that. We should try to find some wording that could be added to the Children and Adoption Bill so that there can be clarity and guidance for parents. However, I accept that discussions in the other place have been difficult. I know that there are lots of booklets; I think that Bridget Lindley is involved in producing booklets. However, I am unsure whether that alone can provide the answer.

My right hon. Friend spoke about bias. With the delays that have occurred in the past, it has been almost a self-generating bias. If the non-resident parent has not had contact for six months or longer, resolution is harder to achieve. The outcome is then almost a self-fulfilling prophecy.

We have been looking at the idea of there being a default model contract arrangement that can be applied in the absence of agreement until an order can first be made—while, of course, also putting in a lot of safeguards. That would give some clarity, so that parents could have a reasonable expectation. Every case will be different, and millions of cases will be considered. The idea is not for there to be a template, which my right hon. Friend's Committee rejected. It would not be as rigid as that; it would just provide something so that the delay can be cut down.

Abuse of children is an important subject, and the Government are committed to tackling it in many ways. It is my impression that, in good situations with CAFCASS the views of children are brought in and dealt with very well—the Minister might have more evidence about that. However, I also have the feeling that that is operated patchily in different areas across the country; that is only hearsay—it is not evidence. The ideal is the shared parenting that the report refers to. I like the following quote of "Every Day Matters":

"a separation for adults should not be a separation for children".

That makes us think about things.

Enforcement is an important matter, and the best interests of the child must be considered. It is good that the Government moved to put in other enforcement measures to try to tackle this issue, which has led to much conflict.

On resources, the report contained a telling point. The table on page 20 looked at the number of High Court judges in the different divisions, and the percentage increase between 1979 and 2004. There was a 12.5 per cent. increase in the family division, a 54 per cent. increase in the chancery division and a 57 per cent. increase in the Queen's bench division. I am not a lawyer, so will the Minister say whether those figures reflect the growth in casework? Given the resources, surely judge power is important.

We know that delays have been caused because of CAFCASS, which, in "Every Day Matters", is almost putting on a brave face. It says that it does not have enough resources, but that it has proposed new solutions. We must be concerned about resources for CAFCASS. I asked a parliamentary question concerning the average amount that is spent on training for people who work for CAFCASS. Obviously, a number of people are self-employed, but the response showed low figures such as £390. That would not buy many training courses. The figure increased to £600 in one year, but it was back down to about £300 in the last year for which I was given figures. Things have moved forward, with good proposals for the reform of CAFCASS, but I am worried whether it will be adequately resourced.

I agree with everything that was said in the Select Committee report about transparency. We need openness. It will help with the difficult cases that we deal with at our surgeries. When people consider matters unfair, they can challenge them in some way. Although we often focus on the fact that non-resident parents suffer so much, as so many cases show, to balance matters it is interesting on the other side of the coin that resident parents sometimes become aggrieved when non-resident parents do not turn up on time or do not take the opportunities that are presented to them. To return to my first point, it would be good if comprehensive research were undertaken so that we knew where the greatest problems lie.