Children and Adoption Bill - 2nd Reading

Speech by Annette Brooke MP delivered to House of Commons on Thu 2nd Mar 2006

Annette Brooke (Mid-Dorset and North Poole) (LD): I congratulate Members who have spoken so far on the tone of the debate. We have already had a useful sharing of views and new ideas. That is all-important—after all, we are all trying to ensure that the best interests of the child are served.

Our debate must focus on the best outcomes for the child. For me, it is important that the principles in the United Nations convention on the rights of the child are upheld. Many articles are relevant to the Bill. Article 3 states that "the best interests of the child shall be a primary consideration."

As we have heard, article 12 covers the right of the child to express views freely—

"the views of the child being given due weight in accordance with age and maturity."

The next paragraph is especially relevant. It states that "the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child."

The right to be heard and how it is facilitated are critical. Article 9 states that it should be ensured that "a child shall not be separated from his or her parents against their will except"

under some of the conditions that we have discussed. When there is a possibility of separation from one or both parents, the article states that relations and direct contact should be maintained with both parents regularly, except if that is contrary to the child's best interest. Articles 11 and 21 are especially relevant to the adoption provisions of the Bill.

I welcome some aspects of the Bill. I do not feel quite as negative as the hon. Member for East Worthing and Shoreham (Tim Loughton) about it. Its origins go back several years and there has been a great deal of consultation. The issues that part 1 covers constitute an acknowledgement of the great dissatisfaction with the way in which the legal process has handled contact disputes.

As the Minister for Children and Families said, a multi-faceted approach is important. It is also important to try to increase the proportion of parents who resolve contact issues without recourse to the courts, and the proportion of those who have reached the court process but are supported to find agreed solutions. We must also improve the efficiency and effectiveness with which the remaining intractable cases are tackled. We must appreciate that those cases—approximately 10 per cent. of the total— are complex.

To go back a stage further, it is important to recognise the importance of the family unit, with no prescriptive view of the shape that a family may take. The family structure may change for a child, but the important aspect is loving, caring and safe relationships in the family. The preamble of the United Nations convention on the rights of the child stresses "recognising that the child, for the full and harmonious development of his or her personality should grow up in a family environment, in an atmosphere of happiness, love and understanding." I suppose that we could say, "We wish."

The Constitutional Affairs Committee report that covered matters of importance to the Bill was entitled "Family Justice". Sometimes, experiences in my constituency surgeries make me ask, "Justice for whom?" Do we mean justice for parents or for the children? Somehow, one loses sight of the fact that there was a family unit. We need to proceed in such a way as to retain the importance of the family, even if all its members are not located in the same residence.

Support for the family generally is important. I declare an interest—I wish it were greater than it is—as a trustee of Poole community family trust. I do not believe that it will receive any Government funding in the near future. The principle behind community family trusts of working on relationship education prior to partnerships becoming permanent—for example, by working through checklists and especially through providing relationship education in schools—is excellent.

Such preventive measures are part of what should be a lifetime of family support that can be accessed at appropriate times. When we consider the amount of support that is needed when a breakdown occurs, we realise that such early investment is crucial. Clearly, even in the case of an irrevocable breakdown, if the parents have an amicable split contact arrangements are much easier to tackle.

Part 1 is the result of a process that began way back in March 2001. Following consultation, a report entitled "Making Contact Work" was published in 2002 by the Children Act Sub-Committee—CASC—of the Lord Chancellor's advisory board on family law. Its recommendations covered several issues that we are debating today. However, it was not until July 2004 that the Government published their Green Paper on parental separation, which acknowledged that the way in which the courts intervene in disputed contact cases does not work well. The results of the consultation were published in "Next Steps" in January 2005. We then had pre-legislative scrutiny. That is an excellent process, on which the Government are to be commended. There should be much more of it. The Bill was then introduced in the other place, and we are now debating it today, five years after the process started. It is hardly surprising that people have become impatient.

There has been high drama throughout the period, involving not only the antics of various fathers' groups, but the significant report of the then Select Committee on the Lord Chancellor's Department on the Children and Family Court Advisory and Support Service—CAFCASS—which resulted in the whole of the CAFCASS board resigning. Positive changes have emanated from that and we are now beginning to feel confidence in its ability to change the way in which it works, but it certainly faces enormous challenges. CAFCASS has just completed its consultation paper "Every Day Matters", and I shall say more about CAFCASS later. I want to note the significance of that title. It illustrates the importance of dealing with these disputes in an effective but cautious way. However, we have just been through a five-year process. Surely that is too long.

We have already heard evidence of important case studies and seen data from the Office for National Statistics, but do we really know the extent of contact denial or breakdown? The evidence that I have seen suggests that we tend to get different answers, depending on whether we ask the resident parent or the non-resident parent. Obviously, perceptions will differ, but that makes it all the more important to set up the research projects with great care. It is welcome that the Government are setting up a further research project on what happens between a case arriving in court and a final contact order being made. However, that research could well take 18 months, and we shall have completed our work on the Bill long before that. Research has also been undertaken on the gateway forms, although I have not come across its findings. Perhaps the Minister will talk about that later. Time is ticking by—we should have commissioned some of this research rather earlier.

We wholeheartedly support the presumption that the welfare of the child must be paramount, as set out in the Children Act 1989. Given that presumption, I should like to address four issues: safety, mediation, contact and enforcement. If I have time, I shall also mention resources and transparency. I concur with what has already been said about the paramountcy principle being included in all proceedings referred to in the Bill. In particular, it should be added to clauses 4 and 5. I agree with the points made by the hon. Member for Luton, South (Margaret Moran) on that matter.

The Government have made an important contribution to tackling domestic violence, but can we ever do enough in that regard? In relation to contact and the safety of children, there is frequently a history of violence behind the cases that come to court. A statistic that is often cited is that in 2003, 16,000 cases involving domestic violence came before the family courts, but contact orders were refused in only 601 of them. It is difficult to say whether domestic violence is under-recorded. Many groups feel strongly that it is, and I certainly have a distinct feeling that that is the case. However, others will argue that it is over-recorded.

I am pleased also to be able to congratulate the Government on the fact that the availability of supervised contact centres is improving. However, the provision of such centres is still inadequate and many more are needed. We heard earlier about the inadequacy of provision in Northamptonshire. In Dorset, even if we achieve two contact centres, people will still have great difficulty because there is so little public transport.

I am pleased that the Government responded favourably to the Select Committee's suggestion that more innovative solutions should be considered. The Minister mentioned the use of children's centres and extended schools, for instance. I have no idea whether the resources that the Government are allocating will be adequate, but I sincerely 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 but also to others involved, particularly women. The Joint Committee responsible for the scrutiny recommended that before making contact or enforcement orders, courts should be explicitly required to consider the safety implications for both child and parent. I am glad that the other place agreed to introduce risk assessments. I look forward to scrutinising the new clause in Committee because it concerns a vital issue. I hope that it can be strengthened.

Why are reports of domestic violence increasing? Are we becoming a more violent society? Have the gateway forms encouraged people to come forward and say something, or are people using domestic violence as part of the unfortunate game, as has been suggested? It is encouraging in many ways that people are speaking out more and acknowledging the issue of domestic violence, but when there is a dispute between two parents on whether domestic violence has occurred, a mandatory risk assessment will be helpful. Both sides will have an opportunity to present their points, and the playing field will become more level.

The safety issue needs to be revisited over time. That will be difficult because the situation will not remain static. We hope that some of the perpetrator programmes will be successful. There will be additional strains as time goes on, and domestic violence may occur when it has not occurred in the past. Safety issues should also be considered before the mediation route is taken, although mediation must be a priority.

The Government have made a good start. We may have criticisms over which project has been adopted and which has not, but there is much more emphasis on mediation and an understanding that it must be better than warfare and conflict, in which the child becomes a pawn. Mediation should be used as an opportunity to strengthen relationships and to ensure that the outcome is the best for the child and does not merely serve the parents' interests. It might be good for the parent to see the child, but if it involves hundreds of miles of travel for the child, that must be borne in mind. Putting the child first is all-important.

Mr. Kidney : I strongly support mediation, but who pays for it now and who does the hon. Lady think should pay for it in future?

Annette Brooke: I understand that if both parents are on legal aid mediation will be free, but I am not sure what happens when, for example, one parent is on legal aid and the other is not. I hope that the Minister will address the issue. Certainly we should consider it in Committee.

The 10 per cent. of cases that reach the courts are those in which people need the most support and problem-solving. It may seem a small percentage, but in terms of numbers it represents a large tragedy. Each year there are 40,000 applications to the courts over child contact, and 70,000 breaches of child contact orders. That should concern us greatly.

The consultation document issued by CAFCASS, "Every Day Matters", makes some good points about intervention. CAFCASS frequently intervenes too late, long after parents' attitudes to each other have hardened, or long after one parent has created a new household excluding his or her 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. The consultation document illustrates why we must put such emphasis on early intervention. However, we must also make information easily accessible. The Minister mentioned the telephone helpline. I understand that booklets are available, but I wonder whether they are necessarily the best format for those who need to access information. I would like to know exactly what is available for parents at the moment and whether, for example, videos as well as printed leaflets are available.

Research by the university of East Anglia and other research indicate that many of the parents among the 10 per cent. that go to court 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 may be a deep lack of trust between the parents, a history of violence, or poor parenting skills. Parenting skills play an important part in preventing such situations from becoming adversarial, which is when worries arise about the vulnerability of the children.

We agree with the Government—I have done quite a bit of that so far—that mediation cannot be made compulsory. One can put two people in a room with someone 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. We think that that is where the compulsion should take place. We argue that that meeting should be free, as we do not think that we can compel people to do something and then charge for it. I qualify that by saying that any meeting would need to take account of the principle that the welfare of the child is paramount.

Vera Baird: As the hon. Lady says, it is wrong to compel people to take part in mediation, but is it not also wrong to try to arrange that? There are reservations about mediation where there may be domestic violence issues. Clearly, if someone is to be forced to try to resolve things through a face to face with the person who has been oppressing them for many years, that is an inappropriate model.

Annette Brooke: I thank the hon. and learned Lady. I have mentioned twice in that context that safety must be the prime consideration. It is important that, before we consider mediation, we examine the risk assessments. I said that earlier. I am conscious how dangerous—emotionally dangerous, too—it could be to put two such people in a room.

Mr. Stewart Jackson: I am following the hon. Lady's speech closely. Is she aware of the experience in both the United States and Norway, where empirical evidence shows that compulsion largely has worked, and that when people are compelled to take part in mediation it makes a real difference in trying to save the situation from deteriorating further after divorce or separation?

Annette Brooke: I have heard mention of projects in other countries, but have not come across the full, long-term evaluation of them. I feel that, logically—perhaps my background as a school teacher showed me this—we cannot make people, or children, do something that they do not want to do.

On the family resolutions pilot project, I know that there was general disappointment about the number of cases that were referred to it. However, it was a starting point. I regret that we cannot discuss the evaluation of that project, as we were not aware that it was put on the website today. I look forward to the Minister telling us a bit about it later.

Returning to mediation, it would help if the court application triggered compulsory attendance at the preliminary meeting. At that introductory session—the couple in question 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 of dealing with some of these difficult cases. The first meeting must be free; otherwise, cost could prove a barrier. Of course, there is the question of what happens if one partner is on legal aid and the other is not. If both are not on legal aid, that could present difficulties.

I take on board entirely the point about risk assessment before mediation and the desire to intervene as early as possible. Here, we need to strike a balance. Perhaps that first meeting could be held even before going to court. I realise that that would present difficulties, but the sooner the conciliation process begins, the better. The whole package—mediation, counselling, parenting classes, contact activities—is important, but we need to consider the money and skills needed to resource such activities. That is particularly true of the domestic violence programmes.

It is difficult to know how big the problem is. Contact is a high-profile issue and we all know of people who feel aggrieved. Indeed, we probably all have friends who have told us how big a problem this is. Such people appear to have genuine grievances and we cannot just brush them aside and say, "We are doing all these other things—it's going to be all right." We need to address the question of contact and bear in mind the United Nations convention on the rights of the child. A child has the right to direct and regular contact with both parents, unless it is contrary to the child's best interest. It is generally acknowledged to be in the child's best interest to sustain a full relationship with both parents but, obviously, in some cases it is not—for instance, if there is a risk of harm. Indeed, relationships involving conflict can be immensely mentally damaging for the child caught in the middle.

We should not be too prescriptive—I would hate to go down the 50:50 route and argue that that is a fair starting point—but we should go a bit further than we currently do. As we have heard, various documents acknowledge the presumption of joint contact.

Mrs. Maria Miller (Basingstoke) (Con): I should be interested to hear the hon. Lady's views on the fact that 40 per cent. of parents lose contact with their children within two years of separation or divorce. We need to focus on that issue, because that is the reality.

Annette Brooke: I thank the hon. Lady for that intervention, but I shall deal with that point in due course as I want to make some progress.

We have talked at great length here and in the other place about whether it is possible to have two presumptions, and what I hear about the possible undermining of the safety of the child worries me. It is a question of listening. In its written evidence to the Select Committee, Resolution—formerly the Solicitors Family Law Association—suggested that there should be a first presumption and then a second: the first relating to the child, and a second, lower-order presumption relating to the right to see both parents. That was the position during one of our debates, but when Resolution gave oral evidence to the Select Committee, it appeared to change its mind, supporting instead the insertion of a statement into the welfare checklist in the Children Act 1989. It is significant that a major association should, on having listened to what others had said, change its mind in the process of giving evidence.

Vera Baird: I understand the hon. Lady's concern, but Resolution is talking about putting a common-sense presumption in the welfare checklist, whereas the Tory Opposition advocate a legal presumption. However, an absolute legal presumption cannot be changed. If it is rebuttable, it can be rebutted, but it still has to be overturned, and that is a very different matter.

Annette Brooke: That is my point. The Select Committee concluded that inserting a statement into the welfare checklist offered a possible solution and did not have the dangers associated with having two legal presumptions. It also said that the court should have regard—and this is the critical point—to the importance of sustaining a relationship between children and non-resident parents.

That approach was also endorsed by the Scrutiny Committee. I know that the Government heard that request, and I hope that the Minister will say whether there will be any response to it.We have been told again today, as we have been told repeatedly, that the assumption of reasonable contact is established in case law, but we should try to find appropriate wording—perhaps in the form of something added to the welfare checklist—to give some clarity and guidance.

With reference to the point raised by the hon. Member for Basingstoke (Mrs. Miller), what amounts almost to a self-generating bias has been caused by the delays that occurred in the past. It is clear that a resolution is even harder to achieve if a non-resident parent has not had contact with a child for six months or longer. In such cases, the outcome is almost a self-fulfilling prophecy. What can we do? Is it a question only of making the court process more efficient, or can we put in place some mechanism to deal with the problem, where there is no risk of harm? I hope to be able to explore that in greater detail in Committee.

The hon. Member for Luton, South said that it is vital that the views of children are fully considered. My impression is that, in good circumstances, CAFCASS does take account of children's views and deals with them very well. It would be interesting to have some evidence in that regard, but hearsay suggests that that body's response is patchy across the country. I support the NSPCC's contention that the Bill fails to make any provision in respect of the mechanism by which the courts may ascertain the child's wishes and feelings, or ensure that separate representation for the child is available when that child might be at risk and his or her interests are in conflict with those of the parents.

Section 122 of the Adoption and Children Act 2002 has been mentioned already. I have tabled some parliamentary questions on the matter, but it would be very helpful if the Minister who winds up the debate is able to say whether the provision is likely to be implemented in the near future. A great deal of research exists to suggest that taking a child's wishes and feelings into account can lead to better resolution between parents. We must find the best practice in that respect, but I am sure that all hon. Members want that outcome.

Much has been said in the debate about enforcement, although I have not devoted as much of my speech to the topic as the hon. Member for East Worthing and Shoreham did. It is important to consider different penalties, and my earlier intervention was aimed simply at establishing whether a range of penalties existed. The community punishment is obviously preferable to sending a parent to prison, which is a last resort, but the way that it is operated by the probation service means that some parents will find it difficult to make sure that the child's interests are not affected. For example, a parent who is sent on a gardening scheme might have to wear a very visible jacket, and her child might think, "That's my mother doing that."

I am not convinced that the community punishment work would be appropriate in all cases. Will the Minister say whether the provisions in the earlier part of the Bill could be applied as part of a contact order's enforcement process so that, for instance, a person could be sent off to an appropriate parenting course? That would add to the range of available penalties, although all matters to do with contact activities, community service and so on obviously require adequate resourcing. We know that delays have been caused by CAFCASS, but in "Every Day Matters" it seems almost to be putting on a brave face. It says that it does not have enough resources, but that it has proposed new solutions. We have to be concerned that CAFCASS is adequately resourced.

I asked a parliamentary question recently and established that while the average training budget per employee was as high as £644 in one year, this year it had slipped down to £390. If we envisage CAFCASS carrying out a much wider range of activities, including risk assessments, training will be all important. We have to get it right. There is a great deal of concern about the potential under-resourcing of CAFCASS when it is taking on a changing role.

Finally, on part 1, I concur with the Conservative Opposition that increasing transparency where it is safe and appropriate to do so in the family court system will help to address some of the current grievances.

I shall be rather brief on part 2, not because it is not important, but simply because with the interventions that I have taken I have been speaking for rather a long time. It is absolutely right that we have slightly more focus on adults in this part of the Bill, although safeguarding children is still important. We all know that inter-country adoption happens for different reasons. Frequently, people adopt children from within their extended family or friendship ties. More often than not, such adoptions are nothing like that. There are thousands of children waiting for adoption in this country, but they are older children and they have a number of problems. People choose to go abroad to adopt babies. The proposed legislation will cover countries, I presume, such as the USA. It is not simply about people who, for humanitarian reasons, go abroad to adopt children in need.

The procedures for suspending adoptions from other countries need to be clear, transparent and fair. I supported the decision to take urgent action on Cambodia when trafficking issues arose. The process of inter-country adoption is extremely long. It is an extensive and expensive process. I have some concerns about the fee issue, which was discussed at length in the other place. I agree with the extension of the time limit from six to 12 months, as proposed in clause 14. It will stop people evading some of the rigours of the adoption procedures in other countries. There is quite a dilemma in terms of time taken and expense, but it is important to get it right. I look forward to debating that fully in Committee.

Baroness Barker moved an amendment in another place to make it easier in appropriate cases for children to be adopted from the UK to overseas, more often than not by relatives. As promised by the Minister in that debate, a meeting has taken place with civil servants. Does the Minister have any update for us on that today? I understand the difficulties of establishing sufficient safeguards for children, but clearly it is important to look at the issue that way on as well.

Baroness Barker said in the other place:

"Until such time as we have a private fostering system that is properly regulated in this country, we will continue to run up against problems that sometimes are masked as inter-country adoptions but more likely are about trafficking."—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 282.]

Recently, we have seen reports about the number of children in this country who simply disappear as a result of a badly regulated system of private fostering. I, too, have made my cause the need to make progress to proper regulation of private fostering. That is important.

All in all, there are some important and useful aspects to the Bill and I look forward to a constructive time in Committee, where everyone will listen to one another and we will come up with a safe solution, while acknowledging that there are issues about how the current system operates.