Baroness Jones of Whitchurch (Lab)
My Lords, Amendment 40 focuses on the impact of the underoccupancy charge on would-be adopters, special guardians and foster parents. We know that there is a widely held concern about the negative impact of the housing underoccupancy charge or, as we call it, the bedroom tax. The plight of those who are unable to move to smaller properties, or who need the extra accommodation for obviously justifiable reasons, is regularly highlighted in the media.
However, I want to concentrate our concerns today on a very specific consequence of the new charge, which is how it impacts on the already chronic shortage of existing and potential foster carers. As noble Lords will know, the bedroom tax restricts housing benefit to one bedroom per person or per couple living as part of a household. Tenants affected will face a 14% cut in housing benefit for the first “excess” bedroom and a 25% cut where two or more bedrooms are underoccupied. The average loss of income is estimated to be around £14 per week. Our concern is that foster children are not counted as part of the household for benefit purposes and therefore that, technically, all foster carers could face cuts in housing benefit.
This matter was raised by our colleagues in the Commons and last-minute changes announced in Committee by the Minister mean that foster carers are allowed one additional room in their homes, as long as they have registered as a foster carer or fostered a child within the past 12 months. This means that around 5,000 foster carers would be exempt from the bedroom tax, and obviously we welcome that concession. However, foster carers with more than one child will still face the bedroom tax. The reforms still apply to foster carers who have two or three bedrooms for fostering children.
Carers in this situation can apply to a discretionary housing fund for support with their housing costs but because of its discretionary nature, this is not guaranteed—and carers will have to reapply for this benefit every six weeks, even if they have fostered a child on a long-term basis. We do not believe that this is satisfactory. It shows a lack of joined-up thinking by the Government, given the current acute shortage of foster carers. We believe that if the rules remain as they are, foster carers will be deterred from providing foster care for more than one child at a time. This means, for example, that children in foster care are more likely to be separated from their siblings. With there already being a shortage of foster carers in the UK, these reforms are likely to mean fewer new recruits coming forward and children’s well-being suffering as a result.
Our amendment is simple and modest. It would require the Secretary of State to review the impact of the bedroom tax on foster carers to see what impact this is having on this group and to report back to Parliament on the conclusions within one year. When this was debated in the Commons, I understand that the Minister agreed to take this proposal away and think about it again.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
I understand that the purpose of this amendment is to ask us to conduct this review. As I know that noble Lords are anxious to move on to the justice provisions, which my noble friend Lord McNally will be covering, it might assist the Committee to know that the Government are committed to conducting an independent assessment of the impact on these particular groups and will be commissioning this shortly. We agree with the noble Baroness that this is very important, and a report on the outcome will be published within the timescale that her amendment calls for—within a year of Royal Assent of the Bill. We will place a copy of the report in the Libraries of both Houses of Parliament. I hope that noble Lords will find that intervention helpful.
Baroness Jones of Whitchurch
I thank the Minister for that clarification. I was coming to that point. The clarification I was seeking was: will there be just one review, the DWP review that the Deputy Prime Minister announced yesterday, or will there be a separate review within the Department for Education? I am grateful for the Minister’s clarification that it will be placed in the Library, but on an important issue such as this we need some assurance that there will be an opportunity for Parliament to debate the conclusions rather than just read them. Perhaps the Minister could clarify those points, which is what I was going to ask him to do anyway. I beg to move.
Lord Wigley (PC)
My Lords, I will intervene very briefly if I may. Whereas Part 1 of the Bill largely did not apply to Wales, Part 2 to a large extent does. I therefore ask the Minister, in the context of the new clauses being proposed, whether any review that he will be undertaking will be in co-operation with the National Assembly of Wales and the Government of Wales, which have responsibility for education and social care but not for some aspects of social security and housing benefit. I would be grateful if he could at least give an indication that he will take that on board.
Lord Nash
My Lords, I should like to reassure noble Lords that the Government are committed to helping people foster, adopt and be special guardians to some of the most vulnerable children. We want to ensure that government policy supports this aim. As has already been pointed out, on 12 March my right honourable friend the Secretary of State for Work and Pensions announced an easement of the treatment of foster carers under the housing benefit policy to remove the spare room subsidy. Foster carers are now allowed one additional room under this policy, as are those who have a child placed with them for adoption. That will ensure that many foster carers will no longer be affected by removal of the spare room subsidy.
Adopted children, those placed for adoption and those being looked after by special guardians are treated as part of the family in the same way as birth children, so these children’s bedrooms are also included in the bedroom assessment for the household. Prospective adopters and prospective special guardians awaiting a child being placed with them are treated differently. This is because these are temporary situations. People in these circumstances will be able to apply to the local authority for short-term assistance from the discretionary housing payment fund. My honourable friends the Minister for Children and Families and the Minister for Welfare Reform have written to local authorities highlighting that these groups should be a priority for discretionary housing payment funding. The measures the Government have taken should ensure that foster carers, prospective adopters and prospective special guardians are not unfairly treated by the removal of the spare room subsidy.
The Government are committed to conducting this review and it will be placed in the Library. It will be a matter for noble Lords as to whether or not they wish to debate it. The Government have commissioned a separate report from Ipsos MORI but, in answer to the noble Baroness’s question, we will be having our own report on this matter.
I shall write to the noble Earl, Lord Listowel, in response to his questions about supported lodging. So far as concerns the comment of the noble Lord, Lord Wigley, we will talk to the Welsh Government regarding our review of foster carers, and I will write to the noble Lord further about this. In those circumstances, I urge the noble Baroness, Lady Jones of Whitchurch, to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank the Minister for the information that he has given about the fact that there will be two different reviews. I could make the point that, of course, within a year a considerable amount of damage could already have been done not only to the incomes of the lowest paid and the poorest people in our society but potentially to the availability of foster and adopter volunteers. Having said that, I am grateful that a review is taking place. I think that we all need to have the evidence, and we need to have some empirical research that shows us the extent to which this is happening.
I thought that the Minister’s response on whether there would be a debate was thoroughly inadequate. On a matter such as this, given that it has already been acknowledged that there is a potentially serious issue here, I should have thought that he could have taken more steps to determine that we could debate the findings. Nevertheless, at this stage, I beg leave to withdraw the amendment, although I shall no doubt come back to it at a future stage.
Baroness Northover (LD)
My Lords, we share the concerns of my noble friend Lord McColl for the victims of the terrible crime of child trafficking. I pay tribute to his determined and enduring commitment to these children. I am sorry if the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl feel that they are being batted away in any sense; they are not and will not be. These debates are extremely important in taking things forward.
At the previous session of this Committee, the failure of some local authorities to fulfil their statutory duties towards these child victims was discussed. We heard, as we have heard again today, some heartrending accounts. I start by emphasising that these failures are absolutely unacceptable. Local authorities should ensure that these very vulnerable children receive the care and support that they so desperately need. In fulfilling those duties, a looked-after child who has been trafficked should be allocated a social worker by the local authority, as noble Lords have heard. The social worker should be responsible for planning the care of the child, ensuring that they are safely accommodated and that their welfare is supported.
The social worker should plan to ensure that all the needs of the child are met. They should take particular account of the specific needs of a trafficked child, including planning to prevent the child going missing from care, as the noble and learned Baroness, Lady Butler-Sloss, said, providing safe and secure accommodation and ensuring that the child understands any procedures in which they are involved. Throughout this they should treat the child as a victim of crime.
The child should also be allocated an independent reviewing officer who would, among many responsibilities, ensure that the child is aware of the implications of their immigration and asylum status and that the local authority considers these as part of its plan to meet the child’s needs. Further, as noble Lords have said, the child would have the right of access to an independent advocate responsible for accurately representing the child’s wishes and feelings. Advocates can support children on all issues, not just their care plan. Social workers have a duty to tell all children about their right to an advocate. Advocates can and do support children of all ages, even the very young children to whom my noble friend referred. The child’s needs and interests are best protected when these professionals work well together and fulfil their statutory responsibilities.
Legal status, perhaps unfortunately, is not the point. Local authorities have a statutory duty to assess and meet the needs of trafficked children. The issue is one of practice and, as my noble friend Lady Hamwee pointed out, trying to ensure that what should happen legally actually does happen.
The noble Baroness, Lady Lister, and others mentioned Scotland, and I inquired as to whether this had solved the problem. I understand that the pilot of guardians in Scotland has, thus far, had mixed results. I can reassure the noble Baroness, Lady Jones, that we are keeping in touch with the Scottish Government to see what lessons we can learn from them, but it seems again to come back to practice; even setting the arrangements in place has not cracked it in Scotland.
I realise that my noble friend Lord McColl does not accept this point but we continue to feel that adding another person in the form of a child trafficking guardian to those already working in the interests of the child could add another layer of complexity. There could be a real danger of confusion about the role of social workers, independent reviewing officers and the new guardians. The current system is clear about who is responsible for taking decisions about how best to support the young person. However, we accept, as I said on Monday, that this is clearly not working out in practice as it should do. Noble Lords will know that the statutory framework includes specific duties to consider the particular needs of the trafficked child and, for example, keeping the child safe from their traffickers.
From November, every Ofsted inspection report must say how local authorities are doing in reducing the number of, and supporting, children who go missing. It is therefore vital to focus on the reasons for the failure of some local authorities to provide adequate support to trafficked children, rather than perhaps to conceal those failures below further operational layers.
Noble Lords have made reference to the Still at Risk report. They may have noted that several of its recommendations highlighted that all agencies need to implement properly statutory and practice guidance. The structures already exist to provide the support required by trafficked children if the relevant authorities put them into effect. The report showed that effective multi-agency working is an essential part of providing the right support.
I said on Monday that we have already put in place a major programme of reform to transform the care system. We want to see stable and permanent placements, high-quality education and health support, and better support for care leavers as they transition to adulthood. We will ensure that, as we implement these programmes, we will take account of the particular needs of trafficked children. As I said on Monday, we have already published revisions to the statutory guidance on missing children, which strengthen advice on meeting the needs of child victims of trafficking. However, I repeat that we recognise the strength of feeling and the strong arguments around this issue. As I said on that occasion, we would like to take this issue away and I invite further discussions to try to take this forward, drawing on every noble Lord’s expertise. In the light of that, I hope that my noble friend will be willing to withdraw his amendment.
Baroness Massey of Darwen
Perhaps I may ask two questions. First, I cannot accept that a guardian or advocate would add an extra layer to the system in supporting trafficked children. The guardian or advocate is supposed to link the layers together and support the child. Secondly, will the Government be talking to Barnardo’s, the NSPCC, the Children’s Society, the University of Bedfordshire and ECPAT in order to hear first hand the experiences of dealing with trafficked children?
Baroness Northover
I heard what noble Lords said about feeling that the guardian would cut through those layers; my noble friend Lord McColl put that case extremely cogently. I should like to reassure noble Lords that we are seeking to tackle this problem as effectively as possible. In some ways, it is perhaps slightly dispiriting to hear that it has not been cracked by the Scottish model. It looks to me as though we need to look further into why this is not working. That is why it is important that we meet up for a discussion, and it is vital that the organisations that the noble Baroness referred to feed in their expertise so that we can best take this forward.
Lord McColl of Dulwich
I thank the Minister very much for her very careful speech, and I am reassured that she is going to have a lot of discussions. I hope that we can all get together to talk about this issue in some detail. She mentioned that the social worker should be the key. If it was one social worker who was responsible for one child and stayed with that child, that would be fine, but the problem is that the children have umpteen social workers. They never know who is coming next and they then have to repeat their story over and over again.
I certainly do not accept that this proposal will add another layer of bureaucracy to the organisation. We have already had an 18-month delay over this and I can see that, with the existing bureaucracy, it will be another 18 months before something effective is done. Meanwhile, hundreds of children are going to be in jeopardy. Therefore, I welcome what the Minister says and look forward to meeting her and all those who have been speaking on this issue and who have done so much work in this field. I thank everyone for their contributions today. I beg leave to withdraw the amendment.
The Countess of Mar (CB)
My Lords, I support my noble friend Lady Howarth of Breckland. For many years, I was a lay member of the immigration tribunal and I remember seeing a number of young people go through the awful process of asylum appeals when they got to the age of 18. They did not understand what was going on. In many cases, we allowed them because they had been here for so long and had become used to the country. It would have helped them enormously if they had had support earlier in their lives, as my noble friend is suggesting.
Baroness Northover
My Lords, here we are addressing another group of potentially vulnerable children, as the noble Baroness, Lady Howarth, pointed out. They are foreign-national children who are living in this country while their parents reside elsewhere. We recognise that the amendment seeks to improve safeguards for children privately fostered from abroad. We sympathise with that intention.
We fully accept that local authorities should check on private fostering arrangements when children are living apart from their close family, and current legislation provides for this. We recognise that it is sometimes difficult to establish if a family relationship is genuine, as the noble Baroness, Lady Howarth, made very clear, especially where a carer is falsely claiming to be a close relative to avoid the requirement to notify the local authority of a private fostering arrangement. This raises a potential safeguarding issue.
However, we are not convinced that the way forward is to apply the private fostering arrangements to all foreign national children who live here without their parents. This would extend the arrangements to a large number of cases where children are safely looked after by close relatives. However, we agree that this is an important issue, as children from abroad are in a particularly vulnerable position. It remains crucial that professionals who work with children from abroad, including border staff, schools, health professionals, housing officers, et cetera, can spot private fostering when they see it and notify the relevant local authority.
The current private fostering guidance asks local authorities to undertake awareness-raising activities with agencies, such as schools, to enable professionals to encourage private foster carers and parents to notify the local authority. Front-line professionals are also encouraged to notify the local authority of a private fostering arrangement that comes to their attention where they are not satisfied that the local authority has been, or will be, notified of the arrangement, so that the local authority can check that the arrangement is safe and suitable.
We are reviewing the school admissions guidance for children from abroad and are aiming to publish a revised version in January 2014. We will also shortly be publishing revised guidance on safeguarding in schools. The new guidance will specify schools’ statutory duties in respect of safeguarding, provide guidance on roles and responsibilities, including making referrals to child protection services, and indicate where to find up-to-date guidance on particular issues.
In addition, we have a project under way looking at the requirements on local authorities and the role of other agencies and services with a view to focusing efforts and strengthening the response to children most at risk. We will be talking to relevant partners and agencies, such as the Home Office, the British Association for Adoption and Fostering, Children and Families Across Borders, Ofsted and local authorities, to identify what targeted action might be taken to improve practice in local areas. There are a number of issues that we are looking at, and I am happy to share them with the noble Baroness.
An important issue is whether it is better to resolve the immigration status of children and return them to their home country as soon as possible after their arrival in the UK, rather than leave it until they reach the age of 18, by which time their ties with their home country have been greatly reduced. The current practice is to consider the needs of each child on a case-by-case basis and carry out an assessment of what is in the child’s best interests. The child and their social worker have a central role in this assessment, and contributions are usually also sought from other relevant agencies.
We have some sympathy with the argument about early return but, referring to other debates we have had, we need to be aware that many of these children may be vulnerable and have arrived in the United Kingdom having suffered very difficult and sometimes traumatic experiences. It is often the case that their parents cannot be traced or that the reception arrangements in the country to which they would be returning might be inadequate. This has meant that in practice, with the exception of transfers to other European Union countries, the UK rarely enforces the return of unaccompanied children to any country. The important issue is to try to work out what is in the best interests of the child.
I would be happy to provide any more details on this to the noble Baroness. I welcome her expertise feeding in as we consider this. I hope that in the mean time she will be content to withdraw her amendment.
Baroness Howarth of Breckland
My Lords, I am grateful for the noble Baroness’s full reply. The only point that I would pick up is that sometimes social workers will decide to allow children to remain indefinitely without taking action, simply because the social worker is anxious that if they do anything the child will immediately be deported. It is that working together between all the agencies and organisations, including education and the Home Office, and making sure that the child’s welfare is at the centre of any decision, that needs to be taken forward. Otherwise, people make decisions that they think are in the best interests of the child but, in the long term, turn out to be disastrous for their growth. I beg leave to withdraw the amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I wanted to speak briefly in support of these amendments. My noble friend Lady Massey has set out the framework and how important it is statistically, but I was sitting as a family magistrate only last week and I thought it might be interesting for the Committee to hear the decisions that we were invited to make as a court. The scenario was of a two year-old boy in a successful fostering arrangement. His uncle had come forward with his wife. They already had three children and they were willing to take on the boy. That would put them in the situation of having four children under the age of six in a two-bedroom flat in London. All parties supported the arrangement that was to be made by the court and the decisions that we were invited to make as a court were to finalise the financial arrangements between the local authority and the carers. There was a bit of brokering and toing and froing on what those payments were to be. As far as I know, they were discretionary but nevertheless they were offered. As I say, it was a bit of a haggle but a figure was agreed for the kinship arrangements to go ahead.
The second decision we were asked to make was whether to put in place a special guardianship order. This was opposed by the local authority but we decided to put it in place in any case, very much for the reasons that my noble friend has said. We believed that it would help the carers to have the support of the local authority for the first 12 months. That was no reflection on their ability to be good parents—in fact, we were sure they would be—but we wanted to help them. So we went against the local authority’s wishes on that particular decision. The other decision we made was to put in place the contact arrangements for the mother. The mother was a recovering drug addict. She was in court and we wished her well. We arranged that she would have contact on a yearly basis and that can be reviewed in due course.
Another issue that we were invited to address was the housing arrangements of this family. As I said, they would have four children in a two-bedroom flat. There was really very little we could do about that other than include a sympathetic paragraph in the judgment, urging local authorities to review their situation sympathetically. Realistically, they were looking at a two or three-year wait for a transfer. Nevertheless, that was something we put in the judgment. The final thing we put in, which we thought about very carefully, were the transfer arrangements. As I said, this particular little boy had been in a successful fostering arrangement where he had blossomed for two years and now he was moving to another arrangement. Obviously, however well-meaning everyone was, it would be a difficult transition arrangement for the boy.
The point that I wanted to make is that all the parties supported this. The local authorities put extra money in and the mother agreed to the arrangement, even though she was losing her boy and the kinship carers would have to take the child on. This is a good solution for all concerned, and if it can be put on a more statutorily substantial footing, I think that that will be to the benefit of all concerned.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Massey, for her amendments, which cover support and services for family and friends carers. I commend her for the motivation behind the amendments.
We fully recognise the valuable contribution made by family and friends in caring for children who cannot live with their parents. We owe them a great deal, as the noble Baroness so eloquently showed. We have heard a great deal about the potential benefits of family and friends carers not only from the noble Baroness, Lady Massey, but from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Northbourne, the noble Baroness, Lady Drake, and the noble Lord, Lord Ponsonby.
I found myself thinking that sometimes women like me are described as the “sandwich generation”. We look after our children and our parents, but if our children then come back and bring their children for us to look after, that perhaps makes us a double-decker sandwich generation. I hope that my children do not do that.
Noble Lords will be aware that family and friends care, or kinship care, covers a wide range of legal arrangements and, where appropriate, as we have heard, assessments are already in place for putting in the appropriate financial or practical supports. The Children and Young Persons Act 2008 amended Section 17 of the Children Act 1989 so that local authorities could provide regular and long-term financial payments to families caring for children where they judged this to be appropriate. This provision, passed under the previous Government and made discretionary, came into force in April 2011.
In order to clarify the role of local authorities, the Government released statutory guidance on family and friends care, and this also came into force in April 2011. It aims to ensure that children and young people receive the support that they and their carers need to safeguard and promote their welfare.
We are aware that family and friends carers often struggle, as we have heard, to obtain information that will assist them in their caring role, particularly when they have taken on the care of a child in an emergency. That is why the family and friends statutory guidance makes it clear that local authorities have a duty to ensure that their family and friends policy supports the promotion of good information about the full range of services for children, young people and families in the area and highlights the availability of advice from independent organisations.
However, we are aware that the quality and quantity of local authority policies in this area are not at the level they should be. That is why we currently have a programme of work to reduce the variation in practice within and across local authorities. This includes sector learning days for local authorities that will support the development of local policies and guidance as well as clarify the primary legislation and how it is being implemented.
I thank the noble Earl, Lord Listowel, for commending this Government and the previous Government for their support for the vital social work profession.
It is also very important that family and friends carers understand what support services they are entitled to, so the department will be developing an information resource containing the basic facts, entitlements, services and advice that are available to them. This resource will not only increase the knowledge base of carers but will raise awareness of front-line practitioners, such as GPs, and those in education and childcare settings, who are often the first point of contact for new family and friends carers.
Lord McColl of Dulwich
My Lords, I support this amendment. We need to take notice of what the noble and learned Baroness, Lady Butler-Sloss, has said, given her enormous experience. Let us leave out “mediation”.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, when Rupert Murdoch appeared before a committee down the corridor, he said it was the humblest day of his life. It is not for quite the same reasons but I approach this Bill with more than a certain humility, given the expertise in this Committee. I have listened to a goodly part of the debates. It is common cause that we are trying to get this important Bill right in terms of what is in it. That is the value of this Committee in this Room. It is less frantic than in the other place, less susceptible to the passing trade and more for those with genuine expertise. I approach Part 2, which is the section I shall be dealing with, with a desire to listen and to try to explain how and why the Government have come to the position they have reached thus far in the process of the Bill.
The Family Justice Review recommended that parents who need additional support to resolve a dispute should first attend a mediation, information and assessment meeting—a MIAM—to receive information about mediation and be assessed for suitability to mediate. It is very important that there should be an early assessment for mediation. That was the intention behind the existing pre-application protocol introduced in April 2011, which we intend to strengthen under this clause.
With reference to the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl, we feel that the name of the meeting should convey to those who will attend it something about its purpose. An “assessment and information meeting” would not meet that objective in our view. Indeed, prospective applicants and respondents might be reluctant to attend such a meeting without knowing what they will be assessed for. The Family Mediation Council has published requirements for the conduct of MIAMs which describe clearly the elements to be addressed by the mediator. They include providing,
“information about all appropriate methods of family dispute resolution, including but not limited to mediation … collaborative law, solicitor-led negotiation and litigation”.
We intend to invite the Family Procedure Rule Committee to make rules that include reference to those requirements.
Turning to the amendments tabled by the noble Baronesses, Lady Hughes and Lady Jones, I recognise the concerns about safeguarding access to the courts. The Government do not intend that vulnerable parties should be put at risk or be prevented accessing the court. However, involving the court in every case at the stage before proceedings have started to determine whether it is reasonable for an applicant to attend a MIAM would be unworkable. It would impact on the courts and cause delay, particularly in public law care and supervision cases, and would undermine our efforts to ensure that court involvement is avoided wherever appropriate and safe in private family disputes. We agree that the requirement to attend a MIAM should not apply in circumstances where it is appropriate or necessary for a court to make decisions. That includes where there is evidence of domestic violence, child protection concerns or other reasonable grounds for exemption such as urgency or the significant risk of a miscarriage of justice.
The pre-application protocol in operation since April 2011 already places an expectation on a prospective applicant in relevant family proceedings first to attend a MIAM, but allows for exemptions in the circumstances I just mentioned. A family mediator may also determine, on the basis of their professional judgment, that the nature of the case makes it unsuitable for a MIAM. A mediator might make such a determination on the basis of a telephone discussion with the prospective parties. The current exemptions already reflect our position that adequate safeguards should be in place, and we intend to invite the rule committee broadly to replicate these in making rules under this clause.
A number of noble Lords, including the noble Lord, Lord Wigley, raised the question of the quality and training of mediators. The Government understand the concerns about the need for appropriate training and quality standards for mediators who conduct a MIAM. Family mediators who conduct MIAMs are already required by the Family Mediation Council, or FMC, to meet minimum standards and other detailed requirements, and only certified mediators can conduct a MIAM. Time does not permit me to list these requirements but I am happy to place a copy of them in the House Library and send them to noble Lords.
The existing pre-application protocol specifies that “family mediator” means a family mediator who is subject to the FMC’s code of practice and who is authorised to undertake MIAMs in accordance with the requirements set by the FMC. We propose to invite the Family Procedure Rule Committee to make rules of court under subsection (2)(b), which makes specific reference to those requirements. The rule committee is mandated by statute to make rules about practice and procedure in family proceedings, and we believe it is appropriate that the committee makes these rules about statutory MIAMs.
Clause 10 is intended to strengthen the existing protocol. We are building on a system that has now been in operation for two and a half years. The rule committee has a statutory duty to consider consultation on draft rules, including those to be made under this clause. The detail is, I recognise, important. I am happy to say that the rule committee has decided to consult on the draft rules so that there can be wider scrutiny of them, and it plans to consult shortly. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the rule committee as part of that consultation process. If any noble Lord would like to receive and consider the draft rules, my officials can ask the rule committee to arrange that.
While checking whether I have covered the other points that were raised, I should just say that we are standing by the point that the MIAM should have mediation in it. It is not helpful for it to be absent. I understand the point that the noble and learned Baroness, Lady Butler-Sloss, made. Even from my limited knowledge, I know of the confusion that there is between mediation and marriage guidance counselling. People who have long decided to get out of a marriage do not want to be guided; they want to be helped through what is a traumatic period. However, I hope that we have this right. The accreditation of mediators is safeguarded. We do not believe that the Government are best placed to undertake a regulatory role in this area, but the guidance is there.
It is interesting that the MoJ has commissioned some independent qualitative research to look at barriers to accessing MIAMs and mediation. This will include looking at the experience of clients who did not attend a MIAM and the reasons for that. We expect to receive a number of emerging findings from that research in early November, and I will certainly make the research available to the House as the Bill progresses.
The rule committee is meeting on 4 November and will seek views in particular from family practitioners who work every day with users of the family justice system. The rule committee itself also has considerable expertise and we believe it is the appropriate body to do this work. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the committee, and we will make sure that its work is made available to those interested. I hope that with those explanations and rationalisation of our position, the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the noble and learned Baroness responds, as I understand it her amendments are not seeking to change the content of such a meeting and in particular did not seek to take out the term “mediation” at line 41 on page 9 in the list of what information is to be provided. I understand what she says about not deterring people simply because of a title. Is it necessary to call these meetings anything other than family meetings, just for the purpose of getting people there to deal with the issues as they arise? It seems an unnecessary obstacle.
Lord McNally
That is the very interesting nature of this debate—whether removing the term will mean that it is not on the tin, so people will not be sure what they are letting themselves in for, or whether, as the noble and learned Baroness, Lady Butler-Sloss, is suggesting, it being on the tin will deter people from opening the tin. As I said, we have commissioned research on this. We are only at Committee stage. I will make the outcome of that research available. There is no absolute certainty at this stage as to which of us is right about this.
The Deputy Chairman of Committees
My Lords, with great respect to the noble Lord, a Division has been called in the Chamber. The Grand Committee stands adjourned until 6.27 pm.
Lord McNally
My Lords, before I was so rudely interrupted, I was about to prompt withdrawal of the amendment by the noble and learned Baroness, Lady Butler-Sloss, who I hoped would be convinced by my eloquence. What I was saying when the bell went is that the term “mediation” in the title helps people to know what the purpose is and encourages them to be brought into it. The debate has been interesting. There are those who are arguing that it will frighten people away. We have commissioned some research and perhaps we should await that research and then return to this debate. When the noble and learned Baroness, Lady Butler-Sloss, has seen the research she will say, “Oh, my goodness, I was wrong. The noble Lord, Lord McNally, was right all along”. Mind you, we are paying for the research. On that basis, I hope that she will agree to withdraw the amendment.
Baroness Howarth of Breckland
I apologise but just before the Division Bell rang the Minister talked about knowing what was on the tin. The problem with the word “mediation” is that it conveys a range of different concepts, even within the professional world, and certainly if you are a warring parent. I am not saying that we should not indicate what is going to happen in the meeting and that people may be asked to look at how they can approach their relationships, if not mend them, but “mediation” is a difficult word for everybody, inside and outside the profession, and I think that we should look for another one.
Lord McNally
My approach to this Committee is that I genuinely do listen and take back its findings not only to my expert advisers but to other experts in this field who are not members of this Committee but will read its proceedings. If people on either side of the argument want to write to me and relate their experiences, we may be able to make a definitive decision on this issue at a later stage. I will certainly not go to the wall over the name that is used; I want an effective process.
Baroness Butler-Sloss
My Lords, I say to the Minister that I am perfectly prepared to be wrong; I often am. However, I think that on this occasion I am probably right and I shall be very interested to see the research. I would very much like a copy of the draft rules. I used to be the chairman of the Family Procedure Rule Committee. I have to confess that I tried not to attend that committee if I could avoid it as it is quite the most boring committee I have ever sat on. However, I should like to see the draft rules and would be most grateful if they could be provided.
The noble Lord knows that it is the practice in the Moses Room to withdraw the amendment and I will, of course, do so, but before I do so I should like to make one or two points. I am extremely indebted to the noble Viscount, Lord Eccles, for making the point that the title should be neutral. That was what I was searching for, although I did not use that word. The neutral title could be “family information meetings” or, as has been sensibly suggested by the noble Baroness, Lady Hamwee, “family meetings”. Family information meetings might be slightly better as people would know that that was what they were going to get.
I am entirely supportive of mediation in the right cases, and in all but 5% of cases it will be right, if they ever go to court at all, which most of them do not. Where neither party is legally aided, they will both battle through the real difficulties of making their applications and so on in the county court or magistrates’ court and try to cope with something which is completely unfamiliar to them. Therefore, the information meeting, and a requirement to have one, seem to me entirely admirable.
The only problem is that there are in a sense two stages to this because mediation is different from information and assessment. It imposes upon people a requirement to try to settle. You cannot have compulsory mediation. You can have compulsory information and assessment, but you cannot require people to settle. That is something I was taught as a young barrister and I have learnt all the way through my legal and judicial career that people cannot be made to settle. The purpose of mediation is to get them to settle or to try to tackle the issue in a better way, but that could be achieved through the provision of information and an assessment. One has to understand that mediation is in a different class from information and assessment.
I throw out my next point as a possibility for the Family Procedure Rule Committee and the Minister’s experts to look at. I am not suggesting that this is necessarily a good idea but I throw it out for consideration. I would be content if the forms that the parties receive put the words “information”, “assessment” and “mediation” in brackets. Parties could cross out the word “mediation” to show that they are prepared to opt for information and assessment but are not prepared to go through a process of trying to make them settle. That might just do the trick if you want to keep the word “mediation”.
However, I am very concerned about the small number of people who are most likely to go to court. You do not go to court if you can reach agreement. Some 90% do not go to court or go to court only to obtain an agreed order, 5% can be persuaded to go through mediation, and probably mediation is just what they need, but 5% cannot. What could happen if there is a requirement for mediation is that particularly the man, although sometimes the woman, will get to the meeting with the trained mediator and the minute the mediator starts to say, “Well, could you not agree to this?”, he will storm out and not listen to what he needs to understand as to how the court proceedings will go. That is my real worry. However, for the moment, I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
If that is addressed to me, the answer is certainly yes. I have a distinct recollection of a case in which the mother left the family at a very early stage and the father and his mother had to look after the child. After a while, the child’s mother decided to come back. She had had a relationship which soured after a year or two and she thought that she would come back. You have to take account of the existing situation and the paramountcy of the welfare of the child, which may alter over time and need to be reviewed from time to time. There is plenty of machinery to do that, although, as my noble and learned friend Lady Butler-Sloss said, one’s time may be consumed by other things. However, so long as you can get a review, that can be dealt with.
Lord McNally
My Lords, this has been an extremely important and high-quality debate. I am not a lawyer but I have spent three and a half years at the MoJ. Therefore, when the noble and learned Baroness, Lady Butler-Sloss, said that she had the greatest possible respect for my opinion, I am aware that the term “greatest possible respect” is reserved for the most insulting comment that a lawyer is about to deliver to an opponent.
I was interested in the joust between the noble Baroness, Lady Meacher, and the noble and learned Lord, Lord Mackay. When I was first given this ministerial responsibility, I had speaking engagements in Birmingham and Putney that arose within a few days of each other. I experienced some of the doubts that have been expressed in today’s debate about the road we were going down. What interested me was that at both meetings two social workers in the audience said quite unprompted exactly the same thing to me. They said, “Don’t underestimate the willingness of women to use their children in these battles”. The noble Baroness, Lady Meacher, pointed out that in the 25 years since the original legislation was passed there has been a change in what she described as family dynamics. We are trying to deal with the situation and get the wording right.
Even in this debate there are things that take us down cul-de-sacs. We are not following the Australian model; in fact we have learnt from it. Our proposal does not require the court to balance these two factors—I will come back to this. There is no idea of 50/50 parenting. One of the problems when this was debated down at the other end was that the press coverage was very much in terms of this being a major step change. I welcome the approach of the noble Baroness, Lady Hughes, in her opening remarks. The paramountcy of the welfare of the child is still there in this legislation.
The noble and learned Baroness, Lady Butler-Sloss, from her vast experience, claims that the way it is worded produces a contradiction. Let me try to explain our approach to see whether we can convince her, but I suspect that we will be coming back to this issue on Report. It is not possible for the presumption to clash with the paramountcy principle. The paramountcy principle is not a rebuttable presumption. The child’s welfare must be the court’s paramount consideration. If the court does not believe that the child’s welfare is served by the involvement of a parent, it will not order any such involvement, and the clause does not require it to do so. We are not saying that the court must make an order that involves both parents, nor are we seeking to define the nature of the involvement which the court may order. We are certainly not making any assumption about how the child’s time may be divided. That is not what the clause is about.
The Explanatory Notes set out clearly how the clause operates. We have included a process chart as well as an example situation to demonstrate how we would expect the presumption to work in practice. In addition, I have provided further information on the clause, which sets out in detail how the clause will work in practice, and it addresses the concerns that have been raised. We will also ensure that clear and accessible information is available for parents about the range of changes we are making. This will help to address wider concerns about the risk that the clause may be misunderstood. We have deliberately avoided defining the nature of involvement, which the court may order. The presumption stands if any form of involvement can take place without risk of harm to the child and would further the child’s welfare. We have used the word “involvement” as the simplest, most neutral approach to express the full spectrum of ways in which a child can have a relationship with a parent. We believe that the introduction of a presumption in legislation is the best and clearest way to ensure that children are able to benefit from the involvement of both parents following family separation.
This clause is part of the consistent messaging that will be conveyed throughout the dispute resolution process about the valuable role that both parents can play in their child’s life, whether they are together or apart. The deliberate reference to a presumption sends a strong signal to both parents and others as to how the court makes its decision. It makes clear that it is the norm rather than the exception for both parents to be involved in the child’s life. On the points raised, I think that I have already referred to the point made by the noble Baroness, Lady Hughes, about whether it was 50/50. The wording in the clause does not suggest or imply in any way equal or substantial shared time. The Explanatory Notes make it clear that this is not the expectation.
As regards the central argument put by the noble and learned Baroness, Lady Butler-Sloss, which I suspect we will continue to discuss on Report, we believe that there are no conflicting presumptions. The parental involvement presumption will always be rebutted in a situation in which the child’s welfare requires it, and the paramountcy principle is not rebuttable.
Baroness Northover
My Lords, this may be a convenient moment for the Committee to adjourn.