Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Monday 21st October 2013 Grand Committee

Moved by

[Baroness Jones of Whitchurch]

58: Clause 12, page 10, leave out lines 40 to 43 and insert—
“(a) with whom a child is to—(i) live,(ii) spend time, or(iii) otherwise have contact; and(b) when, with any person, a child is to—(i) live,(ii) spend time, or(iii) otherwise have contact.”

[Baroness Jones of Whitchurch]

My Lords, on a slightly different subject, Amendments 58 and 59 deal with child arrangements orders and their potential impact internationally.

We very much welcome the basic intent of Clause 12 to move away from terminology which implies that there are winners or losers in disputes concerning children, by introducing new child arrangements orders. However, we are concerned that the move away from one parent having custody may create additional difficulty in retrieving children from other jurisdictions internationally. Noble Lords will know that this can already be a legal minefield and a source of considerable distress, which is why we have tabled the amendments.

These amendments aim to make the contents of the new child arrangements orders clearer, and set out more explicitly that the person with whom the child is to live has rights of custody for the purposes of the Hague convention and other international family law treaties. The amendments are similar to those we tabled in the Commons, and emanate from concerns expressed by, among others, the Justice Select Committee, the Family Law Bar Association and the Children’s Commissioner for England.

The key issue here is in relation to rights of custody, which are an important concept in international law, in particular the Hague convention, and apply particularly to child kidnapping. When the Justice Select Committee considered this issue, it said:

“There are also concerns amongst our witnesses that the draft clause could cause confusion and delay in cross-jurisdiction cases … It is important that CAOs do not change how international law relating to children operates. A central concept in the relevant Hague … and EU legislation … is that of ‘rights of custody’”.

It went on to say:

“There is however a risk that the change in terms … may be hard to interpret in other jurisdictions”.

This issue was raised at Second Reading and the Minister subsequently wrote to say:

“For international understanding, it is the content of the order that is important, not its name. A child arrangements order should make clear with whom a child is to live, and this will enable a state to determine whether a person has rights of custody in a child abduction case”.

I am grateful to the Minister for trying to address that point. However, his response misses the point that by changing the name and the terminology we risk inadvertently making difficult international custody battles even more fraught.

While we cannot claim that our amendments are a panacea, and it may well be that the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, are clearer in law, we believe they go some way to providing further legal clarification that will help parents and overseas jurisdictions to understand our intent in the law. Since the Justice Committee and others continue to be concerned, I hope the Minister will feel able to take these amendments away and to reconsider the Government’s opposition to what is meant to be a simple and helpful set of changes.

We also support the amendment proposed by the Government which deals with some of the consequential impacts of child arrangements orders on the Children Act 1989.

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[Baroness Butler-Sloss]

I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

[Baroness Jones of Whitchurch]

I have to say I was beginning to feel very disappointed in the Minister’s response until he said that maybe we could meet—and I am very happy to take up his offer—because I felt that he was not really addressing the concerns that have been raised. They are not just the concerns of non-lawyers like myself or my colleagues; they are the concerns of some fairly major players in this sector including, as I said, the Family Law Bar Association and the Children’s Commission for England, while obviously the noble and learned Baroness, Lady Butler-Sloss, is an expert in her own right. This is not a political point but a practical one: it is about what is in the best interests of children and what can best protect them in international custody disputes. As I understand it, “rights of custody” has a particular resonance and respect around the world, and I am not sure that the new phraseology that we are putting in its place does that. I still need to be persuaded of all that, but maybe we can do that in a meeting with the Minister. I will happily take up his offer to explore it further in that context. I therefore beg leave to withdraw the amendment.

Amendment 59 withdrawn.

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Moved by

[Baroness Jones of Whitchurch]

62: Clause 14, page 13, line 15, after “issued” insert “unless the court considers it necessary in order to safeguard or promote the child’s welfare to permit additional time for the disposing of the application”

[Baroness Jones of Whitchurch]

My Lords, Amendments 62 and 63 concern the issue of time limits for court proceedings. We very much welcome the Government’s aim of reducing delays in care proceedings as set out in the clause. As we have discussed in the past, there have been unjustifiable delays, which have had serious consequences for the welfare of the children involved. We are pleased that, in anticipation of the new timescales, court proceedings are already being completed over a shorter period. However, we believe that in trying to set absolute time limits the Government may be going too far and putting at risk the best possible outcome for the child. Our amendments attempt to redress that balance by reasserting a focus on the best interests of the child.

We have a major concern that as it currently stands, Clause 14 would curtail effective interventions with children and their families that last longer than 26 weeks. We need to differentiate clearly between delay caused by unacceptable process issues on the one hand and time extensions which really are in the best interests of the child on the other. Our amendments would allow longer timescales, specifically to meet the interests of the child. They would also enable the court to set out a timetable from the outset of proceedings rather than continually having to add eight-week extensions. This would give practitioners more clarity about how long they have to work with the child before a court decision is made.

We agree that delay in decision-making can have an adverse effect on children. However, there is a real danger that limiting the proceedings to 26 weeks would result in court decisions being made to meet the deadline, rather than to secure the best outcome for each child. We have to acknowledge that, in practice, some assessments and intervention programmes take longer than others; for example, where parents are seeking treatment for substance misuse. Care proceedings must enable opportunities for meaningful change in parental behaviour and those working with the family need to know that they will have the time to enable a successful intervention to take place. The NSPCC’s infant and family team model is a good example of such interventions, which can and often do require longer than 26 weeks but have shown improved outcomes for both the children and the adults involved.

We believe that there are a range of circumstances where a period longer than 26 weeks may be essential for the child’s needs to be addressed, including to allow a robust support package to be developed in special guardianship cases. This may include: support for difficult contact arrangements; preventing significant financial hardship; or where the proceedings work with the family has not been done or the situation has changed at the last minute, such that a family member needs to be considered late in the day. We are already hearing anecdotes of family members being denied an assessment once the case is in court. Parents who are consistently demonstrating to the Family Drug and Alcohol Court’s intensive support team that they are turning their life around need sufficient time to prove to the court that they can sustain such an improvement. A longer period may also be needed when potentially suitable family carers live abroad. In the case of older children, an emphasis on a fast timescale may be counterproductive, and particular care, sensitivity and dialogue will be necessary to allow the child’s long-term welfare needs to be met.

This list is not exhaustive but gives an illustration of cases where a delay could well be in the child’s interest. I am grateful to the noble Lord, Lord McNally, for addressing these concerns in his recent letter. He explained that a number of pilots are taking place and that in due course the Family Procedure Rule Committee will consider whether to make court rules on these issues. However, we do not feel that this goes far enough. There are important issues here affecting the welfare of children at stake. The FPRC is under no obligation to make rules on time limits, and in any case we will not have had sight of the rules being made; meanwhile, we believe that a commitment to greater flexibility in the application of these rules is essential. Without taking away any of the good intent of the clause, which attempts to speed up court processes, we believe that our amendments, which would give the courts greater flexibility to extend deadlines where it is explicitly in the interest of the child, strike the right balance. We hope that noble Lords will support this position.

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[Baroness Jones of Whitchurch]

My Lords, I welcome the support of the noble Baroness, Lady Benjamin. I do not want anyone to be under any illusions: of course it is imperative that we tackle the court delays that have occurred in the system. We absolutely start from that point of view. We welcome all the steps that have been taken to modernise the family court system, including those to cut the time that is taken to deal with cases in the court. I agree with the noble Baroness, Lady Tyler, that it is a cultural issue as much as anything and we need to tackle that culture.

Our amendments were never intended to be an open door for judges just to sit on their hands and delay decisions. The intention was that in very particular cases, which people could see from the outset were going to take longer than 26 weeks, they would be able to make a decision and spell out and justify that decision at the time. It was not just an opportunity for a delay for the sake of it.

I am slightly concerned about how these eight-week extensions are going to work. For example, if a family is going through an intensive period of therapy, knowing that the case is going back to be reviewed every eight weeks is fantastically stressful and disruptive to them when they feel that they are making progress. The evidence shows that a lot of court decisions were delayed because the processes were not in place, reports were not received in time or the evidence was not there at the time. If you are then going to deal with a rolling eight-week review, there are all sorts of opportunities for things to go wrong and for the evidence simply not to be before the court at the right time. I would be interested to know how these eight-week extensions work in practice. We may well need to have a review of them in the short term.

My noble friend Lord Ponsonby said that my examples were not theoretical, and I thank him for confirming that. The point is that the families that we are talking about know from the outset that it is going to take time to turn their lives around. They know they are going on quite a long journey. To feel that that there is this time pressure hanging over them will have a negative impact on the whole process.

[Lord McNally]

The noble Baroness was asking about how the extensions would work in practice. The request to extend the timetable for proceedings will be considered during the proceedings, as far as possible, and should not result in additional hearings. I should also explain to the noble Lord, Lord Ponsonby, that there could be further extensions. On the right of appeal, I have an explanation in my brief but I would rather write to him to make sure that I get it right. There is a limited right of appeal. I am sorry for interrupting the noble Baroness.

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[Baroness Jones of Whitchurch]

I am not sure that the Minister has shed much light on things. I am now even more confused. Surely if there is going to be an eight-week extension, people have to meet every eight weeks to decide whether or not it should be further extended. You could say as a one-off, “We’ll allow a further eight weeks”, but then you will have to keep meeting every eight weeks to review that, if it is intended that there will be more than one eight-week extension. No doubt we can talk about this outside the Room and the noble Lord can clarify that further.

There is a serious point at the heart of this: what do we want to get out of the 26-week deadline? I hope that we all want children to have a chance to stay with their birth family, if possible. I feel that we will find over time that if courts are under pressure because of the 26-week timescale, the default position will be that children are taken into care because there simply will not be enough time to do the work with the birth parents. That is the real sadness behind what is being proposed here, because it is too stringent and lacking in flexibility.

Our position is that we want something that is absolutely and justifiably in the interests of the child and its welfare, and I still believe that what we are proposing would achieve that. For the time being, however, I beg leave to withdraw the amendment.

Amendment 62 withdrawn.