Children and Families Bill

Baroness Tyler of Enfield Excerpts

Wednesday 16th October 2013 Grand Committee

[Baroness Butler-Sloss]

I assume that I am allowed to speak to Amendment 54. I agree with, particularly, Amendment 55. It is extremely sensible because it cuts out the division of a child’s time, which all too many lay people see as “shared parenting”. Thank goodness the Government have taken those two words out of the draft Bill.

Clause 11 raises a technical legal point of considerable importance. It will affect the way in which all family judges and family magistrates try private law cases where the arrangements in relation to children have to be decided by the court. The noble Lord, Lord Ponsonby, would be affected by it sitting in the family proceedings court. I have discussed this clause with some members of the judiciary, who view it with some concern.

I start with a problem. If the clause becomes law, it will raise two potentially conflicting presumptions for the court to tackle. I regret to say, with the greatest respect, that the Minister will be wrong if he says what the noble Baroness said was in his brief. Under Clause 11 the court, in the various circumstances, is to presume, unless the contrary is shown, that the involvement of each parent in the life of the child concerned will further the child’s welfare. That is a presumption. However, the whole basis of family child law is the presumption of the paramountcy of the welfare of the child, which is in Section 1(1) of the Children Act 1989.

“Where a court determines any question with respect to … of the upbringing of a child … the child’s welfare shall be the court’s paramount consideration”.

That is engraved on the hearts of all family judges and magistrates. In order not to be appealed, they always put it at the beginning of all their judgments. It is extremely important.

The effect of Clause 11 is to bring in a second presumption. You cannot help it because you are presuming in Clause 11 and you are presuming in Section 1 of the Children Act. Those two presumptions potentially clash. Quite simply, a court can have only one presumption at a time.

This is not just me making a legalistic technical point. People might be forgiven for thinking that I am going back to my judicial days, but I promise that this is far broader than a legalistic point. The NSPCC and Coram are very concerned, and I am happy to adopt the points that they make. They make three very important points: this clause could lead to a shift in emphasis away from what is best for the child towards the feelings and desires of parents; it could inadvertently increase risk to children by putting pressure on parents to agree to contact arrangements that are unsuitable or dangerous in the erroneous belief that a court would order that kind of contact; and the proposed change is unnecessary because no evidence of a bias in the court system has been found.

It is not good enough to have two presumptions that the judge has to juggle which could clash. It is particularly difficult for family magistrates who are not lawyers. It is also important to bear in mind that the litigants in the cases to which this clause applies will be unrepresented in the absence of legal aid. As to the increased risk of harm to which the NSPCC and Coram refer, these unrepresented litigants have gone through the traumatic experience of a failed relationship. As I said earlier, 90% will not go to court, or only for an agreed order, 5% can be persuaded by the family information and assessment meeting and the remaining hardcore 5% will be extremely antagonistic towards each other. Some of them actually hate each other. They can hardly bear to be in the same room and the failed relationship has become corrosive. That is not a happy situation in which to make arrangements for their children. I regret to say that I have said from time to time that when parents are in dispute about their children, they are the last people who should ever make arrangements for their future. They are simply unsuitable.

However, one parent or the other may give way and agree to unsuitable access/contact—two failed words—because of the way in which this clause is framed and in the mistaken belief that that is what a court would order. Although the phrase “shared parenting” has been deleted, the public perception is that they will get 50% of the time. When they are not necessarily going to court, that is what one parent will try to impose on the other. Those who cannot agree are likely to hold out for more contact, and this will lead to increased litigation before the courts. The courts are already beginning to be clogged up as a result of the absence of legal aid in private family law cases, particularly at district judge level, where, I am told, district judge first appointments, which used to last half an hour, now go on for at least 45 minutes. The backlog of cases is bound to grow. Of course, the children will suffer while the parents go on fighting and carrying on their dispute about child arrangements because it will take longer for these cases to be heard.

My experience as a family judge and then as head of the family court is that judges look to parents rather than impose gender discrimination in favour of mothers. I made a very large number of decisions in favour of fathers, although Fathers 4 Justice did not believe me. If it had looked at my track record, it might have seen that that was the case. I cannot tell the Committee what Fathers 4 Justice did for me, but its members did lock the gate on one occasion so that I could not get out and I had to get my husband to get the bolt cutters to open it. They also had Batman and Robin on the roof of the law courts. Noble Lords may remember that they stopped Tower Bridge functioning for a week by climbing up to the top, and they also climbed up on to Buckingham Palace.

I know that fathers do not accept that there is no gender discrimination against them and in favour of mothers. However, as the NSPCC said, there is no independent evidence of a bias. The Justice Select Committee accepted that there was no such evidence, as did, I understand, the Children’s Minister in the other place. There is no evidence of bias in the courts in favour of one parent. Therefore, the changes appear to be based on perceived rather than actual bias. I hope that the Minister and those behind him will look at the experience in Australia. At this stage of the evening, I shall not go into that, but it has been unhappy, and it has used similar phraseology. Much of this otherwise admirable Bill is very much based on the Norgrove report, which interestingly does not support a change to the Children Act.

Having said all that, I recognise and support the intention behind the clause that the importance of both parents should be at the forefront of the court’s mind. It is very sad that countless children are losing one parent, generally the father, who leaves home and there is no further relationship between him and his children. That is a very sad situation. Of course, we must encourage the continuing involvement of both parents so that after they separate, both are encouraged to stay in touch. However, to make it a presumption is a step too far, and that is why I have not sought to delete this clause. I have sought to amend it to highlight the importance of both parents, but not to create a second presumption. My amendment leaves out the word “presume” and inserts “pay particular regard” to highlight to the judge that he or she must,

“pay particular regard, unless the contrary is shown, to the importance of the”—

and then the wording of the clause is followed.

This is an important matter that cannot be brushed aside. I am speaking because of the issue of presumption and the effect that it will have on the public who come to court. From my practical experience, I am extremely concerned about the impact on the overriding presumption of welfare not just in the courts—where I think most judges could cope with the provision, although they do not like to have two clashing presumptions—but in the minds of the public who are trying to come to some sort of settlement. That is worrying, and I ask the Government to look at this issue carefully. My amendment would meet the need to emphasise the importance of the relationship between the child and both parents and the continuing involvement of both parents, but would not create the real problem of competing presumptions.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to speak to Amendments 54 and 55. I have a lot of sympathy with both of them. I should declare an interest as chair of CAFCASS. I, too, fully recognise and support the intention of Clause 11. In the vast majority of cases it is always desirable that both parents continue to be involved in the bringing up of their children after separation, but we all know that there are some cases where that is simply not possible, and that is what this clause is all about.

I thank the Minister for his helpful letter setting out how Clause 11 might be put into operation. I will leave it to those far more learned than I am in legal technicalities to consider whether this creates two competing presumptions or whether one presumption is rebuttable and the other is not. Others will be able to set that out very clearly.

My focus is on the practicalities and how this will impact on a child-centred approach. Our experience at CAFCASS is that sometimes these distinctions, these legal technicalities, are harder in practice to observe in the often very feverish atmosphere of a family court case, something that the noble and learned Baroness, Lady Butler-Sloss, set out clearly for us. Our work at CAFCASS shows how hard it can be to help parents in cases in which there are high degrees of hostility and acrimony to focus on the needs of their children rather than on themselves. Anything that distracts from the focus on the child can sometimes be of questionable value.

Of course, our task at CAFCASS, as ever, will be to promote as full an involvement of both parents as possible to reduce the number of caring mothers and fathers who lose contact with their children after separation in a way that does not make things worse for children. The difficulty that we are discussing can be very much compounded by the invisible nature of the emotional harm that many children experience through no fault of their own when parents separate or divorce. A no-fault approach to separation—it was accepted in divorce cases some time ago—needs to be carried through. Courts can help children who often feel that they are at fault and to blame in some way for their parents’ separation. This emotional harm, unless acknowledged and dealt with properly with all necessary support, can cause a concealed social problem and have long-term costs attached to it.

My key concern about the clause is that parental involvement—I very much support the principle of joint involvement—is seen through a child’s eyes. The situation in which a child finds themselves in after separation or divorce can be difficult, affects schooling and friendships and often undermines a child’s healthy development. Decisions about parental involvement need to support a child’s healthy development, schooling and adaptation to the new situation in which they find themselves.

Finally, each child is unique and a formula of any kind about parental involvement has to be subject to the test of relevance to an individual child, and when courts or CAFCASS are asked to intervene, this is the assessment that they have to make. A statement about the importance of parental involvement is absolutely right in general terms but if in practical terms it is to have real meaning and value for the individual child, that child must also receive the support that they need in the very complex adaptation that they are making.

Certainly, recent research has shown us that children want and need different levels of contact with parents and relatives, and particularly with siblings and friends. It is not just about the parents. We need to ensure that we avoid—and I am sure that we will avoid it—this legislation polarising the contact in any way, in terms of one or both parents agreeing on an enforced basis. Children need a range of contacts with siblings and other relatives to be maintained after separation. I think we all recognise that the law can be a fairly blunt tool, both in its current and proposed forms, to deal with a child’s bespoke and individual contact needs. My plea this afternoon is that this should very much be seen in a child-centred way.