Parents: Separation

Baroness Tyler of Enfield Excerpts

Monday 22nd April 2024 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I congratulate the noble Lord, Lord Farmer, on securing this debate, and it is a pleasure to follow him.

I have been involved in this area in various guises since my time as chief executive of Relate, as a former chair of Cafcass, and as chair of the Lords Select Committee conducting post-legislation scrutiny on the Children and Families Act 2014. As I prepared for this debate, I also reflected on my time, a few years back, as chair of the Kids in the Middle coalition of children and families charities and agony aunts, which campaigned for better support for separating families and, in particular, children caught up in parental conflict. In its day, the coalition had direct access to Prime Ministers and Secretaries of States of various hues.

My starting point in these debates has always been the need to provide more support to children embroiled, through no fault of their own, in the middle of serious and damaging parental conflict, and the pressing need for a stronger voice for children in the family courts. We know, and have already heard, that the quality of the interparental relationship has a key impact on children’s long-term mental health and future life chances—in other words, this all really matters.

The majority of separating parents come to an agreement on their own, or with minimal help from relatives and others. Only a minority need extra help, either to come to an agreement outside of court or through the family courts, but there is widespread agreement that this process is just not working properly. Far too many parents find themselves caught up in lengthy court proceedings, which are costly both to them and to the state, and which have a damaging effect on their children.

At a time when the family courts and the judiciary are suffering from a lack of resources and huge backlogs, and as the Government rightly looks to divert family matters away from court where that is safe and possible, I am convinced that early legal advice is critical. It helps people understand their legal rights and responsibilities, and understand where court is inappropriate. Conversely, a lack of clear information and guidance means that opportunities are being missed to resolve arrangements for children earlier. We must move away from a situation where the court is still too often seen as the first port of call and towards it becoming regarded as the last resort.

Respondents to the Government’s consultation last year on supporting earlier resolution of private family law arrangements pointed to a lack of early information and advice leading to disputes escalating, with individuals applying to court without a proper understanding of alternative ways to resolve disagreements, or of the court process. This was also the conclusion of the Select Committee reviewing the Children and Families Act. We argued strongly for the need for early legal advice, as many others have. It is far better to help couples make informed choices to find the route that gives them the best chance of reaching constructive and lasting outcomes on key issues such as family finances and the arrangements made for children. This may be a non-court based approach—sometimes mediation but sometimes other forms of dispute resolution, such as arbitration, collaborative law, solicitor negotiation or therapeutic mediation.

I am also strongly of the view that there should be earlier, easier and possibly even statutory access to co- parenting programmes before an application to court can be made, unless it is not safe to do so. While a co-parenting programme and a MIAM—a mediation, information and assessment meeting—are clearly different, I do not really see why only one, the latter, is compulsory before an application can be made. I was totally persuaded of their value, having sat in on several such separating parent programmes with separating parents present; they pretty much saw the scales falling from their eyes, along with some tears, as they started to understand the impact that their high-conflict behaviour was having on their children. Indeed, I remember one family judge telling me that these should be showing on a permanent loop in the entrance to all family courts. Will the Minister update me on what is happening on both in-court and pre-court parenting programmes?

Mediation can of course help to divert cases from court, helping parties to reach settlement and limiting the burden on court time. However, in some cases mediation is not appropriate. Some couples have genuinely intractable disagreements which require court intervention to settle. I have always been concerned with the Government’s single focus on mediation as a way of reducing the backlog. It sometimes seems as if that is to the exclusion of all other forms of dispute resolution.

My Select Committee, after looking at all the evidence received, was clear that MIAMs had sometimes been ineffective and had low take-up. We concluded that the single focus on mediation, combined with no requirement for the respondent to attend, sometimes coupled with the perception of MIAMs as a form of relationship counselling, had hampered their success. Instead, we felt that many couples would benefit from a source of clear, impartial information on separation, and, if necessary, general legal advice, which could direct them to non-court or court-based resolutions as appropriate.

In our report, we urged the Government to reconsider their proposals to make mediation effectively obligatory. Instead, we recommended that MIAMs and the mediation voucher scheme be replaced by a universal voucher scheme for a general advice appointment, at which point individuals can be signposted to alternative dispute resolution mechanisms, which could of course include mediation. We were particularly swayed in our view by the evidence of the former President of the Family Division, Sir James Munby, and the current President of the Family Division, Sir Andrew McFarlane, who both argued compellingly that mediation was not the only non-court solution. Who knows better than them?

We also recommended that the Government urgently evaluate the impact of the removal of legal aid from most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system. The noble Lord, Lord Bach, and I were very grateful to the Minister for meeting us last March so that we could explain our proposals to him.

Obviously, quite a bit has happened since then, including the Government’s consultation and the subsequent package of measures in their reform programme announced in January this year. We have also had Resolution’s Vision for Family Justice. Most of this I welcome, particularly the focus on helping families to resolve their disputes earlier and without needing to go to court. But I still feel that our central conclusion was the right one: mediation is not helpful or appropriate in all cases; compulsion, in my experience, rarely leads to a good and sustainable outcome; and there are other forms of dispute resolution which will be more appropriate for some. In short, I simply do not believe that a one-size-fits-all approach works. What would make a real difference, I think, is publicly funded early legal advice.

I strongly believe that the private family law system, for those who still need to come to court, should be more investigative and less adversarial, placing the voice of the child at the heart of proceedings and providing additional support for those parents and carers who need it most. Thus I welcome the fact that, in 2022, the Ministry of Justice began piloting a more investigative approach to private law proceedings, in Devon and North Wales. I am encouraged to read that the initial feedback from the pilots suggests that the child impact report helps to focus the proceeding on the needs of the child, allowing the court to focus on the core issues for the child and their welfare, rather than the wider disputes between the parties. To me, that is the very nub of the matter.

Can the Minister give a brief update on the progress of the private law pathfinder models that I have just referred to, as well as on the proposed early legal advice pilot for separating parents, which I know were contained in the reform package? I do not think that they have started yet, but he might be able to correct me on that.

Finally, I want to mention the very important role of family hubs, to which the noble Lord, Lord Farmer, referred. They can have an important role to play, providing good signposting to relationship support and other sources of information and support for separating families. Indeed, I know that some in the sector are calling for family hubs to play an enhanced role in initial triage, with the hub, in essence, becoming the standard first port of call. I for one feel that we should be keeping an open mind on that.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Baroness Tyler of Enfield Excerpts

Monday 23rd January 2023 Grand Committee

[Lord Bach (Lab)]

My Lords, I shall be very quick, not least because the chairman of the committee mentioned by the Minister in his answer on the previous instrument is in her place, and she can talk with much more skill and expertise than I can. As a mere member of that committee, I remember well the Minister’s appearance before it; I do not think that it is flattering him too much to say that he was one of the star witnesses, not just on that day but during the whole of our proceedings. Indeed, the whole issue about early advice, as was clear from the Minister’s first reply, was clearly something that was a matter of concern to him.

Just as I supported the last instrument, I support this one. Again, in their comparatively small way, they are important improvements. One fault of LASPO, to put it mildly, was that too much of private family law was taken out of scope of legal aid. There have been consequences since, and my guess is that the Government have come round to that view and I think that this order, in a small way, shows that. The Minister will know that the issue around domestic violence and the evidence needed was a matter of huge controversy for many years after LASPO came into force. It looks as if that is, finally, I hope, being put to bed.

All that I want to do, if I may—and I certainly do not want to take the thunder away from the noble Baroness, Lady Tyler, who I hope will speak shortly—is to invite the Minister, if he has not already, to see the recommendations that we made in this area of the Select Committee’s report. We ended by saying, as one of our major recommendations:

“We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system.”


We heard a huge amount of evidence over the months that showed that the lack of the possibility of legal aid in some private family law situations was very harmful to their early solving.

[Baroness Tyler of Enfield (LD)]

My Lords, I am pleased to have this opportunity to say a few words in support of this order. As was said about the previous instrument, this is a small but significant step forward in an area that has been beset with many difficulties. On the specific points about the recommendation to extend the order to cover special guardianship orders in private law proceedings, I agree that that is important.

One of the very interesting findings of the Select Committee, which the noble Lord, Lord Bach, has already referred to, was that there are now more special guardianship orders per year than there are children being adopted. That makes the whole area of special guardianship orders very important. While it is good news that they will be in scope of this instrument on private law proceedings, I very much echo the important remarks made by the noble Baroness, Lady Drake, about how desirable it would be for that to be extended to public law proceedings.

I will just make a couple of other general comments on the work that the Select Committee did to look into family law and the family justice system. First, I very much underline and endorse the comments that the noble Lord, Lord Bach, made about the very helpful evidence that the noble and learned Lord the Minister gave to the committee, which really informed the recommendations that we made throughout the chapter on family justice and particularly on legal aid itself. The point has come up several times this afternoon that one difficulty that the family courts face at the moment—and some of the reasons for the big backlog and delays—is the lack of any focus on early intervention.

Other witnesses before the committee included the current President of the Family Division and his immediate predecessor. His predecessor, Sir James Munby, argued—and we put in our report—that

“Money properly spent at an early stage usually pays dividends later on.”


I very much agree with that. Sir Andrew McFarlane, the current President of the Family Division, also made a number of comments on the importance of reinstating some legal aid within family law proceedings and came up with a number of ideas that are in the report, including the idea of some form of professional who might be able to signpost applicants to mediation, to other forms of information about dispute resolution or to a lawyer, where that would be helpful.

I know that that goes wider than this particular statutory instrument, but we also heard from academic experts who really underlined the problems that the cuts to legal aid had made in the family courts and, frankly, how they had simply shifted costs to other parts of the court system, particularly where litigants in person, quite understandably, did not really understand how to represent themselves. It was taking up so much time from the court service officials and others, and another academic expert said to us that

“there are cases going to court that lawyers would have headed off. With legal aid, a lawyer would have said, ‘No, it’s not worth taking this to court’ or ‘Try mediation’”,

or, “No, you’ll lose”.

They are such important points and that is why we ended up, as the noble Lord, Lord Bach, has already said, recommending that the Government should urgently evaluate the impact of the removal of legal aid for most private family law cases and consider reinstating legal aid where that can improve the efficiency and quality of the family justice system. I was extremely encouraged when I heard the Minister’s remarks in the previous debate when he said—I think; I would be pleased if he could confirm it—that the Government are looking again at this whole area to see what impact reinstating legal aid in certain instances in the family courts would have. Just to underline that final point, the Select Committee thought that it would really improve efficiency, effectiveness and the quality of outcomes in the family justice system.

As I say, I support this statutory instrument. It is a small but important step forward and I hope that it also leads to consideration of wider improvements in the family justice system.

Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021

Baroness Tyler of Enfield Excerpts

Thursday 18th March 2021 Lords Chamber

[Baroness Tyler of Enfield (LD) [V]]

My Lords, I refer to my interests in the register. While I welcome this short extension, it is only kicking the can down the road. As we have heard, private renters have been hit particularly hard by the pandemic. Research has found that twice as many private renters—who often have little or no savings—have suffered job losses compared with homeowners since coronavirus restrictions began.

As a Londoner, I note with real concern that one in seven London renters are in arrears, and women are twice as likely as men to have lost their job in the first lockdown. I am greatly concerned that women will be hardest hit by the end to the eviction ban. Before the pandemic, average rents took up 43% of women’s median earnings, compared with 28% of men’s, which reveals an invidious gender divide.

Simply suspending repossessions does nothing to address the underlying rent debt problem in the sector. It is vital that the Government develop an urgent financial package to help all those renters affected to pay off arrears, otherwise many tenants will have debts that are unsustainable, as we have heard. If they cannot pay them off, they will have to move home and face significant damage to their credit score, making it more difficult for them to access housing in the future.

The cost of rent debt is estimated to be around the £300 million mark, which is frankly relatively modest compared with the £1.6 billion that has been wiped off stamp duty for homeowners. Up to £3.8 million of funding was announced in the Budget to pilot no-interest loan schemes to help vulnerable consumers who will benefit from affordable short-term credit to meet unexpected costs, something I very much support. While we are still waiting to hear the details of this scheme, surely it would be possible for a scaled-up version of it to form the basis of a model for renters.

Children and Families Bill

Baroness Tyler of Enfield Excerpts

Monday 21st October 2013 Grand Committee

[Lord Ramsbotham]

I, too, lend my support to the noble Lord, Lord Northbourne, and will link what I am going to say to my comments on Amendment 56. I have a grandson at a secondary school in Gloucestershire and, like the noble Lord, I was fascinated to see the material with which he and his parents were provided. Frankly, it was all about today and not about tomorrow. Although the quality is fairly good, I am quite certain that it could be improved.

Clause 70, later in this Bill, refers to the fact that education, health and care plans are allegedly to be denied to those being held in detention. Last week I had a meeting with two Ministers in the Department for Education who told me what progress has been made. What is most promising is that young offender institutions are to be classed as mainstream schools as far as the provision of the Bill is concerned. In welcoming the suggestion of the noble Lord, Lord Northbourne, that this guidance should be provided for schools, I should mention that young offender institutions should be included, absolutely for the reasons set out by the noble Baroness, Lady Massey. Above all, we must not exclude people in detention from learning to look after their children.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to underline the important point made by the noble Baroness, Lady Massey, and in so doing I should declare an interest as vice-president of the charity Relate. I am very supportive indeed of schools playing a full role in preparing children for all aspects of life, and those must include the importance of personal relationships, family relationships and parenting responsibilities. From my experience of running an organisation that helped to deliver relationship education in a large number of schools, as the noble Baroness, Lady Massey, said, it is not always teachers who do the teaching in the classroom. I know of many schools that ask experts in relationship matters to come in from outside because they are trained to do this work. I recall seeing a report from Ofsted which suggested that trained relationship practitioners are more confident and better able to deal with some aspects of relationship education, particularly the more intimate and sexual issues. If teachers have not had the appropriate training, teachers can feel a little less than confident about it. I wanted just to underline that important point.

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[Baroness Butler-Sloss]

Since this issue has been raised, I am going to jump on the bandwagon just to say that very difficult cases are tried by designated and senior judges and family judges of the High Court where expert evidence is absolutely crucial. I have to say that I have tried cases where I have ended up with 11 expert witnesses on shaken babies with subdural haematomas and so on, asking whether it was the parents or a parent, or whether it was an accident. These are extremely difficult cases. We were greatly assisted by CAFCASS and sometimes assisted by social workers, but even in these difficult cases, the social workers came and went. In some cases there was no consistent social worker to put in a consistent, high-quality report from their point of view. Again and again, High Court and senior circuit judges have asked for an independent social worker, which the local authority has been only too grateful to agree to. That is because the authority knows that in these difficult cases it has not actually been able to do the job itself.

In an ideal world, of course, independent social workers are not needed, but we live in a far from ideal world with children at extraordinary risk of physical injury as well as sexual injury. Here it is physical injury with which I am concerned. Again, as the noble Earl has just said, we need the doctors. I am not sure what the doctors are likely to be paid, but from the point of view of a senior consultant, it is derisory. There is a limit to pro bono, particularly if a doctor has to be in court for a day or two days. Quite simply, these really difficult cases will not be properly tried if they do not have the right experts.

Norgrove was absolutely right to want to cut it down. In the majority of cases it would be quite wrong to go in for the luxury of lots and lots of experts. I am concerned only about the small minority of extremely difficult cases, where the current system is not going to be just to the child, whose welfare, ultimately, is paramount.

[Baroness Tyler of Enfield]

My Lords, it is terribly important that this debate is kept in perspective. The noble and learned Baroness, Lady Butler-Sloss, has done that very well, making it clear that we are talking about a very small number of cases, involving very difficult issues, where of course an expert’s advice will be very helpful.

More broadly, I very much support the thrust of what David Norgrove said in the report of the family justice review and it is really important that we are seen to be limiting expert evidence to what is really necessary to decide, so that the judges narrow it down to the key issues where we need that expert advice and it does not add to yet more reports, with all of that adding to delay.

The noble Earl, Lord Listowel, quoted Anthony Douglas, the chief executive of CAFCASS. I declare an interest as chair of CAFCASS. In the intervening period I have had the opportunity to have a quick word with Anthony Douglas and the context in which he made those remarks is one in which we have done a lot of work to ensure that both local authority social workers and CAFCASS guardians are working up to the absolute limit of their professional knowledge and capacity, and that you need an expert report only in that very small number of cases which take them beyond their limits.

I have spoken recently to groups of CAFCASS practitioners who tell me that they now feel empowered and have renewed confidence because in the majority of cases their expert advice, analytical skills and the assessment that they can offer to the courts are being accepted as expert social work opinion and advice. Sometimes recently they have felt that their professionalism has been questioned, which is a danger when we have too many of these expert reports. So I hope that we can conduct this debate with a sense of perspective and balance, while understanding that we are talking about a small number of cases where we need those expert reports to deal with very specific issues.

[Baroness Howarth of Breckland]

My Lords, the noble Baroness, Lady Tyler, and the noble and learned Baroness, Lady Butler-Sloss, have put this very precisely. I was the chair of CAFCASS when the problem significantly arose and began the work to tackle the issue, together with the chief executive and the board. The real issue was the length of time that children were waiting for decisions in their cases, and every day for a child is vital. Experts were called to verify what another expert was saying or to give another opinion, and there has been a great improvement in the time taken to reach a decision in these cases since we have streamlined that.

I declare an interest as vice-president of the Lucy Faithfull Foundation, which prepares extremely complex expert witness reports in cases of very serious child sexual abuse. I think the Minister is well aware of its work. In those cases there have been real difficulties in getting the right expert to the right place because, as the noble and learned Baroness, Lady Butler-Sloss, mentioned, local authorities themselves have called the experts in to add to the decision.

All I want to say in this debate is: let us keep the focus on the child and make decisions as quickly as possible, but in complex cases let us make sure that those decisions are based on the right information.

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[Baroness Tyler of Enfield]

I understand the intention behind the amendment, particularly in terms of promoting the best interests of the child and the child’s welfare, but I also feel that the signal it would send would not be the right one at this stage. I have heard the president talking about this, and I think that at the moment his mantra is, “It can be done, it will be done, it must be done”. It is all about turning around the culture from one of delay to one of urgency, with all parties involved in this—that is, the judiciary, local authorities, CAFCASS and others—doing all that they can to ensure that these cases are dealt with as quickly as they can be and in a way that is commensurate with the best interests of the child.

I was very much reinforced in this recently. I attended the National Children and Adults Services Conference in Harrogate on Friday. It was a very good three-day event with a number of Ministers and others speaking. I went to a specialist workshop all about completing care proceedings in 26 weeks. Several academics, particularly from the University of East Anglia, presented some initial findings from the research that they have been doing into the impact of the new public law outline to try to move to a 26-week time limit, and particularly the impact of what is called the tri-borough project with Kensington and Chelsea, Westminster and Hammersmith and Fulham. I have been to visit that project myself and the results, frankly, are extremely impressive: already 50% of cases are being resolved in less than 26 weeks.

Even with the knowledge that we were going to have this clause in the Bill or at least debate it, national case duration averages were already coming down from what was something like 49 weeks to about 37 weeks, and they are on a downward trajectory. While I fully understand the case that is being made for those very exceptional cases where the extensions will be needed, there is sufficient flexibility in the Bill as drafted for that. I would be concerned about anything that diluted this very important message about trying to move away from delay in the family court system.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am not briefed by the NSPCC but I have a brief from the Magistrates’ Association, which makes it clear that it also supports the 26-week time limit but also agrees that there should be specific extensions for eight weeks where people can apply to the court. It would probably be most helpful if I raised the questions that the Magistrates’ Association has raised in the brief that it sent me. Before I do so, though, I want to make the point that the examples of exceptions that my noble friend Lady Jones gave are very far from theoretical, because two of those examples I personally dealt with in the past month. They were very real examples of something that I understood very clearly.

The first of the questions that the Magistrates’ Association raised in its brief to me is really a concern that an application for an eight-week extension should resist that extension being a contested hearing, and obviously the decision of the court should be final. If there is to be a contested hearing on an eight-week extension, though, it should be as short and focused as possible. The second point that the Magistrates’ Association made was that it is not clear, from the association’s understanding, that there is any limit to the maximum number of successive extensions. The association’s final point is to ask whether there is any right of appeal if a lower court—although perhaps “lower court” is not the right expression—decides not to grant an extension. Is there any right of appeal to a higher jurisdiction?