Children and Families Bill

Earl of Listowel Excerpts

Monday 21st October 2013 Grand Committee

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the noble Lord, Lord Northbourne, for tabling this amendment. I, of course, agree that parents should support and guide their children: it is the key relationship. Mothers and fathers have joint responsibility. Like the noble Lord, Lord Northbourne, I agree that prevention is absolutely key to tackling dysfunction. His amendment takes note of supporting the child’s “health, development and welfare”. Like him, I suspect, I think that people are often not prepared for the responsibilities of parenthood and that we as a society have not taken this seriously, believing that parenthood comes naturally.

I am a great supporter of parenthood teaching in schools, clinics or wherever. Most young people become parents and often do not know much about the importance of child development, talking to children, setting boundaries and so on. Many parenthood classes are available for parents only once the child gets into trouble. Frankly, that is too late. Early intervention should start with parents but they are sometimes bewildered. Perhaps the Minister or somebody else knows how many parenthood schemes exist in this country to teach parents or future parents to be better parents, not when the child gets into trouble but as an education scheme for all parents. After all, not everybody has a super nanny, as in the television programme of that name, to iron out horrendous problems once the family has dug itself into a hole. Parents are often not well supported. I worry about austerity measures which hit poor families hardest and about child poverty policies, which may plunge even more parents into difficulty. It is a challenge to bring up children in any event; it must be extremely challenging to bring up children in poverty.

[The Earl of Listowel (CB)]

My Lords, I support Amendment 56 in the name of my noble friend Lord Northbourne, and regret that I failed to add my name to it. When I looked at the figures for the United States recently, I discovered that a third of boys, and two-thirds of black boys, were growing up without a father in the home, which is a pointer to where we might end up if we do not adopt my noble friend’s amendment. I have had the privilege of working with young people. I have worked with young people in hostels and boys have “adopted” me as their father. I have spoken with young men working in those hostels about what it was like for them to be brought up by their mothers on their own, and how guilty they felt about the burden they had put on them. The honourable Andrea Leadsom MP, who does such great work around early years provision, highlights the concern that when mothers bring children up on their own they risk feeling overwhelmed by that burden and withdraw their emotional support for their children.

I believe that this provision is already law in France and several other European countries. This is such an important issue that I hope the Minister will give a positive response. President Barack Obama grew up in a household without a father. Your Lordships may remember the speech he made as a senator in 2008.

He said:

“But if we are honest with ourselves, we’ll admit that … too many fathers … are … missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know how true this is in the African-American community. We know that more than half of all black children live in single-parent households, a number that has doubled—doubled—since we were children. We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it”.

That is the end of the quotation from his speech.

I hope that the Minister can give a very positive response to my noble friend’s amendment. Parents sticking together and sticking with their children is vital to the well-being of all our children. In my experience, children who do not have parents or carers who stick with them are unlikely to stick at friendships, at being husbands or wives or at jobs or difficult tasks themselves. I support my noble friend, and I look forward to the Minister’s response.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, support the principle behind the noble Lord’s amendment. In Section 3(1) of the Children Act 1989, “parental responsibility” means,

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

As has been said, one of the saddest things is that when parents separate, a substantial number of fathers walk out—very often for good reason—but in doing so they abandon their children. I regret that I have not checked the percentage but it is large, something like 60%. I believe that in the Children Act there should be something to remind the public that those rights, duties and responsibilities include that which the noble Lord has set out.

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[Baroness Butler-Sloss]

Perhaps I may say that I had no intention of saying that it was right for young men—or older men—to walk out on their families. They may be justified in walking out on their spouse or partner, but to leave the children behind, or not to look after them, is unacceptable.

[The Earl of Listowel]

May I, too, just say that while I agree that all my noble friend spoke of is vital if we are to change the culture, might not legislative change of the kind that he is proposing also be helpful? It may of minor assistance, but given that this is such a grave matter, might it not be worth pursuing?

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[The Earl of Listowel]

I apologise for asking for this clause stand part debate quite late in the day, without giving noble Lords more notice, and also for delaying the proceedings of the Grand Committee. But I feel that this is a very important clause on the “Control of expert evidence, and of assessments, in children proceedings”. The matter of expert witnesses is vital to the purpose of this Bill, which is child welfare. We must have a good pool of expert witnesses to advise courts in these complicated matters.

I called for this debate because I attended a briefing by Dr Julia Brophy, from the University of Oxford, two or three months ago, in which she presented her research into expert evidence produced by independent social workers. She interviewed 32 judges on their experience of expert reports from these independent social workers and found that judges valued these reports, that the expert witnesses were well known by courts, and that the social workers were very experienced. She found that they made a positive difference to the outcomes of their decision-making.

Phil King, joint founder-director of the Confederation of Independent Social Work Agencies, emailed me today on a report from a social worker detailing how a mother and her seven month-old baby were doing extremely well in the community. The CISWA had provided a report in this case. The mother had a very poor history of parenting, with her previous children placed for adoption. The local authority planned for adoption for this particular baby; however, the judge wanted an assessment to see whether the mother’s plea that she had changed had any foundation. The assessment indicated that there had been change, and there was a good prognosis. Without the independent social worker expert report, that child would now have been adopted. One has only to speak to a mother who is restricted to seeing her 12 month-old or 14 month-old infant twice a week and to see the anguish that that mother experiences to realise that we have to be timely in our decisions but also very well informed.

Local authorities have responded to the recommendation in the 2011 Family Justice Review from David Norgrove, which identified a,

“trend towards an increasing and, we believe, unjustified use of expert witness reports, with consequent delay for children”.

In particular, according to the report, independent social workers,

“should be employed only exceptionally”.

Following this, CAFCASS chief executive, Anthony Douglas, said:

“Cafcass research shows that the family justice system is responding to the recommendations made by the Family Justice Review, even before legislation has been put in place. At a time where scarce resources must be directed to the right areas, we agree with the Family Justice Board that the use of expert witnesses should be limited to cases in which they are absolutely necessary”.

He goes on to say:

“Cafcass guardians have found the right expert can offer unique insight and value about into a child’s needs. In such cases, Cafcass guardians said that the evidence offered by expert witnesses has increased the speed of proceedings”.

Just as an aside, there is another debate about the remuneration of expert witnesses in family courts. It seems to me a particular matter of concern that the remuneration for independent social workers is only £30 an hour, which does not fit with the quality of the reporting that they do and their many years of experience. We mentioned in earlier debates the necessity of raising the status of social work, and it seems to work against that. So I hope that the Minister, in his discussions with the relevant agency—I think it is the Law Commission—about remuneration in the family courts for expert witnesses, may think to ask whether this is a realistic rate for professionals, and whether it is a way in which to retain this high-quality pool of professionals who are so necessary to those decisions.

I refer—I apologise for taking so long, I am nearly finished—to the evaluation of senior judges’ views of expert opinion from independent social workers which is entitled: Neither Fear Nor Favour, Affection or Ill Will: Modernisation of care proceedings and the use and value of independent social work expertise to senior judges, by Dr. Julia Brophy of Oxford University. She concludes that,

“to enable courts to meet timescales, therefore, guidance will need to be sufficiently flexible to recognise”—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

I beg the noble Earl’s pardon for interrupting, but the Division bell is ringing. The Committee will reconvene in 10 minutes, at 5.30 pm.

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[The Earl of Listowel]

My Lords, the conclusions arising from the important research of Dr Julia Brophy are:

“(a) The needs of courts for skilled and experienced practitioners able to produce analytical, evidence based, forensically driven reports which meet the court’s timescale required, and … (b) The realities of resources limitations for some local authorities … In this context, utilising the skills and expertise of independent social workers both pre and within proceedings is likely to remain necessary if courts are to meet current challenges and move forward with appropriate speed and confidence and to do so in a manner which reflects a court practice which is without fear or favour”.

I want to ask the Minister whether the regulations now meet the recommendations made by Dr Brophy and, if not, what amendments he may be considering. Perhaps I may apologise once more to the Minister and the Committee for giving short notice of this debate. If the Minister would prefer to write to me, I will quite understand.

[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.

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[The Earl of Listowel]

My Lords, I am most grateful to all noble Lords who have contributed to this debate. I am most grateful to the Minister for his reassuring response concerning the additional training for social workers to enable them to produce the right reports without additional expert support.

I seem to remember it being put to me in the past that the involvement of expert witnesses has been particularly difficult for family courts dealing with these very complex cases. There has been a sort of arms race, with one side appointing an expert witness, then another side appointing an expert witness, and the judges—those making decisions—have sometimes lacked the confidence to say, “No, we do not need so many reports”. What the Government are doing now under Lord Justice Ryder, which will also be helpful, is the bringing together of the family courts into one place, with opportunities for greater training and support for those who make these difficult decisions, and therefore less risk of this sort of arms race of expert witnesses.

As my noble friend Lady Howarth has said, it is crucial that these decisions are timely, and what is encouraging about Dr Brophy’s report is that these expert witness reports have been found to increase the speed at which decisions are made. In the past the concern has been that they have delayed decisions, but the judges are saying that they can make speedier decisions because they have the expert information that they need. Therefore I am grateful for the Minister’s reassurance on these points, and I do not think I have to say anything more.

Clause 13 agreed.

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[Lord McNally]

My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for her intervention in support of these proposals—I am also grateful for my momentary promotion. It gives me an opportunity to pay tribute to the work of Lord Justice Ryder when he was with the Family Division. He did a lot of ground-clearing in this area, not least bringing in some very useful comparative statistics which allowed us to see the variety in performance of courts, which was affecting children at a vulnerable time of their lives. When this exercise started, it took more than 60 weeks in some cases to come to a decision. The tri-borough project also demonstrated in advance of this legislation that this could be done more quickly. Certainly, the robust leadership that Sir James Munby has given in implementing the Norgrove proposals has meant that, as the noble Baroness, Lady Tyler, said, a culture of delay has been replaced by a culture of urgency. That is much to the credit of what we are proposing.

We all agree that delays in decision-making, whether by local authorities or in courts, can be very damaging. They can add to emotional insecurity and affect children’s prospects for returning to or finding a permanent loving home. Introducing a 26-week time limit for care and supervision cases will send a clear and unambiguous statement to all parts of the family justice system about the need to reduce delay. Removing certain cases from the ambit of the 26-week time limit at the outset, as proposed by Amendment 62, would undermine this effort.

I recognise that these cases deal with important and complex issues and not all will be able to be completed within this timeframe. The court will therefore have the discretion to extend the time limit in a particular case beyond 26 weeks if that is necessary to resolve the proceedings justly. The clause carefully strikes the necessary balance between putting in place a maximum 26-week time limit to tackle delay in all cases and allowing sufficient judicial discretion to extend time where necessary to resolve the case justly, having explicit regard to the child’s welfare.

Requiring extensions to last for a maximum of eight weeks at a time will help ensure that the court is focused on resolving cases as quickly as possible. To allow the court to grant an extension without imposing any limit as to the length of the extension, as proposed by Amendment 63, would potentially allow cases to drift. This could undermine the aim that we all share, of reducing unnecessary delay. There will always be some very complex cases which it may not be possible to complete within 26 weeks. Where that is the case, the court will be able to extend time, where necessary, to resolve proceedings justly. It is important, however, that we keep a clear focus on resolving cases as quickly as possible, and specifying a maximum eight-week limit on the length of extensions will ensure that this happens. There is, however, no limit on the number of extensions that can be sought.

I recognise the concerns of the noble Baronesses and have seen how successful intervention models such as the Family Drug and Alcohol Court approach can be. That is why I am very pleased that the Government are continuing to provide funding of £150,000 in each year of 2013-14 and 2014-15 to continue the development and rollout of the FDAC. As part of our funding of FDAC, we are proposing to continue work that will enable this model to meet the 26-week time limit in most cases. Proceedings in the FDAC model currently take the same time on average as standard care proceedings, and we believe that the 26-week time limit can be applied successfully in most cases.

I think I have just answered the point raised by the noble Lord, Lord Ponsonby. The noble Baroness, Lady Jones, asked about the Family Procedure Rule Committee. On the basis of its specific expertise, the committee has been invited to consider whether to further elaborate on the matter to which the court is to have regard in order to support Clause 14, and we await its response. The court rules may set out the matters to which the court must, may or may not have regard when making the decision whether to grant an extension to the time limit. It is, rightly, the remit of the FPRC to consider whether to make court rules under the clause; it is a statutory independent non-departmental public body responsible for making these rules of the court. Before making the rules, the FPRC must consult such persons as it considers appropriate, and we will update the Committee on the FPRC’s work before Report.

I am not sure whether there were any other matters that were specific to this; the questions come thick and fast. Yes, there was one: the noble Baronesses, Lady Jones and Lady Benjamin, raised the question of whether the 26-week time limit would impact on kinship care and whether it would be shoehorned into a one-size-fits-all solution. We are aware that, in spite of everyone’s best efforts, occasionally relatives are not identified until late in the proceedings. However, the 26-week time limit should not impact on kinship care. It is not for the courts to decide whether it is Granny who the child goes to; rather, it relates to the choice of the permanence plan being a relative if possible, followed by adoption or long-term foster care. After all, the court does not decide which adopters the child goes to when it agrees to a plan for adoption. We are continuing to use programmes such as family group conferences before proceedings start in order to identify family members from the onset of cases. In addition, we are working in partnership with the Children’s Improvement Board and the College of Social Work to support the continuing improvement of social work practice. Of course, the court retains the power to extend the case for longer consideration if necessary.

The public law measures in the Bill will tackle the damaging delays that exist throughout the system. These delays can deny children the chance of a permanent home and have a harmful long-term effect on a child’s development. The measures will also refocus the system so that the child’s best interests are part of the process. Our measures strike the necessary balance between tackling delay and allowing sufficient judicial discretion to resolve proceedings justly, and I hope that noble Lords will agree to withdraw these amendments.

[The Earl of Listowel]

My Lords, I briefly pay tribute to the Government. In the past week I met District Judge Crichton and his team from the NHS Portman trust. District Judge Crichton set up the Family Drug and Alcohol Court five or six years ago and has had great success, with about one-third of families coming through the court keeping their children, and the best evidence so far is that those children continue to do well and thrive with those families, so the family stays off drugs and alcohol. I pay tribute to the Government for their support of FDAC from the beginning and for their continuing support. I express the hope that perhaps in future FDAC might be made even more widely available across the country, always bearing in mind the heavy burden that local authorities are continually faced with as more and more children each year come into care and the challenges that that poses to all of us. Once again, I pay tribute to the Government for their support of FDAC, if I may.