Children and Families Bill

Lord McNally Excerpts

Wednesday 23rd October 2013 Grand Committee

[Baroness Howarth of Breckland (CB)]

My Lords, I know that David Norgrove was very concerned that judges spent quite a considerable time reviewing care plans and that might well delay looking at the future of children. However, I cannot see why this aspect should not be looked at. When the judge is looking at the placement of the child before him, he must look at the whole family, the parental position and what is going to happen to the siblings. Although I understand absolutely why David Norgrove felt that the local authority should be the one looking sensibly at the care plans, I do not at all see why the court should not look at the sibling placement.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate. The noble Baroness, in introducing the amendment, referred to the strength of feeling expressed when Part 1 of the Bill was discussed and how important it is that the court is able, where appropriate, to consider the arrangements that the local authority might make for a child to live with his or her siblings. My noble friend and I will consider the points made both today and earlier in the Bill.

As was discussed in the other place, the purpose of Clause 15 is to focus the court, in its consideration of the local authority care plan, on those provisions which set out the long-term planning for the upbringing of the child; for example, whether the child is to live with a parent or other family member, to be placed in foster care or to be adopted—the permanence provisions. The court is not required to consider the remainder of the plan. The clause is based on the findings in the family justice review that, driven partly by concerns over the quality of local authority social work, courts can spend a long time scrutinising the details of local authority care plans for children before making care orders. In many cases, court scrutiny goes beyond what is needed to determine whether a care order is in the best interests of a child. This can lead to unnecessary delays and contribute to the lengthy duration of care cases.

As was also highlighted in the other place, details of care plans are not set in stone and often change over time in response to a child’s changing needs and circumstances. In 62% of cases in a recent study, the care plan scrutinised by the court was not carried out, due to changing circumstances. Given this likelihood of change, the local authority, rather than the court, is better placed to consider the detail of the care plan.

I appreciate the concerns expressed by noble Lords about sibling placement, following the debate in the other place. I want to clarify that if the permanence provisions of a particular plan deal with arrangements relating to a child’s sibling—for example, if the plan is for the child to be adopted along with his sibling—the court will be required to consider those arrangements as part of the permanence provision. I will look at the statistics cited by the noble Baroness, Lady Hughes, about loss of contact and, in addition, I make the point that she anticipated: there is nothing in the clause that prevents the court looking at any other aspect of the plan it considers necessary to make the order.

I understand the point made by the noble and learned Baroness, Lady Butler-Sloss, with her vast experience and from the evidence heard by her committee, about the grief and stress that can be caused to siblings by being parted. It is a matter that needs to be looked at. I re-emphasise that nothing in the clause affects the duty of the local authority, when deciding the most appropriate placement for the child, to ensure, as far as reasonably practicable in each case, that the placement enables the child to live with any sibling who is also being looked after by the local authority.

As has been pointed out, concern has been expressed and some statistics have been advanced for us to ponder. We will look at this again in those terms and in the context in which David Norgrove made these recommendations. There is a danger that if we have too many belts and braces in the process, we will lose the very advantages of speed that we are trying to bring in and which are also in the best interests of the child. I hear what the Committee has said and my colleague and I will consider that between now and Report. In those circumstances, I would be grateful if the noble Lady would withdraw her amendment.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, with the leave of the Committee, I shall speak in place of the noble and learned Lord, Lord Mackay of Clashfern, at his specific request. He was here on Monday, but he was just not reached and is unable to be here today. The noble and learned Lord is making a plea for the Family Law Act 1996. As Lord Chancellor then, he was responsible for its introduction in the House of Lords. A considerable part of that Act has not been commenced, but Governments since then have left it on the statute book.

Clause 18 of the present Bill repeals the whole of that which remains of the 1996 Act. The noble and learned Lord has said that since he was involved he felt diffident about raising the issue, but then he learnt that at least some of those concerned with family law did not know that the Act was to be repealed. He felt that he had a responsibility towards those who had supported him to point to this development. Perhaps the Committee will forgive me if I read the noble and learned Lord’s principal concern. He has written that,

“with no-fault divorce which I advanced on the basis that to require a spouse seeking divorce to make allegations about the other spouse which would not require to be proved was not conducive to the vital task of promoting good relations between them for the sake of the children”.

In other words, “no-fault divorce” means that the parties do not rake up unpleasant things about each other which can only be bad for the children. He adds:

“So far as I know its retention on the statute book has done no harm”.

I would add that Part 1 of the Family Law Act 1996 sets out what I do not believe we get anywhere else; that is, the principles of Parts 2 and 3 of that Act. It states that,

“the institution of marriage is to be supported … that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”—

which is admirable—

“that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with minimum distress to the parties and to the children affected”.

It goes on like that. It sets out in about one page the general principles of good behaviour between parties to a marriage that has broken down. It is sad that there are issues of reflection and consideration before the divorce.

One might say that all that is old hat. Marriages go on, thank goodness. The majority of people who live together do not get married but a lot do. To have these good principles on the statute book has done no harm and will do no harm. It will at least make available to people the desirable end to those marriages that have broken down, and make some effort to remind them that they should try to minimise distress to everyone, particularly their children. I might add grandparents to that. It is sad that it is apparently necessary, under Clause 18, for this Act to be repealed, which is the purpose behind the noble and learned Lord, Lord Mackay of Clashfern, opposing that it should stand part of the Bill.

[Lord McNally]

My Lords, one of the perils of being a Minister in this House is that the continuity that is one of its merits means that changes to decades-old legislation may mean that we find the author still with us, alive and kicking. We saw something similar on Monday when noble and learned Lords wanted a rematch of decisions made by Law Lords some decades ago. However, that does not mean I take lightly the point made by the noble and learned Lord, Lord Mackay. After our Monday sitting, I had a long conversation with Sir James Munby on Tuesday. I mentioned the point raised by the noble and learned Lord. Sir James was somewhat wistful about the ambitions of the noble and learned Lord to bring in the concept of “no-fault divorce”, which had not progressed as much as the authors of the Bill at that time had intended.

I have listened with great care to the points made on behalf of the noble and learned Lord, Lord Mackay, by the noble and learned Baroness, Lady Butler-Sloss. As I have said, I have the utmost respect for the position of supporting the principle of “no-fault divorce”. I acknowledge the expertise of the noble and learned Lord in this area and I know that when he introduced the Family Law Bill in this House in 1995, it was a Bill very close to his heart.

I fully understand that the provisions of Part 2 were intended to save saveable marriages and reduce distress and conflict when it was inevitable that a marriage would need to be brought to an end. While Part 2 retained as the ground for divorce the irretrievable breakdown of the marriage, it would, if implemented, have removed the need to establish irretrievable breakdown through one or more facts. I understand why proponents of no-fault divorce believe that the approach in Part 2 would have helped to reduce conflict and acrimony.

However, there are two separate issues here. The first concerns the principle of no-fault divorce in Part 2, and the second concerns the information meeting and other provisions of Part 2 which were an integral part of that policy. The Government in 2001 concluded that the provisions were unworkable, would not achieve the objectives of saving saveable marriages and reducing distress and conflict, and should be repealed. It is that second issue that led us to include Clause 18 in the Bill.

The decision to repeal Part 2 was made in principle long ago on the basis of extensive academic research by the University of Newcastle. The research looked at six models of information meeting that a party to a marriage would have been required to attend as the key first step in initiating a divorce. Part 2 is built around that initial mandatory information meeting. The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce. While people valued the provision of information, the meetings were too inflexible, providing general information about both marriage-saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the majority of cases, only the person petitioning for divorce attended the meeting. Marriage counselling and conciliatory divorce all depend on the willing involvement of both parties.

Repeal of Part 2 has been awaiting a suitable legislative opportunity. The Children and Families Bill now provides that opportunity. Repeal was part of the draft Bill published for pre-legislative scrutiny in September 2012. None of the written responses opposed repeal of Part 2.

The Government have introduced separate measures in Clause 10 to make it compulsory for an applicant in certain family proceedings first to attend a family mediation, information and assessment meeting—I realise we will be having further debates about that on Report. That provision has some similarities with the information meeting provision for divorce in Part 2 and will, we intend, address disputes about children and finances.

Mediators who conduct the MIAM will check with the parties whether they wish to save their relationship, as well as discuss ways to resolve a relevant family dispute with the minimum of distress, including, in particular, arrangements for any children. However, Clause 10 addresses disputes between both cohabiting and divorcing couples.

Repeal of Part 2 is a long-standing commitment to Parliament. There is no prospect of Part 2 being implemented. Therefore Clause 18 should stand part of the Bill.

[Baroness Butler-Sloss]

My Lords, the noble and learned Lord, Lord Mackay of Clashfern, wanted this matter raised, but he does not wish it to be pursued any further.