Family Courts

Andy Slaughter Excerpts

Thursday 24th May 2012 Westminster Hall

[Mr Andy Slaughter (Hammersmith) (Lab)]

I am delighted to respond on behalf of the Opposition to this debate about the Justice Committee’s report on the operation of the family courts and the Government’s response to it—not least because I am doing so under your chairmanship, Mrs Osborne. I congratulate the Committee on the production of such a thorough and detailed response to what is clearly one of the most important areas of our legal system.

I am sure that the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who was here for a short time, is a valuable member of the Committee. Having spent several months working with him in Committee on what became the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I know that he is assiduous and shows great integrity. Also, unusually on that Committee, his rhetoric matched his voting record, which was not often the case for Government Back Benchers.

I also thank the Chair of the Select Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), for his speech, which, although made in his usual gentle way, was still forensic. It raised a number of issues, to which I am sure the Minister will respond. His points about delay, shared parenting and the evidence base were all well made and are all substantial concerns.

All I would say about the right hon. Gentleman’s comments on secrecy in the courts is that we were expecting some news about that today, with the introduction of the Justice and Security Bill in the House of Lords. The right hon. Gentleman is right that the balance between the protection of the interests of open justice and those of participants is a fine one in all cases, including those in the family courts. It is a pity that the Government are struggling once again to bring forward legislation, even when it has been announced in the media the week before.

I want to comment on another issue that the right hon. Gentleman mentioned—restrictions on advice and the increase in the number of litigants in person. I should say that I am grateful for briefings for the debate from the National Society for the Prevention of Cruelty to Children, and Resolution, which also raised those issues. First, however, I want to make some general comments.

The importance of the review cannot be stated more clearly than by citing one of the facts in it—that 36 children were killed in 2009-10 by their parents; and that, between 1995 and 1999, in

“80% of all homicides where the victim was an infant under the age of one, the killer was a parent, and in ‘virtually all’ the remaining 20% the killer was a family member, friend or someone who had care of the infant”.

I am sure that everyone present today will be able to name at least one high-profile example of a child tragically killed by those who were supposed to be looking after them. Furthermore, even when a child is not physically harmed by their parents, a violent relationship between parents has been found to have a significant long-term negative effect on the child’s emotional well-being.

The courts therefore have a crucial role, not just in trying to ensure that a child has access to their parents on terms that are acceptable to both and also beneficial to the child, but, all too often, in ensuring that children in dangerous situations are given adequate care and protection. It could not be more important to get this matter right. The previous Government took great steps towards ensuring that the family courts were more accessible and came to more informed decisions, and that alternatives to the adversarial nature of court hearings were found.

We should also acknowledge that in some areas the Government are continuing in that vein, thanks largely to the Justice Committee’s report and the family justice review carried out by David Norgrove. Both identified weaknesses in the operation of the family courts, and the Government’s willingness to consider at least some of the recommendations made in them, and the move towards increased mediation and a more child-centric system, are to be commended.

Unfortunately, however, as with so much to do with the Government, seemingly well meant policies have potentially severe consequences, and, as ever, there is a catch. In their response to the Justice Committee’s report, the Government promised that legal aid would remain for cases where there was evidence of domestic violence. Yet they had to be dragged kicking and screaming through, I think, two lost votes and one tied vote in the House of Lords, during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to acknowledge properly a definition of domestic violence that would give the protection of legal aid to those who so badly need it, and to extend the evidential criteria. Eventually, there was substantial movement on that, but there were still glaring omissions. Therefore there are clear cases where victims of domestic violence will not continue to benefit from legal aid, including in private family law cases.

The Government are right to believe that mediation is preferable, and keeping family law cases out of the courts through an agreement between parents is always to be encouraged. Yet for those people who cannot achieve that, and who need legal assistance, the 2012 Act again reduces their chance of receiving proper legal representation. To complicate matters further, the increase in the number of litigants in person, the Government’s replacement of face-to-face services with telephone advice and the dramatic decrease in counter hours—by two thirds, in many cases—mean that the amount of support available has decreased.

I have seen—in part of the Resolution brief for today’s debate, I think—a letter from Her Majesty’s Courts and Tribunals Service, dated 9 January. It advised that the measures such as the curtailment of the counter service and so on had been implemented without

“any significant issues being raised by our court users”.

However, as Resolution points out, it has been informed by many court users that phone calls and e-mails are “regularly” not answered. We have the Kafkaesque situation in which no longer having a service available means that complaints and queries are not being registered and dealt with. For an individual already faced with the daunting prospect of representing themselves in legal proceedings, that removal of a source of advice could be the difference between a decision that benefits a child and one based on the inability of one side adequately to represent themselves.

I disagree a little with the comment by the right hon. Member for Berwick-upon-Tweed that sometimes legal aid can create an imbalance. That may be so in a minority of cases, but on the whole, the impecunious party—the party more in need of representation and not able to afford it, who is often the mother—needs access to legal aid so that both sides can be properly heard.

I practised for only a short time as a family lawyer, but I cannot think of any other area of law in which I practised where the intervention of advocates often resolved cases. Quite often the parties going to court would go not only as other litigants in person do, with an imperfect understanding of procedure and the law, but with a real animus against the other side and almost a willingness to continue the family argument through the court process. In the vast majority of cases, the intervention of lawyers—sometimes at an early stage and sometimes at the door of the court—is a way of drawing up consent orders, of resolving matters that otherwise and in the future would have to go before the judge.

One of the crucial points raised by both reports and various others over the years is the importance of limiting delays. A recent survey of Resolution’s members found that when one party is representing themselves, cases usually take longer. Indeed, 48% of respondents said that it can be more than twice as long as when both parties have legal representation—a point borne out anecdotally by the comments of the right hon. Member for Dwyfor Meirionnydd.

The removal of access to counter services cannot possibly improve that situation and will almost certainly lead to even longer delays. Further delays will be caused by the fact that counter services will no longer be available to check applications—a major issue, given that incorrectly completed applications are often rejected by the courts. Aside from those delayed decisions, which were described as “unacceptable” by the Government in their response to the family justice review, it is easy to see how that could also lead to a delay in identifying a child’s safeguarding issues.

My colleagues and I have been approached by representatives from a number of organisations with concerns that mirror the Opposition’s fears on these issues—that one cannot hope to improve services while simultaneously taking an axe to budgets across the board. The Government can talk all they want about a commitment to limiting delays and improving the service provided by family courts, but those improvements will not be found if the crucial background services, such as counter services, are removed.

I will not repeat the many excellent points made by the Chair of the Select Committee; I am sure that the Minister heard them and will respond to them. I hope that he will listen to the comments of the Select Committee and those that I and others with an interest in these matters have made, and will feed them back into the Government’s ongoing development of their justice policy.

The Opposition will not unnecessarily oppose anything that will genuinely improve the operation of our family courts, but the Government need to take notice of the many organisations that have expressed concerns that further delays will ensue as a consequence of the steps that they have taken and that those measures might be counter-productive. The Government should be working to ensure that the family courts work for everyone, not just those who can find a resolution to their problems before coming to court or those who have the means to pay privately for legal advice.

--- Later in debate ---

[Mr Djanogly]

The right hon. Gentleman makes a fair point. This was what came up in Australia. The Government have looked carefully at the lessons of the Australian experience of legislating in this area, which was highlighted by the family justice review. Direct comparisons with the experience in Australia are misleading; it is certainly not our intention to mirror the structure of the Australian legislation or to create new layers of complexity in our existing system.

Contributors all mentioned the importance of early intervention. I agree with my right hon. Friend that it is an essential component in solving this issue. The Department for Work and Pensions, the Department for Education and the Ministry of Justice are working closely together on this so that a parent’s first port of call will be an online hub that will provide practical information and advice and will signpost appropriate services.

We have introduced measures to strengthen consideration of mediation and to explore how that can work alongside parenting programmes and other interventions to help parents focus on a child’s needs. I will say a bit more about mediation later. In addition, we are working to develop parenting agreements as a tool to help parents agree arrangements that are child focused and practical.

The DFE is providing an early intervention grant worth about £2 billion, which is flexible funding for local authorities to spend on their early intervention priorities from Sure Start through to crime prevention. The Justice Committee will know about the Youth Justice Board and the custody pathfinder projects, which give pilot areas custody funding up front for the under-18s. That will incentivise local authorities to intervene early before young people become serial offenders.

Many other cases could be settled away from court. Too many people go to court to resolve their private disputes and fail to grasp the fact that the court is required to focus on the child’s welfare needs. That may mean that neither parent is happy with the decisions that are made. For many such parents, the family courts are not the best way of settling disputes about a child’s future. Mediation can be quicker and cheaper, and can provide better outcomes, especially if compared with drawn-out court hearings. It is important that mediation is considered at the earliest opportunity before positions become entrenched. An amicable solution is better than a litigious one.

Referrals to mediation in publicly funded cases are up by nearly 12% since the introduction of the pre-application protocol last April. However, I remain concerned about the protocol’s effectiveness in privately funded cases, and there is a need to tackle inconsistencies in approach across the courts. That is why we will make statutory changes to make it a prerequisite that anyone who wishes to begin court action must first attend a mediation information and assessment meeting to find out about and consider mediation. We remain committed to make public funding available for mediation through legal aid for those who are eligible and expect to fund an additional £10 million for mediation services.

I should point out to the hon. Member for Hammersmith that the Government have no plans to stop making available legal aid for children where they are a party to family proceedings. Various hon. Members mentioned litigants in person. We accept that the reforms will mean an increase in litigants in person. However, unrepresented parties have always been a feature of the justice system—some because they cannot afford representation and others because they choose not to be represented. Paying for a lawyer, whether out of private pockets or public funds, is not always necessary. Judges make significant efforts to assist litigants in person, explaining procedures and what is expected of them. We estimate that about 40% of private law children’s cases involve one or more litigants in person. The proportion in divorce cases is much higher than that.

[Mr Slaughter]

Will the Minister accept that replacing advocates with litigants in person can typically increase the length of a case by up to 100%? If he does not accept that there is robust evidence of that, should the Government not collect such evidence and make their assessment of what the changes will mean for the length and cost of a case?

[Mr Djanogly]

From a review of the literature, we know that sometimes these cases can take longer, but not always. Sometimes they are actually quicker. The picture is complex. However, we expect fewer cases to come to court in future because there will be 10,000 extra family mediations, which will help offset any additional burdens on the courts from dealing with litigants in person. Overall, we do not expect a likely increase in litigants in person to lead to significant additional burdens on the court.

In recognising that there is an existing problem with litigants in person—no matter what happened in the Legal Aid, Sentencing and Punishment of Offenders Bill—we are seeking to improve the system by introducing single family courts, which will provide one route into the system that people can understand; by changing court processes so that they are easier and quicker to understand; by introducing a new child arrangement order; by creating processes to deal with breach of order more quickly and effectively; by simplifying and streamlining the divorce process; and by improving the information made available to the public. In addition, support for separated and separating parents will be provided through new web and telephone services led by the Department for Work and Pensions, which will provide trusted independent information suited to people’s needs. The web service will be commissioned in 2012 and the telephone service in 2013.

Other practical steps include welcoming the Civil Justice Council’s report on self-represented litigants that was published late last year. It contained a number of practical and pragmatic recommendations, many of which are applicable to the family as well as the civil courts. We are working with the CJC and the Family Justice Council on how to take these matters forward. Recommendations include guidance to court staff on how to deal with unrepresented parties and information about pro bono assistance. We have also made funding available to support this work, some of which is being used to support the expansion of the Personal Support Unit, a charity based in the Royal Courts of Justice, which provides volunteers to accompany people to court and to fund guidance produced by not-for profit organisations specifically tailored to unrepresented parties. We envisage the funds being used on online tools, guides to the court process, including on video content, and other initiatives, and we are working with relevant organisations such as the citizens advice bureau to that effect. These will all be in place before the legal aid reforms take effect. These changes are radical and cannot happen overnight, nor can they happen in a family justice system that lacks leadership and coherence.

We agree with the family justice review and with my right hon. Friend the Member for Berwick-upon-Tweed that transferring CAFCASS to the Ministry of Justice will bring court social work closer to the courts and make it easier to improve the whole system’s performance. We will transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice by the end of this spending review period. I should say that CAFCASS’s performance has improved significantly in recent times, but I agree with him that moving CAFCASS will not be enough; integration of services will be key.

Crucially, we are already putting in place the governance arrangements that will drive those changes. We have established the Family Justice Board, which brings together senior figures in the core organisations within the family justice system. The board will give family justice national leadership and visibility, and will be led by an independent chair and supported by a performance improvement sub-group and a young people’s board. We are also establishing new local family justice boards to drive momentum at a local level. The new national governance arrangements will provide a more joined-up family justice system and ensure consistency between national strategy and local delivery. Together, the new structures will have a clear remit to focus relentlessly on system performance.

[Mr Joe Benton in the Chair]

In taking forward work to improve the system’s efficiency and effectiveness, we must not overlook the need to make it more responsive. We are considering how we can simplify processes further and provide practical information to help unrepresented parties navigate their way through the system, as I described earlier.

My hon. Friend the Member for Birmingham, Yardley mentioned CAFCASS and guardians, in the context of the child’s voice being heard. We agree with the FJR’s strong views on the centrality of children’s interests and endorse the panel’s proposals on listening to children’s voices and ensuring that their wishes and feelings are taken into account. We will put the child back at the centre of the system. We take seriously our obligations to promote and implement the UN convention on the rights of the child, and throughout our proposed reforms, we will introduce practical measures to ensure that children’s voices are heard. The Family Justice Board will have a key role to play in supporting children’s right to have their voices heard, which is why one of its sub-groups will be a young people’s board, building on the benefits gained from the CAFCASS young people’s board.

There has been considerable debate over the years about the opening up of family courts. Slightly different positions have been stated today by right hon. and hon. Members, who I accept all care passionately that we get it right. Understandably, there are many different views on the subject, and there is a balance to be struck between confidence and privacy on one hand and publicity on the other. The challenge is balancing the need for public scrutiny with the parties’ need for privacy. I accept that the current position is unsatisfactory.

The Government’s response to the Justice Committee’s report last year, as my right hon. Friend the Member for Berwick-upon-Tweed restated today, accepted the recommendation that the provisions in part 2 of the Children, Schools and Families Act 2010, which allow for greater reporting by the media, should not be enacted. As the Committee recommended, one lesson learned from the outcome of the last attempt to achieve transparency in the family courts is that a solution to this important and contentious area of policy should not be rushed. Given the issues at stake, we will work to find ways to achieve greater transparency in the family courts.

The work that the Government are doing to implement change in response to the Justice Committee’s report and the recommendations of the family justice review represents a broad and ambitious programme of reform, as I hope I have explained to some extent today. The programme that I have outlined shows our commitment to providing a modern family justice system where delay is the exception rather than the norm; one in which people are supported to resolve disputes themselves as early as possible and away from the court if possible; one that is coherent and well led by the Family Justice Board, with buy-in from all partner agencies: in short, a family justice system that children and families can trust and rely on. I know that all right hon. and hon. Members share that objective, and I am grateful to them for their contributions to this debate.

Question put and agreed to.