Children and Families Bill

Baroness Butler-Sloss Excerpts

Tuesday 2nd July 2013 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I am the very last Back-Bencher to speak today. I hope that I am not the least. I welcome this Bill. I think that many aspects of it are excellent. The Government approach to improving the path to adoption and reducing the time taken in care proceedings and achieving the adoption status for children is excellent. However, inevitably, there must be some tweaking here and there, and there are some issues that require amendments in Committee. Much of what I will say will have been covered already. However, as a former family judge, I feel that on a children’s Bill I should, even at this late stage, set out the points about which I have some concern. I do it therefore without apology.

I am very grateful to the noble Lord, Lord McNally, for giving me the opportunity to discuss some of these issues with him yesterday. I am also extremely grateful to the Minister, the noble Lord, Lord Nash, who took the trouble to call me in to discuss these issues some months ago. That was very nice of him and I much enjoyed our meeting. I also wish him well on his first major Bill.

I will make some brief points on Parts 1 and 2 of the Bill, on adoption, private law and public law cases and children trafficked into this country. I am a co-chairman of the All-Party Parliamentary Group on Human Trafficking and a trustee of the Human Trafficking Foundation. I am also a governor of Coram and have other interests in the register connected with BAAF, NSPCC and so on. The adoption committee, of which I was chairman, supported the Government’s steps to improve the adoption process. However, we raised various issues and I select a few, confident that other members of my committee have already raised the others.

On Clause 1, I am concerned about the provision concerning foster parents leading to adoption, for this reason: it is absolutely crucial that the Department for Education gives guidance on the importance of pre-placement work done by social workers, so that social workers are not seen as placing children with foster parents without having taken care to see whether the parents are capable of taking the children back. I was delighted to hear that families will be consulted first, but social workers must not jump the gun. Social workers need to be aware that they must not breach the human rights of birth parents and children, as has been said, under Article 8 of the convention by not doing sufficient preliminary work before placing children with those fostering with a view to adoption. Early intervention with birth families may make it unnecessary to remove children. I was disturbed to learn that money was being taken from early intervention to support adoption. It seems to me that money is needed for both.

I am also concerned, as many other noble Lords have said they are, about Clause 2. In our adoption committee, we were very concerned about the evidence that we received on the question of ethnicity on the basis that if it is out altogether, social workers may go the other way. We had evidence to that effect, with social workers saying, “Ignore ethnicity—it is no longer there. It has been taken out”. I entirely agree with the noble Baroness, Lady Young of Hornsey, so in our report we recommended putting that factor along with others in Section 1(4)(d) of the Adoption and Children Act 2002. I hope that the Minister will listen on this point, which has been canvassed across the House already. I also put down the marker that post-adoption support is essential. The Government are going some way with the passport but have not yet gone far enough.

In our adoption report, we raised the issue of children from abroad who are in the process of being adopted by English adopters and are living with them but who have, until the adoption process is completed, no actual legal status with that family. I do not think that this has been dealt with yet. Those prospective adopters need some legal status to deal with the children whom they intend to adopt. There was a possibility for a residence order, but in a later part of the Bill that is being got rid of. I am not sure that the introduction of arrangements in their place would give the prospective adopters parental responsibility. The foreign birth family may or may not by then have parental responsibility under our law if the adoption process has taken effect in the overseas country. No one else in this country will have parental responsibility, so it is crucial that the prospective adopters who have children living with them have it in order to deal with schools, health and other such issues. I also put in a plea for the Department for Education to get on to the Home Office to hurry up immigration procedures for children in the process of adoption.

However, my major concern on this Bill, along with others who have already spoken on it, is Clause 11. I hope that the House will forgive me if I dwell on this for a moment as a former judge who tried this sort of case. In the majority of cases where parents separate, they come to a sensible arrangement for the children and the involvement of both parents. In some cases, mediation helps that process but there is a hard core of parents who fight out their failed relationship in the arena of the court over child issues. The relationship has soured and become corrosive. One or both parents become unreasonable and it is difficult to get it through to them that the child’s welfare is the overriding concern of the court and more important than the right that some parents feel they have in the arrangements for the children. Mother and fathers can be utterly unreasonable and vindictive towards the other parent. I have seen it again and again in the cases that I have tried. I take the view that in this highly charged state, parents are the last people who should be making decisions about their children’s relationship with the other parent. Some mothers, for instance, cannot believe that their children love the other parent. How could they, when she hates him?

There is the overriding presumption in the Children Act 1989 that the welfare of children is the paramount consideration. Clause (11)(1) sets up a second presumption, inserted by Clause (11)(2), which is girded around with a degree of protection, if not in the interests of the child. A judge or family magistrate starts none the less with a clash of two potentially opposing presumptions: paramountcy of the child’s welfare and presumption that involvement of the parent will further the child’s welfare. Judges and magistrates may disentangle this, and come to a balanced decision, but this is an area of private family law where both parents will now, in the absence of legal aid, be unrepresented and appearing before the judge or magistrates without lawyers. They will be trying to sort out how to arrange the future of the children in this atmosphere of failure of the relationship and a high degree of tension, and no one other than the court to help them.

Clause 11 is a laudable attempt to involve parents, principally fathers, who might not otherwise be involved with their children. We have to be seriously concerned about a substantial group of children whose fathers have no further, or virtually no further, contact with them after separation from the mother. But the wording of Clause (11)(2), aided by press publicity, which has not always been helpful to the understanding of the intention of Clause 11, has raised unrealistic expectations that in future the parent, usually the father, will be entitled to play a substantial part in the future life of the child, regardless of issues about the child’s best interests. Judges and family magistrates will not of course make orders that do not put the child’s welfare first. In this hard core of cases there will then be a serious gap between expectation and the reality of the court decision.

Family academics, particularly from Oxford, Coram, the NSPCC and other groups with real knowledge of what goes on at the coal face, are expressing their major concern about the insertion of a second presumption in child legislation; I share it entirely. I suggest that the word “presume” should be deleted and the words “pay particular regard to” inserted. This would highlight the importance of the involvement of both parents without the legal problem of competing presumptions and, I hope, lower the degree of false expectations by parents of the degree of involvement that can be achieved. It might also be a good idea to have a definition of the word “involvement” to identify direct or indirect involvement and not to be taken to mean any specific quantity of a child’s time.

There is an issue about getting rid of the words “residence” and “contact”, a brave effort by the Government to cut out words that carry baggage, as did “custody” and “access”, but one that I fear is likely to be ineffective. I also fear that the punters who want to fight out their failed relationship through child proceedings will not be fooled. However, there are issues relating to international relations, for example the Hague convention on child abduction and possibly the Brussels II Regulation, and the need for a parent from whose care a child has been abducted to be able to prove a right of custody in order to invoke the support of the child abduction convention. There are also other people who are not parents who may need a form of residence order and the usefulness of parental responsibility for a child in their care. The word “arrangements” may need to be modified and more carefully defined.

The funding of experts is a major issue that I will not go into at this hour. I have some concerns about the need for a greater degree of flexibility in the 26-weeks care proceedings if social workers do not get their act together quickly. I very much agree with the noble Baroness, Lady Tyler of Enfield.

My last point concerns an area that is not in the Bill—the protection of children trafficked into this country. These children almost certainly do not have a parent in this country, or if their parent is here, he or she will have trafficked the child. The local authority of the area in which child or young person is identified as trafficked has a duty to accommodate such a young person under Section 20 of the Children Act 1989. Accommodation does not include sharing parental responsibility with the birth parents. Parental responsibility is given to a local authority only after the grant of an interim care order. I do not suggest that every local authority notified that a trafficked child needs accommodation should seek an interim care order because that would be time-consuming and expensive. I suggest instead that when a child or young person is identified by the national referral mechanism as trafficked, the local authority required to accommodate the child under Section 20 should also automatically be granted parental responsibility for that child while the child is accommodated by it. It would cost nothing, but it would mean that someone would take genuine responsibility for that child in this country. The noble Lord, Lord McColl, pointed out how many trafficked children go missing. Local authorities need to realise that accommodated children need much more care than they currently believe they need.

There are many other issues about which I have some concern. They will arise in Committee, and I foresee a lively time. I apologise for taking so long, but this is an area about which I feel very strongly and have some knowledge.