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.