Children and Families Bill

Elfyn Llwyd Excerpts

Monday 25th February 2013 Commons Chamber

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I welcome many of the changes in part 1 of the Bill to streamline the adoption process and the provisions in parts 6, 7 and 8 to introduce new employment rights for women and men who have young children.

As one of the first people to argue in this place for a Children’s Commissioner for Wales, I support the commissioner’s response that his remit should be extended to include some reserved matters so that he can better represent the children of Wales. I hope that that provision can be looked at in due course.

My remarks will focus on part 2 and the impact that the changes that it introduces could have on family justice. I declare an interest because I practised in family law for more than 35 years and draw some of my opinions from my experience in the courts, as does the Under-Secretary of State for Education, the hon. Member for Crewe and Nantwich (Mr Timpson), who, although not of my vintage, practised in the same area of law and on the same circuit.

I sit on the Justice Committee, which undertook some of the pre-legislative scrutiny of this Bill. Regarding the public law clauses of the Bill, the Committee was supportive of the Government’s intention to reduce delay in care and supervision proceedings. We applauded the example set by some local authorities and courts in cutting timetables. We have heard about the Norgrove report, which recognised the terrible delays of 61 weeks in care centres and 48 weeks in family proceedings courts. Such delays can obviously cause unnecessary strain and distress for the most vulnerable children.

[Anne Marie Morris (Newton Abbot) (Con)]

Like the right hon. Gentleman, my background is in law, although not in family law. I know from my surgeries that my constituents will welcome the simplification and shortening of the process. However, does he share my concern that we must ensure that the judiciary have the right training and perhaps more training so that when we have the shortened hearings, the right results ensue?

[Mr Llwyd]

Mr Justice Ryder, who is in overall charge of this area, gave evidence to the Justice Committee not long ago and the hon. Lady should rest assured that he is on the case. There has been progress of late in that area, but I am sure that there will be greater progress. I thank her for that intervention.

In evidence to the Justice Committee’s inquiry, Barnardo’s stated:

“Two months of delay in making decisions in the best interest of a child equates to 1% of childhood that cannot be restored.”

Thus, the principle of introducing a 26-week time limit is obviously to be welcomed. However, as the Family Law Bar Association noted in its evidence, the practical consequences of the provision might result in further delay in the courts, because cases will still be likely to take longer than 26 weeks to complete and so will be repeatedly referred back to the court for extensions. The evidence of the NSPCC drew attention to the importance of granting adequate time to work with families in cases where intervention projects are utilised, such as in the family drug and alcohol court in London, without the extra burden of having to apply for extensions.

The Committee recommended that the draft provision should be amended to allow judges some leniency to identify cases that are likely to take longer than 26 weeks and to exempt them from the 26-week time limit. That may well reduce unnecessary bureaucracy and expensive extension hearings. I urge the Minister to think further about that, as I am sure he will.

The Justice Committee was concerned about the provisions on child arrangements orders in clause 12 and recommended a number of alterations. It is important to remember that the UK has had equality of parental responsibility since 1989. That principle was introduced to reduce conflict in courts over contact arrangements and to remove the perception that there are winners and losers in such disputes. The Committee was unconvinced that merely changing the wording from “contact order” and “residence order” to “child arrangements order” would eliminate the perception that there are winners and losers in the family courts.

The Committee was also concerned that the changed wording would cause confusion in foreign jurisdictions and recommended that the Government reconsider the practical difficulty in interpreting the clause in the context of international law. The concept of “rights of custody” is well established in The Hague and in EU legislation. There is justifiable concern that the introduction of CAOs could cause confusion about the nature of parental responsibility, unless the orders specify that the person with whom the child is to live has rights of custody.

My greatest concern and that of the Committee relates to clause 11. We heard a debate about this matter earlier and the Minister became animated when we came to it. The explanation of the hon. Member for East Worthing and Shoreham (Tim Loughton) comforted me. The Government accepted the Committee’s recommendation that the title of the provision should be changed from “shared parenting” to “parental involvement”. However, the Government did not accept that the term “involvement” should be defined in the Bill to remove any implication that involvement equates to a parent’s right to a set amount of time with a child.

In their response to the Committee’s report on the Bill, the Government stated:

“Whilst it is not a specific policy intention to change the outcome of court decisions in particular cases, we anticipate that the amendment will encourage parents to adopt less adversarial and entrenched positions in relation to the care of their child.”

I hope that that is right, but evidence suggests that, to the contrary, the change might prompt people to assume that they have rights and could lead to courts undermining the paramountcy of the welfare of the child, inferring instead that equal access to both parents will have a beneficial impact on all children. As Gingerbread pointed out in its briefing on the Shared Parenting Orders Bill, which failed to be passed during the last Session, there would be problems with

“any form of legal presumption that assumes a particular outcome—that is, a parenting arrangement of near equal or equal time—before the consideration of a child’s best interests”.

[Mr Timpson]

I appreciate that this is a Second Reading debate, but it may be worth the right hon. Gentleman acquainting himself with page 21 of the explanatory notes, which deals with the issue and states explicitly:

“It is not the purpose of this amendment to promote the equal division of a child’s time between separated parents.”

That is clear in the explanatory notes and was made clear when I gave evidence to the Justice Committee.

[Mr Llwyd]

I am afraid that does not explain why some corners of the press still believe that to be the case. I accept what the Minister says, however, and I certainly accept the useful explanation given earlier by the hon. Member for East Worthing and Shoreham.

[Tim Loughton]

Repeating the misconceptions in the press does not help. Does the right hon. Gentleman not accept that if it is crystal clear that both parents are expected to be involved with their children, they are less likely to have to go to court for that to be enforced?

[Mr Llwyd]

I have been practising in the courts for quite a time, and as I understand it, there is a presumption in the courts that the involvement of both parents is good, provided that it accords with the overall principle of the children’s welfare being paramount. Nothing will change drastically, but my concern is that some people who do not have any contact with their children for various reasons will suddenly think that there is now shared parenting and they have a right to do this, that and t’other. I may be wrong, and I hope so.

I accept what the hon. Gentleman said about the need for the parent with residence not to freeze out the other parent. That is absolutely right, but a recent report by the universities of Oxford and Sussex, “Taking a longer view of contact”, states that structural factors such as the frequency and format of contact are relatively unimportant compared with the quality of contact that children experience with both their resident and non-resident parent. It further observes:

“Parenting arrangements after separation cannot be considered in isolation to the patterns of parenting established in intact families.”

It stresses that no contact is better than bad contact, and that there are circumstances, such as when abuse is present, in which no contact should take place.

We know that fewer than one in 10 cases in which parents divorce or separate come before a family court for a decision on contact. It is estimated that between a third and half of the cases that do come to court include allegations of violence or abuse. I believe that the provision in the Bill is more about creating a perception than anything else. This has been a good debate hitherto, and I do not want to fall out unnecessarily on this point, but I simply do not understand why we are legislating to change a perception. At the end of the day, family courts are manned by experienced judges who start with the principle that it is always good for both parents to be involved when it accords with the all-important principle of the welfare of the child being paramount.