Family Courts

Lord Beith Excerpts

Thursday 24th May 2012 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to serve under your chairmanship, Mrs Osborne.

Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement reinforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.

The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.

This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary— the court system—is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.

In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.

Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.

On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.

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

I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.

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[Sir Alan Beith]

The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:

“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”

We referred to the evidence from Australia that

“the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”

The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.

The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.

When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.

In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.

We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.

We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there

“should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”

The Government state that they are

“mindful of the lessons which must be learnt from the Australian experience”

and their stated aim is that the

“presumption of shared parenting will…enhance the prospect of an agreement between parents”.

The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best interests tests.

We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.

We mentioned the signposting of advice and contact opportunities and said:

“There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”

We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as

“a potential source of capital for charities”

and called on them

“to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.

That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.

Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.

I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.

There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:

“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”

We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.

We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want to spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.

The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for a while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.

I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.

Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.

Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:

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

The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.

A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.

On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.

The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.

[Mr Llwyd]

The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.

Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.

[Sir Alan Beith]

The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.

I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.

The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.

I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.

The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.

On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.

Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.

Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.

The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.

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[Mr Djanogly]

I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.

[Sir Alan Beith]

rose—

[Mr Djanogly]

I will just finish this point. This change is not about equality in the time that a child spends with each parent after separation. Every family and every child’s circumstances are different and the courts will continue to make decisions on that basis.

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[Sir Alan Beith]

There have been quite intensive discussions about this issue in government. In trying to use the law as a signal, there is a danger that the courts will be obliged to take into account a further element of complexity when making a judgment. The signal that it gives some parents in dispute may be that there is another point on which they can engage the court in order to keep the case going. It is more likely to do that than to give a signal to parents about what they themselves should do.

[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.