Children and Families Bill

Lord McNally Excerpts

Wednesday 16th October 2013 Grand Committee

[Lord McColl of Dulwich]

My Lords, I support this amendment. We need to take notice of what the noble and learned Baroness, Lady Butler-Sloss, has said, given her enormous experience. Let us leave out “mediation”.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, when Rupert Murdoch appeared before a committee down the corridor, he said it was the humblest day of his life. It is not for quite the same reasons but I approach this Bill with more than a certain humility, given the expertise in this Committee. I have listened to a goodly part of the debates. It is common cause that we are trying to get this important Bill right in terms of what is in it. That is the value of this Committee in this Room. It is less frantic than in the other place, less susceptible to the passing trade and more for those with genuine expertise. I approach Part 2, which is the section I shall be dealing with, with a desire to listen and to try to explain how and why the Government have come to the position they have reached thus far in the process of the Bill.

The Family Justice Review recommended that parents who need additional support to resolve a dispute should first attend a mediation, information and assessment meeting—a MIAM—to receive information about mediation and be assessed for suitability to mediate. It is very important that there should be an early assessment for mediation. That was the intention behind the existing pre-application protocol introduced in April 2011, which we intend to strengthen under this clause.

With reference to the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl, we feel that the name of the meeting should convey to those who will attend it something about its purpose. An “assessment and information meeting” would not meet that objective in our view. Indeed, prospective applicants and respondents might be reluctant to attend such a meeting without knowing what they will be assessed for. The Family Mediation Council has published requirements for the conduct of MIAMs which describe clearly the elements to be addressed by the mediator. They include providing,

“information about all appropriate methods of family dispute resolution, including but not limited to mediation … collaborative law, solicitor-led negotiation and litigation”.

We intend to invite the Family Procedure Rule Committee to make rules that include reference to those requirements.

Turning to the amendments tabled by the noble Baronesses, Lady Hughes and Lady Jones, I recognise the concerns about safeguarding access to the courts. The Government do not intend that vulnerable parties should be put at risk or be prevented accessing the court. However, involving the court in every case at the stage before proceedings have started to determine whether it is reasonable for an applicant to attend a MIAM would be unworkable. It would impact on the courts and cause delay, particularly in public law care and supervision cases, and would undermine our efforts to ensure that court involvement is avoided wherever appropriate and safe in private family disputes. We agree that the requirement to attend a MIAM should not apply in circumstances where it is appropriate or necessary for a court to make decisions. That includes where there is evidence of domestic violence, child protection concerns or other reasonable grounds for exemption such as urgency or the significant risk of a miscarriage of justice.

The pre-application protocol in operation since April 2011 already places an expectation on a prospective applicant in relevant family proceedings first to attend a MIAM, but allows for exemptions in the circumstances I just mentioned. A family mediator may also determine, on the basis of their professional judgment, that the nature of the case makes it unsuitable for a MIAM. A mediator might make such a determination on the basis of a telephone discussion with the prospective parties. The current exemptions already reflect our position that adequate safeguards should be in place, and we intend to invite the rule committee broadly to replicate these in making rules under this clause.

A number of noble Lords, including the noble Lord, Lord Wigley, raised the question of the quality and training of mediators. The Government understand the concerns about the need for appropriate training and quality standards for mediators who conduct a MIAM. Family mediators who conduct MIAMs are already required by the Family Mediation Council, or FMC, to meet minimum standards and other detailed requirements, and only certified mediators can conduct a MIAM. Time does not permit me to list these requirements but I am happy to place a copy of them in the House Library and send them to noble Lords.

The existing pre-application protocol specifies that “family mediator” means a family mediator who is subject to the FMC’s code of practice and who is authorised to undertake MIAMs in accordance with the requirements set by the FMC. We propose to invite the Family Procedure Rule Committee to make rules of court under subsection (2)(b), which makes specific reference to those requirements. The rule committee is mandated by statute to make rules about practice and procedure in family proceedings, and we believe it is appropriate that the committee makes these rules about statutory MIAMs.

Clause 10 is intended to strengthen the existing protocol. We are building on a system that has now been in operation for two and a half years. The rule committee has a statutory duty to consider consultation on draft rules, including those to be made under this clause. The detail is, I recognise, important. I am happy to say that the rule committee has decided to consult on the draft rules so that there can be wider scrutiny of them, and it plans to consult shortly. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the rule committee as part of that consultation process. If any noble Lord would like to receive and consider the draft rules, my officials can ask the rule committee to arrange that.

While checking whether I have covered the other points that were raised, I should just say that we are standing by the point that the MIAM should have mediation in it. It is not helpful for it to be absent. I understand the point that the noble and learned Baroness, Lady Butler-Sloss, made. Even from my limited knowledge, I know of the confusion that there is between mediation and marriage guidance counselling. People who have long decided to get out of a marriage do not want to be guided; they want to be helped through what is a traumatic period. However, I hope that we have this right. The accreditation of mediators is safeguarded. We do not believe that the Government are best placed to undertake a regulatory role in this area, but the guidance is there.

It is interesting that the MoJ has commissioned some independent qualitative research to look at barriers to accessing MIAMs and mediation. This will include looking at the experience of clients who did not attend a MIAM and the reasons for that. We expect to receive a number of emerging findings from that research in early November, and I will certainly make the research available to the House as the Bill progresses.

The rule committee is meeting on 4 November and will seek views in particular from family practitioners who work every day with users of the family justice system. The rule committee itself also has considerable expertise and we believe it is the appropriate body to do this work. My officials will ensure that the views and concerns expressed by noble Lords are conveyed to the committee, and we will make sure that its work is made available to those interested. I hope that with those explanations and rationalisation of our position, the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, before the noble and learned Baroness responds, as I understand it her amendments are not seeking to change the content of such a meeting and in particular did not seek to take out the term “mediation” at line 41 on page 9 in the list of what information is to be provided. I understand what she says about not deterring people simply because of a title. Is it necessary to call these meetings anything other than family meetings, just for the purpose of getting people there to deal with the issues as they arise? It seems an unnecessary obstacle.

[Lord McNally]

That is the very interesting nature of this debate—whether removing the term will mean that it is not on the tin, so people will not be sure what they are letting themselves in for, or whether, as the noble and learned Baroness, Lady Butler-Sloss, is suggesting, it being on the tin will deter people from opening the tin. As I said, we have commissioned research on this. We are only at Committee stage. I will make the outcome of that research available. There is no absolute certainty at this stage as to which of us is right about this.

[The Deputy Chairman of Committees]

My Lords, with great respect to the noble Lord, a Division has been called in the Chamber. The Grand Committee stands adjourned until 6.27 pm.

--- Later in debate ---

[Lord McNally]

My Lords, before I was so rudely interrupted, I was about to prompt withdrawal of the amendment by the noble and learned Baroness, Lady Butler-Sloss, who I hoped would be convinced by my eloquence. What I was saying when the bell went is that the term “mediation” in the title helps people to know what the purpose is and encourages them to be brought into it. The debate has been interesting. There are those who are arguing that it will frighten people away. We have commissioned some research and perhaps we should await that research and then return to this debate. When the noble and learned Baroness, Lady Butler-Sloss, has seen the research she will say, “Oh, my goodness, I was wrong. The noble Lord, Lord McNally, was right all along”. Mind you, we are paying for the research. On that basis, I hope that she will agree to withdraw the amendment.

[Baroness Howarth of Breckland]

I apologise but just before the Division Bell rang the Minister talked about knowing what was on the tin. The problem with the word “mediation” is that it conveys a range of different concepts, even within the professional world, and certainly if you are a warring parent. I am not saying that we should not indicate what is going to happen in the meeting and that people may be asked to look at how they can approach their relationships, if not mend them, but “mediation” is a difficult word for everybody, inside and outside the profession, and I think that we should look for another one.

[Lord McNally]

My approach to this Committee is that I genuinely do listen and take back its findings not only to my expert advisers but to other experts in this field who are not members of this Committee but will read its proceedings. If people on either side of the argument want to write to me and relate their experiences, we may be able to make a definitive decision on this issue at a later stage. I will certainly not go to the wall over the name that is used; I want an effective process.

[Baroness Butler-Sloss]

My Lords, I say to the Minister that I am perfectly prepared to be wrong; I often am. However, I think that on this occasion I am probably right and I shall be very interested to see the research. I would very much like a copy of the draft rules. I used to be the chairman of the Family Procedure Rule Committee. I have to confess that I tried not to attend that committee if I could avoid it as it is quite the most boring committee I have ever sat on. However, I should like to see the draft rules and would be most grateful if they could be provided.

The noble Lord knows that it is the practice in the Moses Room to withdraw the amendment and I will, of course, do so, but before I do so I should like to make one or two points. I am extremely indebted to the noble Viscount, Lord Eccles, for making the point that the title should be neutral. That was what I was searching for, although I did not use that word. The neutral title could be “family information meetings” or, as has been sensibly suggested by the noble Baroness, Lady Hamwee, “family meetings”. Family information meetings might be slightly better as people would know that that was what they were going to get.

I am entirely supportive of mediation in the right cases, and in all but 5% of cases it will be right, if they ever go to court at all, which most of them do not. Where neither party is legally aided, they will both battle through the real difficulties of making their applications and so on in the county court or magistrates’ court and try to cope with something which is completely unfamiliar to them. Therefore, the information meeting, and a requirement to have one, seem to me entirely admirable.

The only problem is that there are in a sense two stages to this because mediation is different from information and assessment. It imposes upon people a requirement to try to settle. You cannot have compulsory mediation. You can have compulsory information and assessment, but you cannot require people to settle. That is something I was taught as a young barrister and I have learnt all the way through my legal and judicial career that people cannot be made to settle. The purpose of mediation is to get them to settle or to try to tackle the issue in a better way, but that could be achieved through the provision of information and an assessment. One has to understand that mediation is in a different class from information and assessment.

I throw out my next point as a possibility for the Family Procedure Rule Committee and the Minister’s experts to look at. I am not suggesting that this is necessarily a good idea but I throw it out for consideration. I would be content if the forms that the parties receive put the words “information”, “assessment” and “mediation” in brackets. Parties could cross out the word “mediation” to show that they are prepared to opt for information and assessment but are not prepared to go through a process of trying to make them settle. That might just do the trick if you want to keep the word “mediation”.

However, I am very concerned about the small number of people who are most likely to go to court. You do not go to court if you can reach agreement. Some 90% do not go to court or go to court only to obtain an agreed order, 5% can be persuaded to go through mediation, and probably mediation is just what they need, but 5% cannot. What could happen if there is a requirement for mediation is that particularly the man, although sometimes the woman, will get to the meeting with the trained mediator and the minute the mediator starts to say, “Well, could you not agree to this?”, he will storm out and not listen to what he needs to understand as to how the court proceedings will go. That is my real worry. However, for the moment, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Mackay of Clashfern]

If that is addressed to me, the answer is certainly yes. I have a distinct recollection of a case in which the mother left the family at a very early stage and the father and his mother had to look after the child. After a while, the child’s mother decided to come back. She had had a relationship which soured after a year or two and she thought that she would come back. You have to take account of the existing situation and the paramountcy of the welfare of the child, which may alter over time and need to be reviewed from time to time. There is plenty of machinery to do that, although, as my noble and learned friend Lady Butler-Sloss said, one’s time may be consumed by other things. However, so long as you can get a review, that can be dealt with.

[Lord McNally]

My Lords, this has been an extremely important and high-quality debate. I am not a lawyer but I have spent three and a half years at the MoJ. Therefore, when the noble and learned Baroness, Lady Butler-Sloss, said that she had the greatest possible respect for my opinion, I am aware that the term “greatest possible respect” is reserved for the most insulting comment that a lawyer is about to deliver to an opponent.

I was interested in the joust between the noble Baroness, Lady Meacher, and the noble and learned Lord, Lord Mackay. When I was first given this ministerial responsibility, I had speaking engagements in Birmingham and Putney that arose within a few days of each other. I experienced some of the doubts that have been expressed in today’s debate about the road we were going down. What interested me was that at both meetings two social workers in the audience said quite unprompted exactly the same thing to me. They said, “Don’t underestimate the willingness of women to use their children in these battles”. The noble Baroness, Lady Meacher, pointed out that in the 25 years since the original legislation was passed there has been a change in what she described as family dynamics. We are trying to deal with the situation and get the wording right.

Even in this debate there are things that take us down cul-de-sacs. We are not following the Australian model; in fact we have learnt from it. Our proposal does not require the court to balance these two factors—I will come back to this. There is no idea of 50/50 parenting. One of the problems when this was debated down at the other end was that the press coverage was very much in terms of this being a major step change. I welcome the approach of the noble Baroness, Lady Hughes, in her opening remarks. The paramountcy of the welfare of the child is still there in this legislation.

The noble and learned Baroness, Lady Butler-Sloss, from her vast experience, claims that the way it is worded produces a contradiction. Let me try to explain our approach to see whether we can convince her, but I suspect that we will be coming back to this issue on Report. It is not possible for the presumption to clash with the paramountcy principle. The paramountcy principle is not a rebuttable presumption. The child’s welfare must be the court’s paramount consideration. If the court does not believe that the child’s welfare is served by the involvement of a parent, it will not order any such involvement, and the clause does not require it to do so. We are not saying that the court must make an order that involves both parents, nor are we seeking to define the nature of the involvement which the court may order. We are certainly not making any assumption about how the child’s time may be divided. That is not what the clause is about.

The Explanatory Notes set out clearly how the clause operates. We have included a process chart as well as an example situation to demonstrate how we would expect the presumption to work in practice. In addition, I have provided further information on the clause, which sets out in detail how the clause will work in practice, and it addresses the concerns that have been raised. We will also ensure that clear and accessible information is available for parents about the range of changes we are making. This will help to address wider concerns about the risk that the clause may be misunderstood. We have deliberately avoided defining the nature of involvement, which the court may order. The presumption stands if any form of involvement can take place without risk of harm to the child and would further the child’s welfare. We have used the word “involvement” as the simplest, most neutral approach to express the full spectrum of ways in which a child can have a relationship with a parent. We believe that the introduction of a presumption in legislation is the best and clearest way to ensure that children are able to benefit from the involvement of both parents following family separation.

This clause is part of the consistent messaging that will be conveyed throughout the dispute resolution process about the valuable role that both parents can play in their child’s life, whether they are together or apart. The deliberate reference to a presumption sends a strong signal to both parents and others as to how the court makes its decision. It makes clear that it is the norm rather than the exception for both parents to be involved in the child’s life. On the points raised, I think that I have already referred to the point made by the noble Baroness, Lady Hughes, about whether it was 50/50. The wording in the clause does not suggest or imply in any way equal or substantial shared time. The Explanatory Notes make it clear that this is not the expectation.

As regards the central argument put by the noble and learned Baroness, Lady Butler-Sloss, which I suspect we will continue to discuss on Report, we believe that there are no conflicting presumptions. The parental involvement presumption will always be rebutted in a situation in which the child’s welfare requires it, and the paramountcy principle is not rebuttable.