Children and Families Bill

Tim Loughton Excerpts

Monday 25th February 2013 Commons Chamber

[Stephen Twigg]

I thank my hon. Friend for her intervention. She anticipates my next point, as I was about to say exactly what she just said. Research by the BBC estimates that there are up to 700,000 young carers in this country, and we believe the Government should use the opportunity of this Bill to improve the identification, assessment and support given to young carers. As she reminded the House, the draft Care and Support Bill will give greater rights to adult carers, but support for young carers surely could and should be clarified and strengthened at the same time.

Ministers plan to write a presumption of “parental involvement” into the Children Act 1989. Labour strongly supports the principle that both parents should be involved in a child’s life, unless that compromises the child’s safety or welfare. However, we believe it is wrong to dilute the principle that the child’s best interests should always come first. Both the Select Committee on Education and David Norgrove have expressed significant concerns about the proposal.

The Select Committee on Justice, whose Chairman is in his place, has expressed a number of concerns, and I shall set them out. The first is that the Bill would not achieve its objectives in regard to shared parenting and that there is no evidence of a bias in the courts currently. The second is that the Bill could have a negative impact on the paramountcy principle, which states that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be paramount. The third is that the Bill will lead to misunderstandings about the right to particular amounts of time for parental contact because of the use of the word “involvement” without any definition and because of the use of presumption. A similar measure in Australia created an expectation that shared parenting meant equal time and led to courts becoming more clogged up as parents challenged decisions made on the basis of a child’s best interests, thus turning relatively straightforward decisions into lengthy conflicts.

[Tim Loughton (East Worthing and Shoreham) (Con)]

Does the shadow Secretary of State not acknowledge that what was proposed and became law in Australia was very different from what is being proposed here? Anything that can, in any way, be interpreted as meaning equality of time would not work. That is why the wording in the Bill, which has taken a lot of work and effort, is absolutely not a presumption about equality of time, but a presumption that all of us must surely agree that a child does best when both parents have as much involvement in the childhood of that child as possible, subject to the welfare provisions, which absolutely still stay paramount in the Bill. Why, yet again, do Labour Members not recognise that there is a problem and that at last we have legislation trying to address it?

[Stephen Twigg]

I certainly do not doubt the sincerity of the attempt to address this issue and to learn from the Australian experience. Labour’s judgment, as I have set it out today, has taken into account not only what the hon. Gentleman and other Government Members have said, but what has been said by organisations working in the sector, including in the field of children’s law. They tell us that there is a gap between the Government’s intention and what might happen in practice. We have to anticipate those unintended consequences, so although I absolutely agree with his final comments about the importance of both parents being involved, provided there is no threat to the safety or welfare of children, the paramount principle has to be the best welfare of the child—that has to come first. The concern is that what the Bill proposes could take us down the road that the Australians went down. We should explore this issue further in Committee, because there is a real difference of opinion on it. I urge Ministers to listen to those who are expressing a different view, so that we make sure that we do not have, as an unintended consequence of this Bill, something that makes the situation worse.

The Bill proposes a 26-week limit for care proceedings. At present, children wait for an average of 55 weeks for a decision about their future. The Government are seeking to address that, and we support them in their aim to speed up proceedings. However, speed should never be at the expense of getting it right for children. We want safeguards to be built into the system to ensure that complex issues are not overlooked and siblings are not separated needlessly. Because much of the delay comes from local authorities, the Government must also address the dangerously heavy case loads of social workers.

Again, we support the recommendations of the Justice Committee. It proposes first that the 26-week time limit should be specified in secondary legislation, while primary legislation should specify the power to set such a limit so that it can be amended easily if it proves unworkable in practice, and secondly that the clause should be amended to give judges the power to take cases outside the 26-week timetable.

--- Later in debate ---

[Tim Loughton]

Can we nail that misconception straight away? The provision has nothing to do with giving rights to parents; it is about the responsibilities of parents and the rights that children should have. They have a right to have both their parents as involved as possible—[Hon. Members: “And grandparents.”]—as well as other kinship care. I suggest to the right hon. Gentleman that the reason why the addition of this provision to legislation—for the first time—is so important is that it sends a clear and strong message to resident parents who use the court system to freeze the non-resident parent out of their relationship with the children that it will no longer wash. We want to keep more cases out of the courts, to be agreed amicably in the best interests of the children. That is what it is about.

[Sir Alan Beith]

I entirely agree with the hon. Gentleman and former Minister on what we are seeking to achieve, but he should note that the press coverage is already suggesting something rather different, which is the sharing of time—

[Tim Loughton]

But it is wrong.

[Sir Alan Beith]

As the hon. Gentleman says, it is wrong; perhaps the Government will have to make it rather clearer that it is wrong. On dealing with the perception, even if it is false, that there is a bias in the court system, there is another issue that figures much more largely in the concerns of many non-resident parents, predominantly fathers, and that is enforcement. Court orders are made that appear to give them reasonable involvement in the life of their son or daughter, but they are not observed, and the process of enforcing them is long, time-consuming and ineffective. We urged the Government to produce proposals on enforcement. They concluded that, on balance, it would be premature to legislate now to give courts additional enforcement sanctions. What they hope to do is bring cases quickly back to court—preferably to the same judge. I welcome that; it would be highly desirable.

--- Later in debate ---

[Ann Coffey (Stockport) (Lab)]

The principle that the interests of the child are paramount, which is enshrined in the Children Act 1989, should underpin all our legislation, policy making and attitudes to children. I therefore welcome the strengthening of the role of the Children’s Commissioner by giving a statutory remit to promote and protect children’s rights. It is crucial that this strengthened mandate is underpinned by sufficient resources.

The Children’s Commissioner’s recent report exposed the extent of child sexual exploitation in this country. I had hoped that the Bill would contain some provision further to support child witnesses in court. I will take a couple of minutes to explain why, giving an example that shocked me deeply—that of a young girl who was the alleged victim of anal rape before the age of three. The girl was interviewed on video six months after the initial disclosure. Aged four, she was brought to court for a live cross-examination via video link about the matters described in the video a year earlier.

To get to court on time, the girl had to be woken at 6 o’clock. However, when she arrived, the court was not ready for her and, after waiting all day, she was sent home. The cross-examination took place the following afternoon, with difficult-to-follow questioning, including the use of double negatives. The prosecution did not apply for a registered intermediary. During cross-examination no one except the judge intervened to ask if the child needed a break. How can this happen in the name of justice in our courts?

The Youth Justice and Criminal Evidence Act 1999 introduced the use of a wide range of special measures for vulnerable witnesses. The use of special measures is important as children do not approach communication in the same way as adults. NSPCC recent research showed that only 2% of young witnesses receive support from registered intermediaries, and also that at least half of young witnesses reported being unable to understand some of the questions that they were asked in court. I agree with the NSPCC that children who have been the victim of abuse should always be supported by a registered intermediary, as they have been shown to improve the administration of justice, ensuring that questioning and cross-examination practice maximises the quality of victim evidence. Furthermore and very importantly, the court experience for the child is less traumatic.

Obstacles to implementing section 28 of the 1999 Act must be overcome as rapidly as possible. Governments have been delaying for practical reasons the implementation of the special measures provision, which would allow a young child’s evidence, including cross-examination, to be obtained out of court and in advance of a trial. This would reduce delays in the start of trials and in the presentation of evidence at trial, a cause of great distress to child witnesses.

[Tim Loughton]

I strongly support the case that the hon. Lady is making, but that applies to older children as well, who are deterred from coming forward with their evidence on the basis that they will be re-traumatised in child sexual exploitation cases, of which there are some notorious ones currently under way. We need to make the system far more child-friendly to enable those children to make their statements that can nail the perpetrators in court, and not make them go through those traumatic events all over again in front of multiple barristers, as can so often be the case. I strongly support the point that the hon. Lady is making.

[Ann Coffey]

I thank the hon. Gentleman for that. What he says is quite right. It is a problem that goes right through the system, from the youngest to the oldest children. They are put through a terrible trauma, and it is sad that the measures that were introduced in 1999 are not being used in the courts. Something must be done about that.

I welcome the measures to reduce delays in adoptions. Concerns have been expressed about delays in adoption as a result of ideological correctness and because of the requirement in section 1(5) of the Adoption and Children Act 2002 to give

“due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background”

when making an adoption placement. The previous Government made it clear that this did not mean that a child should always be matched with a family of their ethnic origin or that this consideration overrode other welfare interests. Clause 2 removes that requirement. If that clarifies that this is not an overriding consideration in placement, that it is welcome. However, the requirement remains to consider the child’s age, sex, background and any of the child’s characteristics that the court or agency considers relevant when making a placement, and of course that will include religion and race. The Children’s Commissioner in her new role has a statutory responsibility to protect children’s rights, including the right for children to learn about and enjoy their own culture. So I do not think this issue can be resolved by legislation alone. It is more a matter of good adoption practice, with the individual needs of the child being paramount.

Just as the issue of ethnicity is complex, so is the issue of contact in adoption placements. This is certainly the experience of constituents of mine, who were informed by the local authority that placed the children for adoption that there was to be a voluntary letter box agreement—that is, letters are exchanged on an agreed basis. The way that that is being implemented was causing a great deal of distress. When I asked my constituents why they continued with this, as they clearly thought it was not in the best interests of the child, they said:

“You are correct, the agreement is voluntary and not legally enforceable. Our concern is this: the LA”—

the local authority—

“have said that although the agreement is not legally enforceable, birth parents have the right to apply for leave of court to get a contact order and so we were to be careful what we agreed to. This is written in a leaflet they gave us after we were told of what the contact arrangements would be. I will be quite honest with you . . . we feel very vulnerable and I have been having sleepless nights worrying about what we are to do. We can’t continue an agreement that is not in the best interests of our children but we feel that we have to continue it as we feel threatened.”

What a situation for adopters to be in!

I am unclear whether clause 8 will help my constituents. It may be that this is an issue of good practice and ensuring that adopters have the proper support. The new helpline manned by adopters, which was announced in September, will be very much welcomed by my constituents.

I tabled a written question on the number of children returning to care as a result of adoption breakdown. I was told that the Department for Education does not currently collect those figures but will do so from 2014. I think that it is important that there is much better research into what is needed to support an adoption placement and into the factors in adoption breakdown, which can take many forms, including sending children to boarding school, youth custody, returning to birth parents, admission to psychiatric units and sleeping on a friend’s sofa.

I understand that research is being undertaken by the university of Bristol. The demands on modern-day adopters are perhaps summed up by its introduction:

“More children have been entering care because of maternal drug/alcohol misuse, and the impact of such use during pregnancy and later parental neglect have detrimental developmental effects. Attachment difficulties/disorders and the impact of early trauma have all risen to prominence and been linked with placement disruption.”

We need that research. We have a shortage of adopters, and perhaps more families would be willing to adopt if they could be reassured that they would get the support they need. We will need a range of different care models, including adoption, family-based and residential, to meet the complex needs of children coming into our care. Adoption will always be the best placement for some children. We need to do all we can to support the therapeutic parenting we are asking of many adopters.

In conclusion, we must also do more to improve the quality of all our care placements so that when children come into the care system because their parenting is not good enough, they are provided with the best possible opportunities and do not again face poor care because of poor parenting in the care system.

--- Later in debate ---

[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.

--- Later in debate ---

[Tim Loughton (East Worthing and Shoreham) (Con)]

I am pleased to have the opportunity to speak in support of the Bill, albeit briefly. I offer my apologies for not being in the Chamber for the beginning of the Minister’s comments; I was upholding the honour of the parliamentary hockey team, which is why I am now limping.

There are many things in the Bill to support. It takes forward much of the work done over our past few years in government, and indeed when we were in opposition, especially on adoption and parenting, and I shall talk about those two subjects in particular.

I very much welcome the special educational need reforms, and I think the Minister is open to amendments to tweak and improve them. I welcome the Children’s Commissioner reforms, on the basis of John Dunford’s excellent report. I also welcome the innovative proposals on parental leave and flexible working, especially in respect of adoption. The hon. Member for Walsall South (Valerie Vaz) should be complimented on her private Member’s Bill a couple of years ago, which brought the matter to the attention of the Government.

I welcome those provisions, but a number of things could be done better. The subject of shared parenting, or parental involvement, as we are now to call it, has a lot of history. We put forward proposals for the 2006 Children and Adoption Bill. I was disappointed that although more than half of Labour MPs, and Liberal Democrats, supported an identical early-day motion, they voted against proposals that could have brought in the provisions in 2006.

The Bill should be seen in the context of many other things that the Government are doing on private law cases in the justice system, such as better mediation services, better relationship support upstream and better enforcement. The Chairman of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who spoke for the Liberal Democrats, seemed to think there was not a problem. There is a perceived problem and an actual problem. In research on children who do not live with both parents, resident parents reported that between a quarter and a third of the children rarely, if ever, see their non-resident parent. That is a real problem. In 2011, despite serial breaching of contact orders in the many cases that as constituency MPs we see week in, week out, only 53 enforcement orders were granted for non-resident parents to have contact with their children.

[Charlie Elphicke]

We know there is a problem, do we not, because these cases so often fill our constituency surgeries. I pay tribute to my hon. Friend for his work in helping to bring forward this part of the Bill.

[Tim Loughton]

I am grateful. It is a problem that we have all known about, but have shied away from doing something about. This is a real opportunity at last to do something about it. It is not about parental rights; it is about parental responsibilities. That includes the responsibilities of parents who have done a runner. The legislation will make it clear to them that they have a responsibility to their children, whether they are on the scene or not. The provision does nothing to dilute the principle of the paramountcy of the welfare of the child; that is absolutely clear. If it did anything else, I would not support it. It is in clause 1; it is subjugated to that very important paramountcy principle in the opening section of the Children Act 1989.

The Bill must send out a very clear message to warring parents—to the 10% of cases who still go to court: “If you think you can play winner takes all, and freeze the non-resident parent out of your child’s relationships and childhood, forget it. Think again, because both of you will have a responsibility to the children, or will be expected to play as full a part as possible in their upbringing.” That is what the provision is all about; it does not dilute the welfare principle.

A lot has happened on adoption in the past few years. This legislation builds on the work of the adoption action plan and the adoption gateway. It was encouraging to see the early glimmers of a reversal in the trend in adoption numbers since 2007; we saw a tick up in 2012, but it is early days. I very much support the measures on fostering for adoption, or concurrent planning, as we used to call it. Coram in particular has done some excellent work on that. It is about a seamless transition for a child, with the risk being taken by the prospective parents, not the child, and about maintaining continuity of care, which is so important to a child in care in the early years.

I strongly support the adoption support services mentioned in the Bill. Peri-adoption support services are probably the most important thing in ensuring a good-quality, lasting placement. As the hon. Member for Stockport (Ann Coffey) said, we absolutely need to do more research on those adoptions that are disrupted. I am afraid that it is also necessary for us to do more around ethnic matching. As to whether we need legislation to do it, I do not know, but we absolutely need to make it clear that first and foremost a child needs a safe, loving, stable environment from a family. If that family happens to be an ethnic match, that is a bonus; it should not be a deal-breaker for the child.

I am concerned that the £150 million taken from the early intervention grant may mean that provision is taken away from children who remain in care. Even if we double the number of children going into adoption—that is not a target—90% of children in the care system will remain in it, in foster care and residential homes, and will not go into adoption. Yet the only measures in the Bill relating to looked-after children are those for virtual heads, which I welcome, and those on contact arrangements. Why do we not extend personal budgets to foster carers? Why do we not do more to give children in care priority access to mental health services? Half of children in care suffer from mental health problems. That is probably the single biggest contribution we could make to giving them greater stability and a chance to do well at school.

As the National Society for the Prevention of Cruelty to Children has said, half of children who come into care because of abuse or neglect suffer further abuse when they return home, with up to half of them returning to care. If we did more to support them, so that they could stay with their families, we would have fewer kids in care.

We need to do more. Where I take issue with the Government is on recruitment. We desperately need to recruit more prospective adopters. We desperately need voluntary agencies to recruit more adopters, but it is too early to compel local authorities to take away the responsibility for recruiting adopters. It has been only a year since the adoption scorecard came out. They are three-year track records, and they are always retrospective. We need to give local authorities a greater chance to show that they can recruit more adopters and work in partnership with voluntary agencies. One thing that we could do to help those agencies is create a bounty fee; voluntary agencies would be paid for recruiting prospective adopters. At the moment, the more they recruit, the more they have to pay to retain and train them. They do not get paid until they receive the inter-agency fee. A bounty measure would incentivise voluntary agencies to do more of what they so successfully do to recruit. The Bill risks de-linking adoption from other permanent options.

Finally, I would like to see more measures for supporting young carers, as many hon. Members have mentioned. I would like to see an effective independent complaints or ombudsman system in adoption, for those cases that have gone badly wrong. I would like to see child performance regulations in the Bill—which my ten-minute rule Bill will propose—as it is the only opportunity that we have had and probably will have in this Parliament to introduce them. I would also like to see us do more to compel local safeguarding children’s boards to publish their serious case reviews and to commission them in the first place, as we do not have any primary legislation to do that. There are many other things that I would like to see, but I have run out of time.