Children’s Funeral Fund
Tim Loughton Excerpts(5 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Carolyn Harris
The Welsh Labour Government have implemented the fund. The Scottish Government have implemented the fund. Councils across Northern Ireland have implemented the fund. I really do appreciate that the Minister has been supportive of my ask, and I actually feel quite sorry for him that he has to respond to me and explain why England has not followed the rest of the UK.
Let me describe two incidents that have happened today. I have had an email from parents not 100 miles from here whose three-month-old baby is in a mortuary, and they are unable to take the baby out of there because they do not have the money to pay the local authority fees. To make the comparison with Wales, I also had an email from Tŷ Hafan, a Welsh children’s hospice, to tell me that because of the Welsh children’s funeral fund, parents can now afford headstones, which would not have been affordable if they had had to pay for the funerals. That is the difference that the fund makes.
Tim Loughton (East Worthing and Shoreham) (Con)
The hon. Lady’s bravery is remarkable and it is a privilege to be here to show support for the cause that she has championed. We should not have to be. The example she gives is that of just one of many families who have suffered the extraordinary pain and trauma of losing a child, with many of them having suffered financial sacrifices because their children had long-term conditions. Then, to add insult to injury, they are unable to pay for a funeral. That is why this change must come in urgently and Conservative Members will do everything on our side to make sure that that happens.
Carolyn Harris
Thank you very much.
In the press release last year when the introduction of the fund was first announced, Downing Street estimated that around 4,350 children die under the age of 18 each year in England, leaving grieving parents facing thousands in council fees for burial or cremation costs. That same press release went on to quote the Prime Minister saying:
“No parent should ever have to endure the unbearable loss of a child—a loss that no amount of time will ever truly heal. But in the raw pain of immediate loss, it cannot be right that grieving parents should have to worry about how to meet the funeral costs for a child they hoped to see grow into adulthood…That is why I have asked for the Children’s Funeral Fund to be set up in England. For Carolyn, in memory of her son Martin, and in support of all those parents overwhelmed by such harrowing loss.”
I remember at the time thanking the Prime Minister for showing compassion and helping to provide a glimmer of light in the darkness that surrounds families when a child dies. I did not expect more than a year later to be waiting for her to honour the commitment she made. I am struggling even to find the words for how disappointed and hurt I am that we have yet to see the fund become a reality.
Every day, 12 families face this heartbreak. That means that, since this promise was made, 4,600 families will have had to find the money for their child’s funeral. Fair Funerals UK estimates that the average cost of a cremation is £3,596, while that of a burial is £4,561. That is a lot of money for families to find.
Legal Aid for Inquests
Tim Loughton Excerpts(5 years, 4 months ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tim Loughton (East Worthing and Shoreham) (Con)
I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing this debate. It concerns a very technical subject that is hugely important to a number of constituents, whether because of large tragedies involving the multiple loss of human life or because of the single tragedy of losing someone, from a baby through to someone in adulthood. I also pay tribute to my hon. Friend the Member for Banbury (Victoria Prentis) for her kind words about my private Member’s Bill, now an Act, which will enable coroners to have the power to launch inquests into stillbirths. The consultation, which has already been launched by the Ministry for Justice, will explore the whole issue of legal aid for those inquests, too. It is very important that we get the consultation right, so that measures in this sensitive area can be brought in proportionately and appropriately and help in the campaign to reduce the number of stillbirths in this country, which we all wish well. It is also important to explain to already traumatised and grieving parents exactly what happened and how improvements can be made to the system to make sure it is less likely to happen to other parents in that situation in the future.
Jo Stevens
In addition, would the hon. Gentleman support legal aid for people who are killed at work? It is not available for the many people who die in fatal accidents in work every year.
Tim Loughton
That is a completely different subject, and one that needs to be looked at, absolutely. I am sympathetic to this. When families are faced with the sudden loss of a loved one through circumstances that are well beyond their control—in a workplace, air crash, or whatever—we need to give them every support and not add challenges such as the need to try to find the money to fund lawyers to try to get to the basics of the truth.
I want to focus purely on the Shoreham air show crash in my constituency. On that fateful summer’s day in August 2015, 11 Sussex men were tragically in the wrong place at the wrong time and lost their lives. Almost four years on, we have still not had the inquest for that tragedy. For a range of issues, not least the fact that there has now been a trial, which was completed last month, that delay has meant that the families of those 11 men have been denied the opportunity to get to the bottom of the truth for an extended period, compounding the grief, confusion and challenges that they have felt. We need to do more to make their pain less in any way we can. The system is not working for such people, as we have heard in the case of other tragedies as well.
To recap, in August 2015 those 11 men lost their lives when a Hawker jet crashed on the A27, on the very spot where I had been travelling in my car four minutes before the accident happened. It could have been a much more serious tragedy, and as it was, it was the largest civilian loss of life since the London terrorist attack in 2005. It had a huge impact, not only on those families directly affected, but on the wider community of my constituency and beyond, which still remembers and is in the process of installing a permanent memorial to the loss of life in that tragedy.
The pilot was acquitted. I make no comment about that, other than to say that those families sat through the trial with great dignity—I joined them at the beginning and end—listening to the lurid details of exactly what happened and watching the footage taken by people’s mobile phones of the plane coming down. They sat through that trial with great dignity, and they then had to accept a verdict that they did not want and had not expected.
Justice went through its due courses—I make no criticism of that—but it means that the inquest, which had to wait until the trial was completed, is now even more important for those families who wish to try to flush out who was responsible, and whether any parties contributed to that accident in some way. Most importantly, what is being done to try to minimise the likelihood of such an accident happening again in future?
The record of civil aviation shows was virtually unblemished in this country, and there had been no on-the-ground casualties since the Farnborough tragedy in the 1950s. This was a huge and important event that went well beyond its impact on the local community and the families. I pay tribute to the local coroner for West Sussex, Penny Schofield, who has worked tirelessly with the families to try to manage their expectations and to be as sensitive as possible about their continuing grief. What has compounded that grief, however, is the issue of legal aid—I know you want me to come on to that, Mrs Main. Legal aid is the focus of what I am about to say, but I wanted to put it into context, as I am sure you will appreciate.
The inquest is likely to happen in the autumn, more than four years since the tragedy took place. At last count there will be at least 19 interested parties, including a number of public bodies such as Sussex police, the Civil Aviation Authority, the Air Accidents Investigation Branch, and the Health and Safety Executive, which will have legal representation paid for out of the public purse. Until recently—this has still not been confirmed—the only parties whose legal representation at that inquest will not be paid for will be the families of the 11 victims. Arguably, therefore, the people who are most important and have the greatest interest in those proceedings will have no legal representation at the inquest. That is a travesty of justice, and I once secured a debate explicitly on that subject. I have also spoken to the Minister about the issue, and raised it at Prime Minister’s questions. I have worked with the families and their lawyers, but the system is not working.
In 2017 there was a bid to the Legal Aid Agency and the exceptional cases fund to get legal representation paid for during the inquest, but that was turned down on the basis that somehow it was not within the scope of the ECF and did not represent the wider public interest. That is extraordinary because what I learned during this process is that civilian air shows have the second largest public audience of any activity in this country. There is a huge wider public interest, given the many hundreds of air shows that happen up and down the country each year.
The AAIB’s report was published in March 2017 and stated that
“the parties involved in the planning, conduct and regulatory oversight of the flying display did not have formal safety management systems in place to identify and manage the hazards and risks. There was a lack of clarity about who owned which risk and who was responsible for the safety of the flying display…Controls intended to protect the public from the hazards of displaying aircraft were ineffective”.
It added that there was a valid, proper and serious legal argument that the CAA failed as a regulator in properly implementing the safety recommendations made over six years by the AAIB after a previous fatal Hawker crash. If that does not represent a wider public interest, I do not know what does.
The coroner spoke in support of ensuring that legal aid is available to pay for legal representation for the families when the case is put in front of her at the inquest. She said:
“This is a highly complicated case. It involves areas of aviation law which are complex and technical in nature. Families will struggle to participate in the Inquest in any meaningful way without the assistance of legal representation. The Inquest will engage a number of complex legal issues including article 2 of the European Convention on Human Rights. It is further complicated by the fact that I will be sitting with a Jury. If the families are not represented it is likely that the Inquest, which is already likely to last up to 8 weeks, will take considerably longer”.
Those are the words of the coroner, who says not only that it is unfair for the families not to have legal representation when all those public bodies do, but that it will be difficult for them to participate and to assimilate the proceedings of the inquest properly without legal experts to put it to them, and that it could end up costing more.
If we provide a legal expert to represent all the families as a whole, it will make proceedings more efficient, but if all the families look to have legal representation, or even to represent themselves, it will spin out the inquest and cost the public purse more. Not making sure that legal aid is available for those families is an entirely false economy. That was the coroner speaking about the inquest that will come in front of her. The lawyers acting for the families have also produced papers that show how essential it is for family members to have legal representation at that inquest, which must be provided by the public purse.
The decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions, which were introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, is patently wrong and unjust. Exceptional case funding is available for categories of law that are not in scope for legal aid, and where failure to provide legal services would be in breach of an individual’s rights within the meaning of the Human Rights Act 1998, or other enforceable EU rights relating to the provision of local legal services.
Inquests have never, however, fallen within the main body of legal aid provision. Legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions introduced by the LASPO Act. This is just the sort of case that was envisaged when setting up the fund in the original Act, so it is nothing to do with cuts in legal aid funding, as some have tried to claim, but is about the provisions in the legislation apparently not working.
The Law Society supports the application and strongly believes that bereaved families should have access to legal representation where possible. It says that the definition of exceptional case funding does not provide an adequate safety net for inquests. Applications for exceptional funding are highly complex and time consuming, and require applicants to have an understanding of human rights law, and, in the case of inquests, to show that there is an article 2 right to life issue or a wider public interest in legal aid being granted. Even when one of those triggers is present, the Legal Aid Agency guidance suggests that the assumption should still be that the bereaved family does not need representation because the process is inquisitorial and led by the coroner, rather than adversarial, but the Law Society challenges how far a bereaved family can be expected to engage effectively with a legal process that relates to the death of a loved one.
I pay tribute to the legal firm Stewarts Law, which is providing a lot of support to the families, largely pro bono. It has challenged the ruling. Unofficially, we are optimistic that legal aid funding may be available when the inquest comes around, but the families should not have had to fight for it. It should have been there as a matter of course—as was intended in the original 2012 Act. The inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest by failing to protect the rights of the families under ECHR article 2, and there is clearly a wider public interest.
I welcome the Government review of the LASPO Act, which the Minister recently published, but it does not make the future of exceptional case funding clear. The Minister might wish to comment on this when she winds up, but in response to the review we need to look at this further and in more detail to make sure that when tragedies such as the Shoreham air show disaster happen, and in the many applications that we have heard about when there is a multiple or single loss of life, the system automatically swings in to support the families, rather than putting yet further hurdles in the way of their securing justice and access to the truth, which only exacerbates their trauma, tragedy and grief. We surely owe it to people who have been unfortunate enough to suffer such loss to do everything to support them and not put obstacles in their way.
Several hon. Members rose—
Legal Aid: Post-Implementation Review
Tim Loughton Excerpts(5 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Gauke
The technology pilots could apply to any area of law, so that certainly does not preclude their applying to the areas the hon. Gentleman mentions. The early intervention pilot is looking at social welfare law as the right place to start. That is where the case for early intervention making a positive difference is strongest, so we are looking into that area. The hon. Gentleman mentioned immigration; we are extending the scope to unaccompanied minors and immigration. I hope that is helpful to him.
Tim Loughton (East Worthing and Shoreham) (Con)
The Lord Chancellor did not specifically mention the Legal Aid Board exceptional cases fund, although he did refer to inquests and the possibility of guidance, advice and support for bereaved families. He will know that I have raised the Shoreham air show inquest with the Prime Minister as well as with him and his Ministers. The inquest still has not happened. Hopefully it will happen this autumn, but that will be more than four years since that tragic accident. As it stands, the families have still not had official confirmation that legal aid will be available for their representation at the inquest, while all 18 other interested parties have legal representation. What among the changes the Lord Chancellor has announced will make it much easier for clearly exceptional cases with a clear wider public interest to gain legal aid funding? Is the Lord Chancellor able to confirm what I hope is the case, which is that those families will get the legal representation that they absolutely need and deserve for the inquest this year?
Mr Gauke
I pay tribute to my hon. Friend for his work in this area. We are changing the process for the funding for exceptional cases to make it easier to apply. Fundamentally, I believe the inquest system should continue to be inquisitorial, but it is very important that bereaved families do not find themselves excluded or disadvantaged—my hon. Friend has made that point with great persistence. That is partly about ensuring that coroners and their staff are properly trained to protect the position of bereaved families, but we are also working with other Government Departments to ensure that there is not unfairness in the system. We continue to engage with other Departments to make sure that bereaved families are not put at a disadvantage.
Oral Answers to Questions
Tim Loughton Excerpts(5 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Gauke
As I have already set out, we are seeing more people going to prison and custodial sentences are increasing for these offences following the change in the law. On the question of deterrence, this is in part about sentencing, and these are clearly serious offences, but there are other factors when it comes to the deterrent effect; it is not just about sentences. We have to bear that in mind as well.
Tim Loughton (East Worthing and Shoreham) (Con)
How do we have a “fair and more progressive” way to pay probate fees, as the Minister put it, when the fees for an estate worth £499,999 have risen from £215 to £750, and those for an estate worth £500,000—just £1 more —will rise to £2,500 for not a jot more work on behalf of the Government? How is that fair?
Lucy Frazer
My hon. Friend, as a former Justice Minister, will know that charging fees is an essential part of funding an effective and modern Courts and Tribunals Service and of ensuring justice. We listened carefully to the concerns that were raised in relation to our previous proposal, and we have significantly reduced the levels. This system will lift 25,000 estates out of paying probate fees at all.
Access Rights to Grandparents
Tim Loughton Excerpts(6 years, 3 months ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Nigel Huddleston
I do agree. Unfortunately, in the letters and emails I have received the stories go back years and years, and in some cases decades. They are absolutely heartrending. Many hon. Members will have received similar and seen people in surgeries over the past few years. The length of time is horrendous.
Another common feeling is, of course, guilt. Many grandparents feel that they must have failed their children somehow for the relationship to have deteriorated to such an extent, and they are ashamed that they were not able to hold their family together. One grandfather said:
“I have been to the blackest places you can imagine and felt total despair and loss of confidence in myself as a father.”
Hon. Members could be forgiven for assuming, as I perhaps did when I first started hearing about these cases, that some drastic event must have taken place for family breakdown to have happened, but that is often not the case. Too often, the family rift arises from a simple tiff that snowballs out of control. As one grandfather said,
“there is an inevitable feeling that no one cuts people off for no reason but it can happen for the slightest thing, it doesn’t take a full blown argument, just a wrong word or a badly timed comment”.
Another said that,
“a lot of the time, the grandparents have no idea what the problem is”.
I have heard some truly heartbreaking stories from grandparents detailing how their emotional anguish has led them to consider, and in some cases attempt, suicide. One grandmother who considered suicide said that
“the only thing that stops me is hoping that my daughter will have a change of heart and let me be part of my grandson’s life again”.
Sadly, three grandparents known to the Bristol Grandparents Support Group felt unable to continue their lives without seeing their grandchildren. I was shocked to hear from one grandparent who told me that seven members of their support group had committed suicide.
Tim Loughton (East Worthing and Shoreham) (Con)
My hon. Friend is right to raise this very important issue. Does he agree that when parents divorce, they do not divorce their children? The law now has a supposition that the parents should both be as involved as possible in their children’s upbringing when cases have to go to court because they cannot be agreed in mediation.
Does my hon. Friend not think that it would be equally appropriate to have a presumption that grandparents should be involved as much as possible in the upbringing of those children, unless—and only unless—there is a problem with the welfare of that child?
Oral Answers to Questions
Tim Loughton Excerpts(6 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lucy Frazer
I am always happy to meet people who use the courts service around the country. We are improving access in a number of ways, including by ensuring not only that we have court buildings, but that disabled people can take advantage of the ability to give evidence by video link so that they do not have to go to a court at all.
Tim Loughton (East Worthing and Shoreham) (Con)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I was pleased to meet my hon. Friend in March to discuss issues related to the family justice system, which he cares deeply about. It is important that every child has a stable home, and we need to look across the justice system to ensure that it delivers the right outcomes for vulnerable children and their families.
Tim Loughton
I was grateful for the meeting with the Minister. Does she agree with Baroness Shackleton that fault-based divorce produces uncertainty that creates an industry for lawyers and a jungle for the layman? Is it not high time for an overhaul of the whole family law system to address that and many other issues to do with couples’ rights before, after and without marriage?
Lucy Frazer
My hon. Friend makes a powerful point about no-fault divorces, as he has previously. When there is conflict within a family, it is important to reduce that conflict in the interests of not only the parents but the children. I can confirm that we are looking actively at the issue.
Shoreham Air Show Crash: Access to Justice
Tim Loughton Excerpts(6 years, 7 months ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tim Loughton (East Worthing and Shoreham) (Con)
I beg to move,
That this House has considered the Shoreham air show crash and access to justice by families of the victims.
I welcome the Under-Secretary of State for Justice, my hon. Friend the Member for Bracknell (Dr Lee), as the last man standing in the Ministry of Justice. I will be easy in my comments and certainly not apportion any blame to him for the inadequacy of any answers he may be able to provide.
This is an important matter. On 22 August 2015, a vintage Hawker Hunter jet plane crashed at the Shoreham air show in my constituency. Eleven men tragically lost their lives, and many stories of the personal tragedies that accompanied that loss touched a chord across the nation. It represented at the time the largest civilian loss of life in the United Kingdom since 7/7, and the first fatalities on the ground at any UK air show since 1952. Those statistics will give little comfort to the victims’ families, and I am sure that I echo the feelings of the whole House when I say that our thoughts and prayers go out to them, and that the first priority remains to give them the support that they will need in these difficult times.
Those were the words that I used when opening a debate in this Chamber on 15 September 2015, just three weeks after that tragic accident. Twenty eight months on, the coroner’s inquest has still not happened and is not scheduled until November 2018 at the earliest, and no decision has been taken by the Crown Prosecution Service about whether any charges will be brought against anyone or any body. The lack of any decisions about prosecutions has already led to delay in the coroner’s inquest. Indeed, the West Sussex coroner, Penny Schofield, has written again just this week to families of the victims to postpone the third pre-inquest review hearing, due on 24 January, to 26 March. There is growing concern that the inquest may well not happen in 2018 at all, given its dependence on getting prospective criminal proceedings out of the way, despite the huge efforts being made by the coroner, which I know are greatly appreciated by the families of the victims. I want to pay tribute to the sensitive and sympathetic way in which the coroner for West Sussex, Penny Schofield, has dealt with the families in this tragic case.
I raised this issue directly with the Prime Minister at Prime Minister’s Question Time on 1 November 2017, and specifically the extraordinary decision by the Legal Aid Agency not to extend funding from the exceptional cases fund to the families of the victims at the coroner’s inquest when it eventually takes place.
Ellie Reeves (Lewisham West and Penge) (Lab)
I am sorry to learn about the difficulties that the hon. Gentleman’s constituents have experienced in trying to secure legal representation and legal aid. Legal aid is an issue that I take great interest in, and I previously tabled early-day motion 498 in relation to legal aid for inquests. Does he agree that the Government should review legal aid for inquests and ensure that legal aid is granted in all cases for bereaved families where the state is funding one or more of the other parties?
Tim Loughton
I do agree, and indeed the Government are doing that. I will come to that point later on.
I originally raised that decision in a letter to the PM in August jointly with other Sussex Members, including my hon. Friend the Member for Bexhill and Battle (Huw Merriman), but, alas, had not received a response directly from the Prime Minister at the time. The Prime Minister replied at PMQs that she fully understood the concerns of the families and assured me she was committed to ensuring that
“where there is a public disaster, people are able to have proper representation.”—[Official Report, 1 November 2017; Vol. 630, c. 814.]
Those were her words. The Lord Chancellor was asked to look at the problem, which is connected to the point that the hon. Member for Lewisham West and Penge (Ellie Reeves) made. I appreciate that the Prime Minister takes a close interest in this tragedy. Indeed, in contrast with the apparent indifference of No. 10 under the previous Prime Minister to the magnitude of this tragedy, the now Prime Minister championed the outstanding role played by the police, especially in the traumatic days that followed the crash, and added her tribute and flowers for the victims.
It is deeply disappointing that since 1 November, all that has happened effectively is a confirmation from the Ministry of Justice that the Legal Aid Agency made its decision properly, that the application and subsequent appeal were considered in line with relevant guidance and that Ministers cannot intervene. The Prime Minister simply pointed out that, before I raised this issue, the Lord Chancellor had announced a post-implementation review of the legal changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and I might consider making a submission to that review. That is the point that the hon. Member for Lewisham West and Penge made, and I will certainly be using the transcript of this debate to put that case.
The air accidents investigation branch produced a very thorough and comprehensive report on 3 March 2017, but it was not its job to apportion blame and instigate legal proceedings—that is not the way it is set up. A number of questions were raised by that report. The law firm Stewarts Law, which has been representing pro bono some of the families, has made a number of comments about that report. The AAIB report says that the investigation found that
“the parties involved in the planning, conduct and regulatory oversight of the flying display did not have formal safety management systems in place to identify and manage the hazards and risks. There was a lack of clarity about who owned which risk and who was responsible for the safety of the flying display, the aircraft, and the public outside the display site who were not under the control of the show organisers.”
It goes on:
“The regulator”—
the Civil Aviation Authority—
“believed the organisers of flying displays owned the risk. Conversely, the organiser believed that the regulator would not have issued a Permission for the display if it had not been satisfied with the safety of the event…No organisation or individual considered all the hazards associated with the aircraft’s display, what could go wrong, who might be affected and what could be done to mitigate the risks to a level that was both tolerable and as low as reasonably practicable. Controls intended to protect the public from the hazards of displaying aircraft were ineffective.”
Stewarts Law notes:
“Further, there is a valid, proper and serious legal argument that the CAA failed as a regulator in properly implementing a safety recommendation made over six years ago by the AAIB from a previous fatal Hawker crash at Shoreham in 2007.”
As it stands, at the official coroner’s inquest, there will be 19 interested parties involved. All non-family properly interested persons will be legally represented. Only the families of the victims—surely those with the closest and strongest interest in the proceedings—will not have legal representation.
Peter Kyle (Hove) (Lab)
I congratulate the hon. Gentleman on securing the debate. As a neighbouring MP and someone who also lost a constituent in this air show crash, may I thank him for the open-hearted and spirited way in which he worked in collaboration with me during that gruesome period? Many of the victims of this air crash were the highest earners of the families from which they were taken, which means that in a hugely complex investigatory and legal landscape funded by Government agencies, these grieving families, who are very vulnerable and most unable to tackle these big issues, need the help of Government more than anybody else. Does he agree?
Tim Loughton
The hon. Gentleman makes a good point. I pay tribute to him and other neighbouring MPs who had constituents who were victims, as I extraordinarily did not. We have been able to act together to give some support and comfort to the families involved. Indeed, there was a public appeal that raised some £200,000, which has been distributed through the Sussex Community Foundation, and I have been on the board of that. I have seen at first hand the huge impact that this has had on families for whom the victims were the breadwinners. As well as going through the trauma of grieving, they have had to reinvent their lives. We need to be as supportive of these people as possible so that they can get through the formal processes, get their lives back on track and get some sort of closure. That is just not happening, which is why I have come back today to raise this matter again in the House.
As I have said, it is not assured that the inquest will go ahead this year, delaying yet further the opportunity for the families to get to the bottom of exactly what happened and achieve some degree of closure.
Huw Merriman
I thank my hon. Friend for giving way, for leading all of us who have bereaved constituents and for the work he has done, particularly for my constituents in Heathfield. I think he is building on this case already, but I put it to him that with an inquest where all the others appearing will be represented and may have a certain drive to ensure that the inquest goes in one particular direction, and where there will be no prosecution as there would be in a court, it is even more imperative that the families get legal aid, to ensure that there is some semblance of balance for the coroner and guidance.
Tim Loughton
My hon. Friend makes a very good point, to which I will come shortly. I again thank him for co-signing the letter to the Prime Minister and for joining us in this whole enterprise.
The families still have no idea whether anyone will be charged and held responsible for the deaths of their loved ones. That is disgraceful. There has been ping-pong between the police and the CPS as to whether files and complete information have been presented to the CPS. It was confirmed only at the beginning of December that all the files required were with the CPS. Of course we want a thorough investigation of what happened, but does it really need to take this long? The CPS needs to make a decision one way or the other as to whether a prosecution can go ahead, and if one cannot, it needs to explain fully to the families why there are not grounds for a prosecution. We are in a state of limbo that is holding up the entire process, which is completely unacceptable. Frankly, I would have hoped that the Law Officers would have played some part in nudging, at least, the CPS to expedite this matter.
Twenty-seven months on from the debate in which I urged that the first priority must be to give the families the support that they need in these difficult times, it is hard to see how that has been achieved as it should and could have been. I am afraid that the Prime Minister’s words when she stated that the families of the victims of a public disaster should be able to have proper representation ring rather hollow.
Why is the decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions introduced by LASPO in 2013 so patently wrong and unjust? Exceptional case funding is currently available for categories of law that are not in scope for legal aid and where failure to provide legal services would be in breach of an individual’s rights, within the meaning of the Human Rights Act 1998, or other enforceable EU rights relating to provision of legal services. Inquests have never fallen within the main body of legal aid provision. Currently, legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions, so this case is just the sort of eventuality that was envisaged when the fund was set up in the original LASPO Act. It has nothing to do with cuts in legal aid funding, as some have tried to claim.
The Law Society has supported this application and strongly believes that bereaved families should have access to legal representation where possible. As it has put it:
“The current definition of exceptional case funding does not provide an adequate ‘safety net’ for inquests. Applications for exceptional funding are highly complex and time consuming, requiring applicants to have an understanding of human rights law, and in the case of inquests, be able to show that there is an Article 2 (right of life) issue or a wider ‘public interest’”.
The application has also been supported by the West Sussex coroner, Penny Schofield, who specifically points to problems with the families uniquely being deprived of legal representation, which could lead to a more time-consuming inquest, costing more and denying justice to all on a level playing field. She has said:
“This is a highly complicated case. It involves areas of aviation law which are complex and technical in nature. Families will struggle to participate in the Inquest in any meaningful way without the assistance of legal representation.
The Inquest will engage a number of complex legal issues including article 2 of the European Convention on Human Rights. It is further complicated by the fact that I will be sitting with a Jury.
If the families are not represented it is likely that the Inquest, which is already likely to last up to 8 weeks, will take considerably longer…The outcome of this Inquest will have a wider public interest. The Inquest will allow for the identification of dangerous practices and/or systemic failings that could potentially be a significant risk to life, health or safety to others for those attending airshows or working in this environment in the future.”
She finishes her letter by saying:
“I would fully support any application for funding and would emphasise that in my view it is essential not only for the families but for the wider public at large.”
One cannot put it more clearly than that. Furthermore, other, non-family interested parties that are public bodies, and for which legal representation will come from public funds, include Sussex Police, the Civil Aviation Authority, the air accidents investigation branch and the Health and Safety Executive. They will get legal representation paid for out of public funds, but the family of a victim does not qualify.
I pay tribute to Stewarts Law, the solicitors who have represented most of the families pro bono and who have made the formal application for legal funding. They made a case for legal representation to involve an aviation specialist Queen’s counsel, supported by a junior counsel and solicitors from the five firms involved with the families across the board. They make the case that
“without the support of effective legal representation, it will be impossible for the families to participate in the inquest.”
They also make the case that funding should be required by article 2 of the ECHR, the right to life. As has already been said, the AAIB report raised serious questions about the protection of that right by certain public agencies—the systemic failure by the state and its agents in the safe regulation of public flying displays. That should constitute qualification under article 2.
The inquest will undertake an investigation into the cause of the accident. It will give the 11 families an understanding of the events that led to the deaths of their loved ones and enable them to participate in the fact-finding inquisitorial process. Unlike in the criminal investigation, the families have an opportunity to be involved in the inquest process and require legal assistance to do so—my hon. Friend the Member for Bexhill and Battle made that point. The police have referred to the thousands of documents that will be provided to the coroner, and to which the families will have access, that will include technical evidence, lay evidence and witness testimony. Surely the families are entitled to proper legal scrutiny of those. Detailed specialised knowledge is necessary to understand the AAIB report and the supplementary oral evidence from the AAIB, and challenge it accordingly. Additionally, the volume of case documents in the inquest will be such that the families will further require legal expertise to assist in managing the documents and explaining their relevance to the proceedings. Therefore, a strong case was made in the application. It just defies logic that, in this exceptional case, the families have not qualified for exceptional case funding.
This inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest through a failure to protect rights under article 2 of the ECHR, with the families in effect being left to represent themselves with one hand tied behind their back. There clearly is a wider public interest, although it is refuted by the Legal Aid Agency. There is a wider public interest not least for the more than 300 civilian air shows that take place up and down the country. They have already been affected by the changes that the CAA introduced in the light of the AAIB investigation report, meaning that some have not been able to stay viable—insurance premiums have gone up in many cases. What is that if not a wider public interest? At the conclusion of the inquest, the coroner is able, under regulation 28 of and schedule 5 to the coroners rules, to make recommendations for changes to ensure improvements to air safety and to prevent future accidents. That is each family’s main aim: they wish to prevent similar deaths and to ensure that others do not have to endure this huge trauma and bereavement. That is a wider public interest.
Clearly, therefore, the Legal Aid Agency judgment is flawed. I have requested a meeting with the chief executive, Shaun McNally, which he has agreed to, after it has looked at things further. I gather that the board is still assessing the judgment. I urge it to apply the principles for which the exceptional case fund was established in the first place. In addition, I urge the Government to look at the Law Society recommendations about what the review of LASPO should change, including researching the reasons for the low level of exceptional case funding—the point made by the hon. Member for Lewisham West and Penge.
There is also a wider issue about the inadequate way we fund legal representation for families of victims of multiple-death events. The issue is highlighted most starkly by the appalling delay in achieving justice for the victims of the Hillsborough disaster, which we have heard so much about in this place. In the report commissioned by the Home Office, “‘The patronising disposition of unaccountable power’”, the Right Reverend James Jones, the former Bishop of Liverpool and chair of the Hillsborough independent panel, said that there is a “pressing need” for bereaved families to have publicly funded legal representation at inquests at which public bodies are legally represented. I entirely agree. I have had discussions with the hon. Member for Wirral South (Alison McGovern), who has championed their cause, about achieving a level playing field in these fortunately rare but devastating cases. I have co-signed the letter to the Prime Minister to that effect and hope that the new Secretary of State for Justice and the new team will meet us to discuss that.
This is my ask of the Government and the Minister. First, despite the rules, the Government should find some way to step in and underwrite funding for legal representation of the families urgently, and well before the review of LASPO. Secondly, Law Officers need to put pressure on the CPS to make a decision one way or the other and fully explain it as a matter of urgency. In the longer term, they need to look at the how we ensure that families affected by such tragedies have full recourse to proper legal representation on a level playing field.
This was an exceptional tragedy. It was a tragedy not only for the families, but for the local community, which still bears the scars of what happened, and for the country as a whole, when the spotlight and the cameras were on the small town in my constituency for those days back in August. It was an exceptional tragedy, and it needs an exceptional response from Ministers and the Government. I hope the Minister will give some assurances that that might now happen.
Oral Answers to Questions
Tim Loughton Excerpts(6 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Tim Loughton (East Worthing and Shoreham) (Con)
The Minister of State, Ministry of Justice (Dominic Raab)
We are looking at ways to make inquests more sensitive to the needs of bereaved families. The Lord Chancellor will update the guidance on exceptional case funding by the end of the year, and we will also look at this issue as part of the wider LASPO—Legal Aid, Sentencing and Punishment of Offenders Act 2012—review.
Tim Loughton
My hon. Friend will be aware that I raised the case of the Shoreham air show crash with the Prime Minister at questions a month ago. The Legal Aid Agency has refused exceptional case funding to the families of the victims. Can it be right that the families of the victims of an event that at the time resulted in the largest civilian loss of life since 7/7 might be the only ones not to have legal representation at the coroners’ inquest next year, not least when there is a wider public interest for the over 2 million people who attend 300-plus civilian air shows each year?
Dominic Raab
My deepest sympathies go to the victims of the Shoreham airshow disaster. My hon. Friend knows that I cannot comment on individual decisions, but I can say that we have protected early legal advice for inquests within the scope of legal aid, and there is an opportunity to look at the issue more broadly as part of the LASPO review. Legal aid is decided independently, but it was granted in over half of cases where inquest applications were made last year.
Family Justice Reform
Tim Loughton Excerpts(6 years, 9 months ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Suella Fernandes
It is a tragedy. Those cases are unspeakably sad and a reflection of the need for reform. There is a clear need, if we are to fight the burning injustices in our society, to start with the foundation of our society: families and, more specifically, parents. That change is vital.
My first proposal is to enshrine a rebuttable presumption of shared parenting. In the majority of divorce cases, parents are able to agree on how their children will be cared for, with whom holidays will be spent, how decisions about a child’s life will be made and how the child may spend time with grandparents and other extended family, as my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) mentioned. However, in many cases—approximately 165,000 in 2016—agreement cannot be reached. In those cases, a judge will determine the contact and residence for the parties, and that is when problems can start. As well as the paramountcy of the welfare of the child as the guiding principle, parental involvement—direct or indirect—is the relevant test in deciding access and residence. I see the former Minister, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), in his place. He should be applauded for his efforts in campaigning to secure considerable progress in this field and improving the lot of non-resident parents through the 2014 Act.
My point today is that that standard is too low, as it does not enable a meaningful relationship to be fostered between parent and child. A rebuttable presumption in favour of shared parenting would go further and, as a starting point, actively enable more of that vital, meaningful relationship to be fostered between parent and child, in the event of family breakdown. To be clear, I am not talking about equal parenting. A crude, mathematical, 50:50 division of time is not always practical, desired by the parties, or optimal for the child. Rather, legislation that emphasises the importance of both parents in a child’s life is needed—other than in cases of violence or where the child is not safe, obviously.
Shared parenting is commonplace throughout the world, and operates without difficulty in Sweden, Canada and the US states of Florida and Iowa. Alternatively, Dr Hamish Cameron has suggested that there could be a presumption of the continuity of the previous arrangements. If both parents used to take the child to school, that should be the starting point. If both parents provided equal care, they should continue with that arrangement. Such examples would improve on the parental involvement—direct or indirect—position that we have now. If we are going to continue to tell fathers that they have equal responsibilities, we also need to give them equal opportunities to carry them out.
Secondly, child arrangement orders, which determine the contact and residence of children upon divorce, need to be better enforced. The current enforcement scheme sits alongside the general contempt powers of courts. If satisfied beyond reasonable doubt, courts can refer the parties to a separated parents information programme, vary or make orders for compensation, or commit to prison—remedies that are so rarely applied, it is easy to forget that they actually exist.
Although the majority of orders are complied with, too often they are breached with impunity—usually by the resident parent, due to the reluctance of courts to penalise non-compliance effectively. In 2015, of the 4,654 enforcement applications made to court, a mere 1.2% were successful. I question whether the criminal standard of proof is the right one, when family courts make other decisions, including placement in care or change of residency, on the lower threshold of the balance of probability.
Tim Loughton (East Worthing and Shoreham) (Con)
I pay tribute to my hon. Friend; this is a really important subject that does not get sufficient airing in this place. She is absolutely right: we can give a child the very best start by maximising the relationship with both parents wherever possible. Despite the important reforms that came in with the 2014 Act—albeit a slightly more diluted version of shared parenting presumption than some of us wanted in the legislation—in too many cases the enforcement remains weak, and parental alienation syndrome is doing serious damage to children as a result. Does she agree that the nuclear option of a change of residency needs to be used in those extreme cases, to make the point that a child is not a pawn between two warring parents? The child’s welfare is paramount, and that must be reflected in the court, and in the involvement of both parents.
Suella Fernandes
I could not have put the point better myself. It goes to the nub of the issue: unfortunately, the courts are too slow to act when those orders are being breached, with the effect that they are meaningless and not worth the paper they are written on. I agree that a tougher approach is needed: one that includes the option of transfer of residency in appropriate and reasonable circumstances; one where community service is applied realistically and in practice, not theoretically; and one where confiscation of driving licenses or passports is considered. Furthermore, the costs of making those applications should be borne by the parent in breach. Currently, there is often no order when it comes to costs. Shared parenting and robust enforcement must be at the heart of reform if we are to strengthen families and child wellbeing.
The second main area ripe for reform is our antiquated divorce law. It is time for no-fault divorce. As the recent Court of Appeal case of Owens showed, not all marriages end because of fault. However, we have a law that promotes the farce of allocating blame, setting parties on a needlessly confrontational path that only fuels animosity and costs. In 2015, my hon. Friend the Member for South Norfolk (Mr Bacon) introduced a private Member’s Bill proposing no-fault divorce, and has since been an energetic campaigner on the subject. The principle is supported by Baroness Hale, Sir Paul Coleridge of the Marriage Foundation, the solicitors Vardags, and the Family Law Bar Association.
There has always been sensitivity around the notion of undermining marriage, but we need to fundamentally rethink that position. The current system forces couples to find blame, creating acrimony where it may not have existed. Divorce is a fact of life—at least for the 120,000 couples that went through it last year. It is not always about fault, but because the parties are obliged to justify fault, they often just make it up, which creates hostility at the outset. By encouraging parties to start their divorce with accusations of misconduct, the current process pushes them towards falling out, which can often affect the children who are caught up in the process. Fault-based divorce can also exacerbate domestic abuse for those women in abusive or violent relationships, because the partner whom they are trying to divorce can refuse their petition and drag it out for much longer than is safe.
Fault-based divorce increases the cost for both the state and the litigants. The need for judicial scrutiny of those 120,00 applicants per year places a significant burden on the courts; a streamlined process would save time and money. As Baroness Hale has made clear, this is not about quickie divorces, but about removing the fallacy of fault. A 12-month cooling-off period would enable that balance to be struck.
The problem was starkly highlighted by the Court of Appeal in the recent case of Owens, now on appeal to the Supreme Court, in which the petitioner—married for 27 years—was refused a divorce as she simply could not prove unreasonable behaviour, adultery or desertion. Sir James Munby, the president of the family division, described the current law as
“based on hypocrisy and lack of intellectual honesty.”
The Court was bound to uphold the appeal and refuse the divorce, and held that it was down to Parliament to establish no-fault divorce. Scotland is an example of where it has worked well, not causing a long-term rise in divorce rates as feared. Divorce is painful enough, but the current law only makes things worse.
As part of reforming divorce law, Parliament should also establish the enforceability of pre-nuptial agreements. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before and during their union. If the parties agree, those assets should be protected, not put at risk. A review should look into that, as well as into reform of the Matrimonial Causes Act 1973 and financial remedies and maintenance, which are rooted in a bygone era. That framework dates back to a time when women were entirely financially dependent on their husbands, but today many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments. A commission or review should make recommendations on how to strike a better balance, so that England can shed its reputation as the divorce capital of the world.
Cohabiting couples should be afforded protection on separation. Cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in that position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. An inquiry looking into what basic protections are justified would be valuable.
Lastly, transparency in our family courts is much needed and I urge the Minister to look into that. Reform of the way in which the family courts operate in public law needs wholesale review. Far too many children are taken into care on the basis of wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the family division. Only the glare of publicity will enable that to stop, so we need to remove the cloak of secrecy and open up the family courts.
Shared parenting, enforcement and no-fault divorce must be the bedrock of reform, but a broader review that covers the other points I have set out today is also required if we are to make progress. It is an opportunity that Members from both sides of the House, working alongside the Government, must seize, if we are to stop parents and, most importantly, children from suffering unnecessary emotional trauma.
I know that this Government’s commitment to social justice is unrivalled. The stories of injustice and hopelessness are too many to ignore. I hope that the Government and this House will begin the important work of making our family justice system fit for the 21st century.
Jim Shannon (Strangford) (DUP)
I congratulate the hon. Member for Fareham (Suella Fernandes) on setting out such an effective case. When researching this subject, I was very conscious of its complexity—she referred to that—and I want to look at a couple of points in particular. The scope of the debate far outweighs the allocation of time that we have to explore, discuss and come to conclusions, but it is an opportunity to put down some markers on constituency cases that need consideration. I am pleased to see the Minister in his place and, as always, I look forward to his comprehensive reply.
I mainly work in my Ards constituency office, with four female members of staff. There is one male and another female staff member in one of my other offices. It is hard to believe that there are so many women in what the media has made out to be a male-dominated world—in my office, they outnumber us by three to one, and that is the way life is. During a recent coffee break conversation, some of my staff highlighted to me a legal issue they had dealt with, which I want to put on record—it is one of two things I want to put on record in Hansard today.
Northern Ireland, and I suspect other parts of the country, has very little legal protection or standing for those who are common-law partners. A lot of people have the perception that common law gives the same protection as a marriage licence, but that is not the case. It was only when that came to my attention through my constituency office that I recognised that this is an anomaly that needs to be addressed, and I want to present that case today. What I found surprised me, but it is certainly the case, and the Northern Ireland Direct website provides further information:
“Most people think that after they’ve been living with their partner for a couple of years, they become ‘common law husband and wife’ with the same rights as married couples. This is not the case. There is no such thing as ‘common law marriage’. In fact, couples who live together, also called co-habitants, have hardly any of the same rights as married couples or civil partners. Legal and financial problems can arise if you decide to separate, or if one of you dies. And while you do have legal protection in some areas, you should take steps to protect yourself and your partner.”
The website is clear and makes people aware of that, but the fact is that people do not look at those things unless the need arises.
In my office, we have had a couple of examples of people who have been together for a long time, and I would like to give an example without mentioning any names or circumstances. Let us take a couple who have lived together for 10 years. The lady moves into the man’s home and begins to pay into the house. Her name is not on the deed, and therefore there is little protection. I put it to the Minister that that should not be the case. I can understand that when there is a short-term relationship that does not work out, but not in cases where partners are co-habiting for years. They have no legal protection whatever. It is up to us to step up and put in place those protections.
Tim Loughton
The hon. Gentleman is making a very good point, which I make in my forthcoming private Member’s Bill about extending civil partnerships to opposite-sex couples. There are 3 million couples in this country living in the circumstances he describes, more than half of whom have children, who have no rights—financial, tax or inheritance, and so on. I hope he will support my Bill, which would extend the rights that married couples have to couples who do not want to enter a formal marriage. That relationship could be recognised by the state and they could be given all those rights through extending civil partnerships.
Jim Shannon
I thank the hon. Gentleman for his intervention and explanation. There is no reason why we cannot support that—indeed, I am going to say those things right now. I fully support what he has put forward.
In the example of the lady who moved in and paid into a mortgage, everything in her relationship was in the name of her partner—their house, their car and every other loan they took out. At the end of the relationship, which ended through no fault of her own, she ended up with absolutely nothing. I find that quite annoying, and I want to put that on record. There should be no young woman or man who has paid off someone else’s mortgage, only to receive marching orders because the grass is greener on the other side.
I ask the Minister to consider working with all the devolved Assemblies—as long as we have a Northern Ireland Assembly, of course—to tighten up protection and responsibilities for long-term co-habiting partners. At the very least, people should be made aware that the common-law principle is a myth. When they chose to move in with someone rather than to formalise their choice, they are left open, and legal redress is a long and drawn-out process. There is a process, but it is laborious, convoluted and difficult to see through. In my introduction, I said how complex the situation is; the stories of the people who come to tell me what they have had to go through to try to get to the end of the road are quite unbelievable.
People can prove they have lived in a house through direct debits and other bills that they pay, but that process should not be difficult or open to badness—if I can use that terminology—from one partner, leaving the other partner homeless and hopeless.
Parental Alienation
Tim Loughton Excerpts(7 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Tim Loughton (East Worthing and Shoreham) (Con)
I apologise for not being present for the beginning of the debate, due to its starting early. My right hon. and learned Friend is making some good points, but is it not the case that the problem with child arrangements orders, which represent a diluted form of the shared parenting principle that should have been in the Children and Families Act 2014, is that the resident parent can usually game the legal system by not abiding by contact orders repeatedly? The non-resident parent constantly has to go back to court and does not see the child, so that over a matter of months that then becomes years the child does not know that parent any more, and the child’s wishes and feelings may change to, “I don’t know that parent. I don’t want contact with them.” That is the real cause and the most common form of parental alienation.
Sir Oliver Heald
If my hon. Friend bears with me, I think I will cover those points in my next remarks, but if I do not, I give him full licence to have another go.
CAFCASS is a professional social work organisation and its practitioners understand and recognise the potential for what is often called implacable hostility by a resident or non-resident parent in a child arrangements case. CAFCASS practitioners are professionally qualified social workers with a minimum of three years’ post-qualifying experience. They are aware of the potential for children to be influenced by parental views and are alert to the possibility of parental alienation throughout a case.
Where the child presents adult themes or language, the CAFCASS practitioner will explore these and report on such matters to the court. The idea is to intervene as early as possible—a point made by my hon. Friend the Member for Fareham (Suella Fernandes). CAFCASS has a range of tools available to assist its practitioners in assessing the presence or the danger of alienating behaviours. They include a tool for use in direct work with the family, where the child rehearsing adult complaints or describing parents in wholly positive or negative terms will indicate their exposure to alienating behaviours.
There are other measures that can be taken. In highly intractable cases the court can make the child who is the subject of the proceedings a party to the case, with their own representative in court, as well as a guardian. That will ensure that the child’s wishes and feelings are fully heard and properly investigated.
The Government recognise, of course, the potential for parental alienation to continue after an order setting child arrangements has been made. A parent who has attempted during the proceedings to alienate the child against the other parent and failed may then seek to frustrate the operation of the order. The court has a general power when making a child arrangements order to direct CAFCASS to monitor compliance with the order and report to the court. A parent may also apply to the court to vary or revoke the order.
Where there is wilful breach of a child arrangements order, the court has powers to deal with that. It may require the person in breach to undertake unpaid work or to pay financial compensation—for example, when a parent has spent money to come to see a child. It is a contempt of court not to follow a court order, and the available punishments include fines and imprisonment, but the court must consider the reason for the breach and the child’s welfare when deciding whether enforcement action is necessary to secure the other parent’s involvement in the child’s life.
Sir Oliver Heald
I am just about to finish replying to my hon. Friend’s previous intervention. He will have an opportunity to intervene again.
In an exceptional case, the court could decide to change the child’s residence to the non-resident parent. As my hon. Friend knows, I have practised in the courts and I was involved in a case where that happened. The case was intractable and long running; one parent was not willing to give any time with the child to the other parent, and in the end the judge transferred the order. I have to say it was not a great success, but that case shows that a powerful remedy is available. Of course, such a change would be profound for the child and could be contemplated only if their longer term welfare needs outweighed the short-term impact on their wellbeing, but in some cases it is an effective option.
Implacable hostility and alienating behaviour by the resident parent are difficult issues for the family court to address and are very distressing for the parent on the receiving end. We need to understand something about the nature and scale of the problem. Professor Liz Trinder of the University of Exeter did a research study in 2012, looking in detail at 215 enforcement applications relating to child contact orders. It was found that alienating or implacably hostile mothers represented a small minority—about 5% of cases. More often, enforcement cases involved parents in continuing high conflict with each other, which prevented them from making arrangements that worked in practice. The second largest group involved cases with significant ongoing welfare concerns, followed by cases where older children just wanted to reduce the amount of time they were spending with their parents, wanting to take part in other activities instead. I can say, as somebody who has done such cases, that the allure of the football pitch or friends down the road sometimes gets in the way as children get older.
I do not for one moment wish to diminish the impact of parental alienation when it occurs. As I have already made clear, such behaviour is unacceptable, but it is important to understand that what may appear to be alienating behaviour by a resident parent may, in fact, be the result of other concerns. It is a mixed, complicated picture. More broadly, I would like to address the perception that the family justice system contains an inherent inequality—I think that is my hon. Friend the Member for East Worthing and Shoreham’s point, but I will let him have another go if I am wrong—against fathers seeking to live with or spend time with their children.
As I hope I have explained, the legislative framework governing child arrangements orders and adjudication of disputes by the family court is gender neutral. It is focused—and this is right—on the welfare of the child, as opposed to any perceived rights. Each case is determined on the facts and the individual welfare needs of the child by an independent judge assisted by experienced CAFCASS practitioners. Judges, for their part, recognise the far-reaching nature of the decisions they make for those involved. I certainly know of cases where there has been this sort of appalling behaviour, but later on it has come to bite the party that was involved because the child has not accepted it in the longer term and has wanted to know both parents.
Tim Loughton
The Minister is being very generous in giving way. I do want to have another go because he is making some very good points. To come back to the available penalties, he mentioned imprisonment. Well, of course, that would fail the welfare checklist for the child in the Children Act 1989 in the vast majority of cases because it is not in the best interests of that child for his or her parent to go to jail. I do not expect him to do this now, but could he provide us with some figures as to the number of occasions on which meaningful penalties have been brought against somebody who is a serial frustrator of contact—that form of parental alienation? How many cases of transfer of residency of a child have there been? I think he will find, notwithstanding his single case, that the actual number is minuscule. That is the nuclear option and the deterrent, but it is not used.
Sir Oliver Heald
I am always happy to discuss these matters with my hon. Friend, who is very knowledgeable in the area of children’s protection and who takes a particular interest in a range of social and caring matters concerning children. I am more than happy to look at what information is available for him. It is true that we have done some work looking at pilots and particular examples. The Department for Education also has a series of initiatives, which are not all about this particular issue but are all in the field of family justice. I will also look for what further information I can give the hon. Member for Rochdale about that particular scheme.
The law does not grant either parent any right to any particular amount or pattern of involvement in the child’s life. Parental involvement may take many different forms, from staying overnight, at one end of the spectrum, to indirect involvement through letters and cards, and it often depends on the geographical circumstances of the parties, too.
If the court determines that a particular arrangement—for example, a shared residence arrangement—is necessary to meet the child’s welfare needs, it can make an order to that effect. I am sure the House will agree that the welfare of the child, including any concerns the court may have about safety, must always come before the wishes of the adult parties. The current law gives the court wide discretion to address the range of welfare issues that can affect children.
I am conscious that this issue transcends party lines, as we have seen tonight. It is an important issue for those fathers who seek to maintain involvement in their child’s life. I hope I have addressed many of those aspects of parental alienation that naturally concern Members.
In concluding, I would like to thank everybody who has made a contribution. I thank the hon. Member for Rochdale for calling the debate and making a speech, but I also thank those who have made interventions, which have raised important points. The Government do not have plans immediately to depart from the current law, which puts children’s welfare first and foremost when the family court considers matters affecting their lives and futures. However, as I said at the beginning, we are giving consideration to what further changes may be needed to the family justice system, and we will seek views on our proposals later this year. That may well offer the hon. Gentleman and others an opportunity to set out their concerns if they feel that we have not gone far enough or that there are other matters we need to consider in detail. In the meantime, I will certainly reflect carefully on what has been said in the debate tonight.
Question put and agreed to.