Children and Families Bill

Debate between Elfyn Llwyd and Anne Marie Morris

Monday 25th February 2013 Commons Chamber

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

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

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

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

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

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

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

[Mr Llwyd]

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

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

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

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

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

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

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

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

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

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

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

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