Family Justice Reform

Ian C. Lucas Excerpts

Wednesday 15th November 2017 Westminster Hall

[Suella Fernandes]

I thank my hon. Friend for raising mediation. Compulsory family mediation information meetings were one of the measures introduced in the 2014 Act. They have had the benefit of diverting conflict and cases out of the adversarial system.

The Conservatives and the Government should be proud of a record that leaves family justice in a better place than where we found it in 2010. Why did I call this debate? I called it because there is further to go.

[Ian C. Lucas (Wrexham) (Lab)]

I thank the hon. Lady for calling the debate on an important issue, but we have to have a reality check. The Government have withdrawn legal aid from the important areas she has been describing. Mediation has been badly hit by the reforms to which she has referred. We have gone backwards, not forwards. Will she accept that this is a time for reviewing the current situation so that the people who come to my surgeries, who cannot get any help to navigate the complex system, can find help?

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[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.

[Ian C. Lucas]

The hon. Gentleman is making a compelling case. There is a horrible consensus emerging in the debate, particularly on common-law marriage. The idea emerged from I know not where, but it has never ever existed. The other important aspect is that the whole process is hideously expensive. For someone to establish their rights through the courts, which may be possible through a resulting trust or a constructive trust, is impossibly expensive for most ordinary people.

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[Ian C. Lucas (Wrexham) (Lab)]

I came to this debate because this is a very important subject. I am a solicitor by background, although it was a very long time ago and I have never been a family lawyer. I am grateful to the hon. Member for Fareham (Suella Fernandes) for securing this debate. We have had an interesting discussion.

I often come across family cases in my constituency because I am the end of the line for my constituents. I am sure colleagues here share that experience. Those individuals are often in very distressing circumstances, are dealing with important relationships with their children—those cases disturb me most of all—and cannot find any help to negotiate the very complex and difficult system.

I have no doubt that the legal changes since 2010 have largely improved the situation for children, but they will have an impact only if they are properly enforced, and enforcement depends on equal access to justice. We need a legal system that reflects the society in which we live. I strongly agree with the hon. Lady’s comments about our divorce laws, which predate my legal training, and are therefore completely out of date and need to be reconsidered.

In this Parliament, in which there is a lack of political consensus the likes of which we have never seen before, this is the kind of area on which we can work together as Members of Parliament. There is no profound political difference on this matter, so there is scope for making progress if we can agree on a way forward. The key point I want to make is that we need to have a system that gives decent access to justice to all the people who need it in this country.

I have a constituent, a very committed father, who has been to see me on numerous occasions throughout a long legal case involving contact with his children. Despite the fact that I have tried to use some of the avenues available through the good people who provide voluntary services to support individuals before the court, my constituent really needs a solicitor to deal properly with his case. The present system has deteriorated since 2010 because for him legal aid is not available in the way that I used to know it. I therefore strongly welcome the investigation of the Bach Commission that the Labour party has conducted. The Government have indicated they are prepared to look at the matters again. I welcome that, too, because I believe there is a broad consensus, although it is not spoken of very often, on the need to have better access to justice, particularly in cases that involve children.

I hope this debate will be a starting point for us to look again at access to justice and to recognise that there are real problems in our communities, which we see in our constituency offices and arise because of the lack of access to justice. The system is hideously complex. It is difficult for any individual to negotiate it and we have an obligation to try to revisit it and make it better.

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[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Ryan. I congratulate the hon. Member for Fareham (Suella Fernandes) on securing the debate. Before I became a Member of Parliament I was a practising barrister and dealt with cases in the family courts. Because family court proceedings are held in private, not much is known about their operation and decision making. Yet those courts make decisions affecting more than 200,000 families. I believe that the courts need to be opened up, and that that can be done without the identity of parties being disclosed. The expression “child A” or “family A” can be used to stop identification of parties. The concept of no-fault divorce should be looked at and implemented, as the current law effectively forces spouses to throw mud at each other, when the truth is probably that the marriage has just come to an end. Cost is another issue that adds to the worry, as many people who are separating will already face financial difficulties and challenges.

Another important aspect of family courts that has been alluded to is what happens when partners have separated, including questions about the enforceability of child arrangement orders. The courts make those orders to regulate the contact and residence of children, but, sadly, they are breached regularly. I remember distressed clients complaining about how their ex-partner would not turn up, would be very late, would make excuses for not allowing the child to be picked up, and would generally be manipulative. It caused a lot of frustration. The only legal solution was to go back to the court, but that meant spending more money, which, often, the clients did not have, and getting cases listed before courts, which would take months. They therefore lost valuable time with their children. The hon. Member for Wells (James Heappey) mentioned one of his constituents facing similar game-playing by the other parent. I agree with the hon. Member for Fareham that there should be a much quicker method to deal with people who manipulate the system.

When orders are being arranged, the judge could, in a very severe way, inform the parties of the consequences of non-compliance. We must also not forget about parenting orders for cohabiting families. The hon. Member for Strangford (Jim Shannon)—he is not in his place at the moment—spoke about the rise in the number of cohabiting families, and it is important to consider how to protect those families and the challenges that have arisen.

Another point about family courts often does not get mentioned—it has not been mentioned much in this debate, but it is important and I hope that the Minister will consider it. The president of the family division, Sir James Munby, recently said that too many children are being taken into care for wholly inadequate and poorly argued reasons. Again, from my experience, I tend to agree with him. Although it is inevitable that some children must be taken into care, there are too many such cases, and there seems to be an almost unseemly haste to take young babies away from their families—many people are waiting to adopt little babies, as opposed to toddlers or young children. Perhaps we should consider what assistance, advice and guidance can be provided to new mothers so that they can look after their children themselves, as opposed to social services getting involved and taking the children.

Child safety and protection are obviously paramount, and we heard about famous cases such as that of Baby P and other children. However, from my practical experience, and that of others who have spoken to me, I know that there are occasions when local authorities, social workers and other people do not make enough effort to work with families. Perhaps that is because it is more time consuming or resource intensive, but we should think about that because far too many children who go into care go into foster homes, and not many are being adopted, as they should be. Some children who go into foster care are with one family for one year, another family for two years, then another for one more year, which causes them a lot of instability. A lot of those children are affected by being moved around, so I urge local authorities—I know they are facing massive funding cuts—and the Ministry of Justice to consider incentivising social services in local authorities to work with families so that we can keep as many children as possible within the home, as opposed to shunting them around the care system.

There is some anecdotal evidence—I hope the Minister will consider this—that BME communities and working-class families have a higher incidence of children being taken away than the rest of the population. It is almost as if sometimes they are being judged on what an ideal, upper middle-class lifestyle might be like, and perhaps there should be more of a reality check about what happens in ordinary families. I also believe—this happens very infrequently—that judges should take it upon themselves to talk to children involved in these proceedings to get more information about what they feel about the reality of family life. That does not happen enough. CAFCASS officers, social services and other people should hold many more discussions with children about how they see the situation and what their experiences are.

The hon. Member for Fareham did not allude to the big elephant in the room—legal aid—although my hon. Friend the Member for Wrexham (Ian C. Lucas) did mention it. There has been a real cut in civil legal aid, especially in family courts, because the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished free early legal advice. Often lawyers were able to encourage clients to seek mediation and agree to arrangements, but that is not happening now because so many people are unrepresented. More people are now coming into the court system and clogging up court structures, and often district judges and legal advisers have to draft complex care orders, which is having an effect on the backlog of cases in court. It also means that unrepresented individuals often do not know the procedures and it takes much longer, so again, a backlog is forming in the courts.

When I sat on the Justice Committee in 2012, the fears about LASPO were raised, and it has been confirmed that, although there have been austerity cuts, in reality, no savings have been made because court time has increased, and dealing with those cases takes much longer.

[Ian C. Lucas]

My hon. Friend makes a strong point, and I have heard court staff say that courts are under increasing pressure. It is not really the role of judges to advise the parties; the judge is there to determine the case, but they are being placed in the difficult position of having to supplement that by advising the parties they are judging.

[Yasmin Qureshi]

That is absolutely right. The judge’s job is to adjudicate, but now legal advisers and judges have to take a proactive role in the legal processes. That causes a lot of difficulties for them, and it is clogging up a lot of court time. Cases are taking much longer to progress through the court than they would if we had a system in which people are represented, so many of the issues could be cut down and a debate held on the main features or issues of that case.

We were told that victims of domestic and child abuse would have access to free legal aid, but in reality that is not happening in the majority of cases because of the number of bureaucratic rules that people have to satisfy to apply for funding. One in four women suffer from domestic violence, and every week two women are killed by their current or former partners. One of the most distressing aspects is that victims of domestic violence can be cross-examined by their abusers. I cannot imagine how bad a situation that would be.

The Legal Aid Agency’s failure to apply exceptional case funding has caused major hardship. Many parents with significant learning disabilities cannot get legal aid and are therefore unable to protect their interests as well as those of their children. Will the Government consider the Bach Commission report and whether exceptional case funding could be established to help people who suffer from domestic violence? The Government suggested that 847 children and 4,888 young adults would be granted exceptional case funding, but between October 2013 and June 2015 only eight children and 28 young adults were granted legal aid. That is unacceptable, and I look forward to the Minister telling the House what action the Ministry of Justice will take to deal with that issue.

We must also address the ability of the Child Maintenance Service and the Child Support Agency to work efficiently and quickly to ensure fairness for all involved. In many instances child support arrangements are not working well, which causes difficulties for the parent who has responsibility for looking after the children. What action will the Minister’s Department take to ensure that those orders are working?

In conclusion, this has been a good debate and hon. Members have shared their experiences. I particularly thank the hon. Members for Berwickshire, Roxburgh and Selkirk (John Lamont) and for Lanark and Hamilton East (Angela Crawley), who have given us a bird’s eye view of Scottish law, and all hon. Members who spoke about cohabiting families and legal aid. I hope that the Minister will address some of our concerns.

[The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)]

It is a pleasure to serve under your chairmanship, Ms Ryan. I begin by passing on the sincere apologies of the Minister of State for his absence. He is attending to urgent parliamentary business to do with the European Union (Withdrawal) Bill.

I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on securing the debate, and I thank her for that. She has professional experience from before she joined the House and is already developing a fantastic reputation for work in this area. I recognise the strength of feeling on the subject of family justice and the importance that hon. Members from all parties attach to the issues involved, and I am therefore grateful for the opportunity to discuss them.

The family justice system is responsible for making decisions that change lives. The issues at stake are sensitive and complex, and the decisions of the court can have far-reaching implications for those involved. We need to ensure the system is delivering the best outcomes for children and families, with emphasis on protecting the vulnerable. As my hon. Friend said, strong families create strong citizens.

The welfare of the child is the paramount consideration for the court when making a decision that will affect a child’s life. I for one am proud of the child-centred approach that our family justice system takes. As my hon. Friend recognised, there has been significant recent progress in that area.

To address my hon. Friend’s comments about the importance of fathers in the upbringing of their children, following a change to the law in 2014, the court must now presume that a parent’s involvement in the child’s life will further the child’s welfare, unless the contrary can be shown. That change was intended to strengthen children’s rights to each parent’s involvement in their life.

Orders limiting such involvement to indirect contact—my hon. Friend mentioned a case in which only a Christmas card was permitted—are usually reserved for cases where face-to-face contact is deemed unsafe. Such orders are relatively rare and the court will not take the decision lightly.

Where parents are in dispute and seek a court decision, the court must decide what form of parental involvement will best meet the child’s welfare needs. The quality of parenting, rather than any particular pattern of it, is the most important thing for a child. Parliament stopped short of introducing a presumption of shared parenting because every family is different and every child’s needs are different—the law provides for the maximum flexibility.

Courts apply the presumption of parental involvement in a child’s life unless there is risk of harm to the child or the other parent. Given the prevalence of domestic abuse, however, the court must consider carefully any evidence of a risk of harm to the child or other parent when deciding child arrangements. The president of the family division, the country’s most senior family judge, only last month issued a revised practice direction setting out the practice and procedure to be followed by courts dealing with child arrangements cases where domestic abuse is alleged. That makes it clear that the court should have full regard to the harm caused by domestic abuse, including the harm that can be caused to children from witnessing such abuse. The Government welcome the development, and I am sure the House appreciates that the aim is always to produce the best outcome for the child.

My hon. Friend the Member for Fareham went on to argue that child arrangements orders must be enforced more robustly. When such an order is breached, a pragmatic response is often to vary the order to make it work for the child. Punitive enforcement can increase hostility and make the child feel responsible. In 2012, a Government consultation concluded that measures designed to punish parents were unlikely in many cases to be appropriate or to encourage them to be co-operative in future. In 2014 changes were made to return enforcement cases to court sooner and to improve judicial continuity.

When a child arrangements order is breached without reasonable excuse, sanctions are available. A parent who breaches an order can be ordered to pay financial compensation, ordered to carry out unpaid work, fined or even imprisoned. The reasons for breach are varied. In a 2012 sample study, only 4% of the breaches could be characterised as resulting from resident parents being implacably opposed to contact. I understand my hon. Friend’s concerns about the low number of successful enforcement order applications but that reflects a more complex picture, including sometimes technical breaches. How a breach is addressed will depend on the individual circumstances of the case, and the focus of the court will be on making the order work for the benefit of the child.

My hon. Friend also argued for no-fault divorce. Only last month the Nuffield Foundation published a research report on that, led by Professor Liz Trinder. We are aware of the strength of feeling on the issue. It is important to note, however, that the existing law already allows people to divorce without needing to cite fault, as I am sure the House appreciates. Parliament has determined that the law should provide for divorce only if the marriage has irretrievably broken down. One way of demonstrating that is to cite a period of separation. Some are concerned that the periods required are too long, but many things need to be balanced when considering whether reform is necessary. We will study the evidence for change, but will not rush to a conclusion.

In response to my hon. Friend’s concerns about the law on financial orders in divorce, I point out that the law is gender-neutral and gives the court wide discretion to make financial orders based on individual circumstances. The court’s primary concern is always the needs of any children. We have no plans to change that key principle of fairness.

My hon. Friend asked whether the process would be improved if couples could make nuptial agreements that they were confident could be enforced if the marriage ended. She called for a commission to look into that. The Law Commission has already published proposals on the issue, and the Government will consider those and make their position known in due course.

Marriage is of course only one part of the picture. Many people now live together without being married or in a civil partnership. Some people, including the Law Commission, argue that the law should give cohabitants rights in finances, but others disagree. I can give no indication as to how those differences will be resolved, but the Government will in due course consider how to respond to the commission’s proposals.

[Ian C. Lucas]

Who disagrees with the approach to changing the law on no-fault divorce?

[Dr Lee]

I thank the hon. Gentleman for his intervention, but I do not know the answer to his question. I will ask my officials to reply to him in writing.

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[Suella Fernandes]

I have nothing but gratitude for all hon. Members who have contributed to this very constructive and wide-ranging debate from all parts of the country. Only Wales was not really represented.

[Ian C. Lucas]

Yes it was.

[Suella Fernandes]

Yes—my apologies. That reflects the widespread support for the subject of the debate. I am grateful for the response from the Minister and I am hopeful that we will continue the work to ensure that we get justice for families, strengthen child wellbeing and provide the context for equitable resolution in this difficult area.

Question put and agreed to.

Resolved,

That this House has considered family justice reform