Clause 6 - Provision as to family assistance orders
Children and Adoption Bill [Lords]
10:30 am
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
May I begin by saying what a pleasure it is to be back. I have had the opportunity to read in Hansard the proceedings that I missed. I was touched to see that good wishes were sent in my direction by the Chair and members of the Committee and I thank them for that. I feel a lot better.
As the hon. Gentleman rightly said, clause 6 amends section 16 of the Children Act 1989, which makes provision for family assistance orders requiring a CAFCASS officer, Welsh family proceedings officer or a local authority officer
“to advise, assist and (where appropriate) befriend any person named in the order.”
We are grateful to the Joint Committee on the draft Bill for considering the issue in detail and we welcome its recommendation that family assistance orders be reformed through this Bill, which is something on which I know the judiciary were keen. We agreed with the Committee that we should extend the situations in which orders could be made by removing the requirement for there to be exceptional circumstances. That was becoming the case in common law in any case, so it seemed sensible to tidy things up.
We also agreed that we should extend the order’s maximum duration—it is a maximum duration, rather than a minimum duration as the hon. Gentleman seemed to suggest—to 12 months. That is to say not that it has to be 12 months but that it can be up to 12 months. It may be that the job can be done before the 12 months are up. So extending the maximum duration does not necessarily mean that all family assistance orders will run to the new maximum duration—some may, some may not.
The measures are designed to enable family assistance orders to be used with greater effectiveness. They were introduced in recognition of the fact that more time is sometimes needed to resolve the problems that led to the making of the order in the first place and that the fact that a family’s circumstances are not exceptional should not prevent them from being included where that would be helpful.
As our response to the Joint Committee made clear, we were unable to accept its recommendation to remove the requirement to obtain consent from all those named in the order before it was made. Although we appreciate that that suggestion was intended to make family assistance orders available in more cases, we do not believe it would be constructive to make an order to advise, assist and, where appropriate, befriend somebody who was quite unwilling to be advised, assisted or befriended—consent is important. To deal with the hon. Gentleman’s final point, the requirement for the named parties’ consent remains, and the changes to section 16 of the 1989 Act will not affect that.
That section provides that the people named in the family assistance order, rather than all parties to the case, need to give consent. So where one parent withholds consent, that would not prevent the family assistance order from being made if the other party consented and if it would be useful in the view of the court for the order to be there. The changes that clause 2 made to the 1989 Act will permit the courts to require CAFCASS to monitor compliance with a contact order. That will not, of course, require the consent of the parties, but the family assistance order will.
The hon. Gentleman made some specific points about the burdens on CAFCASS. He suggested that the changes in clause 6 would make family assistance orders the norm, rather than the exception. They are the exception now, and there has been an average of 600 cases over the past three years—the figure has wavered at about that level. So family assistance orders are clearly not the norm now, and we do not believe that the changes in the Bill will make them the norm. Indeed, we do not expect them to be used an awful lot more than they currently are, although we will obviously have to keep an eye on the situation once the Bill is passed and we can see what the practical impact is. However, common law is already moving in the direction that I described, and the Bill seeks to tidy things up in relation to common law practice as it is developing.