[Sandra Osborne in the Chair] — Family Courts
Andy Slaughter (Hammersmith, Labour)
I am delighted to respond on behalf of the Opposition to this debate about the Justice Committee’s report on the operation of the family courts and the Government’s response to it—not least because I am doing so under your chairmanship, Mrs Osborne. I congratulate the Committee on the production of such a thorough and detailed response to what is clearly one of the most important areas of our legal system.
I am sure that Mr Llwyd, who was here for a short time, is a valuable member of the Committee. Having spent several months working with him in Committee on what became the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I know that he is assiduous and shows great integrity. Also, unusually on that Committee, his rhetoric matched his voting record, which was not often the case for Government Back Benchers.
I also thank the Chair of the Select Committee, Sir Alan Beith, for his speech, which, although made in his usual gentle way, was still forensic. It raised a number of
issues, to which I am sure the Minister will respond. His points about delay, shared parenting and the evidence base were all well made and are all substantial concerns.
All I would say about the right hon. Gentleman’s comments on secrecy in the courts is that we were expecting some news about that today, with the introduction of the Justice and Security Bill in the House of Lords. The right hon. Gentleman is right that the balance between the protection of the interests of open justice and those of participants is a fine one in all cases, including those in the family courts. It is a pity that the Government are struggling once again to bring forward legislation, even when it has been announced in the media the week before.
I want to comment on another issue that the right hon. Gentleman mentioned—restrictions on advice and the increase in the number of litigants in person. I should say that I am grateful for briefings for the debate from the National Society for the Prevention of Cruelty to Children, and Resolution, which also raised those issues. First, however, I want to make some general comments.
The importance of the review cannot be stated more clearly than by citing one of the facts in it—that 36 children were killed in 2009-10 by their parents; and that, between 1995 and 1999, in
“80% of all homicides where the victim was an infant under the age of one, the killer was a parent, and in ‘virtually all’ the remaining 20% the killer was a family member, friend or someone who had care of the infant”.
I am sure that everyone present today will be able to name at least one high-profile example of a child tragically killed by those who were supposed to be looking after them. Furthermore, even when a child is not physically harmed by their parents, a violent relationship between parents has been found to have a significant long-term negative effect on the child’s emotional well-being.
The courts therefore have a crucial role, not just in trying to ensure that a child has access to their parents on terms that are acceptable to both and also beneficial to the child, but, all too often, in ensuring that children in dangerous situations are given adequate care and protection. It could not be more important to get this matter right. The previous Government took great steps towards ensuring that the family courts were more accessible and came to more informed decisions, and that alternatives to the adversarial nature of court hearings were found.
We should also acknowledge that in some areas the Government are continuing in that vein, thanks largely to the Justice Committee’s report and the family justice review carried out by David Norgrove. Both identified weaknesses in the operation of the family courts, and the Government’s willingness to consider at least some of the recommendations made in them, and the move towards increased mediation and a more child-centric system, are to be commended.
Unfortunately, however, as with so much to do with the Government, seemingly well meant policies have potentially severe consequences, and, as ever, there is a catch. In their response to the Justice Committee’s report, the Government promised that legal aid would remain for cases where there was evidence of domestic
violence. Yet they had to be dragged kicking and screaming through, I think, two lost votes and one tied vote in the House of Lords, during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to acknowledge properly a definition of domestic violence that would give the protection of legal aid to those who so badly need it, and to extend the evidential criteria. Eventually, there was substantial movement on that, but there were still glaring omissions. Therefore there are clear cases where victims of domestic violence will not continue to benefit from legal aid, including in private family law cases.
The Government are right to believe that mediation is preferable, and keeping family law cases out of the courts through an agreement between parents is always to be encouraged. Yet for those people who cannot achieve that, and who need legal assistance, the 2012 Act again reduces their chance of receiving proper legal representation. To complicate matters further, the increase in the number of litigants in person, the Government’s replacement of face-to-face services with telephone advice and the dramatic decrease in counter hours—by two thirds, in many cases—mean that the amount of support available has decreased.
I have seen—in part of the Resolution brief for today’s debate, I think—a letter from Her Majesty’s Courts and Tribunals Service, dated
“any significant issues being raised by our court users”.
However, as Resolution points out, it has been informed by many court users that phone calls and e-mails are “regularly” not answered. We have the Kafkaesque situation in which no longer having a service available means that complaints and queries are not being registered and dealt with. For an individual already faced with the daunting prospect of representing themselves in legal proceedings, that removal of a source of advice could be the difference between a decision that benefits a child and one based on the inability of one side adequately to represent themselves.
I disagree a little with the comment by the right hon. Member for Berwick-upon-Tweed that sometimes legal aid can create an imbalance. That may be so in a minority of cases, but on the whole, the impecunious party—the party more in need of representation and not able to afford it, who is often the mother—needs access to legal aid so that both sides can be properly heard.
I practised for only a short time as a family lawyer, but I cannot think of any other area of law in which I practised where the intervention of advocates often resolved cases. Quite often the parties going to court would go not only as other litigants in person do, with an imperfect understanding of procedure and the law, but with a real animus against the other side and almost a willingness to continue the family argument through the court process. In the vast majority of cases, the intervention of lawyers—sometimes at an early stage and sometimes at the door of the court—is a way of drawing up consent orders, of resolving matters that otherwise and in the future would have to go before the judge.
One of the crucial points raised by both reports and various others over the years is the importance of limiting delays. A recent survey of Resolution’s members
found that when one party is representing themselves, cases usually take longer. Indeed, 48% of respondents said that it can be more than twice as long as when both parties have legal representation—a point borne out anecdotally by the comments of the right hon. Member for Dwyfor Meirionnydd.
The removal of access to counter services cannot possibly improve that situation and will almost certainly lead to even longer delays. Further delays will be caused by the fact that counter services will no longer be available to check applications—a major issue, given that incorrectly completed applications are often rejected by the courts. Aside from those delayed decisions, which were described as “unacceptable” by the Government in their response to the family justice review, it is easy to see how that could also lead to a delay in identifying a child’s safeguarding issues.
My colleagues and I have been approached by representatives from a number of organisations with concerns that mirror the Opposition’s fears on these issues—that one cannot hope to improve services while simultaneously taking an axe to budgets across the board. The Government can talk all they want about a commitment to limiting delays and improving the service provided by family courts, but those improvements will not be found if the crucial background services, such as counter services, are removed.
I will not repeat the many excellent points made by the Chair of the Select Committee; I am sure that the Minister heard them and will respond to them. I hope that he will listen to the comments of the Select Committee and those that I and others with an interest in these matters have made, and will feed them back into the Government’s ongoing development of their justice policy.
The Opposition will not unnecessarily oppose anything that will genuinely improve the operation of our family courts, but the Government need to take notice of the many organisations that have expressed concerns that further delays will ensue as a consequence of the steps that they have taken and that those measures might be counter-productive. The Government should be working to ensure that the family courts work for everyone, not just those who can find a resolution to their problems before coming to court or those who have the means to pay privately for legal advice.