New Clause 1 - Extended family: welfare checklist

Children and Adoption Bill [Lords] – in a Public Bill Committee at 11:30 am on 21 March 2006.

Alert me about debates like this

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

“(ga)the desirability of contact between the child and his extended family in the absence of good reason to the contrary.”’.—[Mr. Stewart Jackson.]

Brought up, and read the First time.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I beg to move, That the clause be read a Second time.

I am pleased to be serving under your chairmanship again, Mr. Hood.

Some hon. Members and particularly the Minister will know that I have taken an interest in extended kin parenting, particularly by grandparents. I was privileged to win an Adjournment debate on 18 January to discuss such issues and had quite a debate with the Minister.

The Government have missed a golden opportunity to address some important issues that impact significantly on extended family parenting, particularly by grandparents. I want briefly to raise two or three issues relating to that missed opportunity and to explain the rationale behind the new clause.

The new clause is essentially a presumption in favour of extended family parenting. I believe genuinely that it would not in any way contravene the paramountcy principle—quite the opposite. I believe that it is in the best long-term interests of children, as any reasonable person would agree, given the significant evidence that children can, in the wake of a break-up of their parents’ relationship, benefit from contact with their grandparents.

Not much research has been done on the matter during the past few years, but I pay tribute again to the right hon. Member for Birkenhead (Mr. Field), who has done some local research among his constituents on the Wirral on the impact of the current legal system of family law on grandparents who choose to be de facto parents to their grandchildren. The system as they see it and as articulated by the right hon. Gentleman is loaded against them. I commend to the Committee the document prepared by Dr. Anne Gray of London South Bank university on the evaluation of the grandparent-toddler groups initiative, which strongly makes the case for grandparent and extended kin parenting.

I want to speak principally about three issues to which I hope the Minister will respond. In particular, I want to refer to undertakings that she gave during the Westminster Hall debate on 18 January. First, section 10 of the Children Act 1989 covers the requirement by family and friends carers to apply for a residence or special guardianship order. The Government have not sufficiently thought through the issues and the present system is significantly biased against family and extended kin members. More particularly, there is lack of parity between non-family and family members. That issue was discussed in respect of grandparents during the Westminster Hall debate. I look to the hon. Member for Stafford for support because he knows the area well and is broadly supportive of my underlying assumptions, if not the details of the new clause.

Secondly, I want to mention section 17 of the Children Act 1989 and the financial assistance given to extended family and grandparents vis-à-vis other carers. The arrangement is currently not being adhered to and has not, unfortunately, been addressed in the Bill.

Thirdly, I mentioned parity in respect of section 10 of the 1989 Act, but I should particularly like to consider section 8, regarding the need for a certain period of residence for a child with grandparents, as opposed to non-family carers. The Government had an opportunity to consider such matters in preparing the Bill, but unfortunately they do not seem to have made much progress in that respect, even though the Minister said:

“The 1989 Act recognises that, even if there is parental opposition, it could be in the interests of a child to maintain contact with their grandparents. No one has a veto. The parent does not have a veto. Subject to the paramountcy principle, the court will take into account the importance of grandparents and other relatives to the lives of children.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 268WH.]

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

In his plea for compatibility between grandparents, kinship carers and others, does the hon. Gentleman have regard to the requirement that the   leave of the court needs to be given even before people can apply for a court order for a residence or special guardianship order? Is he aware that in the 2002 Act, foster carers now need only to have the child with them for one year before they apply without leave, whereas it is three years for grandparents and other kinship carers? Is he aware that proposed new clause 22, which I tabled but which was not selected for debate, deals with that point?

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

That must rank as one of the most helpful interventions I have ever had. I thank the hon. Gentleman and pay tribute to his expertise on such matters. With all due respect to you, Mr. Hood, I am disappointed that we have not been able to discuss that new clause. It would have been nice to have focused on that issue, listened to the Minister and understood why it was not possible to introduce such provision. There is a presumption among many extended kin carers that the system is biased against them. Since the 2002 Act took effect, they certainly feel that strongly with regard to financial assistance, post 13 December 2005. It is unfortunate that we cannot debate the issue that was raised.

I should like to press the Minister on two points. During the 18 January debate on extended kin and grandparents’ access to grandchildren, she said:

“Removing the requirement would immediately bring in formal parties to start court proceedings” in respect of the requirement to seek leave. She went on to say:

“I am not saying that that would happen in every case, but it could, and the court must have a way to screen cases if, knowing all the circumstances, it feels that proceedings are unnecessary.—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

Non-family foster carers and adopters do not have to go through that legal route. Indeed, they must only prove that the child has resided with them for 12 months, whereas family and extended kin have to prove that they have resided with the child for three years.

In addition, the costs have been estimated by the Grandparents Association as anything between £250 and £1,000. So a financial cost falls on people who may already be impecunious. The right hon. Member for Birkenhead mentioned constituents who were among the poorest people, but were forced to go through those legal loopholes. I should like to hear evidence from the Minister on why it is not possible for that legal hoop to be removed.

On 18 January, the Minister said:

The Department for Education and Skills is considering the issue, and I expect consideration to be completed sometime this year. I know that that is rather vague.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

I want to press her on that point. We need to focus on the welfare of the child, which is about extended family care. There is evidence that such care works in the best interests of children. At the moment, there is a perception of unfairness and of a lack of equity. Unfortunately, the Bill does not address that, and so will exacerbate that feeling of a lack of fairness and justice for a particular part of our community.

I hope that the Minister can answer the questions put to her, not least those asked by the hon. Member for Stafford, and that we can go forward with an undertaking that those points will be taken on board. Two months ago, the Minister gave me a time-based undertaking, and I hope that she will think of that when she replies.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I support the two points that the hon. Gentleman made about the imbalances, one of which is to do with financial support, while the other is the requirement for grandparents and kinship carers to obtain the leave of the court even before they start to make their application for court proceedings.

In my time as a solicitor before I was elected to Parliament, as well as in my time as a Member of Parliament, I have witnessed many cases of injustice to grandparents because of those imbalances. I can think of many times when grandparents have been deterred from getting involved in court proceedings because they would have had to pay double to do so. Even if before their son or daughter split from their spouse they had had lots of regular contact with their grandchild and that had gone down to zero, they found it difficult to muster the financial resources and the will to get involved in a court case not once, but twice—to get the leave and then go through the procedure of trying to get the order.

I can think of a particular case of such financial imbalance. I do not have permission to name the person involved, so I shall not. The woman in question stood by her grandson through thick and thin, and came to me, as her MP, many times about her financial hardship. Even with my assistance and that of a lawyer, she could not get some of the financial support that a parent or foster carer would have got. That was most unjust.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Does the hon. Gentleman agree from his significant experience that the issue that we hope the Minister will face, and that would have been discussed had his new clause been selected for debate, is that if we reduced the legal requirement for everyone to a year, we could still screen out unsuitable people?

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I agree. A year is quite a long time to prove one’s ability to care for somebody, and if the period were reduced to a year, that would simply mean that there was no requirement to apply for leave. A person would still have to justify in court that they were entitled to the order.

In conclusion, the new clause perhaps does not say either of those two things, and says something different, but I shall be interested in the Minister’s response on those two points about imbalance.

Photo of Mark Williams Mark Williams Shadow Minister (Wales)

I support the new clause moved by the hon. Member for Peterborough. One almost feels that, given the lack of wording mentioned by the hon. Member for Stafford, one is debating something that is not there. However, as far as the wording goes, I reiterate our support for the new clause, which seeks to recognise the growing and important role played by   the wider family in the life of a child. We all know that in this changing society grandparents and the wider family have a huge role to play, not just potentially in the 10 per cent. of cases with which the Bill deals. I hope that the financial injustice about which hon. Members have spoken and the perception that the system is biased and is not working in favour of grandparents can be addressed, whether by the new clause or at a later stage.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families) 12:00, 21 March 2006

I shall do my best to stay in order and within the scope of the Bill. It is important that we try to do that.

The new clause would require the court, whenever it considers a disputed application for a section 8 order under the Children Act 1989, to have regard to

“the desirability of contact between the child and his extended family”.

I agree with hon. Members who have stated that contact with grandparents and other members of extended families can be hugely valuable to children in the aftermath of a family break-up. Contact of that nature can help to provide much-needed stability and support at a time of great turbulence, uncertainty and difficulty for children who are having to deal with their parents’ break-up. I am sure there is no disagreement about that across the Committee.

There are several difficulties with the new clause, the most important of which concerns its phrasing. It refers to the desirability of contact in the absence of evidence to the contrary. The hon. Member for Peterborough asserted that he did not think that would have any impact on the paramountcy principle. However, because of the way in which the proposal is worded, it would effectively create a legal presumption. As the hon. Gentleman does not set any limit on what he means by “extended family”, the court would have to presume that contact with all relatives, however distant, is desirable unless it is presented with strong evidence to refute that.

I understand the impulse, and I heard the hon. Gentleman and other Committee members say that they wanted to discuss slightly different things. The wording of the new clause is simply not compatible with a starting point that considers the welfare of the child in their individual circumstances and ordering what is best for them, as the 1989 Act currently provides.

A second problem is the location of the new clause, amending as it would the welfare checklist, which applies not only in private law cases and disputes, but in public law, for instance in relation to care orders. The new clause would require a court considering whether or not to take an abused child into care to presume that contact with their wider extended family—the concept is not at all delineated; we might be talking about an extremely extended family—would be desirable. Of course, it might be desirable in a public law case; a child whom a court is considering taking into care might greatly benefit from continuing contact with their birth family extended beyond their   parents. However, it is not appropriate to force a court to presume that in advance of considering the evidence.

The practical difficulties with the wording of the new clause mean that I am unable to accept it. I am also worried by the lack of clarity to which I have alluded. The new clause does not set out where the “extended family” comes to an end. Certainly, most children should have contact with their grandparents and most probably do. They get great value from that, as do their grandparents. Most children should also have contact with aunts, uncles, cousins and relatively close extended family, but not all will necessarily be in touch with more distant relatives. It might well not be in their interests for an extremely distant relative to have a right to contact as the new clause suggests. It is not appropriate for us to put into the Bill an undelineated phrase which could be so extensive, as that would destroy clarity and cause all kinds of confusion. It is also unhelpful that the provision would apply in public law cases.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

In the present circumstances, under section 23 of the 1989 Act, social workers and others are already disregarding the primacy, for want of a better word, of family members, often for very practical reasons and with the best intentions. For instance, they do not want to upset foster carers or they have difficulty with resources and recruiting doctors. In my experience and that of many organisations in this field, they are already disregarding the importance of extended kin. That is an important point for the Minister to bear in mind when she says that the interpretation is too loose.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

If I understand the hon. Gentleman correctly, he seems to be talking about public law. The Bill concerns private law cases; I believe such arrangements would be outwith the scope of the Bill, and it would be wrong to include them. He primarily wants to deal with private law issues on separation, which, because of the way in which the new clause is drafted, would extend into the public law sphere. I understand his general points, but it is not appropriate to include his new clause in the Bill. The courts need to consider cases on the facts and to focus on the needs of individual children. They should not make presumptions that cut across paramountcy and do not reflect the individual child’s needs.

The hon. Gentleman made a few points with which I would like to deal. He referred to the debate that we had in Westminster Hall, which I know reflected concerns among the grandparents’ lobby and among those from more extended families, of which I have an understanding. He said that the need to apply provisions under section 10 of the 1989 Act are biased against extended family members and he was supported in that regard by what my hon. Friend the Member for Stafford said.

We believe it is important that non-separated parents are protected against section 8 applications by grandparents and other extended family members. We are trying to make provisions for those who have to deal with contact issues and matters relating to the   conflict involved in break-ups. My Department has extensive discussions with grandparents’ groups and other family organisations and we are not aware of any evidence that the leave to apply hurdle is proving an obstacle to grandparents in cases where parents have separated.

I have heard voiced before the concern that relatives are unfairly blocked from seeking contact because they have to seek the court’s permission to apply. I am perfectly willing to consider individual cases that are brought to my attention and I understand that hon. Members would not want to name individuals in the Committee. It is perfectly open to them to contact me outside the Committee.

Grandparents and others must seek the court’s permission before applying for a contact or residence order. The intention is not to set an unreasonably high hurdle, but to put in place a safeguard to prevent inappropriate and vexatious applications. In practice, applications for permission to apply are normally made simultaneously with an application for contact—that is my understanding of the situation—meaning that there is no added delay, and they are almost always granted. However, it is appropriate that this theoretical hurdle exists so that cases where an application might involve a child in court processes unnecessarily can be prevented.

I have heard it said that there is an increased cost because grandparents might have to seek separate permission to apply and pay court fees twice. They do not have to pay court fees twice. The applicant only pays a single fee and they would not have to pay a separate fee for the contact application and the application for permission to apply: it can be done at the same time. I am obviously willing to hear from Members outside the Committee about specific cases where their experience is different. The hon. Member for Peterborough made a reference to a cost of £250 to £1000, which sounded like legal costs to me. We all have to pay lawyers if we go to court; that is an unfortunate fact of life. Although there are some Committee members who have done rather well out of it—including, in a previous life, me, not to put to fine a point on it. [Laughter.] I am not about to argue that lawyers should not be paid—not a popular thing to say—but when I was practising, I at least tried to discourage people from going to court if there was any opportunity to avoid it. There is no doubt that costs can add up once adversarial court proceedings begin. I cannot comment on whether people have had to pay more lawyers’ fees, but it is quite possibly true.

The hon. Gentleman referred to our earlier Westminster Hall debate about those issues, and suggested that I had made some time-limited undertakings to him. I shall have to read them to ensure that I meet whatever time limits I set myself in that debate. I am not in a position to answer that point, but I shall undertake to deal with it outside the Committee.

On the basis that the new clause has unintended consequences for the legislation, I hope that the hon. Gentleman is willing to withdraw it. I emphasise that I thoroughly understand and concur with his concerns   that grandparents and suitable members of the extended family should be able to stay in touch with their grandchildren and relatives after the separation of parents, even if the situation is difficult. We support that.

The provisions in the legislation are not confined simply to parents, whether resident or non-resident; they could also apply to other family members who have an interest in the child’s life. They could apply to grandparents and members of the extended family. The hon. Gentleman ought to remember that the Bill applies in that sense.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I have listened carefully to the Minister, and, in fairness, she has taken on board my concerns. In particular, she discussed the two issues on which I pressed her. We await developments, particularly on what “some time this year” means. There are nine months to go, but we live in hope. We have had a very good debate and heard a very helpful intervention from the hon. Member for Stafford—I say that genuinely—and the Minister had dealt with things in her usual logical and fair way. On that basis, and with the caveat that we will debate the matter on Report and later, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.