Clause 6 - Provision as to family assistance orders

Children and Adoption Bill [Lords] – in a Public Bill Committee at 10:30 am on 21 March 2006.

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Question proposed, That the clause stand part of the Bill.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I want to make several brief comments about clause 6, which deals with family assistance orders, and to raise again a concern that I raised on a preceding clause about the extra burden that it may put on the Children and Family Court Advisory and Support Service officers and their Welsh equivalents.

It is fair to point out that paragraph 72 of the explanatory notes states:

“We anticipate that there may be some resource implications associated with the reformed orders”— meaning, family assistance orders—

“though this may be offset by a reduction in work associated with ongoing court proceedings where family assistance orders are used to facilitate and support contact arrangements.”

In other words, it appears that the Government anticipate that, where they go well, the extra family assistance orders will often pay for themselves, by enabling expensive court proceedings to be avoided. None the less, it seems to Conservative Members that some account ought to be taken of the fact that they may not always pay for themselves—indeed, in many cases they will not. It is clear from clause 6 that the intention in the Bill is that family assistance orders, rather than being an exception, should become the norm. One can see perfectly sensible reasons why that should be so, and no doubt there will be many situations in which the intervention of a family assistance order will be extremely productive. However, it is of concern that if they are to be used much more often and much more regularly, there will be substantial cost implications, given the extra work that CAFCASS and its Welsh equivalent will have to do.

It is also clear from the clause that the duration of the order will no longer be a minimum of six months but will become a minimum of 12. Again, that work load will be extended over a longer period, which is also a matter of concern.

I should be grateful for some reassurance from the Minister that consideration has been given not just to costs to CAFCASS, which may be offset by savings in court proceedings, but to what may happen if those costs are not offset and where the money is to be found   given the comments that have been made about the burdens on CAFCASS officers arising from other provisions in the Bill and their existing responsibilities.

The other concern that I want to raise, and on which I invite the Minister to comment relates to the original provision dealing with family assistance orders—section 16 of the Children Act 1989, subsection (3) of which clearly indicates that family assistance orders cannot be made unless the court

“has obtained the consent of every person to be named in the order other than the child.”

I should be grateful if the Minister could confirm whether, with extensions to family assistance orders, that provision will remain. I should be grateful for reassurance.

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

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.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I understand the Minister’s point, but she will accept that it is clear from the clause that removing the

“requirement that circumstances of case be exceptional” gives the courts a clear steer that the Government want them to make family assistance orders in more cases. Is not the logical conclusion that more will be made and that the courts will find that they are a useful tool to ensure that contact takes place as it should?

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

In removing the requirement for exceptionality, which is already being undermined by common law practice, we expect the courts to exercise their judgment and to see whether a family assistance order might prove useful in the circumstances before them. Obviously, we have to keep an eye on what happens in practice, but following our discussions with interested parties—particularly the judiciary—we do not expect there to be a huge leap in the number of cases. However, we will have to see. If there is a huge leap, that will have implications for resources, and we shall have to deal with that at the time. At present, we do not expect there to be a sudden surge in cases. We are just tidying up practice and putting the statute in line with what is developing in the common law.

The clause allows the courts to use family assistance orders more generally and flexibly to help families overcome difficulties and to improve and maintain contact. Given my answers, I hope that the Committee will feel able to allow the clause to stand part of the Bill.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.