New Clause 13

Children and Young Persons Bill [Lords] – in a Public Bill Committee at 1:30 pm on 3rd July 2008.

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Responsibilities of parenthood

‘(1) In section 10 of the Children Act 1989 (c. 41) (power of court to make section 8 orders), after subsection (9)(b) insert—

“(ba) in relation to residence orders, whether or not the person with whom it is proposed that the child should live is likely to be able and willing to accept the responsibilities of parenthood in relation to the child;”.

(2) In section 8 of that Act (residence, contact and other orders with respect to children), after subsection (4) insert—

“(4A) In this Part “the responsibilities of parenthood” means, in so far as is practicable and in the best interests of the child, the safeguarding and promotion of the child’s health, development and welfare, and the provision of direction and guidance to the child in a manner appropriate to his age and development.”’.—[Tim Loughton.]

Brought up, and read the First time.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

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

Photo of Greg Pope Greg Pope Labour, Hyndburn

With this, it will be convenient to discuss the following: New clause 17—Issue of written judgment relating to a court order in family proceedings—

‘(1) The 1989 Act is amended as follows.

(2) After section 8 insert—

“8A Issue of written judgment relating to a court order in family proceedings

(1) When issuing an order in any family proceedings a court shall issue a written judgment in respect of that order.

(2) No children under the age of 16 shall be identified by name in that judgment.

(3) A judgment issued under subsection (1) will be issued to all parties to proceedings.

(4) Parents of children in family proceedings who were party to those proceedings, may publish the judgment issued under subsection (1).

(5) Parents of children in family proceedings, who were party to those proceedings, may publish any other documents that are part of such proceedings on the condition that documents are redacted to remove the names of any children under 16.”’.

New clause 18—Family proceedings: evidence

‘(1) The 1989 Act is amended as follows.

(2) After section 9 insert—

“9A Proceedings on orders with respect to children

(1) No order may be made in any family proceedings that shall prevent the provision of evidence to—

(a) the police,

(b) any regulatory body that the Secretary of State shall by regulation define.

(2) In the course of such proceedings it shall be lawful for any person—

(a) to provide evidence to the bodies specified in subsection (1),

(b) to assist any person in the provision of such evidence.

(3) In relation to any family proceedings held in private it shall be lawful for any person to provide any information relating to such proceedings to—

(a) a Member of Parliament,

(b) a Member of the Welsh Assembly,

(c) a Member of the European Parliament,

(d) such other persons as the Secretary of State shall by regulation define.

(4) In relation to any family proceedings held in private it shall be lawful for any person to provide any information relating to such proceedings to any other person for the purposes of obtaining advice, performing research or ensuring the enforcement of the law or regulatory procedures.”’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It is slightly unfortunate that new clause 13 has been grouped with new clauses 17 and 18, which the hon. Member for Mid-Dorset and North Poole will be speaking to in more detail; I will just touch on them.

New clause 13 is another new clause that was tabled and debated in the House of Lords; it was originally tabled by Lord Northbourne. He sought to clarify and embed in law the responsibilities that a person assumes when they accept the responsibility of caring for a child who will live with them as a result of a residence order. It is critical for the child and for the parents of that child, who the child is not living with, that the child receives the parenting that they need. So this is purely a probing amendment to engage in a discussion of what parenthood is all about and what the responsibilities of parenthood are.

The Minister and I can have—indeed, we have had—endless debates about over-nannying states and ill-equipped parents and so forth. Actually, however, it is fundamental to the Bill to establish what qualifies somebody to take on the role of a parent if the birth parents are deemed to be no longer capable of doing that.

The reason that I raise this issue now is that, at the end of the debate in the Lords, Lord Adonis indicated that the Government were prepared to look at it further and I just wondered whether there has been any progress since then. Therefore, the Minister will have the opportunity to update the Committee if there is anything to report back on.

New clauses 17 and 18, grouped with new clause 13, are in the name of the hon. Member for Birmingham, Yardley and other hon. Members, and I have added my name to those of my hon. Friends who are supporting them. These new clauses address an issue that has been the subject of much debate in the press and on which we had hoped that there would also have been some movement in Government as a result of the consultation that took place on the transparency of the family courts. However, that consultation largely came to nothing, so they deal with the problems of transparency within the family courts.

I have strong reservations about the watertightness—that is not a good word to use—of the family court system. I have sat in on family courts and my hon. Friend the Member for Crewe and Nantwich may wish to make comments about his much greater personal experience. There is great pressure on the officers and agencies that are privy to family court proceedings, not least on social workers. There is a large turnover in social workers attached to cases. I have given the example of when I sat in court for a day and the judge told me that all the social workers he had seen were different from the ones who had started the cases he was judging. For those reasons, there is a propensity for mistakes to happen and for wrong records to be taken. That can easily happen, but often those wrong records are not corrected and erroneous information is resurrected later in proceedings. Because different social workers are often involved, that information is taken as gospel.

It is essential that we provide for far greater transparency in family court proceedings so that when mistakes are made they can be challenged. It is important that it is seen to be challenged and that the correct information is seen to be put on the record to the satisfaction of all parties involved. I recognise that that must be done sensitively. I am not coming up with a blueprint for how transparency in the family courts could be achieved. Such procedures would have to take account of the child’s right to anonymity and of whether members of the public should be allowed in to see the court proceedings. That raises all sorts of potential issues. For example, a vexatious neighbour might want to make mischief by sitting in on family court proceedings. That could cause problems.

Despite those problems, it should be possible to publish court proceedings for the appropriate people so that there is a greater chance for scrutiny. Connected persons might wish to say, “Hold on, that’s not true,” or “This was thrown out at an earlier stage,” or “It was pointed out that that was not true.” That would improve the system.

I understand why reform of the family court system was largely terminated when the Leader of the House was responsible for it. I had a private meeting with her when she was very keen to progress this issue. The confidentiality of children’s concerns was an important factor. That was an interesting angle that not many people had considered at the outset. However, the problem still remains. We see it as constituency MPs, when it is usually aggrieved fathers who come to us. Some of the more militant of them unhelpfully get involved with the organisations that we can all think of, but which we need not name. That escalates the matter, which is in nobody’s interests, least of all the children about whom we should care most.

The new clauses would lay down a framework for publishing court proceedings and for determining who had access to them. I thought that we had addressed part of this issue in the Children Act 2004. At that time, the sister of the Leader of the House was involved in a case where she unwittingly disclosed information about a family court case to her, which was deemed to be against the law. I thought that we amended the 2004 Act. I tabled an amendment whereby constituents could discuss their cases with their MP without falling foul of the confidentiality of the family courts. I understand that there are still problems.

The new clauses would start the ball rolling to improve the transparency of, and therefore the confidence in, the family court system. These are probing new clauses so the Minister can say why they may or may not be practical. Perhaps he might explain what it would take for changes to be made in the system to give greater assurances to the many aggrieved people who come to us because of the court proceedings.

Photo of Edward Timpson Edward Timpson Conservative, Crewe and Nantwich

I know from my own experience that there has been an increase in the number of written judgments issued and approved by judges in controversial family law cases, particularly those that have then crept into the criminal arena such as cases of non-accidental injury. There has also been an increase in cases being judged worthy of publication through bad practice, not only from local authorities, but from other agencies. Does my hon. Friend therefore agree that a presumption that there would be a written judgment in a family case, unless there was good reason not to do so, such as for public interest immunity or the particular sensitivity of the case, would at least be a starting point in opening up the family courts to a more transparent way forward?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

My hon. Friend makes a very good point, which is obviously born out of his experience in this area. Clearly something has to be done. Many hon. Members from their own experiences both with their constituents and in their professional and legal backgrounds have a contribution to make here. It is not a subject that will go away. An increase in the publication of written judgments will go some way to allay the suspicions that things are being swept under the carpet. Again, as with our last debate, I am being careful not to scaremonger, but this is an increasingly widely touted concern that needs to be addressed. I will not detain the Committee for any longer. Hon. Members want to make some comments and then we want to hear what the Minister proposes as a way forward.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I would like to place on record that I am not in the business of pandering to the media or any other people. Nevertheless, cases come to light. There are questions and it is difficult to answer the accusations at times in the current situation. It would be for the greatest good if we could manage to progress openness and transparency in some way. I was keen that we should have a discussion in Committee because that is the most appropriate way to tease out some ideas on the way forward. I was quite taken with the suggestion from the hon. Member for Crewe and Nantwich, which I have also heard made by judges.

I am a little bit concerned about new clause 17 because it does not seem to cover the welfare of the child. However, I appreciate the sentiments behind it and I want more openness. A lot of progress was made and the former Constitutional Affairs Committee published a report on family courts. There was a lot of evidence on how we could progress to more openness. Of course we must respect the views of young people because we are repeatedly saying that we should seek their views, but I feel that we should try to find a way around this to dispel the myths and suspicion.

New clause 18, to which I put my name to ensure that it was discussed, has some rather important elements. We have to assume that there will occasionally be a miscarriage of justice. There will occasionally be mistakes by medical experts. There will occasionally be mistakes  by social services staff. It concerns me that although wild allegations are around us all the time, if we could just put some more checks and balances into the system, we might be able to tighten it up more.

The specifics here, which seem fairly reasonable to me—I am ready to be contradicted—are that someone should be able to go to the police if they have evidence contrary to that which has been provided. An example was given of two parents, one blaming the other for maltreating the child. Although the silence aspect has been addressed, false allegations could be made, and somebody—perhaps a family member—might want to go to the police.

There is also an issue about the right of the party whose child might be taken away to see a further expert witness. I see the problem with that—they could go on and on with expert witnesses—but there are a few well-documented cases in which the judge, when publishing his views, has acknowledged that a wrong medical procedure took place that led to a whole sequence of events. It is easy to see that once one gets on the treadmill and it is suggested that an injury is non-accidental, it can colour everything that happens. I would always want to put child protection first—the welfare of the child is paramount—but there should be scope, for example, to bring in one’s own expert witness so some assessment could be made in court.

The new clause also includes Members of Parliament and their equivalents in other parliamentary bodies. Many of us thought that that was dealt with by an amendment to the Children Act 2004, but I am told that that is not the case. It puts Members of Parliament in a difficult position when people come to our surgeries and we are not sure what we can do or whether we should be hearing the evidence. Some clarity on that is needed. Surely somebody can be acknowledged who is totally trustworthy, so people can bring information to them and seek their advice.

Those are just a few comments. I genuinely want to tease out as much as we can in Committee, because I suspect that we will return to the issues on Report, and I would like to get as much on record here as possible.

Photo of Kevin Brennan Kevin Brennan Parliamentary Under-Secretary (Department for Children, Schools and Families) (Children, Young People and Families) 1:45 pm, 3rd July 2008

I understand the hon. Lady’s comments. As the hon. Member for East Worthing and Shoreham pointed out, my hon. Friend Lord Adonis undertook to consider clause 13 further, and we have done so. At the specific suggestion of Lady Butler-Sloss, the Government sought the views of the president of the family division of the High Court and, through him, other senior judges with experience of family cases and members of the Family Justice Council. The common view of those experienced practitioners was that they have had no difficulties managing cases using the current wording of section 3 of the Act, which defines parental responsibility as

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

A number of senior judges who were consulted further foresaw problems with a fuller definition such as the one proposed. For example, such a definition would  risk becoming a focus of conflict or a cause for further argument between parents, both of whom say that the statutory definition entitles them to do something unless prohibited from doing so. The view is summed up in a letter of advice sent to Lord Adonis by the president of the family division saying that the proposed amendment

“is neither necessary nor helpful.”

He believes that

“to introduce and define a new concept of the responsibilities of parenthood in the form of amended section 8(4A) will create scope for argument and confusion in an area in which none of the many judges I have canvassed at all levels has ever found the existing definition to present any practical difficulties”.

The Government have also considered referring the matter to the Law Commission, recognising that the commission itself recommended the current definition in its 1988 report “Family Law: Review of Child Law: Guardianship and Custody”. However, setting to one side the time that it might take to hear further from the commission, the view of those consulted was that, in the absence of any substantive concerns about the current position, such a referral is unnecessary.

It is worth noting that during the course of the consultations, our attention was drawn to a leading judgment by the then Mr. Justice Wall, in the case of Re F (Shared Residence Order) [2003] 2 FLR 397, which set out an extended list, the contents of which might be relevant in residence order cases. That case law approach is echoed in one of the parenting plans, “Putting Children First - a planner for separating parents”, which was published by my Department and is now distributed primarily by the Children and Family Court Advisory and Support Service, with more than 70,000 copies distributed last year.

I believe that the intention behind the new clause, as was made clear when it was first considered in the other place, is to assist the courts, parents, relatives and, above all, the children who might become the subject of residence order proceedings. It would do so by ensuring that those acquiring parental responsibility by that route are clear about what they are taking on and that they are suitable to fulfil that vital role. That is an extremely laudable aim, but given the strength of the advice we received and the expertise of those whose views have been provided to us by the president of the family division, the Government have concluded that those whom we want to assist, namely the children involved, would be better served by the continuation of the status quo in this case and that there are positive advantages to that position. I am sure that the Committee will understand that. The president has advised that

“the full range of powers and duties of the parent...change and develop as both the child and the law and practice of parenting change and develop”.

The Government accept that view and consider that there should not be a refinement or further iteration of the meaning of parental responsibility within the Act.

On new clause 17, I understand the sentiments expressed in the debate and that the new clause is intended to make the family courts more open by requiring them to provide written judgments to all parties in family cases and allowing those people receiving judgments and other documents to publish them further, potentially even in the media. The arrangements for providing judgments in family courts depend on the level of the court involved, as I am sure hon. Members know, and  courts are always required to explain their decisions to the parties, but there is no requirement in the county court or the High Court for the explanation to be given in writing; often, they are only given orally and a tape recording is made. It is only in the family proceedings court that there is a requirement to produce and issue written reasons to the parties. Like the hon. Member for East Worthing and Shoreham and other hon. Members, I have sat in on those courts and observed the proceedings.

The Ministry of Justice has consulted twice, as hon. Members will know in recent years, on increasing the openness of family courts, and central to that has been the recognition of the need for better provision of information about the work of the family courts. It needs to be accessible to those who are involved in the proceedings, but it is also important that more information is available to the general public, for the reasons hon. Members have outlined during the debate. We need to help people to understand how the courts make those difficult and important decisions so that the public can have confidence in the family justice system.

The decision on whether to publish judgments or permit information from a case to be published more widely rests with the courts. In broad terms, it makes that decision by balancing the best interests of the child with the interests of justice and the public interest in the issues raised by the case. It will include consideration of the rights of the parties and the media to freedom of expression under article 10 of the European convention on human rights and the European convention on the rights of the child, as well as consideration of the parties’ rights to privacy under article 8 of the convention on human rights. When the Court of Appeal or the High Court considers the case to have significant public interest, it is common practice for the judgment, which is anonymised to protect the interests of the parties, particularly the children involved, to be published in the law reports and on the British and Irish Legal Information Institute website.

We want to encourage more judgments to be published, but need to balance that with the demands that publication places on the efficient operation of the system. We must not risk further delays in the family courts when we have been working hard to reduce delays. Those delays directly impact on the children and parents involved in proceedings. Last summer, the Ministry of Justice announced that it would be piloting written judgments when a final order is made in certain family cases, and I can confirm that an announcement about those pilots will be made to the House after the summer.

New clause 18 would amend the Children Act 1989 so that the courts could not prevent the disclosure of evidence to the police or any regulatory body. It would make such disclosure lawful while the proceeds are ongoing and make it lawful to provide information to an MP, a Member of the Welsh Assembly or a Member of the European Parliament. It would also make disclosure lawful for obtaining advice, performing research and ensuring law enforcement or compliance with regulatory proceedings. I understand that the new clause is intended to enable people who find themselves and their children in family proceedings to make wider disclosure of information from those proceedings than is currently possible without potentially being in contempt of court.

The disclosure of information for those involved in family proceedings is an issue that interests hon. Members  across the House. I understand that the intention is to overcome some of the problems faced by people involved in family proceedings who wish to disclose information or documents that form part of the proceedings to their MP, for example, for any number of reasons. I understand the concern that prompted the new clause. The changes that have already been made are not entirely complete, because there is a problem with what can be disclosed to an MP while proceedings are ongoing.

For are a number of reasons, I cannot agree to the new clause. First, in October 2005 we changed the rules of court that govern the disclosure of family court information, making it easier for people involved in family proceedings to get advice and support and to disclose certain information in given circumstances without the prior permission of the court. Those changes sensibly allow people to share information legitimately with close family members, McKenzie friends and health professionals. We also made changes so that people can share information with the police to help with a criminal investigation—as the hon. Member for Crewe and Nantwich mentioned—or to protect children. People may also share some information with their MP to investigate a complaint or raise a question of policy or procedure. Those changes have helped people to get help and support. They have also made it easier for people to make a complaint to the General Medical Council. After seeing three years of the changes in action, we think that further changes may be needed. That is why in June last year, the Justice Secretary consulted further on the rules and whether further changes were needed.

The second reason for not accepting the new clause is that this is a difficult and sensitive area, so we must be careful in our approach. We must balance one individual’s right to privacy against another individual’s wish to share documents or details of court proceedings that might breach that privacy. As hon. Members are aware, many of the documents we are talking about contain highly sensitive and personal information, including medical records, details of people’s mental health status and so on. We need to be alert to how damaging it could be for an individual if such information was disclosed inappropriately. However, we must also keep it in mind that people involved in family proceedings will often seek advice and support, and we must ensure that they can do so in a simple and timely manner. That is why we consulted on disclosure last year.

As I have mentioned, the Government will make an announcement to the House after the summer, following the consultation, and make further detailed proposals. In developing our policies, we want to work with the Family Procedure Rule Committee on any amendment to court rules. Given that work is ongoing and that there is an impending announcement from the Ministry of Justice, it would be premature at this stage to consider accepting new clauses 17 and 18. I think that we are all travelling in the same direction and want to achieve the correct balance. In the light of what I have said, I hope that hon. Members will not press the new clauses.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The Minister has given a full answer. I am encouraged by his assurance that further consideration will come forward in the autumn. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.