Children and Adoption Bill [HL]

My Lords, in rising to make my contribution I declare an interest, of course, as chair of the Children and Family Court Advisory and Support Service, which is always known as CAFCASS; although I am happy to say that it is not quite so frequently now known as ““disastrous”” CAFCASS, ““failing”” CAFCASS or ““hopeless”” CAFCASS. We are making progress there, although I might echo some of the words made by the noble Baroness, Lady Howarth, about the size of the task. I have to say that taking on the job of chair of CAFCASS is not the easiest thing that I have ever done in my life, but I would also have to say that it is one of the most worth while. On a personal level, it takes me back to my roots as a social worker, a childcare officer, working with children at the most needy period of their lives. At a public policy level, it focuses on those vulnerable children and their families where they come into contact with the law—either public law or, as is the focus of most of this Bill, in private law. As others have said, it is very important that we see the Bill in its context as part of the wide range of measures on the Every Child Matters agenda, enabling the voice of the child to be heard, understood and acted on, and making the safety, happiness and satisfactory development of children central in public policy. The Government are to be congratulated on the way they are tackling these important issues, as are government departments on how they are working together in facing these challenges, as illustrated in the Bill where Ministers from two different departments are taking it through your Lordships’ House. I should like to acknowledge the help and support I have received as chair of CAFCASS from Ministers and officials in both the Department for Education and Skills and the Department for Constitutional Affairs, my board. Noble Lords will appreciate how fortunate I am to have as deputy chair the noble Baroness, Lady Howarth. We are grateful for the support we have received since our appointments in what can be described only as unusual circumstances. We are also grateful to the scrutiny committee for   its work, of which both the noble Baroness, Lady   Howarth, and my noble friend Lady Gould were members. That work had a beneficial effect on the draft Bill, especially as the committee worked under great pressure of time. We are delighted that   the Government have taken note of its recommendations on contentious issues such as tagging, and we hope that they will similarly take note of the strong words on resources set out in its report, a point to which I will return later. The Bill we are considering today is of immense importance in preserving family relationships in the   face of separation and divorce, and follows the consultation paper, Making Contact Work, and the Government response to it acknowledging that the way the courts currently intervene in disputed contact cases does not work well. It proposes to improve access to existing information, specialist legal advice, piloting a collaborative law approach, encouraging mediation, extending in-court conciliation services, and improving case management and follow-up. The additional enforcement powers are an integral part of the new approach, but as we consider the Bill both in general and in detail, it is vital to remember in particular two points. The first is that this represents just one part of the Government’s proposals to support parents and children in cases of parental separation. As we have heard many times, around 90 per cent of parents do not make court applications. Only a minority use the courts and our aim must always be to increase the number who do not need to use this legislation. Courts, however they   develop, will never be the best place to resolve complex family disputes, where emotions run high and attitudes become entrenched the longer things drag on. So we must focus our energies on alternative dispute resolution, on preventing disputes arising in the first   place, and on enabling parents to understand their   lifelong responsibility and commitment to their children, no matter what happens to the relationship between the two adults concerned. We must remember too that we are attempting to make major changes to a system which at present essentially focuses on resolving disputes between adults to make it one where the interests of the children are paramount. The change will not be a simple matter, especially since research shows that the problems faced by the minority of families which apply to the courts are far more complex and extensive than simple disagreements over times and amounts of contact. They are likely to have major communication difficulties, a complete absence of trust, huge amounts of anger and often some form of violence or abuse. These problems cannot be resolved by courts that   require input of a different kind, focusing on education, social policy, the relief of poverty; that is, problems of the kind on which the Government are attempting to focus their policies. As other noble Lords have said, they also need to focus on making the voice of the child as strong as possible. It may be that stronger direction could be provided for that during the passage of the Bill through this House. I am happy to say that CAFCASS has placed particular emphasis on child participation, on hearing the voice of the child, and that it has recently appointed a children’s rights director. The family resolutions pilot project, in which CAFCASS has been   closely involved, has attempted to take a new approach to addressing these problems. But as we have heard, the response thus far has been disappointing in terms of take-up. Because referral is not mandatory, families much in need of a resolution approach have had a chance to sidestep the process and thus to focus on what they think they want—that is, a fight between the parents—rather than being forced to concentrate on the needs of the children. In addition, some of the families most in need of conciliation work, where there is a history of domestic violence or repeated court appearances, have been excluded from the pilot project. But, as the scheme is a pilot, the opportunity is there for the Government to use it as one and to now consider whether mandatory referral to mediation even stronger than the compulsion elements contained in the Bill at present might produce more satisfactory results. I hope they will at least consider such an approach and that the Minister will give her view on this. As we must remember the limitations of the Bill, so we must remember the limitations of existing systems and be prepared to change radically the ways in which those systems operate. CAFCASS is ready to do so—the record of the new CAFCASS board, its hardworking chief executive, Anthony Douglas, and its staff is evidence of that—but we cannot deliver a new approach without two things: first, a change in working practices by the courts and judiciary; and, secondly, adequate resources. I very much endorse the comments made by the noble Baroness, Lady Howarth, about the CAFCASS workforce. I am often awed by the skills of many of the CAFCASS workers. I can assure the noble Baroness, Lady Morris, that their skills go far beyond the ability to write reports. I have every confidence in their ability to make accurate judgments about her, or anyone else’s, parental abilities—or, indeed, mine as a grandparent. But we have to consider these changes in working practices and, as I say, we are prepared to do that. In her evidence to the Scrutiny Committee, the then Minister clearly acknowledged this when she said:"““We will only bring this legislation in when we are clear that the resources are available and that requires both the judiciary and CAFCASS to stop doing some of the things they are currently doing””." The committee responded by asking for a detailed explanation of how both CAFCASS and the Courts Service can expect to meet their increased remits within existing costs. I must emphasise that CAFCASS is fully committed to these new proposals and believes that our skilled and experienced workforce will be able to deliver on the expanded role envisaged for us. We already have examples of how the courts, voluntary sector organisations and CAFCASS are working closely together to be more effective in how they offer a child-focused service. But, in some areas, the demands on CAFCASS officers for reports, repeat reports and endlessly rescheduled court hearings are not abating and we cannot within existing resources change our way of working while these demands continue. In addition, the increased complexity of some of the most recalcitrant cases takes up more, not less, time. In addition to the responsibilities for compliance and   suitability which the Bill imposes on CAFCASS officers, CAFCASS will also administer reformed family assistance orders with an extended maximum duration of   12 months. To take forward our extended role in facilitating and supporting contact where it is in the best interests of the child, and to provide family support workers, we shall need to diversify our workforce to provide workers who can invest time in building the confidence and trust of families. We see this as an opportunity to ensure that staff skills are further developed and targeted appropriately. It sits alongside our continued thrust towards problem solving, dispute resolution and focusing on children. We welcome this being a shared responsibility with local authorities and have already taken major steps towards working more closely with colleagues in local authorities and the voluntary sector in both public and private law. While the majority of private law cases with which we work do not meet the thresholds which would give them access to support from social services, we know that many of the families share problems of debt, poverty, mental health, drug and alcohol misuse. The proposals in the Bill would facilitate referrals to specialist agencies, providing specialist programmes which would help the changes in attitude necessary to make contact work. The capacity to follow up contact orders for a limited period will allow us to ensure that where contact does not take place this can be followed up. This may mean bringing the matter back to court but it could also mean putting more robust arrangements in place as planned. Examples that we already have in place are using family support workers or volunteers to be present at handovers or taking children to contact if this cannot be achieved by family or friends. While recognising that enforcement of contact may be necessary because it is of such critical importance in a child’s life, we are of the view that enforcement of contact and support of a family are not easy to combine and steps should be taken to see that the two roles are kept separate. I conclude by repeating that CAFCASS welcomes the   Bill and the opportunities it offers. However, such development of new services, with the training and staff support they require, do not come cost-free, even if those costs are mainly transitional and not long term. We were very glad to see the Government’s acknowledgement of this in their response to the Scrutiny Committee report; they recognised the resource implications for CAFCASS and that some costs will be incurred before savings accrue. I hope that the Minister will confirm this in her response. CAFCASS has not had an easy history, as is well known. We have addressed, and continue to address, many of its problems. We are grateful for the support we have received from successive government departments and from our colleagues and partners, many of whom, as I know only too well, have had to suspend disbelief over a long period. We are getting there, but I am well aware of how much remains to be done in changing culture as well as systems. The new legislation provides us with a great opportunity to change private law for the benefit of children and families. If we have the tools, in the form of resources and skills, we can finish the job.