Children and Adoption Bill [HL]

My Lords, I am very grateful to all noble Lords who spoke in this debate. The noble Earl, Lord Howe, is right: I am not used to him being critical. It will be an interesting experience to take the Bill through your Lordships’ House with the noble Earl. He will not be surprised that I am not going to start taking any lessons about meanness from noble Lords on the other side of your Lordships’ House. I do not accept what the noble Earl said in that context. I also do not agree that the way in which the Bill has been received was particularly muted. I agree with the noble Baroness, Lady Howarth, when she described it as a Bill with a big spirit, in contrast to the Bill with the big heart—the Children’s Bill, which I was proud to take through your Lordships’ House. Most noble Lords welcomed the Bill while raising their understandable and absolutely appropriate concerns about it, some of which I shall seek to address in my remarks today; others we shall deal with in greater detail as we take the Bill through the House. I am very pleased to be working with my noble friend Lord Adonis. As he indicated, this is a joint enterprise. It is a Department for Education and Skills Bill, but many aspects of it directly reflect on the work of the Department for Constitutional Affairs, and we shall take the Bill through together. I agree with what the noble Baroness, Lady Morris, said in her opening remarks about the best interests of the child. Although I do not agree with the remarks of the noble Earl, Lord Howe, I think we all accept that we are striving within the Bill, as so often in your Lordships’ House on issues concerning children, to find a way through difficult, complex and often deeply emotional problems in the best way we possibly can for the benefit of our children. Whatever remarks are made, I will see them in that context—that we are all seeking to try and achieve that. I trust that our deliberations in Committee and in the further stages of the Bill will demonstrate that. The noble Earl, Lord Howe, painted a picture of grief, and a picture that I, like many other noble Lords, recognise from some of the contacts that I have had with, particularly, fathers who are not always fathers, as they try to deal with the issues that have resulted from the breakdown of their relationships. I accept that there are really complex problems. I was surprised that the noble Earl offered me no solutions to that. I will go through some of the issues raised by the noble Earl as I deal with some of the questions raised by other noble Lords. The right reverend Prelate in his very important remarks talked about children becoming—perhaps I may paraphrase—the ““battleground””. We know that that can so often happen, and that is why so much of what we seek to do in the Bill is so important. I agree with all noble Lords who have indicated the importance of not getting to the point of litigation, when people are in total crisis and before the court. The noble Baroness, Lady Howarth, indicated the work that we are doing for children and their families through Every Child Matters. The whole issue of negotiation, conciliation in court work, mediation and so on are critical stages in the process. None the less, we know that for some people there is no recourse other than ending in the court seeking to sort out these issues. As I have indicated, I agree with the noble Baroness, Lady Howarth, that, whatever we do, children come first. That is where the Government stand, and we will not move. We have to make sure that we do everything to ensure that that paramount principle is continued. For so many of our children, the obvious answer to that is for good, continuing contact with both parents. That contact will of course change over time because children grow, have different demands on their lives and want different things from parents, whether or not their parents live with them. So it is contact that develops and grows with the needs of the child. That is also very important. The noble Earl, Lord Listowel, asked me about research, as did the right reverend Prelate, I think. There is some really interesting research that I was privileged to see when I was a Minister at the Department for Education and Skills, which I think the noble Earl will enjoy very much. It is about what children say about contact and not wanting us to be rigid in what we say and assuming that one basis is better than another. That is why I disagree with the noble Earl, Lord Howe. It is very difficult to create templates for individual situations. It is very important to start from the principle of what is in the best interests of the child. In many cases that may well be as close to 50:50 as you can get. It may be 60:40 or 70:30; it may relate to where the father lives—the mother lives with the child—what the child is doing, his age, which school he is at, what he likes to do in his activities after school, his friendship groups and so on. There are lots of different factors on which the voice of the child is a critical part. I should be very happy to make sure that that research is passed on to the noble Earl. The noble Baroness, Lady Morris, began a conversation really, which we have continued in our deliberations, about the presumptions of contact. I have already said that in most cases contact with both parents would be best for children, but I do not agree to the presumption of contact being the right solution. The difficulty is that, as I said, children are most often best served by contact with both parents. We have already spoken about the terrible sorrow that can occur when that does not work out and why we are trying to find ways to ensure that it does. A presumption of contact might lead the court to make more contact orders but does not address the issue of ensuring that those orders are followed. More than anything, what we are trying to do in the Bill is respond to the judiciary—because this is from whence it came—to try to identify ways in which we can do two things. One is to give the courts more power, more ways to ensure contact within the context of ensuring that that   is appropriate and measured, bearing in mind children’s needs. The second is a bit more subtle: making it absolutely clear that where contact is safe and has been agreed by the courts, it must happen, because the Government believe that if it is in the best interests of the children, they must come first, whatever the situation between the adults. That is the thrust behind and essence of the Bill. The Children Act already provides that the courts must order contact in the child’s best interest. As I said, that may be limited; in other cases it can be much greater; it can be 50:50. It is not right, as some noble Lords said, to prescribe what is reasonable. It is difficult to find a way to do that. We must go back to the paramount principle: what is in the best interest of this little person who stands before us? What is the best way in which we can support that child to deal with all the things that the noble Earl and the noble Lord, Lord   Northbourne, mentioned, to ensure that those children grown up happy, safe, secure and able to develop and enjoy life to the full? Noble Lords also asked who is covered by the Bill. I absolutely agree with the noble Baroness, Lady Morris, that grandparents are a wonderful resource. My noble friend Lady Crawley, as a relatively new grandparent, understands that only too well—especially the monetary aspect. But they also bring wisdom, which is very important. Often, when one talks to those involved in difficult and intractable cases, one finds that the grandparents can play a critical facilitating role. Grandparents can apply for contact. Usually they simply need the leave of the court; of course, they do not need to go to court if the parents agree to contact. They are important and are within the scope of the Bill.   So, too, are step-parents. Under the Bill, the key question is whether the person is a party to the proceedings—whether they are a step-parent or a grandparent is irrelevant as long as they are a party to the proceedings. Under the Children Act 1989, civil partners have parallel rights to apply for orders to those granted to married people. They can apply for contact or residence orders in respect of a child that they have treated as a child of the family—for example, their civil partners’ biological child. They can be required to make financial provision and have parallel rights concerning adoption as are granted to married people. Several noble Lords, not least my noble friends Lady Thornton and Lady Gould, to whom I pay great tribute for the work that they do with children’s organisations, have talked at length—and I am delighted that they did—about domestic violence. I serve as a Minister on the group that considers such issues, chaired by my noble friend Lady Scotland. I am absolutely clear that it would not be right for a court to make an enforcement order where a contact order was breached because of a genuine fear that the child or resident parent might suffer harm were it to be followed. That is one reason why the Bill is absolutely clear that an enforcement order cannot be made if the court is satisfied that there is a reasonable excuse, which of course would include a genuine fear of domestic violence. Noble Lords will not be surprised if I draw attention to the press release today and information in the press from the Crown Prosecution Service saying that we have increased convictions and the number of cases that collapse concerning domestic violence is reducing. I would be happy to help any noble Lord who wishes to visit the specialist court in Croydon. As I said, we are clear about it needing to be in the best interest of the child. My noble friend Lady Thornton talked about the new gateway forms that have been introduced, which I have here and am happy to copy to noble Lords. They were introduced at the end of January 2005 and enable allegations of domestic violence to be brought to the court’s attention right at the start—that is the ambition—of its proceedings, enabling the court to make those decisions about contact after considering the facts. Generally cases take six to eight weeks before a first directions hearing, and many take about six to nine months to resolve. It is only five months since we started to get those into place, so it is difficult to say how effective they are now. We are trying to get what information we can on the number of forms used. I know that there are concerns to ensure that they are used effectively. It will fall to me to ensure that that happens properly, and I will happily pick that up with my noble friend Lady Thornton, too. We expect reports later this year. There is no question that we want the forms to work effectively. The noble Baroness, Lady Howarth, raised the issue of damaging case law. As I knew that she would do so, I have been trying to check what it is but I cannot find it. I would therefore be very grateful for the opportunity to talk to the noble Baroness. The Court of Appeal said, in 2000, that family judges and justices need to have a heightened awareness of the long and short-term effects of domestic violence on children as   witnesses as well as victims—that is an important statement—with proper arrangements put in place to safeguard both the child and the resident parent from the risk of further physical or emotional harm. My noble friend Lady Gould argued that the welfare checklist should include mechanisms for listening to the   child, and the noble Baroness, Lady Howarth, also   raised the matter—we have debated the issue previously. I wish to reassure noble Lords that the welfare checklist already provides that, in considering whether to make contact orders and other Section 8 orders, a court must have regard to the ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding. That is a very clear message that the voice of the child must be heard. I am very pleased that it is there and I hope that it addresses the issue. My noble friend Lady Thornton was concerned that   we should take note of the question of harm in proposed new Section 11E. I have checked the precise position. Our Bill is designed to address the Children Act 1989, of which Section 1(3)(e) refers to,"““any harm which he has suffered or is at risk of suffering””." I therefore believe that we have done what my noble friend wishes us to do, but I will gladly talk to her to ensure that she is happy that it has been achieved. My noble friend Lady Gould and the noble Earl, Lord Listowel, talked about contact centres. We have £7.5 million of additional government funding for those in 2006–07 and 2007–08—£3 million one year and £4.5 million the next. Those additional moneys are very welcome. I recognise that there is more to do. I had policy responsibility for contact centres. About 300 are members of the National Association of Child Contact Centres—the vast majority. To be a member of the national association, a centre must reach a high standard, which is very important. However, I take the point that there is more to do about coverage. That is well understood by the Department for Education and Skills. My noble friend Lady Pitkeathley and the noble Baroness, Lady Howarth, talked about their roles in CAFCASS. I do not care what they say; we could not have done better than persuade them to become chair   and vice-chair of that organisation. The change that they and the chief executive have achieved is tremendous. I pay huge tribute to them for their work, as I am sure all noble Lords would. Anyone who spends time with CAFCASS officials will, like me, stand in awe of their work and their skills. It was made clear to the Select Committee that the Bill would be implemented only as resources allowed, and we stand by that position. There is no doubt that the role envisaged for CAFCASS in monitoring contact through work with family assistance orders involves the commitment of resources. We hope that making report-writing a smaller part of CAFCASS’s work will enable us to redirect those resources too. I understand that the budget is £107 million this year. The noble Baroness, Lady Pitkeathley, will say that we must do more, but we understand the issues. I know that the noble Baroness, Lady Howarth, feels strongly about the workforce strategy. It is very important in setting out proposals to retain people, to have better leadership and to establish better career pathways, enabling people to move across the children’s workforce. CAFCASS, although not singled out, is a particularly important, large and significant employer, and is a critical part of that strategy. I hope that the noble Baroness will see more of that develop over time. My noble friend Lady Gould talked about unpaid work—community service. Yesterday, I spoke to my noble friend Lady Scotland, who is responsible for community service, and senior officials. The results are looking extremely promising. We talked about how to ensure that this part of the Bill works well and the kind of activities in which people could be involved. Noble Lords made the point about ensuring that, if someone is asked to carry out an activity, it is safe to do so. It is not necessarily about people who are bitter, angry or unable to work with their own family being sent off to work with someone else. None the less, there are lots of good examples. To give a real example: someone who needs to be at home could address letters for charity or stuff envelopes. There are lots of things that need to be done. People who are able to work with children could read to children in schools. We perhaps more obviously think of traditional activities, such as gardening, painting and so forth. Activities exist and will be assessed appropriately. We have made sure that that happens in a sensible way and accept the issues of safety that go alongside. The family resolution pilot project has come in for a great deal of criticism, which, in many ways, is a shame. We looked at the Florida project, the California project, and across the world. The Florida project is very different. It fits the American situation within the Florida legal system. Within it, there is compulsion. If there is to be compulsion, there have to be penalties, otherwise there is no compulsion. Those people who keep talking to me about compulsion do not seem to come up with penalties to go alongside. If someone is told that they have to do something and he or she does not do it, then what? If there is no ““then what””, there is no compulsion. The project also has a percentage breakdown for contact whereby a four year-old child would probably have a set amount. We resist that for the reasons that I have already given. We do not think that that works effectively, which is why that model, when we looked at it for here, was altered. It is called the family resolution pilot because we thought that the name ““early intervention”” did not fit. Family resolution was chosen because intervention might take place early in the court process, but it certainly does not take place early in terms of the conflict within the family. We felt that this was a better title, which is why it has that name. We have chosen to develop the scheme that will be most appropriate for our system. But the first thing to say about a pilot is that it is a pilot. We do not know whether it will work. Yes, we would like to see more families taking it. For the reasons that I have given, we have not made it compulsory. There are genuine issues for organisations, particularly Relate, involved in the pilot. They want to be very clear about the people coming through whose allegations of abuse or violence are not appropriate for them to deal with. There are many ways in which the evaluation of the pilot will enable us to see what has worked and what might be better done. Certainly, the experience not only of Judge Crichton, as my noble friend Lord Adonis said after visiting him this morning—I visited him last week—but also the experience of the pilots in Sunderland and Brighton is that there is some very interesting work and experiences coming out of them and that there is a lot to do in looking at the evaluation. So let us be a little more hesitant about condemning a pilot for not doing everything that we had hoped that it would do. If it could do everything that we had hoped, it would not be a pilot: we would roll it out tomorrow. Let us look at it calmly, in a measured way, assess what has worked well and decide what best fits the situation for parents. I know that noble Lords feel that more needs to be done on compulsion. I, too, have talked about the difficulty of how something is made compulsory. It certainly cannot be done without legislation because sanctions would also have to be in place. But pilots are   about facilitating group work. It is where parents come to hear and discuss with others the impact of separation on children, as well as learning some of the skills that they need for conflict management. They are about enabling parents to reach durable settlements, not about us imposing arrangements from outside. They are about parents getting there and working in the best interests of their children. That is what we seek to do and to evaluate. Of course, parents will have had other options along the way. The right reverend Prelate rightly raised negotiation, mediation and so forth. Similarly, with compulsory mediation, most mediators we have talked to would say that it is a contradiction in terms to have compulsory mediation. We are trying to get people to come together voluntarily to agree a solution. Therefore we do not believe that that is the right way forward. But, within the opportunities available in the Bill, we have provided for referrals to an information session to tell people about mediation and explain what they can get out of it. That is a form of contact activity which I was sorry to note was derided by the noble Earl, but an important part of the process is to ensure that people get the best out of the experience, and thus it is permissible under the Bill. I have talked a lot about the paramountcy principle, and while I shall not go further on it I repeat that we are wholly committed to ensuring that the principle applies for children. But my noble friend Lady Gould, in saying that she is no lawyer, asked me about it. I too am no lawyer, but I shall attempt to explain it to my noble friend. Enforcement orders address the behaviour of the adult rather than the child. So in looking at what will benefit the child when making a contact order, the critical issue is what would be in the best interests of the small person. But an enforcement order is not made for that reason, it is made in terms of what will make sense for the adults concerned. So while the interests of the child are very important, what matters in terms of ensuring that enforcement happens is what is achieved with the parents. The child’s interests are not the overriding issue in this case. My noble friend has given me a completely blank look so we shall have to have a conversation about the issue. I shall ask the lawyers to explain it more clearly to my noble friend. I do not suggest that children are being put further down the list, it is simply that this is a different issue. The noble Lord, Lord Northbourne, proposed five very ambitious points. My difficulty is that I cannot see how to make them work either in government or in law. But, as always, the noble Lord has stressed some critical points about what should happen long before people reach this stage. I am not sure how we could celebrate families and the achievement of bringing up children more than we do, although I agree with him that it is very important. However, I cannot work out how we could develop a national system for it. No doubt the noble Lord will tell me more. I agree with the noble Lord about the work being done in schools. That is why the PSHE curriculum is so important. At key stages 1 and 2 good relationships are covered. Key stages 3 and 4 cover sex and relationship education. These are compulsory requirements and quite right too. It is also important that we support teachers in their professional development in this area. The National Healthy Schools programme, which we hope all schools will have achieved by 2009, is equally important to that aim. I want to say a brief word about adoption. I agree with the noble Baroness, Lady Barker, that there is no crisis in adoption. The majority of children put forward for adoption in this country are aged over four-and-a-half. As the noble Baroness said, many have special needs or are emotionally vulnerable. Although the vast majority of adoptions are conducted here, some take place overseas. The noble Baroness, Lady Morris, asked me about international child abduction. The UK is a signatory to the Hague Convention and is a leader in the field. We participate in special commissions at The Hague and help share good practice guidance with other countries. Earlier this year we introduced the Brussels II regulations which will further improve the operation of the Hague Convention in the European Union and we provide £100,000 a year to the main abduction charity, reunite, which provides advice and help for parents. I am the Minister responsible in the DCA on these issues. The right reverend Prelate said that the Bill would allow local authorities to charge for welfare supervision. That is not true. The Bill looks only at the power of the Secretary of State, not that of local authorities. A public consultation on local authorities is just finishing and no decisions have yet been made. The noble Earl, Lord Howe, was particularly scathing about charging for the administration of the inter-country adoption process. The cost to parents applying for inter-country adoption is around £10,000 overall. We deal with around 300 applications a year and we provide a direct service from the department. When looking across government at how best to utilise resources, we think that, bearing in mind that there is already a cost to parents, it is right and proper to charge something in the order of £800 to £1,000. However, I have made it quite clear that we will waive those charges in cases where it is obvious that the parents cannot afford to pay. So there is no question of jeopardising the welfare of children in this. I am sure that the noble Earl will not be surprised to hear me say that. We know that there has been an increase in processing times for inter-country adoption cases, a point made by the noble Baroness, Lady Barker. We are introducing measures to try to reduce the wait and to improve communications. We will not introduce the charges until we are confident that the process of re-engineering the casework function has been completed. We are also keen to publicise all these issues. Clause 8 requires the Secretary of State to publish a declaration and reason. Not that many people are involved here; we estimate that around 300   people make applications, involving 150 local authorities and six voluntary adoption agencies. We will set out the procedures for exceptional cases in regulations as provided for in Clause 10(3). In this way we will make sure that they are publicised to all those who are likely to be involved and we will discuss the matter further with the noble Baroness. Private fostering I remember well. With effect from Friday, 1 July the enhanced notification scheme will commence, as provided for in the Children’s Act 1989 and through the Children’s Act 2004. As the noble Baroness knows, if it does not work we will bring forward legislation. This has been a very important debate on a very valuable Bill. It is a Bill which, I hope, will draw support from all sides of the House. We are judged as a society by how we treat our children, and the Bill is unequivocal in putting the interests of children first and in trying to address some of the most difficult challenges we face. The situation in which children find themselves is often deeply sad and often extremely damaging. It is the job of the state, the job of the Government, to hold the hand of the child. I commend the Bill to the House. On Question, Bill read a second time, and committed to a Grand Committee.