Children and Adoption Bill [HL]

We heard a lot about horses and water in the opening remarks made by the noble Baroness. I assure her that this is one of those areas where there is a great deal more agreement than might have been thought from some of the earlier contributions. We are in favour of a very much larger number of horses going to a very much larger expanse of water when it comes to mediation. We strongly support mediation. Publicly funded family mediation has been a growing success story in the family courts in recent years. I shall give the Committee the numbers for the period since 1997 when publicly funded legal assistance has been in force for family mediation services. There are now 225 mediation services that have concluded contracts with the Legal Services Commission. The number of cases for which family mediation has been used increased from 9,308 in 2000 to 14,290 last year, at a cost rising from £11.1 million to £14.4 million. The backdrop against which we are considering this is not, as the noble Baroness said in her opening remarks, that the important tool of mediation has been neglected. On the contrary, it has been deployed with an increasing degree of skill and professionalism. We pay tribute to all the organisations engaged in it. We share entirely her objective that it should be more extensively used, for all the reasons just set out by the noble Earl. We also believe it to be absolutely appropriate that people should be given the best possible information, including a requirement to receive information on mediation. We are bringing the horse absolutely to the edge and doing our best to get the nose into the water. Clause 1(5)(b) explicitly states that contact orders will include:"““sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation””." We have gone a substantial part of the way that the noble Baroness seeks us to go down. The issue is whether at that point—having provided better funded mediation services, a better structure for them, strong encouragement to undertake them and a requirement in appropriate cases to undergo information sessions relating to mediation—we actually force mediation to take place. That is the issue between us, and it is much narrower than might have appeared earlier. On that point, the noble Baroness referred to the pre-legislative scrutiny committee. It stated explicitly that while it should be possible for the courts to direct people to a meeting with a mediation service to explore whether mediation is a viable option in their case, this should not be confused with compulsory mediation. We are in the position that the Joint Scrutiny Committee reached at the end. I was disappointed with the noble Baroness, if she does not mind me saying so, because I thought that she was going to take us on a tour round the various American states. I have pages of notes on Finland and California. Maybe when we get to Report we can have that debate. The noble Lord, Lord Northbourne, did not disappoint us. I am sure those matters will be considered between now and Report. If we return to the issue of mandatory mediation, this is not an open-and-shut case. There are mediation experts who believe that we should go further, and there are other jurisdictions that do so. Our belief is that a good deal of what is described as mediation in other jurisdictions is in fact court conciliation, which takes place here anyway. Our second concern, referred to by the noble Baroness, is about forcing people to undertake things that they are resolutely against. You would have to be pretty resolutely against it, having gone through all the stages we have set out in the Bill, to get to that point and say that you do not wish to undergo mediation. The other point that concerns us will lead on to other debates at a later stage in Committee. It is the issue of safety. In certain cases—there are all too many of them—where domestic violence is either a reality or a fear or there is a very unequal power relationship between partners, to compel mediation would raise safety issues for the two adults concerned. That judgment has weighed significantly with us. It could lead to an unequal power relationship in those discussions. The Californian research is probably the most positive about the beneficial results of mediation. It stated that 12 per cent of adults who underwent mediation felt pressurised to go along with things that they did not want. The greatest concern was about cases involving domestic violence. Those are the reasons why we have not gone the final step of the way that the noble Baroness wished. Of course we are at one with the noble Baroness, Lady Walmsley, in our judgment of the position to adopt in respect of mediation. The noble Baroness would have liked us to make it free of charge. In an ideal world we would have liked to have made it free too. Unfortunately, the great problem with being a government is that we have to make decisions on whether to charge for services. Our judgment was that, given the pressures on the public purse, we should do so. However, Clause 11F has an order-making power for us to waive or reduce the charges, which is my response to her point about how we are going to compel people to pay for them. In cases where individuals could not afford to make a contribution towards the costs, they would be brought into the categories covered by those regulations. We are mindful of the fact that people should not be denied access to essential services by virtue of their resources. Clause 11F meets that concern.