Children and Adoption Bill [HL]

I recognise that the noble Baroness, Lady Howarth, is in an invidious position on this Committee, in that she must both make the law and then implement it afterwards. She does a very good job of keeping the two roles separate, without holding herself unduly accountable for the fact that as new obligations are imposed on her she will have to take them forward in due course. One of the mysteries of the Grand Committee that I was hoping to unlock today is the basis on which amendments are grouped. When I looked at this particular group of amendments I could not immediately work out what the connection was between them. The noble Baroness, Lady Walmsley, moved Amendment No. 32, on the monitoring of contact orders, and then there are the four amendments from the noble Earl, Lord Listowel, on judicial continuity, research and contact plans. He helpfully elucidated what he meant by that last proposal. There is also his amendment, Amendment No. 118, on quick resolution. I now understand that the grouping is a purely voluntary process on the part of noble Lords and that there is a link between the amendments, in that the noble Baroness’s probing amendment aims to elucidate how much research is being done on contact orders. Her concern that the monitoring of contact orders should be more rigid than it is at the moment was expressed partly with a view to seeing how better research could be promoted. With that in mind, I shall reply first to Amendment No. 32 and Amendment No. 114—the noble Earl’s amendments dealing with research; then I shall take separately his Amendment No. 119 on judicial continuity, Amendment No. 117 on contact plans and Amendment No. 118 on quick resolution of cases. With Amendment No. 32, the noble Baroness, Lady Walmsley, seeks to provide that when contact has been awarded a report must be made every year for three years; that report would look at the effect of the contact order on the child, having also sought the child’s views. The noble Baroness did not speak to that part of the amendment, but perhaps I should respond to it because I take it to be a crucial part. We fully agree with the principle that the child’s wishes and feelings should be taken account of throughout contact; indeed, the powers are already in place to ensure that that takes place. On the issue of regularity of monitoring of contact, Clause 2 inserts Section 11H into the 1989 Act. The new section sets out a whole series of measures for monitoring contact. Specifically, it provides that the court may ask an officer of the service or a Welsh family proceedings officer to monitor contact arrangements. The CAFCASS officer will therefore be monitoring compliance of individuals referred to in the order. The court may also request the CAFCASS officer to report on any matter relating to compliance and, in so doing, the CAFCASS officer might well wish to comment on the impact of the order, especially when there was a potential impact on one of the parents’ compliance with the order. In new Section 11H(5), the Bill provides that"““the period specified may not exceed twelve months””." The noble Baroness wants to raise that to three years. On that point, the advice that we have from our expert advisers who have been engaged in monitoring is that it should last principally for one year, because of the experience that after 12 months it is almost always abundantly clear whether contact arrangements have worked or not. However, it would be open to the court at the end of that period to specify a further period of monitoring. So the objective that the noble Baroness seeks is within the power of the courts, if they believe that it would be in the best interests to have a continuing monitoring to ensure oversight of compliance. As she will recognise, however, while annual monitoring is certainly one way in which to measure compliance, returning to courts to vary or enforce contact is often more powerful and effective—and that could take place at any point during that first year or thereafter. On the wishes and feelings of the child—which is an issue to which we shall return later in other contexts—the noble Baroness imposes a requirement that they should be specifically taken account of in the monitoring. The monitoring is clearly intended to focus on the compliance of the adults with the terms of the contact order. When a different kind of intervention is required that is intended to take direct account of children’s wishes and feelings, the court has the option of making a family assistance order. Under the terms of such an order, a CAFCASS officer may be asked to advise, assist or befriend any person named in the order. Clause 6 extends the maximum duration of family assistance orders from six months to 12, and allows them to be prescribed in all cases, not just in exceptional circumstances as is the case at the moment. The Bill also clarifies that a family assistance order may be used to require the CAFCASS officer to give advice and assistance about establishing, improving and maintaining contact. If the child is named on the order, then the officer can specifically befriend him or her. We believe that these arrangements, taken as a whole, meet the objectives that the noble Baroness seeks to achieve. On the issue of research raised by the noble Earl, Lord Listowel, in Amendment No. 114, it is not necessary for legislation to provide for specific research to be carried out, as the Government already have inherent powers to commission research to assist with the development of policy. The noble Earl’s concern was whether such research has taken place and whether more would take place in future. The Government have already commissioned research into ““Residence and Contact Disputes in Court”” by a research team led by Professor Carol Smart of the University of Leeds. Two volumes of that research have been published. I am not sure whether the noble Earl has seen those volumes, but I should be very happy to make them available to him. The research has looked at the voice of the child in family proceedings, why parents go to court, what their expectations were, whether these were met, whether they were satisfied with the outcomes and if not why not, how the arrangements for children were working and what the effect of going to court was on them and their children. The current research covers many of the areas suggested in the amendment. We have adequate powers to commission further research, but I take on board entirely the points made by the noble Earl and the noble Baroness on the continuing importance of research, and we shall exercise our powers with that in view. I turn to the other three amendments proposed by the noble Earl. The Committee will be very sympathetic to the sentiments behind Amendment No. 119, on judicial continuity, as we are conscious of the benefits of having the same judge involved in a case at all stages, as far as possible. Insofar as the noble Earl is seeking to send a very clear signal in that direction, we entirely endorse it. Our concern about the amendment is that it would be too prescriptive and would potentially increase delay for children and families. Court rules are not appropriate for prescribing decisions about judicial allocation, and it is sometimes better for a case to be heard quickly, if that involves another judge, rather than delaying a case in order for it to be heard by the same judge. However, on 22 March 2002 the president of the Family Division issued a practice direction, which stated that judicial continuity in respect of private law Children Act disputes in the Family Division of the High Court was highly desirable, although he did not stipulate that it was necessary to have an allocated judge. The Family Division’s Private Law Programme, published in January 2005, will improve the way in which courts deal with contact cases. A key element of the programme is ensuring judicial continuity and continuity of CAFCASS practitioners wherever possible. Having the same judge and CAFCASS officers involved in a case throughout the process will ensure that they are familiar with the issues and characters involved and that they will be able to deal with the cases sensitively. I turn to Amendment No. 117, which concerns the contact plans. I believe that the objectives which the noble Earl seeks to achieve are fully met by current statute. In divorce proceedings, both parents complete or agree a ““statement of arrangement”” form, which sets out the proposed arrangements for residence and contact. Under Section 41 of the Matrimonial Causes Act 1973, the court must consider these arrangements and delay the final decree of divorce until the court is satisfied about them. When considering any further application for contact orders, as under this Bill, the court will inevitably wish to consider any previous arrangements made in respect of the child as the application is likely to arise from the fact that those arrangements have broken down. Finally, I turn to Amendment No. 118, which aims to ensure a quick resolution of disputes. Again, the Committee will be deeply sympathetic to what the noble Earl is seeking to achieve. We believe that contact cases should be resolved finally as soon as possible, and of course we share the noble Earl’s view that delay is detrimental to the needs of the child. However, a child’s needs inevitably change as he or she grows older. Section 1(2) of the Children Act provides that in all proceedings under the Act, the court is to have regard to the general principle that delay is likely to be prejudicial to the welfare of the child. But sometimes applications to vary contact orders are necessary. A child’s needs will inevitably change as time passes. Also, variation of the arrangements for contact may be necessary in order to keep the contact working for precisely the reasons given by the noble Baroness, Lady Walmsley, in relation to the geographical location of parents and the differing arrangements that that necessitates. We believe that it is important to have sufficient flexibility in the system to take account of those issues. But we share the noble Earl’s concern that there should be a quick resolution and not an unending process of judicial activity.