Children and Adoption Bill [HL]

This is a difficult and emotive issue in which the principles are very clear. In fact, they could not be clearer in the Children Act 1989 in which the first requirement in the welfare checklist to which the court should have regard in particular is the ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding. In terms of how much formal consideration takes place, the research by Professor Smart, to which the noble Earl has just referred, found that it takes place in quite a high proportion of cases. Of the 430 cases that were studied by the researchers in which there was a Section 7 or Section 37 report on the child’s welfare on file, 47 per cent of children had been directly consulted. That means that children had been consulted in about a quarter of all the cases that were examined, which is a high proportion. The noble Earl is absolutely right that this has to be done with the utmost sensitivity and that it is one of the most challenging and difficult tasks that CAFCASS has to undertake. However, the research to which the noble Earl referred—which I will happily circulate to the Committee—is clear about the appropriateness of consultation and the capacity of children, particularly older children. The wording in the Children Act is very clear on this matter. It states:"““considered in the light of their age and understanding””." Children are more than capable, if sensitively handled, of expressing their views and they wish them to be taken account of. The judgment on this reached by Professor Smart at the end of his substantial research project was very clear:"““we found such clarity of views expressed by children that the coyness that seems to surround the subject of speaking to children on sensitive issues seemed completely absent. Given that most of the children consulted would have known all about their parents’ conflicts and almost certainly all about their parents’ shortcomings, perhaps this is unsurprising. We were left with the impression that older children seemed perfectly competent in expressing their views. While there is no doubt room for improvement in terms of allowing older children to participate in decision making in courts, our main concern arising from our reading of the court files was for younger children who often seemed caught between a rock and a hard place””." That seems a perfectly sensible and considered judgment and is the one to which the courts in interpreting their duties in the welfare checklist would have regard. I completely support the view of the noble Baroness that in most cases older children are only too well aware of the situation concerning their parents and their family circumstances. The duty to consult them is absolutely appropriate. Turning now to the amendments that we are discussing—that is, Amendments Nos. 56, 57, 67, 88, 140A and 140B—I entirely understand why the noble Baroness has tabled the first three as probing amendments. She wishes me to provide a further explanation of how children will be able to express their views, and I shall do so. Amendments Nos. 140A and 140B would unbalance the considerations that have to be taken into account by the courts in posing the primary duty that she suggests, and I shall come to them in due course. Amendments Nos. 56 and 57 would require courts, when making a contact activity direction or condition, not only to obtain and consider information about the person who would undertake the activity, and its likely effect on them, but also about the child concerned. We believe that the effect of the amendments is already achieved by the provisions of the Bill and the Children Act 1989, within which the new provisions will sit, because the Bill provides explicitly, through new Section 11A(8), that the welfare of the child concerned is to be the paramount consideration of the court when deciding whether to make a contact activity direction. Furthermore, the welfare checklist in the Children Act 1989 will apply whenever a contact activity is in prospect and includes requirements that the court should have regard to such matters as the child’s physical, emotional and educational needs and the likely effect on him or her of any change in their circumstances. Amendment No. 67 would give courts the power to ask CAFCASS officers or Welsh family proceedings officers to monitor the response and views of children to contact arrangements following the making of a contact order. We believe that this, too, is covered by the provisions of the Bill and the existing 1989 Act. During the course of contact proceedings, a child and family reporter, if asked to prepare a Section 7 report, will, where appropriate, have spoken to the child in order to ascertain his or her wishes and feelings, as required by the welfare checklist. The noble Baroness may say that the feelings of children can change over time—which is absolutely right—and that it is important to consider the way in which children respond to the contact arrangements a court has put in place. I would make two points in regard to that. The first point concerns the role of the parents. If the child is manifestly unhappy with the contact arrangements, either parent may apply to the court for a variation of the order to better fit the needs of the child. If any such application were made, the court would once again be required to take into account the child’s wishes and feelings in considering what course of action to take. My second point concerns the proposed new Section 11H of the Children Act 1989, where Amendment No. 67 would fall. It relates specifically to the monitoring of adults’ compliance with contact orders. It is intended to help to ascertain simply whether or not the order is being complied with. Monitoring is not, of itself, intended to re-visit the decision of the court or to examine issues that relate to the decision on whether to order contact. Not only would that be inappropriate, it would also confer additional duties on to CAFCASS. Having said that, it would be open to the court, were it to learn through the monitoring that contact was not working, to re-list the case for a directions hearing to consider the way forward. If it did so, and any change in contact arrangements were considered, the wishes and feelings of the child would once again have to be taken into account as per the welfare checklist at the beginning of the 1989 Act. There will of course also be cases where it is appropriate to look more closely at what is happening in a family and to provide them with advice and assistance should they require it. The Children Act 1989 already allows courts to ask CAFCASS officers, or local authority officers where appropriate, to take on this role through the making of family assistance orders. These require the officer to advise, assist and, where appropriate, befriend the person or persons named in the order. The Children Act makes explicit that the child may be named in the order as a person to benefit from such advice and assistance. As I said earlier, the Bill extends the potential use of family assistance orders by removing the requirement that they be used only in exceptional circumstances and by extending the time they may have effect from six months to a year. Amendment No. 88 would require a court to make an effort to establish the views of a child before it made an enforcement order in response to the breach of a contact order. A child may well have feelings about the making of an enforcement order against one of his primary carers. Few children will feel comfortable with the idea of their parent having to carry out work against their wishes, and where orders are enforced through the courts’ powers under the law of contempt, the parent seeking enforcement may be blamed, creating a rift between him or her and the child. It is in recognition of getting that balance right between the impact of the enforcement action on the child against the negative consequences of contact not taking place when the court has already ruled that the contact is in that child’s best interests that new Section 11L of the 1989 Act, as inserted by the Bill, provides explicitly that in making an enforcement order the court must take into account the welfare of the child concerned. Although the welfare checklist in the 1989 Act will not be directly applicable at enforcement order stage, the fact that the court has to take into account the child’s welfare means that the court will be likely to have regard to those limbs of the checklist that are applicable in the enforcement order scenario, which may well mean that it will seek evidence as to the wishes and feelings of the child. There are other ways in which the child’s interest can be directly represented—for example, through Family Proceedings Rule 9.5, which provides that if in any family proceedings it appears to the County or High Court that any child should be separately represented, the judge has the power to appoint a CAFCASS officer, the Official Solicitor, or some other person. Further, if regarded as having sufficient age and understanding, the child can be made a party under Family Proceedings Rule 4.7 and instruct his own solicitor directly. That brings me to Amendments Nos. 140A and 140B. Amendment No. 140A changes the way that the welfare checklist is used in all Section 8 cases. The amendment would require the courts to treat the child’s ascertainable wishes and feelings as the most important of all the factors in the welfare checklist. In all cases, the wishes and feelings of the child would be elevated over harm and other factors listed. That may well not have been the intention of the noble Baroness when she used the word ““primary”” in the amendment, but I am advised that that would be the effect. We agree that the child’s welfare must be paramount in all these proceedings. Welfare is a combination of many factors and does not simply take account of a child’s ascertainable wishes and feelings. In one case, a parent’s incapacity to take a child to school may be the most influential factor in the court’s decision about a child’s welfare. In another case, a change of circumstances may be likely to affect the child adversely. In many cases, the child’s wishes and feelings may have had the most impact on the court’s decision, but it could be another set of circumstances. We believe that elevating wishes and feelings in the manner that the noble Baroness suggests would unnecessarily fetter the court’s discretion. Logically, it would also have the effect of devaluing the other elements of the welfare checklist and it would be contrary to the principles of the Children Act to elevate one consideration above all others, however worthy that consideration was in its own right. Amendment No. 140B places new duties on the court, when it has made a decision that is not in line with any preference expressed by the child, to write to the child to explain its decision, review that decision within three months and make arrangements for the child to be represented at the review hearing. I take it that the purpose of these amendments is to hold courts much more accountable to children for decisions on contact and require them to justify themselves to the children if decisions on contact differ from the expressed wishes of the child. This is a sensitive and difficult area. I understand the point that the noble Baroness is trying to achieve, but it would be an unduly rigid requirement on the courts to have to write to children in all such cases without any regard, for example, to age or any other arrangements that are being made, including through CAFCASS officers, as often happens, for a relationship with them, which could be a much more appropriate way of communicating with them and ensuring that they feel fully informed about decisions that have been made and that full account has been taken of their views. We agree that children should receive the right types of communication through the court process, but we also believe that we need flexibility in the arrangements for that. Although the noble Baroness has raised an important issue regarding whether that could, in certain circumstances, take the form of communication in writing by the court in a formal way, we would not wish to stipulate a formal requirement in that regard. I hope that that deals with the various issues raised. For the most part, I believe that the objectives that the noble Baroness seeks to achieve are contained within the 1989 Act and are being achieved in a high proportion of cases. We want them to be achieved in a higher proportion of cases still, and I hope that over time that will be possible.