Children and Families Bill

Public Bill Committee, 14 March 2013.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

I have a short administrative announcement to make. From next week, we will be meeting in Committee Room 12.

Clause 6 - The Adoption and Children Act Register

Lisa Nandy (Labour, Wigan)

I beg to move amendment 9, in clause 6, page 4, leave out lines 27 to 35.

The Opposition support the Government’s efforts to reduce delay, but we do not believe that speed should ever come at the expense of getting things right for children. We are therefore concerned about the impact of clause 6 and have tabled amendment 9 to ensure that a child is placed on the adoption register only when it has been decided that adoption is the right course of action for them, so before a court decision but after the local authority has settled on adoption as the plan. The Government’s original proposal in “An Action Plan for Adoption: Tackling Delay” was to place a duty on local authorities to refer a child to the adoption register no later than three months after the decision to place the child for adoption, unless a match is being actively considered, and that was important to ensure that local authorities did not try to guard their own adoptive parents; but the clause goes much further.

In response to questions from the Lords Select Committee on Adoption Legislation, the Government indicated that the proposal could apply to children from their first week in care or to unborn children. TACT is concerned that placing a child on the adoption register before the decision that adoption is in their best interests

“places the desire for speed above the child’s welfare”.

We have tabled the amendment in that light. Seen in the context of clause 1, the provision potentially undermines children’s ability to be reunited with their birth parents, because if a child is placed out of area through the adoption register, which clause 1 enables, it may prove incredibly problematic for the parents to maintain a relationship with them. As we said when debating that clause, we are concerned that that may mean that, by the time a case comes to court, a child who is happy and settled and who has not had an ongoing relationship with their birth parents may not be returned to the birth parents, even when that would have been in their best interests previously. We agree with the Children’s Commissioner for England that, as drafted, the proposal is not based on the due legal process required by article 21 of the convention on the rights of the child.

We also share the Children’s Commissioner’s strong concerns about how the measure will work in practice and in particular the respect that will be afforded to children’s privacy. Will the Minister tell us more about how much information about children will be made available and what checks will be carried out on those accessing the register? Both the Children’s Commissioner and I are concerned about the potential for harm, especially given the point that she and other organisations have made that child abusers often target children through established channels.

The clause received no pre-legislative scrutiny, and as far as I am aware the regulations that accompany it are not yet available. That is quite significant. Given the clause’s potential importance, the regulations should be made available to the Committee as soon as possible, so that we can consider the full impact. Like the Lords Select Committee on Adoption Legislation, we simply do not know what the impact will be, but given the serious risks outlined by many organisations, the Government ought to rethink their position in line with amendment 9, and redraft or amend the clause to ensure that speed does not come at the expense of children’s welfare.

Edward Timpson (Conservative, Crewe and Nantwich)

It is a delight to see you back in the Chair, Mr Havard, for what I hope will be an extremely productive day for the Committee.

The aim of the Adoption and Children Act register has always been to minimise delays in finding suitable adoptive families for children, but the process of identifying potential matches through the register can be slow and enormously frustrating for children waiting to be adopted and for prospective adopters. For too long, adopters have been excluded from the process of matching, meaning that many potential matches may be missed. At this point it may help to quote Sir Martin Narey, who said:

“If we are to find the adopters we need to give homes to the 7,000 children with placement orders who are waiting for adoption, we need to be much more open-minded about those we approve and then give the adopters themselves a much greater role in finding the right child for them… Matching works best not when it is something done to the adopters…but”

when it

“involves them and trusts some of the chemistry in relationships.”

By opening up the register so that approved prospective adopters can access it, we can significantly speed up the matching process, particularly for those children who may be harder to place. At the moment, despite the chronic shortage of adopters, many prospective adopters wait months and sometimes years after being approved to be matched with a child. In my travels in my region of the north-west, I came across a couple who were waiting three years.

Allowing approved prospective adopters to access the register themselves would allow them to identify children with whom a social worker might never have matched them. That might be the case if, for example, children have complex needs or are part of a sibling group—children whom we have to make a strong effort to match and place. The evidence supports that view: it shows us that allowing adopters to play a more active role in identifying children means that approved adopters will often consider adopting children whom they would otherwise not consider, or be considered for, via traditional matching techniques. Professor Julie Selwyn from Bristol university, who has already been mentioned in relation to the adoption clauses and is one of the leading researchers in this area, agrees. She emphasises:

“There is a click…between the adoptive family and the child—something fits between them, and that something is not easily determined by social workers using a matching form with various categories and tick boxes.”––[Official Report, Children and Families Public Bill Committee, 5 March 2013; c. 21, Q51.]

The importance of a more active role for approved adopters is already demonstrated in practice by the exchange days run by the register and local authorities, when social workers can meet approved adopters to share more details about the children who are waiting for homes. The register held 10 national exchange days between January 2011 and November 2012, and at those events, local authorities matched 154 children— 118 groups of children. A total of 486 prospective adopters attended the events, so about one in four were matched with a child as a direct result of attending. That innovation was welcomed by the Lords Select Committee in its pre-legislative scrutiny report and by the British Association for Adoption and Fostering, which holds many of those activity days, as well as Barnardo’s.

Of course, the safety of children and the privacy of their information are paramount, and I am glad that the hon. Member for Wigan raised that point. That is why we will put in place all the necessary safeguards to ensure that sensitive personal information about children and adopters is not compromised and is fully protected. The regulations that we make will set out the detail of how approved adopters can access the register and what information they will have access to, but I can assure colleagues now that the information available to approved adopters will not enable them to identify individual children. In addition, the changes will be piloted ahead of full roll-out, to ensure that we can understand in detail how to make the process work more effectively and that all the necessary safeguards are working in practice.

Lisa Nandy (Labour, Wigan)

Can the Minister tell the Committee when the regulations will be available in draft form, so that they can form part of our deliberations?

Edward Timpson (Conservative, Crewe and Nantwich)

I am confident that the draft regulations will be available by the time the Bill reaches the other place. I am sure that their lordships will have plenty of time to consider them in detail before the Bill finds its way back to the House of Commons.

Clause 6 amends the Adoption and Children Act 2002 to allow for the inclusion in the register of prescribed information about children who are being considered for adoption by an English local authority. The intention is to enable details of children for whom the local authority is considering a fostering for adoption placement to be included on the register. Amendment 9 would prevent those children for whom the local authority is considering adoption from being added to the register.

I understand the concerns of the hon. Member for Wigan, who tabled the amendment. We discussed many of those concerns when we considered clause 1, but I urge hon. Members considering the amendment to bear in mind the following crucial factors. First, the evidence is clear: research shows that children’s chances of adoption decline by almost 20% for every year of delay, and a child’s age is one of the strongest predictors not just of whether the child will be adopted, but of whether that adoption will break down. It is clear that placing a child with his or her potential permanent carers early increases the chances of the placement being successful. A BAAF study following a sample of children who were adopted or in long-term foster care found that the later a child was placed with permanent carers, the lower the chances of improvement in relation to their emotional and behavioural difficulties.

Lisa Nandy (Labour, Wigan)

Surely the Minister accepts, though, that the chance of an adoption placement breaking down is increased if children for whom adoption is not the plan are being placed on the adoption register. That is the purpose of amendment 9—to ensure that children are placed on the adoption register only at the point at which it has been decided that that is the plan for them. I am sure that he, like me, would hate to deter potential adoptive parents from coming forward because they risk going through heartbreak when it is decided that to continue is not in the interests of a child whom they were keen to adopt.

Edward Timpson (Conservative, Crewe and Nantwich)

I take a number of points from the hon. Lady’s comments. First, we are united in trying to ensure that every child has the chance of a permanent placement being decided and followed through as quickly as possible, for all the reasons I have given about delay and the consequences for the individual child. The risk, as we discussed in relation to clause 1, is with the foster carers or prospective adopters, not with the child. That is where the risk should lie, and advance knowledge of that risk has not put off parents who are looking to adopt through the fostering for adoption route from following the process. Prospective adopters do not have to put themselves on the register.

Placing on the register children for whom the local authority is considering a fostering for adoption placement would maximise the chances of finding suitable foster carers who are also approved prospective adopters with whom the child may be placed. I believe that the safeguards are in place. In addition to the evidence base, I also understand that colleagues will want to be reassured about the way in which we propose to introduce the changes.

Bill Esterson (Labour, Sefton Central)

I understand the point about the risk being borne by the adults and think the Minister is right, but if there is delay due to alternatives being considered—the point behind the amendment—is there not a danger that children could face exactly the sort of delay in getting a permanent placement that he has carefully explained he wants to avoid?

Edward Timpson (Conservative, Crewe and Nantwich)

I am not sure whether the hon. Gentleman is referring to concurrent planning, where parallel plans are in place, or to fostering for adoption, where consideration is given to adoption as the permanent plan, having already passed the appropriate placement filter of the birth parents and family. The new arrangements would open up the register. At the moment there is a smaller pool of potential adopters that could be matched to each child. The idea is to open that up so that there is a wider prospect of a match, to break down the artificial barriers between local authorities.

Most importantly, the new arrangements we seek to introduce in no way undermine the due process around placing children in families. It will remain the case that a child cannot be placed for adoption without parental consent or without a court giving a placement order. I can also assure hon. Members that the details of children being considered for a fostering for adoption placement will be placed in a separate section of the register. That is to ensure that access is limited and open only to approved prospective adopters who have expressed a willingness to care for a child on a fostering for adoption basis. That is an important point to make at this juncture.

When the 2002 Act was introduced, the Adoption and Children Act register was designed to be used to assist placing children for purposes other than adoption, as well as for adoptive placements. The inclusion of children being considered for adoption on the register provides a way to realise that original design fully. More importantly, as I said to the hon. Member for Sefton Central, the changes will help local authorities to find foster carers who may, with parental consent or placement order from the court, be able to offer children a permanent home without the disruption that could be caused by multiple fostering placements, as has happened too often in the past.

I hope hon. Members are reassured about our proposals and I urge the hon. Member for Wigan to withdraw her amendment.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for his response. Although some of the concerns I have raised remain, I am reassured by his commitments that children would be placed through the adoption register only with people willing to take part in fostering for adoption placements before it has been decided that that is the plan. I am also grateful for the assurance about the pilots, which will be important to minimise damage to adults and particularly to children, and to learn that the guidance will be available as soon as possible. We are keen to see that, especially by the time the Bill reaches the House of Lords, but perhaps sooner, if possible. Of course it is impossible to know how the arrangements will work, but on the basis of the assurances given by the Minister, I beg to ask leave to withdraw the amendment.

Schedule 1 - the adoption and children act register

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 15, in schedule 1, page 116, line 14, leave out paragraph 11 and insert—

‘11 (1) Sections 125 to 131 cease to have effect in relation to Scotland.

(2) Accordingly, in section 149 (extent), in subsection (4) omit paragraph (b).’.

I have already outlined the purpose of clause 6. Following commencement, the provisions in sections 125 to 131 of the Adoption and Children Act 2002, dealing with the Adoption and Children Act register, will extend only to England. I can assure hon. Members that in developing our proposals for the register, we have consulted carefully with our counterparts in the devolved Administrations. The Scottish Government will introduce legislation in the Scottish Parliament to put that country’s adoption register on a statutory footing, and the Welsh Assembly Government plan to set up their own register as well. It is therefore important that the legislation is absolutely clear that sections 125 to 131 of the 2002 Act will extend only to England. This minor amendment seeks to achieve just that by clarifying—putting beyond doubt—the position in relation to Scotland. Our officials have discussed and agreed the amendment with officials in the Scottish Government. I hope that hon. Members agree that the amendment is necessary and I urge them to accept it.

Clause 7 - Contact: children in care of local authorities

Lisa Nandy (Labour, Wigan)

I beg to move amendment 10, in clause 7, page 5, line 27, at end insert—

‘(2A) In subsection (1), after paragraph (d) insert—

“(e) his siblings (whether of the whole or half blood).”.’.

We share the Government’s view that, sadly, it is not always in the interests of children’s safety or welfare to maintain contact with their birth families. Research indicates that, for the majority of children, contact is the right decision, but it also highlights clear instances where it is not. Children feel very strongly about contact. It is vital that they are engaged in the decision about it, understand that decision and have the opportunity to make their views clear. That is essential because, as the Government recognised in their consultation last year, contact cannot always be regulated: children may be sought out, especially given the prevalence of social media, or may take it upon themselves to seek out relatives through the same routes. It is vital that contact is supported, because even where it is in the child’s best interests, it may well also be difficult; in fact, support or the lack of support can tilt the balance as to whether contact is in the child’s best interests or not.

We agree with the Children’s Commissioner for England that clause 7 is designed to clarify the present position, and although it is not entirely clear why its inclusion is necessary, we support the principle behind it. However, we are concerned that the clause allows for regulations on when contact with family members is consistent with safeguarding and promoting the child’s welfare. We agree with the Children’s Commissioner for England and the Family Rights Group that that is over-prescriptive, seeking to prescribe the best interests of individual children whom the Committee has never and will never meet.

As far as I am aware, the regulations have not yet been produced. Will the Minister tell us why not, given their centrality to the impact that the clause will have in practice? When will the draft regulations will be produced? The clause permits the Secretary of State to put the regulations before the House under positive resolution, which worries me simply because it will give us the option either to accept or to reject the regulations in their entirety, without looking closely at the detail.

It is partly as a consequence of that lack of clarity that we have tabled amendment 10, which would ensure in particular that siblings and half-siblings can maintain contact with one another. We share the view of children that separation from siblings can be needless and can cause long-term anguish. Currently, 63% of children in the care system whose siblings are also in care are separated from them. Children consistently raise the issue: on Tuesday, I had an online chat with young people involved in the NSPCC’s “N-Spire” programme, one of whom told me a heartbreaking story about what it meant to her and would continue to mean. According to the children’s rights director, 86% of children in care think it is important to keep siblings together. Our amendment’s purpose isto ensure that siblings are not overlooked and to make sibling contact a priority in social work practice. Those are often the longest relationships of a child’s life. We hope that the Government will consider supporting the amendment.

Edward Timpson (Conservative, Crewe and Nantwich)

Amendment 7 would add siblings to the list of people in section 34(1) of the Children Act 1989 with whom a local authority is required to allow a child in their care reasonable contact, where that contact is consistent with safeguarding and promoting the child’s welfare.

I thank the hon. Lady for the way in which she presented her amendment and I sympathise with the intention to promote the importance of contact between a child in care and their siblings. I am acutely aware of the academic evidence, from Jenifer Lord and Sarah Borthwick in particular, which confirms that when contact with siblings works well, it can be beneficial to the children involved. As she quite rightly points out, a sibling relationship is often one of the most enduring through life, not just through childhood, and that is something that we have to consider when making decisions in the interest of each individual child.

The key issue here, and very much at the heart of the clause, is to ensure that every decision made is in the best interests of that individual child, as opposed to a sibling group. It may be that, in some circumstances, it is in a child’s best interests to have ongoing, perhaps regular, direct or indirect contact with a sibling who does not live with them, but there are occasions—I have seen this myself within our own fostering environment and in the courts—where there are siblings who have, often through no fault of their own, a dysfunctional or destructive relationship. It would be against the interests of those siblings to continue a relationship that could cause them difficulties in the future.

Although I understand the hon. Lady’s desire to promote contact between children in care and their siblings, section 34 of the 1989 Act deals with contact between children in care and either those persons with parental responsibility for them, or those with whom the child lived, by virtue of a court order, immediately before being taken into care. That may include a sibling in circumstances, for instance, where an older sibling may have a residence order or be a guardian or special guardian of the child. As I said, sibling relationships are varied and are often complicated, and it is sometimes the case that siblings live apart from each other, potentially for an extended period, even before one of them is taken into care.

Bill Esterson (Labour, Sefton Central)

I know that the Minister is aware of the views of adults who were formerly children in care. They consistently say that one of their biggest regrets was not having been in care with their siblings or not having had contact with their siblings. How does that evidence fit with what he is saying?

Edward Timpson (Conservative, Crewe and Nantwich)

As the hon. Gentleman will know, either where children are taken into care with their siblings, or where an individual child is taken into care but their siblings do not go into care with them, decisions have to be made about what is in the best interests of each of those children, even if they are siblings. I remember being involved in a very sad case in which a group of four or five brothers and sisters had been exposed to inappropriate sexualised behaviour in the family home; as they became teenagers, some started to replicate that behaviour to which they had been exposed. For those children, to remain together when in care would have done them more harm than putting them in separate placements. However, that did not prevent the local authority from having to consider what form of contact should continue between those siblings where that would be safe, bearing in mind that, as they grow older, their relationship may have some importance in trying to recognise what happened to them when they were growing up. In making such difficult decisions, social workers must consider those factors carefully and in detail. Ultimately, the decision must still be in the best interests of each individual child, and we cannot supersede that by saying that a child should always live with a sibling or to have ongoing contact with a sibling.

I reassure hon. Members that existing legislation provides for sibling contact. Paragraph 15(2)(c) of schedule 2 to the Children Act 1989 places a duty on local authorities to “endeavour to promote contact” between all looked-after children, not just those in the care of the local authority, and “any relative”—that would include any siblings, both whole or half-blood—

“friend or other person connected with”

the child, unless to do so would not be reasonably practical or consistent with the child’s welfare. Section 34(11) of the 1989 Act also makes it clear that before making a care order, the court must:

“consider the arrangements which the authority have made, or propose to make, for affording any person”,

including siblings,

“contact with a child to whom this section applies; and invite the parties to the proceedings to comment on those arrangements”.

That provides ample opportunity for sibling contact to be properly considered.

In the Bill, we have specifically ensured in clause 15, which I look forward to discussing later, that the court will continue to consider such contact arrangements. In addition, a sibling of a child in care can apply to a court for contact, as long as they have received permission to do so under section 34(3) of the 1989 Act. Any child in care can also make an application without permission to the court for contact with their siblings under 34(2) of that Act.

Over and above those provisions in primary legislation, additional provisions in regulations ensure that local authorities consider and review contact arrangements with siblings. The Care Planning, Placement and Case Review (England) Regulations 2010 place a duty on local authorities to include in a child’s care plan details of how the local authority will meet the child’s needs in relation to family relationships, including any arrangements for promoting and maintaining contact with siblings under paragraph 15 of schedule 2 to the 1989 Act. If a child has a sibling who is also looked after but they are not placed together—a scenario that I discussed with the hon. Member for Sefton Central—the care plan must set out the arrangements made to promote contact between them. The regulations also state that the care plan must be regularly reviewed, which allows for contact arrangements to change as the child’s circumstances, needs and interests change.

We will make the draft regulations available for the Lords’ scrutiny of the Bill. We have explained our intention in that regard in the policy statement, which has been sent to the Committee. In the light of those assurances, I hope the hon. Member for Wigan will withdraw the amendment.

Lisa Nandy (Labour, Wigan)

I think it is entirely inconsistent to argue that contact with siblings should not be in the Bill but parental involvement should be, as per clause 11, but I am grateful to the Minister for giving the Committee some assurances, albeit limited ones, about sibling contact. In the expectation that he will continue to consider how we can ensure that fewer children are needlessly separated from their siblings in the care system, I beg to ask leave to withdraw the amendment.

Clause 8 - Contact: post-adoption

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 16, in clause 8, page 7, line 46, at end insert—

‘(3A) In section 96(3) of that Act (section 95 does not prohibit payment of legal or medical expenses in connection with applications under section 26 etc) after “26” insert “, 51A”.

(3B) In section 1(1) of the Family Law Act 1986 (orders which are Part 1 orders) after paragraph (ab) insert—

“(ac) an order made under section 51A of the Adoption and Children Act 2002 (post-adoption contact), other than an order varying or revoking such an order;”.

(3C) In section 2 of that Act (jurisdiction of courts in England and Wales to make Part 1 orders: pre-conditions) after subsection (2B) insert—

“(2C) A court in England and Wales shall not have jurisdiction to make an order under section 51A of the Adoption and Children Act 2002 unless—

(a) it has jurisdiction under the Council Regulation or the Hague Convention, or

(b) neither the Council Regulation nor the Hague Convention applies but the condition in section 3 of this Act is satisfied.”’.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

With this it will be convenient to discuss Government amendment 17.

Edward Timpson (Conservative, Crewe and Nantwich)

Amendments 16 and 17 make several minor consequential changes to legislation. They are necessitated by the orders dealing with adoption-related contact in proposed new section 51A of the Adoption and Children Act 2002, which clause 8 will insert. The amendment to section 96 of the 2002 Act will ensure that new section 51A orders are treated in the same way as other orders under the Act. The consequential amendments to the Family Law Act 1996 will ensure that the new section 51A orders are treated in the same way as orders made under section 8 of the Children Act 1989, which they replace, in relation to certain types of adoption-related contact. The amendments to the Armed Forces Act 1991 will do likewise to that Act, to ensure that section 51A orders trigger the same response as section 8 orders in relation to the children of service personnel. I stress that the consequential changes we are proposing through amendments 16 and 17 would bring section 51A orders, which replace section 8 orders in relation to certain adoption-related contact, in line with orders under section 8 of the Children Act 1989 or, in the case of the Adoption of Children Act 2002, other orders made under that Act. I hope hon. Members will agree that the changes we propose are necessary and desirable and so I urge them to support the amendments.

Lisa Nandy (Labour, Wigan)

We broadly support the clause, which enables the courts to allow or prohibit contact with birth families at the adoption order stage and post adoption. Our chief concern is to ensure that decisions are taken in the interests of children, not adults, be they the birth family or the adoptive parents. Can the Minister assure us that the children’s views will be taken into account, and that due attention will be given to the ongoing relationship between siblings? It is not clear why there may be provision for the court to make pre-emptive “no contact” orders but not orders for contact, which would allow the child to make it clear to the court that they wished to have contact with a person, such as a sibling, where no party had made such an application. That point is made forcefully by the Children’s Commissioner.

The House of Lords Select Committee on Adoption Legislation is concerned that the clause might present more practical barriers to sibling contact, and suggests that the ability of birth parents or siblings to seek leave to make a contact application may be constrained in practice. I would be grateful if the Minister could provide some assurances about this. Can he also assure us that this is not a signal to local authorities and adoption agencies that prospective adoptive parents no longer need be open to the possibility of contact, which can play a significant part in children’s ongoing identity and their transition into a new family?

Given that ongoing contact with siblings can sometimes be very difficult for adoptive parents to manage, what support will be in place for them to ensure that it continues? The Adoption and Children Act 2002 focused on contact in part to reflect the fact that children now come into care and are adopted at an older age— 50 years ago, the vast majority of children being adopted were babies—so their ties may be stronger, and they may have relied on their siblings throughout their early lives. That is the root of my concern, and I should be grateful for assurances as we consider whether the clause should stand part of the Bill.

Edward Timpson (Conservative, Crewe and Nantwich)

I welcome the hon. Lady’s broad support for the clause, and the points that she has raised in order to tease out the detail. If I am unable to deal with every issue that she raised in that strict, staccato and pithy way, I will endeavour to do so after the sitting.

Clause 8 introduces new provisions into the Adoption and Children Act 2002 in relation to contact arrangements between adopted children and their birth parents, other relatives, former guardians and certain others, from the point of the adoption order onwards. Many adoptive parents recognise that contact between an adopted child and their birth family or former guardians can be of continued benefit to the child. I reassure the hon. Lady that the clause is not intended to suggest to prospective adopters that there is a carte blanche approach to no contact in any future adoptive placement. Contact between an adopted child and their birth family can often help their development and enable them to gain knowledge and information about their family history, life story, inherited traits and reasons for being adopted. I know from my own family how important understanding identity can be in the context of a new adoptive future.

Informal contact arrangements with the child’s former family are often allowed, and there is usually no need for recourse to the courts to make formal contact arrangements. However, it is right that formal provisions should exist to determine such contact in the minority of cases in which that is needed. Section 8 of the Children Act 1989 already makes provision for contact orders, but the 1989 Act also deals with a variety of other things, such as contact arrangements when parents separate or divorce, and orders including residence orders. As a result, the existing provisions do not work as we want them to in relation to adoption and, in particular, to enforceable orders of no contact. Bespoke provisions are needed to deal specifically with contact arrangements that relate to the child’s adoption, and that is what the clause provides.

Bill Esterson (Labour, Sefton Central)

With regard to contact, the interests of the child will, of course, come before anybody else’s interests. From what the Minister said, I am not clear whether the clause will amend contact arrangements for the birth family or the adoptive family taking into account the principle that the child comes first. I would be grateful if he cleared that up, because as with all these judgments, there is a very fine line.

Edward Timpson (Conservative, Crewe and Nantwich)

I understand the hon. Gentleman’s point. It is not a choice between the birth family and the adoptive family; it is about the child, as he rightly pointed out. The Adoption and Children Act 2002 requires the court’s decision to be in the best interests of the child, and to take into account their wishes and feelings. The clause says that it is right that adoptive parents should be in the driving seat when determining contact arrangements in the vast majority of cases. As he knows, adoptive parents assume full legal parental responsibility for the child. However, the arrangements that are signed off by the court still have to take into account the views of the birth parents, and, over and above that, those of the child. That is why, in many cases where there is a placement order or an adoption order, there is some form of ongoing contact. However, we do not want contact to be used as a way of gaining the consent of a birth parent to a placement order or adoption. It has to be seen as a decision that is made once the initial determination has been made. That is something that the clause will help to ensure.

We have to acknowledge that the issue of contact can be difficult for adoptive parents. It can threaten their sense of family identity and can cloud their judgment about whether contact is beneficial. The hon. Member for Wigan talked about blogs and other social media, and as we are making such good time I will take a moment to read a blog post from a mother—this is from Community Care’s blog—who has adopted two children. On the issue of contact, she said this:

“My children do not have contact with their birth families due to safety concerns. There was a time, however, when I was expected to write optimistic, untruthful letters and, in return, receive denial and vague intimidation. I was expected to protect the birth family from the dark and tragic truth being played out in our home and they were allowed to write whatever they wanted. It was only when my eldest child started making horrific disclosures that the letter writing really became untenable. He wanted nothing to do with his birth family at the same time that I was supposed to be writing about him, to them. I began to question whose rights and interests were best being served.”

She goes on to say:

“It’s been some time since we talked about contact in our family, and so yesterday I broached it with my son…He reached for a pen and this is what he wrote: ‘I think that they shouldn’t. It brings back memories and could make them incredibly unsettled and it could make them feel unsafe, especially if it is against their will.’”

She goes on to say:

“I don’t know if his views will change, but I would take steps to resume contact if he wanted it. It would never force me to question my role in his life. It’s only ever been about what is best for him and I’m glad the new Act will give him a voice.”

That is a powerful illustration of some of the difficulties that adoptive parents face, and the dilemma of whether there should be ongoing contact. In these cases, birth relatives, former guardians and certain other people who have formed a relationship with the child prior to their adoption should be able to ask the court to put in place formal contact arrangements, as they can under existing legislation. I think that deals with the point that the hon. Member for Sefton Central made about the role that the birth family still has in the decisions.

Bill Esterson rose—

Edward Timpson (Conservative, Crewe and Nantwich)

I see that the hon. Gentleman is champing at the bit, so I will let him have another go.

Bill Esterson (Labour, Sefton Central)

I am grateful to the Minister, because the information that he read out backs up the experience of families I have met, as well as my personal experience. I am pleased that he is saying that the child’s interests and wishes regarding contact will be protected, because some children will want contact and some will not, for some of the horrendous reasons to which he alluded. That is absolutely right, and I thank him for his assurance.

Edward Timpson (Conservative, Crewe and Nantwich)

As ever, the hon. Gentleman speaks with authority on this issue, and I welcome his continued interest and engagement in trying to improve the lives of children going through the adoption process.

Clause 8 provides for specific adoption-related orders prohibiting contact—or “no contact” orders—to be made by the courts. That may be appropriate where, for example, unsolicited, harmful and disruptive contact is taking place between an adopted child and their birth family or former guardians after adoption. I spoke about social media; they make that contact more difficult to manage, and that is another motivation behind the clause.

The clause also provides for such orders to be made at the point of the adoption order. That may be appropriate if disruptive contact has been occurring earlier in the adoption process. The new order would allow adoptive parents, or the adoptive child themselves, to apply to the court to prevent or stop such contact. Of course, it will not be appropriate for these prohibitive orders to be made in all cases; we would expect the court to make such orders only where it can be shown that contact is or will be disruptive to the adoptive family, or harmful to the child. In deciding whether to make an order, the court’s paramount consideration must still be the child’s welfare throughout his or her life.

We have ensured that as well as clear provisions for adoptive parents to apply for court orders prohibiting contact with their child’s birth relatives and others, there is provision for the same people to apply to the court for contact orders where they feel it is necessary, and where such contact would genuinely be helpful and beneficial to the child. I therefore commend the clause to the Committee.

Clause 9 - Promotion of educational achievement of children looked after by local authorities

Bill Esterson (Labour, Sefton Central)

I beg to move amendment 2, in clause 9, page 8, line 15, at end add—

‘(3D) A person appointed by a local authority under subsection (3B) shall be responsible for oversight of the way in which pupil premium for children looked after by that authority is spent.’.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

With this it will be convenient to discuss amendment 18, in clause 9, page 8, line 15, at end add—

‘(3D) A person appointed by a local authority under subsection (3B) is responsible for promoting the educational attainment of children in all schools in the local authority area receiving public funding, including Academies.

(3E) A person appointed by a local authority under subsection (3B) has responsibility for allocating the pupil premium for the education of looked after children paid to the local authority pursuant to section 14 of the Education Act 2002.’.

Bill Esterson (Labour, Sefton Central)

This is a probing amendment to examine the way that clause 9 tries to strengthen the role of the virtual head teacher, and whether there are ways that that can be enhanced with the pupil premium. Currently, the pupil premium can be spent pretty much as the school sees fit and would not necessarily follow the individual child. Amendment 2 seeks to explore whether there is a way for the virtual head to have some responsibility for and involvement in how the money is spent, so that we can achieve what the clause title states and promote the educational achievement of looked-after children. Getting that improvement has been a very difficult challenge for many years, so anything that we can do to achieve it will be welcome. That is what my amendment is for, so I am interested in how the Minister envisages ensuring that the money for looked-after children in the pupil premium is best spent, and how the virtual head could address that.

I also want to speak to amendment 18, tabled by my hon. Friend the Member for Wigan, which is about the balance between responsibility and the power to intervene in academies. I have a concern about how academy legislation is framed; although local authorities and virtual head teachers have responsibility for and a duty to all children, they do not have the power to intervene in academies, which, in this respect, are independent schools—they are independent of local authorities, and the only person who can intervene directly is the Secretary of State. There are questions arising from the amendment for the Minister to answer. How does he think local authorities and, in particular, virtual head teachers will carry out the intention behind the clause and intervene in academies to ensure that they discharge their duties if academies do not co-operate?

Clause 9 seems to have come out of the “Education Matters in Care” report by the all-party group on looked-after children and care leavers, which, at the time, was chaired by the Minister, with the shadow Minister as vice-chair. All credit to both of them, and to other members of the group, for publishing the report.

Will the Minister clarify the evidence behind the statements in the report and his decision to include the clause in the Bill? There are many virtual head teachers, and have been for some time. There was a statutory direction under the 1970s legislation, which has been continued, that requires directors of children’s services to improve the educational attainment of looked-after children. The recommendation that there should be virtual school heads has been around for some time. I am interested in whether any evidence suggests that that is not happening to the extent that is needed. How will the Minister’s proposals improve and build on that? My experience of virtual head teachers has been good. I am keen to hear how the clause will improve matters; if it does, that will be a good thing.

Lisa Nandy (Labour, Wigan)

We tabled amendment 18 to ensure that the duty included children in academies and to make virtual head teachers responsible for allocating the pupil premium to looked-after children. As my hon. Friend the Member for Sefton Central said, these are probing amendments.

We warmly welcome the provision, which is one of few focusing on children in the care system, and which, as my hon. Friend said, was recommended in the all-party group’s report. Given that the Minister was chair of the group and I was vice-chair at the time, it is not a huge surprise that we warmly welcome the provision.

We know that outcomes for children in care are still not good. As we have no real disagreement with the provision, I do not wish to say more than that we ought to do better by those children. Also, I will place on record something that is often lost from the debate: the current achievements of children who leave care may represent significant progress, both for that child and for the people who have supported them, given the adverse circumstances that they have had to overcome. It is absolutely right that we celebrate their achievements and the achievements of the people who have supported them, while ensuring that we provide more help and that we aim to do better for and by the children.

Amendment 18 would make the duty apply in two circumstances. First, if a child is looked after by borough A but has been placed in borough B and attends school there, will the virtual head teacher still have oversight? I would be grateful for an assurance on that. Secondly, we want to ensure that virtual heads will have the same responsibility and oversight for children in academies and free schools as children in other schools.

We share the Minister’s view that the independent oversight and expertise of a virtual head teacher sitting in a local authority is important. We see no reason why children in one type of school should be excluded from, or receive a lesser service than, children in other types of school. Will the Minister clarify that that will not be the case, and that academies and free schools, which have the same legal basis, will be covered?

Lucy Powell (Labour, Manchester Central)

My hon. Friend raises a good point about this important clause. While virtual heads are a fantastic move forward, there is still an issue about looked-after children moving from authority to authority. The clarification that she seeks—to ensure that virtual heads have a remit that goes across local authorities—is critical, because for most looked-after children in care, especially older children, disruption to their education plays a key part in why their achievement is that much lower than that of other children.

Lisa Nandy (Labour, Wigan)

That is an extremely important point, and I hope the Minister will respond to it in his speech. Broadly speaking, the amendment would ensure that the provisions cover all looked-after children to as full an extent as possible. On that point, it is also important to recognise, given that we want to encourage young people in care to go on to further and higher education, that they may need oversight from the virtual schools head up to the age of 25. I would be grateful if he could tell us whether he envisages that strategic oversight being extended to children who have been in the care of a local authority and go on in education until 25.

One in six secondary schools are now academies, and that number is rising. Academies did not exist when the Children Act 1989 was passed, so they are not mentioned in it, but that is why I am seeking this clarification. The success of a virtual school head rests on close co-operation between them and the schools involved, but I am not clear by what mechanism a virtual school head could get a non-co-operating academy school to co-operate. I would be grateful if the Minister could clarify by what mechanism a virtual school head could intervene in an academy school.

On the amendment in the name of my hon. Friend the Member for Sefton Central, the all-party parliamentary group report also recommended that virtual school heads should control the pupil premium. I do not want to pre-empt what the Minister is going to say, but both he and I came to the conclusion on that report that the success of the virtual school head rests on them having a very good relationship with the school involved. It would be preferable if that relationship was supported and nurtured, rather than the virtual school head having a separate power. I would be interested to know what he thinks about that. Either way, does he accept my hon. Friend’s amendment to allow the virtual school head to control that element of the pupil premium? Will he make a commitment to revisit this in 18 months’ time, specifically in relation to looked-after children—perhaps through an Ofsted thematic inspection report or some other mechanism—to see whether that is right or whether additional measures are necessary to enable the virtual school head to control the pupil premium?

In the evidence pack that the Government made available to the Committee alongside the Bill, it says that regular feedback from the virtual school head regional networks will help us to monitor the effectiveness of the legislation. Perhaps the Minister could use that information to assess and report back on whether the provision is having the intended effect or whether stronger measures, such as that in the amendment, might be important.

Edward Timpson (Conservative, Crewe and Nantwich)

I am not sure it happens often in Committee that the Minister and the shadow Minister propose and second—albeit with some probing elements—a policy that they both developed outside of the corridors of power, and then find themselves in the position to be able to follow it through. Certainly from my point, and I hope from that of the hon. Member for Wigan, it is a huge pleasure to be able to move the clause and speak on the amendments.

The provision is an significant step forward in recognising the importance of education for children across our whole school environment, and particularly for the most vulnerable and those who find themselves in the care system. It recognises that by adding a sixth role to the five statutory roles that local authorities have. The provision recognises the huge importance that local authorities and others must place on providing children in care with the highest prospect of achieving their educational potential.

I am grateful to the Opposition for their warm response to the clause. Absolutely, we should celebrate the success of those children who are in care and who already go through our education system and do amazing things when they leave and go on to either further or higher education or into employment. There are many inspiring stories that I have come across, and I am sure that the same is true for other members of the Committee, but we want to see more of them, and that is the thrust and motivation behind the clause.

As the hon. Member for Sefton Central said, all local authorities in England are already under a duty to promote the educational achievement of the children whom they look after wherever they are placed. Every local authority now has a designated person responsible for leading on the education of looked-after children, but the practice, as we know, is still patchy and not every designated officer, whether or not they are formally called a virtual school head, has the same role. There are some strong examples of excellent virtual school heads who are making a considerable difference to children in care in their local authority area. None the less, there are other areas where there is work to be done. Clause 9 strengthens that duty, and despite the progress that has been made, looked-after children’s attainment still remains poor, and the attainment gap with unlooked-after children is unacceptably wide. The faster and more significant progress that needs to be made must start sooner rather than later.

Bill Esterson (Labour, Sefton Central)

How many authorities have a virtual school head and how many do not?

Edward Timpson (Conservative, Crewe and Nantwich)

I do not have the exact figure in front of me, but the vast majority of local authorities have some form of virtual school head or a virtual school arrangement. [Interruption.] I am told that it is around 152, so I was correct in my overall assessment that it is the vast majority, but the virtual heads come in all sorts of shapes and sizes and their clout across local authorities at strategic level and across the school environment is variable. Putting their role on a statutory footing will ensure that that clout is spread more widely across all local authority areas. That is why clause 9 requires a local authority to appoint at least one person who is employed by that or another authority to discharge the duty placed on it by virtue of section 22(3A) of the Children Act 1989. The duty placed on local authorities under that section is one that applies to all the children they look after, regardless of where they are placed or where they go to school. That is relevant to the amendment and the challenge in relation to academies.

The duty is placed on the local authority as a corporate parent and it applies in exactly the same way wherever the child is being educated regardless of whether the school is maintained by a local authority or is an academy. It was suggested to me that even Hogwarts would qualify for this, and if Hogwarts existed then it would. Academies can be held to account through the academy model funding agreement. That makes the position clear. The latest funding group is published on my Department’s website.

On the pupil premium and how it is spent, the Academy Trust is required to publish, in each academic financial year, information relating to the amount of the pupil premium allocation that it will receive during the academic financial year, what it intends to spend it on and what it spent it on in the previous year. It will also publish the impact on educational attainment arising from expenditure of the previous academic financial year’s pupil premium. There are safeguards and conditions in place to monitor how the pupil premium is spent on looked-after children. The remit of the virtual school head goes across all looked-after children who are in their local authority area, but it does not go across local authority areas; they are the virtual school head for a single local authority. The hon. Members for Sefton Central and for Wigan will recognise the role of the virtual school head networks that have been set up. I believe that there are now nine across the country. Having visited the north-west regional virtual school head network, I can say that there is already a well formed exchange of information and of roles across local authorities. We need to build on that, so that as children move from one local authority to another they are tracked properly, and a line of communication is open to what will be a full network of virtual school heads across the country, who will be able to fulfil that role.

Bill Esterson (Labour, Sefton Central)

The point was put to the Select Committee by Michael Wilshire that there is no right of intervention by local authorities. The point I was making earlier was that that applies to virtual head teachers with respect to looked-after children. The review that will be part of the funding agreement is not the same thing as a right to intervene if an academy is not co-operative. How does the Minister see the arrangements working without the need to go to the Secretary of State, in that event?

Edward Timpson (Conservative, Crewe and Nantwich)

Of course, academies, like every school, are subject to Ofsted inspection, part of which will be an inspection of whether they fulfil their duties to children in the school who are in care. That will be a consideration for Ofsted when it determines the school’s performance, particularly as it is set out within the funding agreement.

I am confident that there are mechanisms to hold academies to account for the educational provision that they provide for looked-after children, but of course I shall want to continue to be satisfied of that, and will continue to have conversations with Ofsted. When the virtual school heads are on a statutory footing we will be able to see whether they have access to what they need. I have not had any evidence to suggest to me that there is currently any deep-seated difficulty with those who perform the function without being on a statutory footing; but if the hon. Gentleman has evidence to that effect, I shall happily look at it.

Lisa Nandy (Labour, Wigan)

One of our concerns is that Ofsted reports are all very well but can take some time. If an academy school does not work co-operatively with the virtual school head to boost attainment, it may be too late for the child. Can the Minister envisage any circumstances involving a virtual school head flagging up concerns and being unable to get the school to take them seriously, in which the Secretary of State would intervene?

Edward Timpson (Conservative, Crewe and Nantwich)

We are moving into a wider debate about veracity in relation to the accountability of academies. Under section 10 of the Children Act 2004 there is a duty for all schools, including academies, to co-operate with local authorities, and they will be judged against that in carrying out their statutory duties.

Let us not forget that academies also have a designated teacher under the statutory guidance, which applies to them too. The Secretary of State has powers of intervention for all schools, if a point of inadequacy in delivery of education is reached. The decision whether to intervene at any level must be considered on a case-by-case basis.

We should be careful how we think about the statutory role of the virtual school head and not look upon it as insufficient for the raising of the profile, status and focus of looked-after children and their education in a local authority area. We shall want to monitor the effects and have already had an Ofsted report. There has also been an Ofsted report on the impact of the pupil premium, which will be kept under review.

There is still work to be done to establish how virtual school heads can be as effective as possible; but I am confident, and am sure that the hon. Lady will agree, that putting them on a statutory footing will be a significant step forward in increasing the focus on what we all want—that children in care should leave education having achieved the best they can.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I support the clause, and have seen some excellent work by virtual head teachers. I seem to recall that a large proportion of children who come into care are about 13 or 14. I think they do remarkably well to do as well as they do at 16. Clearly, some young people who have had a bad experience at 13 and 14 will need support beyond 18. Will the Minister clarify whether the virtual head teacher continues supporting young people in further education, if that is appropriate, or if there is more support at a higher age than 18?

Edward Timpson (Conservative, Crewe and Nantwich)

I am grateful for my hon. Friend’s support for the clause and for her concern for children whose progress through their education, perhaps because of their pre-care experience and other emotional and behavioural difficulties that come from that, may not be at the same speed and rate as some of their peers. Of course, other elements and policies are being introduced by the Government on the raising of the participation age, including keeping maths as a compulsory element all the way through, up to 18. That will help to assist some children who are progressing at a slower rate. There are some good examples of children moving out of school, perhaps on to further or, we hope, higher education. For instance, in Ealing children in care are achieving well in moving on to higher education, through strong support from the council. Ealing has raised the level of children in care who go on to university from 7% to around 20%. That is a significant achievement.

There are already statutory elements to support for children leaving care, to ensure that they continue to get support into education. For instance, a personal adviser—we have increased the age at which those are available from 21 all the way up to 25—should, through the pathway plan, ensure that a young person gets the support that they need. The support may not be educational; it may be support wrapped around education, to provide the young person with the tools that they need to progress in the way that we all want to see.

The current position is that the virtual school head works during the young person’s period of compulsory education, although there is nothing to stop local authorities, as already happens in East Sussex, for example, widening the scope of that role, if they want to do so. Nothing in the clause prevents them from doing that. We will continue to review the impact of the virtual school heads. I want them to be a real beacon of achievement for children in care, and as they move on into adult life.

Because virtual school heads will be on a statutory footing, and because local authorities already have a duty to provide the education for children in care and have to discharge that duty, they will be in a stronger position to fulfil many of the elements that I am sure my hon. Friend agrees provide the support necessary for them to reach their full potential. I am grateful for her support for the clause.

Extending the virtual school head role to all children attending schools in an area that receive public funds is the thrust behind amendment 18. However, extending the role of the

“person appointed by a local authority under subsection (3B)”

to every child would have the danger of diluting the role of the virtual school head to such an extent that they would not be able to do as much meaningful work as we would like them to do. Directors of children’s services, as I said to my hon. Friend, already have an overarching education function under section 13 of the Education Act 1996, to promote high standards and the fulfilment of potential. That function extends to all children in the authority’s area, regardless of the type of school they attend. That relates to our discussion a few moments ago. The amendment is limited to children attending certain schools; I am not sure whether that was the intention of the hon. Member for Sefton Central, but that is how it reads.

We have had some debate already about the pupil premium, in relation to amendment 2 and the second part of amendment 18. I have mentioned ways in which that is being monitored, to ensure that it is reaching the parts that we want it to reach. The principles on which the amendments are based closely resemble, perhaps not surprisingly, some of the recommendations from the report that the hon. Member for Wigan and I had the pleasure of putting together and that the all-party group on looked-after children and care leavers published. Recommendation 3, which I am sure is imprinted on her brain, proposes that virtual school heads should have control of the pupil premium for looked-after children. I was, as has already been pointed out, the chair of that all-party group, and the report was published last September. I am proud of the report, and I spent many hours working with colleagues from across the political divide and with voluntary sector organisations to put it together, so I am keen, where possible, to try to make progress where the report identifies the need to do so.

One of the freedoms of being a Back-Bench Member is the ability to make wide-ranging, ambitious recommendations, and I think recommendation 3 is a very good recommendation. It is already carried out by a number of local authorities, including East Sussex, which I believe has reached an arrangement with almost all the schools in the area to pass the pupil premium—which is given directly to the schools—over to the virtual school head to spend and target on behalf of children in care in the local authority area. That is one of the best ways of ensuring that the pupil premium goes as far as possible for children in care.

Of course, one of the report’s other recommendations was for an enhanced pupil premium—pupil premium plus—for looked-after children. I continue to explore and discuss that recommendation in the Department with the Minister for Schools, my right hon. Friend the Member for Yeovil (Mr Laws). There are many other excellent recommendations in the report, which covers a lot of ground, a large number of which we seek to implement, many of which do not require primary legislation.

As a new Minister, I want to make progress on as many of those findings as possible. I recognise that there are particular challenges in relation to how looked-after children can gain the maximum benefit. We have strengthened the wording of the pupil premium terms and conditions of grant letter for 2013-14. We have said that local authorities should ensure that virtual school heads work in partnership with designated teachers in schools on how the pupil premium should be used to benefit a looked-after child’s educational needs, as described in his or her personal education plan.

Where looked-after children are in non-mainstream settings, we have strengthened the requirement on virtual schools heads. In 2012-13 the requirement was that they should be consulted on how the pupil premium was to be spent in accordance with a child’s PEP; we are now even more explicit by saying that they

“must be involved in decisions about how the amount for looked after children is to be spent to support these pupils in accordance with a child’s PEP”.

In effect that means a virtual school head has to be involved in decisions on how the pupil premium is spent on behalf of children in care.

My officials have also been working with a group of virtual school heads to distil characteristics of emerging effective practice for the handling of pupil premium arrangements. Based on that work, we published collected good practice in February 2012, and based on the responses of 36 local authorities, it describes six broad principles of effective practice: co-operation, investing time to plan, flexibility, clearly defined procedures, keeping records up to date and, most importantly, building good relationships with all schools.

This has been a useful debate in establishing what virtual school heads have done, can do and, I hope, will do in the future. I hope I have offered sufficient reassurance on both amendments, and I urge the hon. Member for Sefton Central to withdraw his amendment.

Bill Esterson (Labour, Sefton Central)

I thank the Minister for his comments. As he has praised East Sussex for doing what I suggested, I am intrigued that he is not keen on my amendment. I am pleased that he says virtual heads are already involved in decisions on how the pupil premium is spent. Again, my understanding is set out in my amendment, which is very similar to the second half of the amendment tabled by my hon. Friends the Members for Wigan and for Washington and Sunderland West. As he has made it clear that that is his intention, there seems to be no need to press the amendment.

I beg to ask leave to withdraw the amendment.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Mr Timpson, novelty always seems to be coming to the Committees that I chair, but I think we will do away with the virtual scoreboard between Ministers and officials in the future. Never mind; we made some progress.

We now move to part 2 of the Bill, which is useful. We are scheduled to finish at 1 pm, so we have a quarter of an hour.

Clause 10 - Family mediation information and assessment meetings

Lisa Nandy (Labour, Wigan)

I beg to move amendment 19, in clause 10, page 8, line 20, at end insert—

‘unless in the view of the court it is unreasonable to do so’.

We support the attempt to keep as many cases as possible out of court and, to that end, we support clause 10, which will ensure that, in line with David Norgrove’s recommendation, all parents will have information about alternative ways to resolve differences before they make an application to court. As with so much of this Bill, our concerns centre around how this will actually work in practice. Amendment 19 is designed to ensure that judges will still have the ability to hear cases without parents having attended a mediation, information and assessment meeting first, even when that is not specified in the family procedure rules.

In his review, David Norgrove said:

“There would also need to be a range of exemptions for those for whom an application to court was urgent, or for whom dispute resolution services were clearly inappropriate at the outset. The regime would allow for emergency applications to court and the exemptions should be as in the current Pre-Application Protocol.”

We are particularly concerned that that should apply, for example in cases when there are known to be child abuse allegations or domestic violence.

The pre-application protocol to which David Norgrove referred is fairly brief on these matters, running to just a page and a half. It sets out a fairly narrow definition of domestic violence, saying that the applicant must be aware of

“an allegation of domestic violence against another party and this has resulted in a police investigation or the issuing of civil proceedings for the protection of any party within the last 12 months.”

There is an exemption regarding child protection when

“There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the prospective application.”

On reading the pre-application protocol, it seems that there would be a whole range of important cases that fall outside those rules. We have not yet seen how the Minister intends to amend the family procedure rules, and I would like to see a draft version of those amended rules with some urgency. In fact, for Labour Members, our decision on whether the clause should stand part of the Bill is critically dependent on how the new rules are devised. Nevertheless, however clear and broad the new rules are, they will run into the same problems as the pre-application protocol. As the Children’s Commissioner for England says:

“The proposed exemptions do not offer sufficient safeguards to ensure that cases where children are vulnerable to abuse or harm are not inappropriately referred to a”

mediation, information and assessment meeting.

While I am keen that we foresee as many circumstances as possible, it is important that exemptions that are not foreseen, nor indeed foreseeable, and not set out in the guidance can be made when appropriate, because otherwise there is a risk that the clause will cause unnecessary delay, further inflammation of the situation and potential harm to both parents and children. The Magistrates Association also believes that, regardless of that concern, it should be ultimately up to the judge to decide whether the requirements have been met.

I would be grateful if the Minister could confirm when the rules will be published, whether he accepts that there must be a possibility for exemptions that fall outside the rules, as set out in the amendment, and whether the decision about proceeding will ultimately be a judicial one, rather than an administrative one.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Just for clarity, I should point out that there are two other amendments to the clause. We will debate amendment 19, and then consider that group separately.

Edward Timpson (Conservative, Crewe and Nantwich)

I will endeavour to be less virtual and more real, Mr Havard.

Amendment 19 deals with family mediation, information and assessment meetings, which are commonly known as MIAMs. Clause 10 is important as it aims to reduce unnecessary litigation, which I think will be widely welcomed. Every year, the family courts receive about 100,000 applications for an order to settle a dispute about a child following a family breakdown. Many of those cases require judicial scrutiny, but from my decade of practice in the family courts, I know that many others do not and that they could be settled away from court. We agree with the conclusion of the family justice review that more parents should consider using family mediation, which can be quicker, cheaper and less stressful than going to court.

The first step towards mediation involves the prospective parties’ attendance at a MIAM, which is an opportunity to find out about mediation and other alternatives for resolving issues rather than going to court. Parties do not have to attend the meeting jointly; they can attend separately, if they wish. We are not compelling parties to use mediation. An assessment of the suitability of mediation will be made by the mediator who conducts the meeting, but only the parties can decide whether to go to mediation.

I am particularly aware of concerns about cases in which there is evidence of domestic violence or abuse, which the hon. Member for Wigan mentioned. Her well-intentioned amendment would require the involvement of the court in every case prior to the start of any relevant family proceedings. At that pre-proceeding stage, the court would presumably have to consider written or oral evidence from the applicant to assess whether it would be unreasonable to require them to attend a MIAM before making a relevant family application.

I think that I can offer the reassurance that hon. Members are seeking. Clause 10 builds on the existing MIAM pre-application protocol that has been in operation since April 2011, so we are not starting with a blank canvas. In moving to a statutory MIAM, we intend to invite the family procedure rules committee, which will make court rules under the powers in the clause, broadly to replicate the exemptions applicable under the existing protocol.

We have made it clear that when, under the current protocol, a party suffers or is at risk of domestic violence, the expectation on them to attend a MIAM should not apply. In fact, we have committed ourselves to widening the domestic violence exemption for existing MIAMs from April 2013 by aligning the exemption with the wider criteria that apply to obtaining legal aid. Those criteria not only extend the list of evidence of domestic violence, but increase the period during which an incident has occurred from the past 12 months to the past 24 months.

I give hon. Members a commitment that we intend to invite the committee to make rules under the clause that enumerate domestic violence as one of the grounds for exemption. We intend that the other grounds for exemption that will be specified in rules will also include, as at present: urgency, where there is a risk to the life, liberty or physical safety of the applicant or their family, or when any delay would cause a risk or significant harm to a child; miscarriage of justice; and when social services are involved.

We are likely to have a draft of the rules by the beginning of next year, in anticipation of Royal Assent. We will look closely at the family procedure rules committee’s draft, but that will be subject to further consideration. I hope that I have reassured the hon. Lady, and I invite her to agree that adding another step to the MIAM process, which would involve the court in every case at a very early stage—before proceedings have started—would be likely to cause delay.

Lisa Nandy (Labour, Wigan)

Given that this Committee will not have an opportunity to look at those rules and how the system will work in practice, will they be put out for consultation before they are finalised?

Edward Timpson (Conservative, Crewe and Nantwich)

My understanding is that that is a matter for the rules committee following consultation, but I will provide the hon. Lady with a fuller answer to her specific question. I have set out the starting point for the exemptions that already exist, some of which we expect to be moved into the new draft, but the family procedure rules committee will define those exemptions in the draft, which can then be considered further. I therefore urge the hon. Lady to withdraw the amendment.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for some of his response. There is potentially a large problem, in that we do not know what those exemptions will be, yet we are being asked to endorse a situation that many organisations have warned could cause delay, further inflame the situation and cause harm to parents and children. I urge the Minister to think about that and about when the rules—their content and scope—will be available. We need to ensure that they are as broad as possible to enable judges to hear applications that might fall somewhat outside the narrow definitions in the current protocol. However, I am grateful to him for at least showing willingness to engage with the issue and to take the concerns seriously. On that basis, I am content for now, so I beg to ask leave to withdraw the amendment.

Lisa Nandy (Labour, Wigan)

I beg to move amendment 20, in clause 10, page 8, line 34, at end insert

‘“approved mediator” means a mediator who satisfies such training and quality assurance standards as the Lord Chancellor may by regulations specify;’.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

With this it will be convenient to discuss amendment 21, in clause 10, page 8, line 36, after ‘held’, insert ‘with an approved mediator’.

It is 12.56 pm. We shall adjourn at or around 1 pm, so that will probably be after Lisa Nandy’s speech.

Lisa Nandy (Labour, Wigan)

I shall take that as an invitation to be brief, Mr Havard.

The amendments address concerns expressed to the Justice Committee in pre-legislative scrutiny that the quality of mediators is too often low. That is particularly relevant in light of mediators’ ability to screen for domestic abuse and safeguarding concerns which, as I outlined to the Committee, are critical to the operation of the clause. I have told the Minister that unreported domestic violence is likely to be something that mediators will need to identify. It is not at all inconceivable that one party might seek further mediation in order to perpetuate abuse that has not met the narrow criteria set out in the rules that will accompany the clause.

A high proportion of contested private law cases already involve child abuse or domestic violence allegations. The Children’s Commissioner for England points to research indicating that this happens in around 50% of all cases. In addition, she highlights research that the Committee ought to be mindful of: even when no harm had been reported to the court, on further inquiry it was later found to be present in 20% of all cases. It is incredibly important that mediators are skilled at spotting potential problems, including domestic violence, even if no party is alleging that that has occurred, and that is even more pressing in the light of the removal of legal aid for private law cases from April. At present, solicitors make a referral to a mediator, which allows clients to receive legal advice before going into the mediation process. It is therefore often the lawyer—I have seen this myself—who seeks to protect a parent in such instances and highlights concerns.

In Australia, where similar reforms were implemented in 2006 as an attempt to encourage more families to resolve disputes out of court, an evaluation of the reforms found evidence that dispute resolution was occurring in some cases when there were significant concerns about violence and safety within the family. That is why we believe that all mediators ought to be trained in dealing with domestic violence and safeguarding as a minimum, and should have sufficient expertise in dealing with vulnerable children. David Norgrove said:

“There needs to be a high quality service that is also capable of dealing appropriately with any risks to”

the family

“and their children.”

He stressed the importance of the mediator being

“trained and accredited to a high professional standard”

so that they can

“assess the most appropriate intervention, including mediation and collaborative law, or whether the risks of domestic violence, imbalance between the parties or child protection issues require immediate referral to the family court”.

His point about “imbalance between the parties” is particularly important, as I expect the Minister will know, given his previous profession.

Given that many parents who end up in the family courts are extremely vulnerable, I am worried about the situation, especially in light of the removal of legal aid in most private law cases from April combined with the fact that the 10% of parents—the small minority—who end up resorting to the courts in private law cases are, by definition, involved in the most acrimonious disputes, as they have found themselves unable to resolve them elsewhere. The Magistrates Association, in particular, said that the MIAM process should be evaluated in the light of the removal of legal aid, so I would be grateful if the Minister would tell me whether he will commit to that.

I put it to the Minister that there is a risk that the child’s voice will be lost unless the mediator is skilled enough to elicit it without harming the child. Risk assessments are currently presented to the court by CAFCASS in private law family proceedings. As he will know, CAFCASS officers are highly skilled in working with children and representing their wishes and feelings.

There is no requirement at all to take children’s views into consideration in mediation. Guidance for family mediators sets out that mediators ought to consider that but, as the Children’s Commissioner for England points out, the decision of whether to seek children’s views should not be left to adults. That should be a right for children, and it is simply not good enough to leave it to adults. That is not just a principled point of view, but an issue of practice, because NAPO, based on its considerable experience, warns that children are less likely to have their views taken into account in out-of-court proceedings. That is backed up by recent CAFCASS research with children in private law proceedings that found that children who were involved in mediation were rarely asked for their views, yet the more that they had been asked, the happier they were likely to be with the outcome. Success in such cases rests on the child having their right to give their views upheld, but there is nothing in the Bill, as far as I can see, that will ensure that that will happen. Will the Minister set out how he envisages that that will happen, especially in cases when children’s views have not been sought, but they want their views to be heard?

NAPO points out that the court has a duty to ensure that the child is not exploited by a ruthless parent intent on driving though an adult agenda. That is a risk in extreme cases, but there is also a risk that the voices of vulnerable, confused and conflicted children going through the process will not be heard. The paramountcy principle for children’s welfare does not apply to mediation, so will the Minister tell us how he will ensure that an inappropriate burden is not placed on children by courts that are attempting to elicit their feelings and wishes directly without the assistance of an appropriately qualified practitioner?

David Norgrove said:

“All mediation should be centred on the best interests of the child. This and the other tasks of mediators are demanding. The assessment of risks to the parties in the MIAM is difficult and important. Mediators should at least meet the current requirements set by the LSC. These standards should themselves be reviewed in the light of the new responsibilities being laid on mediators. Mediators who do not currently meet those standards should be given a specified period in which to achieve them.”

Does the Minister agree with that? Will he commit to ensuring that those preconditions that David Norgrove set out form part of the background to the clause? How will he ensure that the quality of mediators is high? Will they be accredited and regulated? Will they be subject to Legal Services Commission standards? In my view, and in the view of the Children’s Commissioner, that is essential to meet the requirements of article 12 of the convention on the rights of the child and to ensure that children’s right to be heard is upheld.

Christopher Chope (Conservative, Christchurch)

I remind the Committee that with this we are discussing amendment 21, in clause 10, page 8, line 36, after ‘held’, insert ‘with an approved mediator’.

Edward Timpson (Conservative, Crewe and Nantwich)

It is a delight to see you back in the Chair for this afternoon’s proceedings, Mr Chope.

Before I address the amendment tabled by the hon. Member for Wigan, I will clarify for the Committee a point that came up in our discussion on amendment 19 this morning on when the rules will be available—this is relevant to clause 10. The hon. Lady asked how the Family Procedure Rule Committee would take account of the operation of current mediation, information and assessment meeting exemptions when drafting the rules on exemptions under the clause. As I indicated earlier, we intend that the MIAM provision will come into effect as soon as possible following Royal Assent. The FPRC would need to have drafted the rules by early 2014, or by autumn this year if, as we anticipate, it intends to consult on them. The FPRC would then take into account the current MIAM exemptions and their operation through consultation. Although whether or not to consult is the FPRC’s decision, I would, given the importance of the matter, expect my officials to be asked for a view. I will ask them to stress the desirability of consulting. I hope that is helpful to the Committee.

In amendments 20 and 21, the hon. Lady raises the important issue of the training qualifications that mediators should have if they conduct a MIAM. I thank her for raising that—the Government share her view that only trained family mediators should carry out a MIAM. That is why we recently asked the president of the family division to revise the existing pre-application protocol from April this year to make it explicit that the family mediator conducting the MIAM must be approved by the Family Mediation Council. That means that they must adhere to the code of practice of the FMC and the agreed minimum requirements for conducting MIAMs. Within the code of practice there are clear requirements regarding identification of risk of significant harm to children and screening for domestic abuse. The Government have said we will evaluate the impact of the changes in the light of the changes to legal aid. Clearly, MIAMS will be an element of that review.

On children’s views, we do not think that the MIAM is the place where children’s views should be part of the process. That part of the process is simply about the parents deciding whether to mediate. However, although mediation in itself is not part of the clause, the views of children can be taken into account. Training is provided to mediators to enable them to engage with children and understand their wishes and feelings.

On the move to a statutory MIAM, we propose to invite the Family Procedure Rule Committee to reflect that change in the rules is to be made under clause 10(2)(b). I hope that that provides assurance to hon. Members that we are already taking steps to ensure that. I therefore ask the hon. Lady to withdraw the amendment.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for those remarks, and in particular for his assurances on the rules and the fact that there will, we hope, be consultation on them. The one point I would emphasise is the importance of understanding the views of children in relation to whether mediation should go ahead: they might have particularly strong views, which might differ from those of their parents, on whether mediation is appropriate. Indeed, given that children are often very conflicted during such cases, they might have reasons for why mediation is or is not appropriate of which they do not wish their parents to be aware. I urge him to consider that point further, but, in the light of his assurances, I beg to ask leave to withdraw the amendment.

Clause 11 - Welfare of the child: parental involvement

Lisa Nandy (Labour, Wigan)

I beg to move amendment 23, in clause 11, page 9, line 17, at end insert—

‘(2B) “Involvement” means any kind of direct or indirect involvement that promotes the welfare of the child, but shall not be taken to mean any particular division of a child’s time.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Clause stand part.

New clause 13—Welfare of the child - quality of parental relationship—

‘Section 1 of the Children Act 1989 (welfare of the child) is amended by the addition at the end of subsection (3) of the following paragraph:

“(h) the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future.”.’.

Lisa Nandy (Labour, Wigan)

We welcome the substantial revisions to the wording of the clause, in particular the use of “involvement” rather than “shared parenting”, which we believe could help to minimise the harm the clause might cause, but we are still concerned about how the provision will work in practice. I hope the Committee will bear with me as I intend to take a little time to outline why.

As with much of the Bill, we do not disagree with the Government’s stated intention. We believe it is critical to most children that they have a good relationship with their mum and their dad. We know that it is usually also very important to both parents. When it is safe and consistent with the child’s welfare, we believe that that should be supported through law, policy and practice as fully as possible. However, we also believe that the change to legislation is misguided, in part because it is designed to tackle the wrong problem. As the National Society for the Prevention of Cruelty to Children and the Children’s Legal Centre have made clear, in the past 20 years, a succession of research has demonstrated that there is no systemic bias in the court system.

The most recent research—by the universities of Oxford and Sussex—found that the planned change “is not evidence based”. They interviewed 398 young people whose parents had separated in their childhood and found that it was rare for a young person to say that the parent they lived with had tried to undermine their relationship with the other parent. There was no evidence that children resist contact primarily because their resident parent pressures them to do so. They felt very strongly that a clear demonstration of commitment from the parent they did not live with was much more important than the amount and type of contact they had with them.

The message is that promoting ongoing contact is not about legislation; it is about quality of relationships, especially the quality of those relationships before parents separated. In the vast majority of cases that come to court, the courts agree contact. In 2010, only 300 out of 95,460 applications for child contact were refused. That is just 0.3% of all the cases that came to the courts. Of those, as the NSPCC points out, most were related to cases where there were serious child welfare concerns. Non-resident fathers are just as likely as resident mothers to get the court orders they seek. Roughly equal numbers of mothers and fathers report that the courts are biased against them.

As a result, the NSPCC says it is concerned that the proposed changes might be based on perceived rather than actual bias and, as such, could inadvertently raise barriers to the best contact arrangements for children. The Committee ought to take that seriously because the Minister’s comments seem to support it. In evidence to the Select Committee on Justice, he said:

“The intention, as I say, is to deal with the sense that there is an in-built bias towards one parent or another within the current system, to get more confidence into that system with those who come into contact with it”.

Surely a law that works in practice and in principle should not be changed in response to a perceived bias that does not, as it turns out, have a basis in fact. Unless the law is broken, I do not understand why the Government would seek to fix it. I have not heard Ministers say that the current law is broken and I do not believe it is. A wide coalition of organisations, from Action for Children to Resolution, says unequivocally that the Children Act 1989 already supports the encouragement of parental involvement where it is safe and in the child’s best interests. Furthermore, countries such as Australia, where there is a statutory presumption of contact, have just as many children who lose contact as England and Wales. The real problem and injustice for parents come when contact decisions are not enforced.

Tackling that is difficult. Ministers have floated and tried a number of ways, including penalties for non-compliance such as revoking driving licences or passports. It seems to me that none of those means much to parents who strongly believe, whether it is the case or not, that they are acting in their children’s best interests in defying the court.

I can see why, as a result of that situation, a Government would, out of frustration, resort to trying to deal with it through changes to the law. However, in my view, and in the view of many organisations, the measure could have serious, unintended negative consequences for children, which I shall set out for the Committee.

Charlie Elphicke (Conservative, Dover)

The hon. Lady’s amendment 23 states:

“‘Involvement’ means any kind of direct or indirect involvement that promotes the welfare of the child”.

What is indirect involvement?

Lisa Nandy (Labour, Wigan)

That is a very good question. In fact, that was the purpose of my tabling the amendment. If the hon. Gentleman will permit me, I will discuss that later. The key point is that not defining “parental involvement” is problematic—I will say more about that in a moment.

I wanted to set out some of the serious, unintended, negative consequences that the wording might have for children. The first is a practical consideration. There are significant concerns that the measure will lead to a presumption among parents of equal time. The evaluation of similar changes in Australia found that many parents did not understand the difference between shared parental responsibility and shared care time. I want to be fair to the Minister here. The evaluation states:

“This misunderstanding is due, at least in part, to the way in which the link between equal shared parental responsibility and care time is expressed in the legislation.”

That is one reason why I welcome the substantial revisions that have been made to the clause—it does not use the term “shared parenting”, which caused so much confusion.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Lady for referring to that. That matter concerned the Justice Committee, of which I was a member. Submissions were made by me and other colleagues. We wanted the title of the clause to be changed so that there was no misunderstanding or misapprehension on the part of those involved in proceedings that the law was being changed to allow for a presumption of shared parenting. Does she agree that that change has signalled the Government’s clear intention that nobody wants to go down that road?

Lisa Nandy (Labour, Wigan)

I am grateful to the hon. Gentleman for making that point, with which I agree. I pay tribute to the work that the Justice Committee did in its thorough report, which has been extremely helpful to me in preparing to scrutinise the legislation. The Children’s Legal Centre made the point that there have already been media reports in this country, prompted by the initial wording of the clause, that it would mean equal time. The CLC pointed to headlines in the Daily Mail and other newspapers that gave parents the strong impression that the measure means equal time.

To return to the point about the programme implemented in Australia and the changes to legislation there, it is right to point out to the Committee that the evaluation showed that the misunderstanding was due at least in part—but only in part—to how the provision was expressed in legislation. Many of the organisations that I have spoken to still have significant concerns about the clause and believe that it ought to be deleted from the Bill altogether, so it is important that we look at some of the unintended consequences it might have.

In the words of the Australian evaluation:

“This confusion has resulted in disillusionment among some fathers, who find that the law does not provide for 50-50 ‘custody’”,

which can sometimes

“make it challenging to achieve child-focused arrangements in cases in which an equal or shared care-time arrangement”

is made. I welcome the change to the wording, but as I said earlier, that is why the charities believe the risk remains. I agree with them.

The problem is that where the wording is misunderstood, it can result in more court action, with parents’ rights pitted against children. That is obviously devastating for the children involved, and also works strongly against the Government’s intention, which we support, to speed up the amount of time it takes to get cases through the courts.

Jessica Lee (Conservative, Erewash)

I know what the hon. Lady is saying, and of course we all share the concern about children’s rights, needs and interests being properly represented. However, in the courts there are also judges who will have a full understanding of the intention of any drafting and how that should be interpreted, so we have the reassurance that the court process, from the judicial point of view, will create a barrier against any misunderstanding.

Lisa Nandy (Labour, Wigan)

I will make two quick points, and I will not labour them because I will return to them. First, not all cases will be dealt with in the courts. There are real risks about what will happen outside the courts if a message is sent to parents that there should be equal time arrangements. I am concerned, given the vulnerability of some of the parents we are talking about—mothers in particular—that there is the potential for the clause to be used as a means of coercion to achieve something that is not in the child’s best interest.

Secondly, I have seen in practice how the child’s best interest, the welfare paramountcy principle, is key in ensuring that the child remains at the centre of the decision making for everyone involved in the court process—the lawyer representing the parents, the local authority, the guardian and others. Although the Minister has been at pains to say that the measure is not about parents’ rights, I am concerned that we seek to write into legislation something that could be wrongly interpreted as being so. I will return to that point because I think it is extremely important.

Charlie Elphicke (Conservative, Dover)

I put it to the hon. Lady that she is quite wrong. Too often at the moment it is about parents’ rights, not the rights of the child, as we heard in evidence last week. She is entirely wrong to paint it as though it is not about children’s rights; that is precisely what this measure is about. We heard about parents battling away, sinking their children’s futures in a sea of their acrimony. It is right that children have the right to know both their parents.

Lisa Nandy (Labour, Wigan)

I am a little disappointed by the hon. Gentleman’s tone. This is an extremely emotive subject, and we should not seek to portray either side as being against children, or try to paint a scenario as one way or another. When he says that I am quite wrong, he is saying that the NSPCC, the Children’s Commissioner for England, Action for Children, the Children’s Legal Centre, the Magistrates Association, Nagalro, which represents children’s guardians, and a host of other organisations are also quite wrong. Their concerns deserve to be heard, and I am determined that the Committee hears them.

Charlie Elphicke (Conservative, Dover)

The central issue that came out of the Norgrove report was a misunderstanding of the idea that children seeing both their parents means that there has to be an equality of time. Everybody understands that that is not what the Government intend. That is the way the Australian system went, but nobody intends the system here to go that way. A relationship is not about time, but about knowing, and having access to the guidance and love, of both parents.

Lisa Nandy (Labour, Wigan)

I agree with the hon. Gentleman. Although I do not find the tone in which he is expressing his view helpful, I find what he is saying helpful. He referred to David Norgrove, and the recommendation that he said came out of the Norgrove report. In fact, David Norgrove explicitly recommended that the law should not be changed in this way. He said:

“The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children.”

We ought to debate and take seriously that view, not seek to portray people who say that as taking one side or another, or being for or against the interests of children or parents. It is in the interests of children and the vast majority of parents that we resolve this issue. That is why I am determined that the Committee hears the concerns of the sizeable opposition and understands the sound basis on which that opposition exists.

Lucy Powell (Labour, Manchester Central)

Many organisations are against this measure coming into law in this way because under current law the mother and father, as long as they are both on the child’s birth certificate, have equal rights to have an equal say in how the child is brought up—on schooling and all the other parental decisions that affect the child. That does not equate to the amount of time that they have with the child. It is absolutely clear in law that when both parents are on the birth certificate, they have equal say in the child’s upbringing. That needs to be stated on the record so that there is no misunderstanding and so that a missing part of the law is clarified.

Lisa Nandy (Labour, Wigan)

I am grateful to my hon. Friend. The view of many of the organisations that I referred to is that this measure is not necessary, and that it might actively do harm to and work against the interests not just of children—the most important people in this scenario—but of parents.

Bill Esterson (Labour, Sefton Central)

My hon. Friend is absolutely right. David Norgrove made a crucial point when he gave evidence to us last week, which the hon. Member for Dover will undoubtedly have read as well. He said that the key thing about greater involvement of both parents in the lives of children is that it has to be where it is safe for the child. That is why he said that in his view, having looked at Australia and Sweden, the risks were too great.

Lisa Nandy (Labour, Wigan)

I am grateful to my hon. Friend. I also think that David Norgrove was making a broader point. It is not simply that it needs to be written into the Bill that parental involvement must be where it is safe and consistent with the child’s welfare, as the Minister has done—I am glad that he has because it is a step forward—but that the evidence from Australia was that problems and allegations of abuse were less likely to surface as a result of the law being changed in this way. I will say a little bit more about that as we proceed.

The Minister has been at pains to say that this is not about parents’ rights. The explanatory notes say that. But as I said earlier, the media coverage of this has already given that impression very strongly. It concerns me that parents may still believe that, despite the Minister trying to rectify the situation. Amendment 23 therefore seeks to define what is meant by parental involvement to try to minimise the harm that will be done by the clause. We want to ensure that if Ministers are determined to press ahead with this change to the law—we sincerely hope that they are not—parental involvement will be defined so as to make it explicit to parents that this is not about an equal division of time and, as the Minister said, will not be about parents’ rights.

As I said to the hon. Member for Erewash—[Interruption.] I will get hate mail from her constituents for mispronouncing Erewash. My apologies to them. We believe this is particularly important as 90% of cases are decided by parents themselves without resort to the courts. We think this change in the law is particularly risky where there is little guidance and especially where there is an imbalance of power between the two parents. I have seen for myself how easily that can occur and how profoundly it can affect the well-being of children where one parent has the wherewithal, the skills or the knowledge, or simply the attitude that enables them to railroad through something that is not in the best interest of children.

Jessica Lee (Conservative, Erewash)

I hear the hon. Lady’s argument, but a counter-argument is that up to now in court it can be all or nothing for parents. It has been residence or contact without an acknowledgment in the court order that there is a role for both parents. The proposed change takes the sting out of the debate between the parents and can reassure both of them that they are involved. More importantly, the child has that reassurance that they have the right to the involvement of both their parents.

Lisa Nandy (Labour, Wigan)

I would start by referring the hon. Lady back to the point that I made at the beginning. It is only in 0.3% of cases that contact is refused and the NSPCC says that that is usually where there are significant child welfare concerns. It is the role of the judge to reassure parents about that. The other critical role in all of this is played by the lawyer. I have seen for myself how important it is to have lawyers who can help parents reach the point where they accept that a determination by the judge is in the best interests of their child. That is critical for the parents. It is also critical for the child that the parent has had an opportunity to come to terms with that decision and accept it. That is one of the reasons why I am particularly concerned about clause 11 in relation to the loss of legal aid.

In relation to taking the sting out of feeling that there is a winner and loser—I accept that that happens quite a lot—clause 12, which is about child arrangement orders, will actually be far more effective in helping to take the sting out of those arrangements by removing the idea that the parent with residence is the winner and the parent with contact is the loser. The NSPCC, with which I concur, says that it is concerned that

“abusive and manipulative parents may seek to use the new changes as a bargaining tool to pressurise the other parent into agreeing with contact arrangements that are unsuitable or dangerous.”

As I just said, there will be no legal aid from April, which means the loss of an important safeguard for the many parents who will be litigants in person and for those trying to resolve such issues out of court.

The clause, however, has a more fundamental problem. Like the NSPCC, Action for Children, the Magistrates’ Association, the Children’s Commissioner, the Coram Children’s Legal Centre, Nagalro and a host of other organisations, we believe that it dilutes the paramountcy principle, which is that the welfare of the child is the paramount consideration that should be determined for individual children in individual cases.

Robert Buckland (Conservative, South Swindon)

May I caution the hon. Lady? It is clear from the evidence, which I know she has looked through carefully, that nobody at any stage, whether they be High Court judges or other witnesses, has suggested that this particular clause would in any way derogate from the presumption of the child’s interests being paramount. The measure is a guide for judges to help them to reinforce what they would already regard as good practice. If the hon. Lady is in any doubt about that, the evidence of Mr Justice Ryder more or less confirms that view.

Lisa Nandy (Labour, Wigan)

I am grateful to the hon. Gentleman, but I do not agree with him at all. In fact, a host of organisations have said that the proposal should not dilute the welfare paramountcy principle—it still remains in legislation and ought to be the paramount consideration —but they say that it does by seeking to prescribe what is in individual children’s best interests. It sadly cannot be assumed in every case that it is in a child’s best interests that the involvement of both parents would further their welfare.

Lucy Powell (Labour, Manchester Central)

I remind the Committee that in evidence last week David Norgrove said:

“We felt in the end that the right thing to do was to keep the clarity of the paramountcy of the interests of the child. There is no evidence that courts are biased against fathers, and we decided not to use legislation to drive change in this area, as it could result in more dissatisfied fathers and potential damage to children.” ––[Official Report, Children and Families Public Bill Committee, 5 March 2013; c. 28, Q67.]

Lisa Nandy (Labour, Wigan)

That is extremely helpful. As I was saying to the hon. Gentleman, the organisations believe that, as it is worded, clause 11 requires the court to presume that the involvement of both parents will further the child’s welfare without requiring the courts to make a determination of whether that is in fact the case.

Gavin Barwell (Conservative, Croydon Central)

I am not sure that the hon. Lady’s argument is backed up by the wording of the clause. She just said that we cannot presume in every single case that the involvement of both parents will be in the child’s interests, and I think every member of the Committee would agree. However, the clause actually says that there should be a presumption

“unless the contrary is shown”.

In other words, unless there is evidence that the involvement of both parents would not be in the child’s interests, that should be the presumption. Does the hon. Lady actually disagree with that statement?

Lisa Nandy (Labour, Wigan)

Did the hon. Member for South Swindon want to make the same point?

Robert Buckland (Conservative, South Swindon)

I did, but I want to develop it in another way. The evidence of Mr Justice Ryder was instructive. He described the clause as an imperative clause that enjoined courts to look at good practice, rather than as something that would fundamentally interfere with the paramountcy principle.

Lisa Nandy (Labour, Wigan)

I am grateful to the hon. Gentleman, and I hope that if the Government decide to press ahead with the proposal, that will be case. I fear, however, that it will not.

In answer to the point of the hon. Member for Croydon Central that the presumption should be made unless there is evidence to the contrary, I completely agree. That is how the clause is worded, but what concerns me is that the presumption will be rebutted only when there is some evidence that the involvement of a parent will put the child at risk of harm, which is exactly the situation that he outlined. That is serious. The Woman’s Trust charity is deeply concerned about what that will mean for children whose mothers—or potentially fathers, because they too suffer domestic violence—are suffering domestic violence. A 2010 report on similar reforms that were trialled in Australia found very strongly that there was an increased reluctance by mothers to disclose abuse, with many feeling that if there was a legal presumption of shared contact, there was little point in disclosing violence. That is what concerns me. I agree with him about the way that the clause is worded, but that causes me more concern, not less.

I hope that the Minister will at least say that he intends to monitor the impact of this measure if he decides to press ahead in the face of quite overwhelming expert opposition. I say that to him as someone who worked for nearly a decade for two young people and children’s organisations before I was elected. I have not seen charities so unanimously say on many occasions, about a piece of children’s legislation originating from the children’s Department, that a clause should be deleted in its entirety. I hope that he will take that seriously and, at the very least, agree to monitor the impact, as they did in Australia. However, I hope that he will think again. Quite simply, I believe that it is wrong for Members of the House to prescribe in primary legislation what is in individual children’s best interests—children we will never meet, never talk to and whose circumstances we will never understand. Children who have been through this process have reached very different conclusions about their feelings towards their parents.

On Tuesday night, I had an online chat with some of the young people from the NSPCC’s N-Spire project. It was quite a scary experience, especially considering how proficient they are with social media and how often I had to ask them what a hashtag and various other things were. During the course of that conversation, I asked them for their views on this clause. They said almost exactly what the Children’s Commissioner for England and some other organisations said, which is that they were generally very much in favour of a presumption of parental involvement, but they did not want to see that written into legislation. They thought that the balance was wrong and that it had to be down to the individual.

For some of them, parental involvement and contact had been exactly the right thing; for others, it had been extremely distressing and they did not want anything to do with it. They felt very strongly that the law as it stands is right and that the welfare of the child is paramount, full stop, and that there is no need to change that situation, particularly if it gives the impression that parents’ rights are balanced with children’s. One young person said that she thought that parents have too many rights. I am not saying that we agree with that, because sometimes parents can come out of the process feeling very disempowered as well, but I am particularly concerned about the situation of the child.

Bill Esterson (Labour, Sefton Central)

Just to back up what my hon. Friend says, on the same subject, Professor Hamilton said:

“We are very concerned that a presumption as set out in clause 11 is likely to conflict with the paramountcy of the best interests of the child. While the explanatory memorandum says that the paramountcy principle will still trump the presumption, that is not clear in the Bill, and that is of great concern to us.”––[Official Report, Children and Families Public Bill Committee, 5 March 2013; c. 29, Q68.]

Lisa Nandy (Labour, Wigan)

That is absolutely right, and is echoed by so many other organisations. Setting out why clause 11 should be removed, a coalition of seven organisations, including NCAS and Nagalro said:

“children benefit from the ability of the courts to take account of and give due weight to a range of factors in deciding what is in their best interests. It is critical that this determination occurs on a case by case basis according to each individual child’s circumstances and needs, guided by the child’s best interests and welfare above all other factors.”

The Children’s Legal Centre also believes that it will take considerable amounts of litigation to understand how this interacts with the welfare paramountcy principle. That is an important point, because I cannot emphasise enough to the Minister how difficult it is to get right this sort of legislation, which relates to very emotive, difficult issues about children, their lives, families and futures.

Section 1 of the Children Act 1989 is unusual in that it has lasted for several decades with strong support from all sides. In practice, it focuses the minds of parents, of children’s advocates, of social workers and of the court on children’s needs. It is incredibly important. That is why we agree with David Norgrove that

“the child’s welfare should be the court’s paramount consideration as required by the Children Act 1989. No change should be made that might compromise this principle. Accordingly, no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents. For that reason and taking account of further evidence we also do not recommend a change canvassed in our interim report that legislation might state the importance to the child of a meaningful relationship with both parents after their separation where this is safe. While true, and indeed a principle that guides court decisions, we have concluded that this would do more harm than good.”

That is why we have tabled new clause 13, which would remove the presumption in favour of parental involvement. If the Government still intend to make changes to practice, they should move that provision to the welfare checklist, so that it can be considered alongside the other provisions about a child, such as their wishes and feelings and those of their family, in the making of a decision.

Lucy Powell (Labour, Manchester Central)

On that point, further to the comments of my hon. Friend the Member for Sefton Central, Professor Hamilton said:

“We are also concerned that there is no definition of “involvement” in the Bill,”

which causes even more worry about how the Bill will be interpreted. She continued:

“We do not see the need for a provision of this nature in the Bill at all, but if the Government were absolutely committed to having some provision on the subject, we would prefer to see it contained in the welfare checklist”.––[Official Report, Children and Families Public Bill Committee, 5 March 2013; c. 29, Q68.]

Lisa Nandy (Labour, Wigan)

I am grateful to my hon. Friend for that contribution. As ever, the Children’s Legal Centre has articulated better than I can why we believe it is important, if the Government are determined to press ahead with the measure, to define parental involvement so that parents understand that it is not about equal time.

Charlie Elphicke (Conservative, Dover)

Will the hon. Lady enlighten the Committee about what she means by indirect involvement?

Lisa Nandy (Labour, Wigan)

Often, instead of face-to-face involvement, children who have gone into care have some kind of letterbox contact with their parents. The hon. Gentleman may know about that, and I know that the hon. Member for Erewash does.

Jessica Lee (Conservative, Erewash)

Just to clarify, indirect contact is interpreted as anything other than face-to-face contact. Historically, that has been letters and cards, but it now includes the use, if appropriate, of social media such as text messages, Facebook and so on.

Lisa Nandy (Labour, Wigan)

I am grateful to the hon. Lady, who has been involved in the sector for a long time and has a great deal of expertise, as her intervention demonstrated. I am grateful to the hon. Member for Dover for raising such an important point. As I have said, it is becoming increasingly hard to regulate a child’s contact with their parents or other family members, so it is extremely important for parents to understand the scope, level and type of contact that is envisaged.

Lucy Powell (Labour, Manchester Central)

In that context, would indirect involvement not also extend to the involvement that someone might have in a child’s schooling, via parents’ evenings or negotiations with the other parent? Although they might not be in discussion with the child, that person would have an indirect involvement in the child’s well-being and schooling.

Lisa Nandy (Labour, Wigan)

That is very helpful. Emily, one of the young people to whom I chatted on Tuesday evening, said on the subject of the time limit for going to court, “That is a good point, because I know the longer you have to wait the more stressful and anxious it is for you. It’s like every day you are waiting for something that you know is going to be so hard and it’s always in the back of your mind. But I also think it is important that things aren’t rushed and that you get support, because I know without the help I got I would never have been able to do it.” She went on to say that contact arrangements with her parents and family had been problematic.

Other young people came forward with very different ideas about the sort of the contact that they wanted with their parents and how important it was to them that their voices were heard, their individual circumstances were taken into account, as well as their ability and capacity to cope with what was happening to them, the pace at which that was happening and that the decisions made about their lives were made on the basis of them as individuals with their own circumstances, not on the basis of prescription in law made by people—such as this Committee—who simply do not know them and will never meet them. That is why we have tabled new clause 13, which would put this measure into the welfare checklist.

We agree with the Government that parental involvement is incredibly important, both to mums and dads and to children, in the majority of cases. New clause 13, however, would allow the court to consider, for young people like Emily, whether parental involvement is in the child’s interest and, if so, what type of involvement there should be. That would enable the Government to send the signal that they want on the importance of involving both parents in a child’s life without actively doing harm to children.

Charlie Elphicke (Conservative, Dover)

I would be grateful for your guidance, Mr Chope. The amendment moved on the clause concerns the clause’s whole purpose. Would this be the right moment to have a wide-ranging debate on the amendment and on clause stand part?

Christopher Chope (Conservative, Christchurch)

I indicated at the beginning of the debate that the amendment was grouped with clause stand part and the new clause, so that would be in order.

Charlie Elphicke (Conservative, Dover)

I am grateful for your guidance, Mr Chope. I welcome the inclusion of this clause, tabled by the Government, in the Bill. Despite what the hon. Member for Wigan said, there has been substantial concern for many years about whether children have the right and ability to know, and have a relationship with, both of their parents—or any form of contact. There have been claims that the right of the child to have the guidance of both parents as a matter of principle has not been followed quite as it could be. While I would have liked to have seen stronger language in clause 11 than the concept of involvement, it is nevertheless a step forward because it sends an important signal to the courts and all those involved in family matters that greater efforts should be taken to ensure that children can have a relationship, with the guidance and mentorship that that entails, with both of their parents.

Lisa Nandy (Labour, Wigan)

Will the hon. Gentleman set out the evidence on which the assertion that there has been a long-standing problem is based?

Charlie Elphicke (Conservative, Dover)

I will do that, but allow me first to set out some of the evidence we heard last week. I asked Dr Morgan, the Children’s Rights Director of England—I believe the hon. Lady was present to hear this—this question:

“Leaving aside issues of risk…would you think the starting point is that children should have the right to know and have a relationship with both their parents?”

To that, he said:

“Two counts for one piece of evidence. First count, yes, that is part of the area of right that children have raised—that they would like, subject to the harm issue, to have the right of contact with birth parents, and that does mean both of them.”—

Dr Morgan is therefore saying that that is what children want to have. He continues:

“Secondly, we specifically asked children, in relation to the policy developing for this Bill, whether they were in favour of both parents remaining involved in their lives, should parents separate. The bit of evidence is that the vast majority said yes, they would. But the third point is that they put a caveat in. They said, ‘if the child wishes.’ Remember, we were talking about contact earlier—having the child’s wish as well as the parents’. Their concern is that if it is only the parents’ wish, but not the child’s wish, then that should not automatically go forward. So the child’s wish is critical in there. So yes, with that caveat from the children, with that evidence of having asked them.”––[Official Report, Children and Families Public Bill Committee, 7 March 2013; c. 115-6, Q242.]

I then asked Dr Morgan whether he thought that children are properly listened to or their voices are too often ignored. He said:

“First, generally and in most contexts, including court and care contexts, children are saying that their voices are not sufficiently listened to at the moment and not sufficiently weighed with those of adults and professionals.

Secondly, in relation specifically to court processes, children told us that they felt that their voices were not currently sufficiently heard in court processes.

Thirdly, children made the significant suggestion, which was accepted by the Government at the time, when we were asking them about the family justice review proposals, originally, and they were giving their verdict on those, that not only should the child’s view be better represented…but that it would be a good thing if, after any court decision, there could be a follow-up, including the child’s views”.––[Official Report, Children and Families Public Bill Committee, 7 March 2013; c. 116, Q243.]

Dr Morgan was saying that children do think it is important to have known both their both parents and have a relationship with them. Secondly, they did not feel that the voice of the child was sufficiently listened to under the existing arrangements. The move in the legislation is welcome because it helps further what children say they want to see.

We then heard evidence from Sarah Jackson, the chief executive of Working Families. I asked whether it is important to have both parents involved in the child’s life and what should happen after family breakdown.

Lucy Powell (Labour, Manchester Central)

I thank the hon. Gentleman for his reprise of last week’s evidence and his questioning, which I have before me. However, would he answer the question asked earlier by my hon. Friend the Member for Wigan? I do not think we are in dispute about whether children would want to spend time with both their parents and have them involved. That is what we all want and I think the whole Committee would support that endeavour. The question is: what is the evidence that that is not being delivered through current legislation? I remind him again of David Norgrove’s—

Christopher Chope (Conservative, Christchurch)

Order. I remind the hon. Lady that this is an intervention.

Charlie Elphicke (Conservative, Dover)

The case proposed by the hon. Lady and the Opposition is built on the idea that there is no problem, that it all works swimmingly, that there is no need to change the law and that they are all in favour of the child knowing both parents and having a relationship with them. I fail to understand the Opposition’s problem with a provision that says there should be an involvement of children in the lives of their parents. I do not understand the difficulty with the clause.

Bill Esterson (Labour, Sefton Central)

I hope we can enlighten the hon. Gentleman. David Norgrove last week made it clear that his interim report was minded to go down the route the Government have followed. However, as he looked at it further he realised there were dangers and risks. That is borne out by other witnesses last week. I ask the hon. Gentleman to look at the evidence presented to us last week, not previously, because that final evidence is crucial. That gives him the answer to his question.

Charlie Elphicke (Conservative, Dover)

I thank the hon. Gentleman for that intervention. The point I seek to make is simply that for too long there has been too strong a sense that children do not get to see both their parents following breakdown. We know that there are about 3 million children who live apart from a parent and around 1 million have no contact with a parent three years after separation.

I do not think it is good enough to sit here and say, “Well, that is the fault of the lazy parent who could not be bothered to keep contact with their kid.” I do not accept that there are 1 million parents in this country who after family breakdown are not interested, do not want to know and walk away from their child. I think there is a more substantial problem. I have had masses of correspondence since I raised the matter from people saying they do not have the ability to know their children as they should.

It is often said that it is about fathers’ rights and fathers not being able to see their children. It is not. Sometimes fathers are the parent with residence and they block the mother from seeing the child. There are cases like that. Mrs A had two boys. After the marriage broke down, her ex-husband began alienating the children against her. There were 46 hearings between 2000 and 2006. They finally managed to achieve a shared residence order but, by that time, the damage had been done and the children were so alienated that they did not have a relationship with their mother at all.

It is important that the process moves more quickly than in the past and that there is a greater sense that children should be able to continue to know both their parents following a breakdown and continue to have that relationship. In that particular case, they would have had a much more profitable relationship if things had not gone that way.

Another case concerns a soldier with a six-year-old daughter who lives with her mother. He was going to be posted to Afghanistan. Court proceedings started, and contact was occurring until January 2011, when there was a hearing. The soldier was being deployed at the end of March that year. That was raised at the January hearing, and a specific order for him to see his child before he went on service was requested of the court. The judge said that that was unreasonable, and that the soldier should wait until October 2011 before asking the court to resume proceedings; in other words, he should wait until he came back from Afghanistan.

Some time has elapsed since then, and the soldier has written to me again. He said:

“You may well remember me…I was a serving solider in Afghan…denied access to my daughter…I have since came back from my tour safe and sound and have been back now since Oct 2011 yet I still have minimal access to my daughter.”

He has been to court four times since his return, yet it seems impossible for him to find out whether he will have any ability to see his daughter. People say there is not a problem, yet anecdotal cases keep coming forward. We cannot simply say there is no problem.

We know that the number of court applications has been rising strongly since 2005, and that 1 million children do not have any contact with the parent without residence. It is not good enough for us simply to deny that there is any issue when our surgeries are so often full of cases where children do not get to see both their parents, and their parents come to see us to say how concerned, hurt and upset they are, because they want to have that relationship with their child, and to be able give their child guidance and mentorship.

The gentle nudge in this legislation—and it is a gentle nudge; indeed, it is gentler than I would like—is a really positive step forward. It will send the message to judges, and to all involved in the separation process, that they should ensure wherever possible that both parents can continue to have some involvement in their child’s life, so that the child can have their guidance, mentorship, love and affection. All the evidence shows that children do better in those circumstances.

Lisa Nandy (Labour, Wigan)

I am very sympathetic to the father’s situation in the case that the hon. Gentleman outlined, although of course I do not know what the mother’s take on it was, and it would be interesting to hear the other side. However, will he address the central concern, which is not whether children in general are better off having an ongoing relationship with both parents? We all agree with that, and the vast majority of the country does as well. The problem that I outlined was that, for a whole host of reasons that I set out at length, the clause will not only fail to deal with that problem, but will potentially cause real harm to the child. Will he deal with the concern that, whatever the problem is perceived to be, the clause is the wrong way to tackle it?

Charlie Elphicke (Conservative, Dover)

First of all, I take issue with the hon. Lady’s starting point. She says that she would be interested to hear what the mother says—to hear the other side. That is the problem with the whole situation: it always seems to be mothers set against fathers, and talk of “the other side” and who is right in each case. We should be starting with the child. I urge the hon. Lady to reflect on the idea that we should not be talking about the mother being “the other side”; our starting point should be the child, and the child’s basic right to know and have a relationship with both their parents. It is important that that should be our starting point; then we should ask questions about whether it will be harmful for the child if they know and continue to have a relationship with both their parents. That is the fundamental point.

Things seem to have gone too far in the direction of not being able to have a relationship with both parents. All too often, we see cases where there are problems; I would like that nudge towards involvement by both parents in the life of the child, so that the child can draw on both parents, and both parents can take part in the child’s life. We all know of many cases where that ideal simply cannot be achieved.

A constituent of mine, Mrs A of Wootton, wrote to me and said that

“Each time a visit is due”

there was

“a great deal of hassle—never being able to give a precise date etc. and twice”

one party has

“prevented the visit completely. Every time”

the parties go

“to Court to ask that they serve notice”

in respect of the contact order. One of the parents

“has been in front of several different judges and every one has refused to do anything at all—just shrugging their shoulders, treating”

them

“like a criminal, not even looking at the paper work and evidence. They just say there is nothing they can do.”

It is important to send the message that it is important to put our children first. It is important that children are able to see and know both parents, and that they get the chance for mentorship and guidance. I take issue with the Norgrove report. In my view, stage one of the report came to about the right position. The final report came about after a visit by the Norgrove review team to Australia. In that country, there had been difficulty, because there was full shared parenting, and the idea that that meant some kind of equal division of time had gripped the Australian system.

A relationship is not about an equal division of time. To know someone is not about an equal division of time. A relationship is a matter of quality, not quantity. That is why we need the idea of involvement—of knowing and having a relationship with someone. It is important, because in too many cases, there is no contact or involvement at all, and the child is denied having someone to turn to for guidance, mentorship, and all the things that children who have grown up with access to, and knowing, both parents take for granted. My central point is that we should not see this as being about mechanistically allocating an amount of time.

Norgrove went off course and lost sight of the importance of the concept of a relationship, which includes knowledge of, and being able to turn to, both parents as children grow up. Both parents provide different sorts of guidance and mentorship, and the child might want to talk to each parent about different sorts of things.

We know from our constituency surgeries that there is a problem, and we know that there is a problem with the Child Support Agency. We should not be in denial about it. We should not take a Panglossian view. We should not stick our heads in the sand. It is time to send a message to the court system and to all those involved in family breakdown. We need to send a clear message that the system needs to make greater efforts to deal with the concerns held by so many people, not just because that is important to parents, but because there are 1 million children in this country who do not know their mums or dads. They have a right to that knowledge, that relationship, and the extra life chances that all the evidence says we get when we know, have guidance from, and can turn to both parents.

Robert Buckland (Conservative, South Swindon)

It is a pleasure to serve under your chairmanship, Mr Chope. I will be brief, because a lot of the general issues have been outlined already. I pay tribute to my hon. Friend the Member for Dover, who has been assiduous not only in raising the concerns of the people he represents, but in dealing more generally with a perceived problem. We must remember that the vast majority of arrangements—nine out of 10—between parents who separate or divorce are not conducted through the courts. A small number of cases have to be determined by the courts. It is important that the Bill sends a clear message, not only to people who use the full-blown court system, but to those who come to arrangements privately—frankly, that is a preferable way to go about things—that the involvement of both parents is key, subject to certain caveats and cautions, for the welfare of the child.

I think Opposition Members are rightly concerned that proposed new section 1(2A) of the Children Act 1989 will interfere with the presumption of the paramountcy of the welfare of the child. Well, I have read the Keeling schedule, which was helpfully prepared by the Bill team, and I do not think that it will. I accept that the wording of proposed new subsection (2A) is somewhat different from that of the welfare checklist, with which we are all familiar, but after a quick reading of the 1989 Act as amended, no court would conclude that the provision conflicted with, or had equal weight with, the paramount consideration of the welfare of the child.

The problem in Australia was that the Australian legislation set up two competing presumptions. In that legislation, the two primary considerations when determining the best interests of the child are:

“the benefit to children of meaningful relationships with both parents”

and

“the need to protect children from…harm”.

Problems arose because the Australian legislation did not create a hierarchy. The vast body of evidence generated by the Australian case must be looked at in the light of the essential and important difference between the proposals before us and the Australian legislation. Any other reading of that example is fraught with danger.

A body of evidence was obtained in the run-up to the amendment of the law in Australia, which included a lot of evidence about tensions and pressures that would be created by those competing presumptions, and by the assumption that “meaningful relationships” meant shared time. A lot of evidence was gathered relating to not only court-ordered shared time, but shared time arrangements made outside court. It is important to remember that that body of evidence, which caused concern, did not just relate to shared parenting as a result of orders of the court, so we have to put these arguments in proper perspective.

I am grateful to the hon. Member for Wigan for generously allowing me a number of interventions on the question of the legal effect of proposed new section 1(2A) of the Children Act 1989. In evidence to the Justice Committee late last year, when asked about the draft clause, Mr Justice Ryder, High Court judge in the family division, said:

“The draft clause could be construed not to be a presumption. If one looks at welfare as an overarching principle, it is the presumption. The draft clause, as written”—

that clause is identical to the one before us—

“is what the Court of Appeal used to politely refer to as an imperative—for example, that children are best brought up by their birth families.”

He went on to say:

“Imperatives are important. Children are, in general terms, subject to welfare argument, best brought up by their birth families”.

He gives an example, and then says:

“This is a similar imperative; it is not likely to change practice, but it might highlight what the judges already believe is good practice.”

I suppose that prompts the question, why table the clause at all? What effect will it have on proceedings? We have yet to see the effect. Nobody in this debate, from the Minister down, can look into a crystal ball and predict precisely what effect it will have. Our important duty as legislators is to set out clearly for the courts, which are to apply the provisions, the fact that, far from interfering with the presumption and paramountcy principle, all the clause does is “nudge” the courts, to use a word used by my hon. Friend the Member for Dover, towards considering the involvement of both parents in the upbringing of their child. Is that such a huge step?

Lisa Nandy (Labour, Wigan)

In that case, does the hon. Gentleman depart from the opinion and judgment of the Justice Committee, of which he was a Member when the draft clause was considered? It said:

“There is a danger that the introduction of a second presumption will take the attention of the Court, but equally importantly the attention of parents…away from determining what is in the child's best interests and on to double rebuttal on the grounds of harm.”

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Lady, who rightly challenges me on that. I am no longer a member of that Committee. However, the wording was careful. It said there was a danger. I accept there is a danger. As I said, the job of legislators and Ministers is to make it abundantly clear in all their statements in support of amendments that that is not the intention of the legislation. The courts still have, as part of their hierarchy, the paramountcy principle, the welfare checklist and this new rebuttable presumption. That could obviously be rebutted where the evidence suggests that contact with one or other of the parents could be inimical to the welfare or safety of the child.

The Justice Committee looked closely at the clause, and I accept that it had concerns. One concern was about the definition of involvement. The hon. Lady’s amendment does its manful—or womanful—best to try to define involvement. However, there is a danger in doing that. I think we would all understand the ordinary definition of involvement. However, when one starts to define it, one ends up creating definitions and pitfalls that I can see fettering the discretion of courts. None of us wants to see that happen. It is just the sort of problem that the definitions used in Australia led to. The words “meaningful relationships” led to an assumption of 50:50 parenting.

I understand the spirit in which amendment 23 was tabled, but its wording does not take us any further, and it is in danger of fettering an important discretion that the court has to apply from case to case. In a nutshell, while I understand and respect the concerns outlined by the Opposition, and I look forward to the Minister’s response, I believe that the Government have moved sufficiently from their original position to satisfy me that the proposal will not lead to the mischief feared by many here and elsewhere. It will allow judges proper leeway to make decisions in the best interests of a child, based on the evidence before them.

Christopher Chope (Conservative, Christchurch)

Before I call the Minister, if my researches in “Dod’s” are correct, I think it is the hon. Member for Dover’s birthday, in which case, I congratulate him. I hope that he will not detain us too long.

Edward Timpson (Conservative, Crewe and Nantwich)

In the spirit of the reference you just made, Mr Chope, I will endeavour to continue a well judged and constructive debate. We have all been getting on extremely well, and I hope this is not the moment when we all fall out, although I accept that this is a more emotive and contentious clause. The debate is not new to the House, however: I took the time to look back at Hansard, as we often do late at night when waiting to vote, and I discovered a debate on this very issue back in 2006. The Conservative party, then in opposition, was pushing this proposal, but it was rejected by the then Labour Government, and the Labour Opposition continue to reject it now. In fact, it was the subject of a Conservative party manifesto commitment in 2005. The problem has persisted and has continued to be debated throughout that period, and here we are in 2013, going through the same process.

The clause has generated a lot of interest, but at its heart is a philosophy that I think we all share. My predecessor, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), worked hard to try to understand the issue by engaging with a large number of organisations and individuals on both sides on the argument. It may be helpful if I quote what he said on Second Reading, that

“a child does best when both parents have as much involvement in the childhood of that child as possible, subject to the welfare provisions, which absolutely still stay paramount in the Bill.”—[Official Report, 25 February 2013; Vol. 559, c. 67.]

In an intervention later, he stated:

“The provision has nothing to do with giving rights to parents; it is about the responsibilities of parents and the rights that children should have.”—[Official Report, 25 February 2013; Vol. 559, c. 76.]

The hon. Member for Wigan has uttered on several occasions the well worn adage that the clause is about children’s rights, not parents’ rights. I continued to consider the matter as the provision underwent pre-legislative scrutiny, and that adage has been at the centre of my thinking.

The pre-legislative scrutiny process was extremely helpful. I am sure that you will be heartened to hear that, Mr Chope, as one who holds the accountability of Government to Parliament dear to his heart. It resulted in some changes to the clause, particularly, as my hon. Friend the Member for South Swindon articulated, in relation to the clause heading, which demonstrates the perception of what the clause is designed to do. I believe that was a useful exercise, but the clause’s primary purpose is to help to ensure that children are able to maintain a relationship with both their parents after family separation. We heard from my hon. Friend the Member for Dover, who proposed a private Member’s Bill that touched on this issue, that too many children are not able, for whatever reason, to maintain a relationship with both parents when they separate.

We can argue about how we effect change in society and how we change attitudes and behaviours, and we have indulged in a little bit of nudge theory in our debate. Much of this is about perception and a lack of confidence that is articulated by many people. As a Minister, I receive huge amounts of correspondence from colleagues across the political spectrum, quite rightly advocating the views of their constituents and ensuring that they are heard in this place. That has reinforced my view, built up in my practice in the family courts and my work as an Opposition Back Bencher, talking to organisations and the people who raised the issue with me, that we need to look at how can address the concern that has existed for some considerable time and persists to this day. That is what the clause does.

Charlie Elphicke (Conservative, Dover)

In terms of the nudge theory, the clause is not only about the parents who want to know their children, but is a push for those who have not been as engaged as they should have been and have not taken the interest that they should have taken to get in touch with those 1 million children and get involved in their lives. That is why it is important not just for the desperate parents, but for those parents who are a bit cavalier and have not been as good as they could have been.

Edward Timpson (Conservative, Crewe and Nantwich)

My hon. Friend emphasises the important point made by my hon. Friend the Member for East Worthing and Shoreham that this is about the responsibilities of parents as well as the rights of children. Both though the Bill and through non-legislative means, there are ways to encourage parents at the beginning of any process where their own relationship has fallen apart to think about the child, rather than worry about their personal battle.

That view lies behind the clause and other aspects of the Bill; it is important that we do not look at the clause in isolation. The hon. Lady acknowledged that other measures in the Bill complement what we are trying to achieve through the clause, such as the increase in use of MIAMs and potentially mediation, and the child arrangements orders that will replace residence and contact orders, which can lead to a sense of winners and losers that is divisive and not centred on the child. We are also trying to improve enforcement, not necessarily through more draconian measures but by improving the way that courts deal with enforcement, ensuring that where contact can continue, it does so in a meaningful way and that parents understand their responsibilities, as my hon. Friend the Member for Dover highlighted, in fulfilling their role as parents for their child or children.

The perception of bias in the family courts is an issue for parents, and it can lead to proceedings becoming more adversarial. Our aim is to keep more cases out of the courts. We want more cases to be agreed amicably, in the interests of the children, and that is what the clause is about. It amends the Children Act 1989 to place a duty on the courts in cases where there are disputes about children’s care to presume that the involvement of both parents in the child’s life will further the child’s welfare, provided that this involvement is safe. That last caveat, which was strengthened by the pre-legislative scrutiny, is a key feature of the clause.

We recognise that the court should already take account of the importance of a child’s relationship with both parents, but there is currently no legislative statement to that effect. We want to reinforce by way of statute the expectation that both parents should be involved in a child’s life, unless the child is at risk of harm or it is not in the child’s best interests. We have been asked where our evidence is. We consulted on the provision, and 52% of respondents supported our plan to legislate.

Lisa Nandy (Labour, Wigan)

Given that the Minister is determined to send a message about what he has carefully described as a “perception of bias”, not an actual bias, in the court system, will he consider accepting our amendment, which would put that consideration into the welfare checklist, so that it can be considered alongside a range of factors in a child’s life and so that decisions are taken on the basis of an individual child?

Edward Timpson (Conservative, Crewe and Nantwich)

I was going to come on to that point later in my speech, but as the hon. Lady has raised it I will deal with it now.

New clause 13 would insert an additional factor into the welfare checklist: it would require the court to have regard to quality of the relationship that the child has with each of the parents when making certain decisions, including decisions about contested applications for section 8 orders. Unlike clause 11, the new clause would not apply to decisions regarding the award or removal of parental responsibility, but it would apply to a wider range of cases, including care and supervision cases. There are consequences to what she proposes in the new clause that are over and above the intention of clause 11 on parental involvement. I have already set out some of the reasons why we want the clause to stand part of the Bill.

In the consultation on parental involvement, one of the four options that people could choose was an addition to the welfare checklist. I am sure that the hon. Lady in her assiduous way has taken time to consider the findings of that consultation. The welfare checklist was the preferred option of less than a quarter of those who responded, whereas just over half chose the approach of a presumption, which we have adopted in the Bill. The amendment does not recognise the benefits of the involvement of both parents in a child’s life, and although I would not suggest that the hon. Lady simply plucked it out of thin and air and that her proposal has no support, it was not by a long stretch the preferred option in the consultation.

Clause 11 will not entitle parents to an equal or prescribed share of the child’s time, nor will it create a statutory right to see their child. It focuses on the needs of children. As I said on Second Reading, page 21 of the explanatory notes set out in clear terms that this is not about time; rather, as my hon. Friend the Member for Dover said, this is about the quality of a child’s involvement with both parents. I hesitate to say this to the hon. Lady, who has to articulate her case for opposing the clause, but if we are to avoid giving the impression that the clause is about time, there has to come a point where we stop talking about time and equality of time, as that only reinforces the impression that that is what the clause is about. It can become a self-fulfilling prophecy. The media will continue to use those phrases to describe possible deficiencies in the clause.

As Minister, I have made it abundantly clear that this is not about the equality of time. That point was made on a number of occasions by eminent Members on Second Reading. I hope that we can have a frank debate about this issue without having to refer back continually to what was done in Australia which, as we have learned, was not a helpful way of resolving issues. If we concentrate on the question of time, we will not always put the child’s interests at the heart of any decision.

Charlie Elphicke (Conservative, Dover)

I do not know whether my hon. Friend agrees, but I feel that, too often in this debate, the issue of time and the Australian experience is used as an excuse to do nothing by those who are quite happy with the status quo and do not want any kind of nudge at all. I therefore urge him to press on and give this positive nudge—this positive message—to all involved and give children the ability to have both their parents fully involved in their lives.

Edward Timpson (Conservative, Crewe and Nantwich)

My hon. Friend gives me a way to flag up that we have considered the experience in Australia. When drafting the clause, we were mindful of the unintended consequences that arose from some of the subtle changes the Australians made.

As my hon. Friend the Member for South Swindon pointed out, the Australian legislation is very different from the Children Act 1989 because it requires the court to look at two primary considerations when determining what is in the child’s best interests: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm, abuse, neglect or violence. Our clause does not require the court to balance those two factors. It states explicitly that the presumption cannot apply to a parent who cannot be safely involved in a child’s life—an important caveat—and a child’s welfare remains the paramount consideration.

I heard what the hon. Lady said about the paramountcy principle. I have had to argue many section 8 cases, and the paramountcy principle was relevant in every single case, including those in which the judges were balancing a number of different factors, criteria and considerations. For example, in a case in which an application has been made to remove a child from the jurisdiction, the judges have to take a huge amount of case law into account. Even in such circumstances—this goes to the heart of what my hon. Friend the Member for South Swindon said, and what Mr Justice Ryder said, about the imperative that the clause creates—and despite there being many other factors and considerations for a judge to take into account, not least those in the welfare checklist, the overarching duty to consider welfare as the paramount consideration pertains throughout the whole process. The clause does nothing to change that.

Lisa Nandy (Labour, Wigan)

Has the Minister assessed what impact the clause might have on cases that are resolved out of court? I mentioned the concern about the message that it may send to parents who are resolving cases out of court. In Australia, a similar measure gave rise to the perception that there was no point in disclosing abuse, because the father or mother would be entitled to 50% of the time, or would be entitled to contact, anyway.

Edward Timpson (Conservative, Crewe and Nantwich)

I am sorry that the hon. Lady has—perhaps inadvertently—reinforced an impression that I pleaded with her not to create by talking about 50:50 time. The clause is absolutely not about 50:50 time. As my hon. Friend the Member for South Swindon articulated extremely well, we are talking not only about cases that are in court but about many more cases—[ Interruption. ] If the hon. Lady could listen carefully to what I am trying to say, it would be helpful. In cases that are out of court or pre-court, a perception that a court will deal with it in a particular way may colour the judgment and the decisions that are made before the process starts. The public must have confidence in how family courts work and how they reach decisions, not least because the way in which family courts are perceived has a knock-on effect on decisions that are made out of court.

We must also remember that in most cases that go to court involving an application for a section 8 order, whether a contact order, a residence order, parental responsibility, a specific issue order or a prohibited steps order, the outcome is a consent order rather than a decision by the judge. Many such consent orders are based on the current perception of how the courts will make decisions in individual cases. Just because some form of contact has been agreed in a consent order, that does not necessarily mean that that is based on a view of how the courts are dealing with cases; it may well be based on the perception that we are trying to address.

Amendment 23 is designed to make explicit the fact that involvement does not mean a particular division of a child’s time. To clarify, involvement includes indirect involvement. Clause 11 works in such a way that it is not necessary to define the meaning of the involvement that a parent may have with their child, because the presumption in clause 11 stands if any form of involvement can take place without risk of harm to the child and if the involvement will further the child’s welfare.

We have used the word “involvement” in clause 11 as the simplest, most neutral means of expressing the full spectrum of ways in which a child can have a relationship with their parents, and our debate has demonstrated how difficult it is to try to define precisely what involvement means. If we try to do that, as my hon. Friend the Member for South Swindon said, we are in danger of fettering discretion. Section 8 orders provide no strict definition of contact; they give a wider definition that is not as detailed and prescribed as the one proposed in amendment 23. The courts will use their discretion in each case to make decisions about the type and level of involvement following consideration of all the evidence. Ultimately, the involvement a parent may have in their child’s life will be determined by the welfare principle in section 1 of the 1989 Act and, where the decision is about contested section 8 orders, the facts in the welfare checklist in that Act.

Turning quickly to new clause 13, we have already touched on the insertion of an additional factor into the welfare checklist, so I am not going to trouble the Committee by repeating those arguments. However, it is clear from the response to the consultation that the presumption we have put into the clause, subject to the pre-legislative scrutiny and the changes we have made, is the most preferred option for those who have been consulted. For the reasons I have set out, new clause 13 would not achieve the intention of clause 11.

For all those reasons, and having listened very carefully to both the Justice Committee and all Members who have spoken, I ask Opposition Members to withdraw their amendments and commend the clause to the Committee.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for taking time to respond, and for the tone he adopted for the bulk of his response, which was markedly different to the tone of some of the debate. Given how emotive this subject is and how much more agreement there is between us than would be apparent from the tone of some of the remarks, that was extremely important. It is apparent that we are all very much of the opinion that it is the child’s right to have parents involved in their lives when they wish to be and when it is safe and consistent with their welfare.

However, it is unworthy of the Minister, who has such a commitment to children, to suggest that the problem of the perception of shared time has been created by children’s organisations and others who are seeking to tackle it. The problem has been created by his own Government, who, by his own admission, are seeking to tackle a perception rather than an actual problem.

Edward Timpson (Conservative, Crewe and Nantwich)

This is the first time so far in the Committee that I have intervened on the hon. Lady, and I am not doing so lightly. I want to respond to what she has just said. First, there is a problem, which we are seeking to address. Secondly, this is not about saying that those organisations are peddling something that is not true. I am saying simply that, by continuing to talk about the division of time rather than the quality of relationship, the hon. Lady is reinforcing the perception that that is what the measure is about. I am trying to reinforce the view and the understanding that that is not what it is about. I know she understands that, and I hope she appreciates why I am trying to do that.

Lisa Nandy (Labour, Wigan)

Of course, I accept the Minister has done an awful lot to try to reinforce the impression that this is not about a perception and should not be about shared time. However, it is a little unfortunate that his Government—I say “his Government”, but I know he was not the Minister at the time—have managed to get themselves into this position in the first place. A law that is largely seen as fit for purpose is being amended, creating all sorts of false impressions outside the House, which, as many children’s organisations have warned, might well be unhelpful to children, and the Government are seeking to cast the responsibility for that back on to either the Opposition or those organisations. It is unfortunate that he has got himself into this position, or been put into it. I hope that somehow, during the passage of the Bill, we can help him to get out of it.

Nobody is arguing, as the hon. Member for Dover said, that things are going swimmingly. When parents separate, it is always a very difficult experience for all involved, particularly the child. There are real problems concerning children’s ongoing relationships with their parents. I talked about one such problem—how we can better enforce decisions made in the courts—when I spoke to amendment 23, which is in my name and that of my hon. Friend the Member for Washington and Sunderland West. I am sorry the Minister did not see fit to address it in his response, but I hope we can continue to debate the subject over the course of the Committee. I would be very glad to hear what he has to say.

Edward Timpson (Conservative, Crewe and Nantwich)

I do not know whether the hon. Lady has had sight of the interim research findings on the enforcement of court orders for child contact by Professor Liz Trinder, Alison Macleod, Julia Pearce and Hilary Woodward from the university of Exeter and Joan Hunt from Oxford university, which I believe have been published today—I do not know whether the report has been made available to the Committee. It is an interim report, but nevertheless has some veracity. They conclude that the Government’s decision not to introduce further new sanctions is consistent with their interim findings on the enforcement work they have researched. They also conclude that the Government’s proposal to develop an enforcement-specific case assessment and intervention pathway is a positive step forward. I appreciate that the hon. Lady has not had time to familiarise herself with their findings, but they demonstrate that we have taken a mature approach to resolving the problem of enforcement that will provide children with the most appropriate arrangement, and keep them in the right place, from the point of view of both their rights and parents’ responsibilities.

Lisa Nandy (Labour, Wigan)

Unfortunately, the documents to which the Minister refers have not been made available to the Committee, along with so many other pertinent documents and regulations. I am sure they will be forthcoming, and I look forward to having the opportunity to scrutinise them properly, as he has already done. I also welcome what I believe I heard him say in his brief intervention, namely that the Government are taking an evidence-based approach to sanctions, which have been problematic, and basing their decisions on the individual needs of every child. In fact, that is exactly what I and the organisations I have mentioned have been arguing for in relation to the clause.

Gavin Barwell (Conservative, Croydon Central)

I want to take the hon. Lady back to what she was saying just before the Minister intervened. Those remarks struck a slightly different tone, and I agree with them more than I agreed with what she said when moving the amendment. Will she clarify the Opposition’s position? Is it that there is only a problem of perception and that the law is actually working fine, or is it—I understood her to have said this just now—that there is a problem with how the law is working? Does she believe that the problem can be dealt with through more effective enforcement rather than by changing the wording of the law?

Lisa Nandy (Labour, Wigan)

The Government’s position is that there is a perception problem. Our position, as I set out in my opening remarks, is that the problem that the Government ought to seek to tackle and to make their priority is not the wording of the law but the enforcement of decisions that are made in court. I am grateful to the Minister for addressing that when invited to do so. Our view is that the problem is very real, and tricky to resolve. I welcome what the Minister has just said, but I also believe our time would be better spent considering those difficult problems rather than tinkering with bits of law that have been proven to work.

Lucy Powell (Labour, Manchester Central)

I am sorry to interrupt my hon. Friend, who has been very generous with her time. Were we not also seeking to clarify whether primary legislation will resolve the problem—perceived or otherwise—identified by the Government, and whether the unintended consequences of such primary legislation would defeat any perceived resolution?

Lisa Nandy (Labour, Wigan)

I am grateful to my hon. Friend for reiterating that point—we have been trying to make that point and to get the Government to focus on it.

I was about to respond to the hon. Member for Croydon Central by saying that I am somewhat reassured by some of what the Minister has said. He has reiterated today that the issue is not equal time, but I do not accept that it is not the purpose of the Committee to scrutinise unintended consequences of the Bill. It was right to point out that the equal time perception is one of those unintended consequences, but I am grateful to him, as ever, for making his point strongly.

Charlie Elphicke (Conservative, Dover)

I struggle with one thing that the hon. Lady is saying. What could be an unintended consequence of the concept that the involvement of a parent in the life of a child, as a matter of principle, should further the child’s welfare?

Lisa Nandy (Labour, Wigan)

I am struggling a little with that, as I am with a great deal of what the hon. Gentleman said in his contribution. I refer him to the comments I made at length in my introductory remarks, when I explained that point. In particular, I refer him to the view of the NSPCC and many other organisations that the clause dilutes the welfare paramountcy principle by writing into primary legislation what is presumed to be in the interests of a child and requiring a rebuttal of that presumption in a court of law, as I said in exchanges with the hon. Member for South Swindon and other Government Members. The Opposition are deeply concerned about the implications of that for individual children. We believe that the welfare of a child must remain the paramount consideration; that every case must be looked at individually on its merits; and that every child must be listened to, so we can see what is in their best interests.

The Minister and I agree on another point. He clarified that, in his view, the Bill is not about adults’ rights. I am grateful to him for putting clearly on the record what he has said to me in private, and I agree that we should not seek to make children’s legislation about the rights of adults—it should be about the rights of children, and I am grateful that he made that point strongly. I am also grateful to him for making the point that, in his view, as in mine and those of many other organisations, the paramountcy principle ought to remain the overriding consideration. Notwithstanding some of the practical problems that the clause will create in reality, I am glad he took the opportunity to reiterate that the paramountcy of the welfare of the child will remain the overriding consideration for the courts when they make decisions.

I raised a number of concerns that were not addressed, including people resolving matters out of court, and undisclosed abuse and domestic violence. However, I have watched the Minister’s approach since he came into office, and have seen how substantially the wording of the clause has changed over that time. Given that he has put assurances on the record, and although I share the view of many of the organisations I have mentioned that the clause is largely unnecessary and potentially unhelpful, I am prepared to withdraw the amendment to allow the Committee to give the matter further consideration as the Bill progresses through Parliament.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

The Minister gave me a flashback to 2006. I probably remember it imperfectly, but I recall the debate about paramountcy. It was argued that there could not be two conflicting first-liners, as it were. The Minister has been very clear on that today. When I sat on the Opposition Benches, I argued for an insertion into the welfare checklist, with the wording that was used at the time. It was rejected by the Government because it was seen as a threat. I am not convinced, having been thoroughly demolished many years ago, that the alternative would work. It is more important to get the words right in the Bill. We must all reflect to ensure that the words are absolutely right.

Lisa Nandy (Labour, Wigan)

I am extremely grateful to the hon. Lady for her intervention. I pay tribute to her because when she debated the matter in 2006, some members of this Committee—including me—watched from outside with admiration as she made a complex case about individual children’s lives. I know she will continue to champion the rights of children as the Bill progresses. Her point illustrates where we are with the clause. We do not disagree on what we want to achieve for children in principle, but there is an emotional debate on how we get there in practice.

Obviously, it is incredibly important that we get this right. The Minister has shown he recognises that by moving some considerable distance. I and many others have outstanding concerns, and the issue deserves a much lengthier debate than we are able to give it today. I shall withdraw the amendment not because I am happy with the current situation or how the clause is drafted, but on the basis that I should like to give us an opportunity to consider the measure further and get it right for children. I beg to ask leave to withdraw the amendment.

Clause 12 - Child arrangements orders

Lisa Nandy (Labour, Wigan)

I beg to move amendment 24, in clause 12, page 9, leave out lines 38 to 41, and insert—

‘(a) with whom a child is to—

(i) live,

(ii) spend time, or

(iii) otherwise have contact; and

(b) when, with any person, a child is to—

(i) live,

(ii) spend time, or

(iii) otherwise have contact.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss amendment 25, in clause 12, page 9, line 42, at end add—

‘(5) “Rights of custody” under the Hague Convention are determined by an order made under subsection (3)(a)(i).’.

Lisa Nandy (Labour, Wigan)

The Minister will be relieved, after the previous discussion, to hear that we very much support the clause. I have seen for myself that parents who have managed to reach an agreement in court on the complex detail of contact arrangements can come undone by the labels “contact” and “residence”, and the feeling that one side is the winner and the other the loser. I appreciate that there are strong arguments in favour of shared residence orders, but I am equally mindful of Resolution’s point that the term “child arrangements order” more accurately and rightly focuses minds on the fact that it is about the paramountcy of the welfare of the child. I share the practical concerns that have been expressed about the fact that the order is being introduced at a time when legal aid is being removed from the majority of parents in private law cases. I hope the Minister will tell us how he intends to ensure that parents understand the implications of the new order.

The purpose of my amendment is to allay concerns expressed by the Justice Committee, the Family Law Bar Association, the Children’s Commissioner for England and others. It relates particularly to rights of custody, which, as the Minister knows, are an essential concept in The Hague convention. They are particularly important in cases of child kidnapping. The Hague convention sets out the right to determine a child’s place of residence, which, as the Government have made clear—I am grateful to them for that—is an aspect of parental responsibility unchanged by the child arrangements order. While I accept that, I share the concerns highlighted by the Justice Committee, which said that while that is technically correct, in practice there are several problems; it outlined a few of them, which it is worth reiterating for the Committee.

First, courts in foreign jurisdictions do not practise in English; this increases the room for misinterpretation. Secondly, there will be a lag while legal textbooks catch up with what has changed and what has not. Thirdly, there are people outside the courts, such as port officials and the police, who need to understand the provisions. National courts can ask foreign courts to make a determination under article 15 of The Hague convention, but in reality, that is expensive.

There would be a particular problem if both parents had a child arrangements order, and the parent with whom the child did not ordinarily live was able successfully to convince a foreign court that they both had the same rights. The child arrangements order purposefully seeks to merge residence and contact. I understand why, and I support that in principle, but I do not think that the implicit meaning will be immediately clear. It risks leaving confusion, with parents going through appeal processes and children suffering anguish because of prolonged separation. Given the Government’s efforts to speed up decisions about children, we should avoid that at all costs. Amendment 24 seeks to ensure that things are immediately clear outside the UK’s jurisdiction. I am not wedded to the wording, but I ask the Government to pay heed to the concerns expressed by legal practitioners and others, and to clarify the situation.

Edward Timpson (Conservative, Crewe and Nantwich)

Clause 12 provides for new child arrangements orders to replace existing contact and residence orders. The family justice review panel said that the change would encourage parents to focus on their child’s needs, rather than their own perceived rights and entitlements in respect of the child. That very much echoes the debate we have had.

We welcome that recommendation from the panel. The intention behind the child arrangements order is to move away from language that reinforces the perception that one parent is more important than the other. However, in terms of content, it allows the court, as now, to set out clearly with whom a child lives, spends time or has other types of contact.

The Government believe that the clause should be drafted in the simplest terms to achieve its objective. While amendment 24 would not change the scope of the order, it would focus attention more on the various distinct elements of the order. It would, therefore, risk undermining the policy objective of reducing the perceived hierarchy of different types of order. There are similarities to the effort to define “involvement” and to the potential pitfalls there.

Amendment 25 seeks to ensure that the new order is enforceable internationally. However, from an international perspective, it is the content of an order that matters. It should be clear from the content of a particular child arrangements order whether it regulates living arrangements, contact arrangements, or both. The 1980 Hague convention allows for the return of children who are wrongfully removed to any contracting state in breach of a person’s rights of custody.

Rights of custody are a key concept under the convention and include the right to determine a child’s place of residence. Other states will look at what rights in our law amount to rights of custody. The specific content of relevant decisions and orders, such as child arrangements orders, that specify with whom a child is to live will provide evidence as to whether a person has rights of custody. However, the question of whether something is evidence of rights of custody is a question for international law, and it would not be appropriate to try to dictate the meaning of an international legal concept of that kind in our own law. The existing definition of a residence order does not include a reference to international treaties. It would be inappropriate to include such a reference in the definition of a child arrangements order.

I am glad that the hon. Member for Wigan generally welcomes the clause, and of her efforts to try to defuse the conflict, which I have seen at first hand, that the labels “residence” and “contact” may create. There was an attempt to address that in the past when the terms were “custody” and “access”.

Removing the emphasis on parents in the orders, and moving the focus clearly to the child and the arrangements that should be in place for them, is the right approach. Clearly, there will be a period of adjustment as the new orders are introduced, but we will ensure that parents are aware of the changes. We will look closely at how we can promote a clear understanding, in the different stages of the pre-court dispute resolution process, of the various avenues through which parents access information, including our new online hub for separated parents.

I had the privilege of meeting the Family Justice Board and the Youth Justice Board to see their excellent work. In the reforms to create a single family court, they are well placed to look at the issue and to be confident that information is available to parents and children, so that they have a clear understanding of what a child arrangements order is. The change is a positive step that will remove unnecessary conflict both inside and outside the family court system. I therefore urge the Opposition to withdraw their amendment.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for setting out the steps that will be taken to ensure that parents understand the new child arrangements order; that was at the root of many of my concerns. I do not think we have resolved the disagreements about international jurisdiction. If there is a period of confusion before foreign courts become more au fait with the new arrangements, there could be harmful consequences for children.

Edward Timpson (Conservative, Crewe and Nantwich)

Let me provide the hon. Lady with additional reassurance. When Lord McNally—the Justice Minister—and I appeared before the Justice Committee in the pre-legislative scrutiny process, we gave evidence on how information, through the Ministry of Justice, would be disseminated to other states, so that there is a clear understanding of the implications of our legislative changes. Those efforts will continue to be made, so that there is a clear sense of the direction of travel in our jurisdiction when other states’ jurisdictions come into contact with ours.

Lisa Nandy (Labour, Wigan)

I thank the Minister for that assurance. I had seen that in the Justice Committee’s evidence, but it is absolutely worth reiterating. I am still not sure that we have resolved the difference of opinion between some in the legal profession and the Minister. We ought to continue to discuss that as the Bill progresses through Parliament. I beg to ask leave to withdraw the amendment.

Clause 13 - Control of expert evidence, and of assessments, in children proceedings

Lisa Nandy (Labour, Wigan)

I beg to move amendment 26, in clause 13, page 10, line 14, leave out subsection (5).

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 27, in clause 13, page 10, line 15, at end insert—

‘(5A) The court shall raise with the parties at the first hearing the issue of whether the use of expert evidence is likely to be necessary in the proceedings and shall have particular regard to setting a timetable for consideration of applications for permission to put expert evidence before the court.’.

New clause 14—Arrangements for the provision of evidence by staff of a local authority or of an authorised applicant in children proceedings—

‘(1) The Secretary of State must make arrangements to support a person who is instructed to provide evidence for use in children proceedings if they are a member of the staff of a local authority or of an authorised applicant under section 13(8)(a)(i).

(2) The arrangements described in subsection (1) may include—

(a) training prior to the proceedings,

(b) coaching whilst at court,

(c) designated facilities at court to enable preparation for the proceedings, and

(d) any other arrangements the Secretary of State believes will enable members of the staff of a local authority or of an authorised applicant to provide evidence in the proceedings.’.

Lisa Nandy (Labour, Wigan)

We understand why the Government are concerned about the overuse of expert evidence, which can be costly, in terms of both money and, more importantly, time; children cannot afford to wait unduly for decisions about their future. Given the evidence presented by David Norgrove in his report, we agree with the Children’s Commissioner that, in general, the measure is likely to work in the interests of children. As with all laws, however, there will be exceptions, and I want some assurances from the Minister that the test will not be applied too strictly, and that when the need arises, expert evidence can be sought by practitioners involved in the case. That is the purpose of amendment 26.

The Justice Committee raised concerns that the test is already being applied too strictly, and while that does not convince me that the thrust of the clause is therefore misguided, I am sure that it is not the Government’s intention to withhold evidence that is needed. In the light of that concern, will the Government commit to monitoring the impact of the clause by looking particularly at the number of successful appeals against decisions to refuse expert evidence, to see how the measure is playing out in practice?

I am of the opinion that experts can be extremely important. Research by Dr Julia Brophy, whom the Minister has mentioned, found that independent social worker reports do not simply duplicate social workers’ ethics. She also found that there were very few late reports where lateness was not case-driven. Amendment 27 is designed to ensure that such considerations are thought about early in the case, notwithstanding the need to commission some experts because of matters that arise during the course of proceedings. It could help to reduce delay further if we ensured that, if experts are needed, they are, as far as possible, commissioned early. As that is in line with what the Minister is trying to do, I hope that he will give the matter serious consideration.

As the Minister knows, the number of expert reports has increased significantly over the past 30 years. In evidence to the Justice Committee, members of the judiciary said that they suspected it was because society and social work as a profession have become more risk-averse. That points to my central concern about the clause, which is the additional emphasis that the restriction of expert reports will place on social workers at a time when social work is already under significant pressure.

Nearly eight in 10 social workers say that their case loads are unmanageable and, as we heard in oral evidence, children’s services are reeling from cuts of up to 50%. In some parts of children’s social work, burn-out and turnover are high, and there is a shortage of experienced social workers in many areas of the country. It is urgent that we tackle the matter, not just through the Munro reforms, which we largely support, but through fairer resourcing decisions from central Government and, specifically, training and support for social workers who are required to give evidence in court. The Justice Committee said:

“Taking the evidence together, it appears that where social workers have received training and pre-proceedings work is of high quality, the number of expert reports required will most likely reduce”.

In fact, evidence from the tri-borough work currently being done supports that assertion, and I think the evidence supports that. We owe it to a demoralised and overworked profession to ensure that it has the support that it needs to do its extremely important and challenging job, and we owe it to the children to ensure that we do not let down the people whose job it is to guard their interests.

Without additional support to enable the social work profession to give good-quality evidence in court, the clause’s greatest strength will potentially become its greatest weakness. We hope that the Minister will support new clause 14, which is vital to ensure that efforts to reach the right decision for more children more quickly succeed.

Edward Timpson (Conservative, Crewe and Nantwich)

Clause 13 will strengthen the court’s control of the use of expert evidence in children’s proceedings and ensure that it is not overused or misused. It is a vital step in tackling unnecessary delays in public law proceedings—delays that can have a detrimental impact on children’s welfare. The clause has been widely welcomed by the judiciary, the Magistrates Association and others.

I am clear that expert evidence will continue to be needed in some cases where specialist expertise is required and cannot be obtained from another source. From memory, the president of the family division mentioned examples of such cases in his evidence to the Committee. Certainly, I can remember that from cases that I have been instructed in—non-accidental injury cases, cases involving foetal alcohol syndrome, cases of complex disability, and cases of particular forms of abuse, sexual abuse especially. In cases where the judge considers that specialist expertise is appropriate and necessary, it is important that it is still available, so that a case can be dealt with justly.

However, commissioning an expert should not be, as it has been too often in the past, a matter of routine. Clause 13 will redress that imbalance. We need to get away from the vicious circle that has developed, whereby the judiciary have lost confidence in the evidence supplied to them by social workers and therefore deem it necessary to rely on further evidence from independent social workers and other experts, such as child psychologists; that has, in turn, made social workers feel even less confident about their ability to convince a judge of the veracity of their expert evidence, which has led judges to be even more sceptical of their abilities. Clause 13 seeks to redress that not in isolation, but in parallel with the excellent work done by Mr Justice Ryder and others on the Family Justice Board, both to improve the monitoring of public law cases and to look at where expert evidence is being used when required, and where it makes a material difference without causing unnecessary delay. I am pleased to note that, following pre-legislative scrutiny of the Bill, the Justice Committee concluded that clause 13 was “a proportionate response”.

Amendment 26 appears to stem from a recommendation made by the Justice Committee. In its report following pre-legislative scrutiny, it suggested that clause 13(5) was the same as clause 13(2). In our response to that report, we explained that the two subsections are not the same; subsection (2) sets out the sanction for contravening the prohibition on instructing an expert without permission, whereas subsection (5) sets out the prohibition on putting expert evidence before the court without permission. The former relates to obtaining expert evidence, and the latter relates to putting evidence before the court.

There will be cases in which a fresh expert is not instructed, and a party or parties wish to introduce an existing expert as evidence—for example, an expert from earlier proceedings—or expert assessments commissioned by a local authority during the pre-proceeding stage of the case. It is right that they have the ability to do that, because we do not want unnecessary duplication of evidence. In effect, the amendment would remove the court’s duty to give permission for any expert evidence to be put before the court. The permission requirement is necessary to enable the court to control the expert evidence that goes before it, and for the effective management of a care proceedings case.

Amendment 27 seeks in part to avoid unnecessary delay by placing a positive duty on the court to consider the need for expert evidence at the earliest opportunity. It is the Government’s view that parties are too ready to request permission to instruct multiple experts as a matter of routine, partly because of the vicious cycle I referred to a moment ago. That is why the family procedure rules make it clear that parties who wish to instruct an expert or put expert evidence before the court must approach the court to seek permission at the earliest opportunity. The court is under a duty to manage cases actively, which specifically includes identifying the issues at an early stage and deciding promptly which issues need full investigation. The public law outline made efforts to try to cultivate that sort of practice. We need to go further in improving early case management. The signs from the work that Mr Justice Ryder and others are doing is encouraging, and the case monitoring system is proving to be, in its infancy, a strong way of changing the emphasis, so that there is much more case management earlier in the process.

The court already has extensive case management powers, including powers to give directions on the issues on which it requires evidence, including expert evidence. Given the safeguards and duties on the court that are already in place, I am not persuaded that it is necessary to place in the Bill a further duty on the court to consider the need for expert evidence. As the hon. Lady said, the tri-borough pilot has demonstrated that the overall length of care proceedings, which can in part be fuelled by the use of expert evidence and further reports throughout the duration of the case, can be significantly reduced, enabling the courts to deal with cases justly and make a final order more swiftly. That pilot has included the existing duties on the court to achieve that welcome improvement.

New clause 14 would introduce a new duty to put in place support and training arrangements for local authority staff, NSPCC staff and other persons authorised to bring care proceedings under section 31 of the Children Act 1989. It is clear that high-quality evidence, including assessments, from local authorities is essential to more timely care proceedings, and I commend the hon. Lady for highlighting the importance of support and training for staff within local authorities to ensure that.

In a previous debate, we had a wider discussion about the role of social workers and the potential added pressure on them to provide more and higher-quality reports for the court by the pre-proceedings stage. I sought to reassure the hon. Lady about the measures that the Government are undertaking to improve social work training through the launch of the College of Social Work; an investment of £130 million in social work reform through the social work improvement fund and the “Step up to social work” programme; the assessed and supported year in employment; the new entry routes that we are looking into for social work, particularly Frontline; the review of current arrangements for social work training that Sir Martin Narey has just begun; and the impending creation of the office of the chief social worker, who will be an important standard bearer for social workers and who will support and challenge the profession, as well as provide proactive and expert advice to Ministers on a range of social work issues to try to help raise the status of the profession. There is some good news: retention rates for social workers are improving as many of those who are newly qualified are choosing to stay in the profession, but we need more of them to do so, because we do not want to lose the expertise they gain from what we hope will be improved training in future.

Lisa Nandy (Labour, Wigan)

I am grateful for what the Minister has outlined. Will the reforms specifically consider training and support for social workers who are required to give evidence in court?

Edward Timpson (Conservative, Crewe and Nantwich)

My understanding is that part of the work being done, both through the many measures that I have just described and through the Family Justice Board, is looking at how to improve training for social workers who appear in court. I remember, when I was at the Bar, holding a session with local social workers in a mock trial scenario, to test them and give them a dry run of what it would be like to give evidence in court, because that can be an extremely pressurised and nerve-racking part of what is an extremely important element of their work. In addition, we are working with others, including the College of Social Work, to ensure that court-related work is factored into the curriculum guidance for social worker training. I hope that that provides the hon. Lady with some reassurance.

I was struck, as I am sure were other hon. Members, by the evidence from the president of the family division. He said:

“When I say “expert”, I mean expert with a capital E, because, in my book, social workers are experts. In just the same way, CAFCASS officers are experts. What has gone wrong with the system is that we have at least two experts in every care case—a social worker and a guardian—and yet we have grown up with the culture of believing that they are not really experts and we therefore need experts with a capital E. Much of the time we do not.”––[Official Report, Children and Families Bill Public Bill Committee, 5 March 2013; c. 33, Q74.]

To help at national level, we are working in close collaboration with the Association of Directors of Children’s Services and others to ensure that the necessary training and support can be accessed by all who need it. As well as the work that the College of Social Work is undertaking, the Children’s Improvement Board initiated a programme of work last year to help to build capacity and strengthen social workers’ skills in care proceedings and court-related work.

Jessica Lee (Conservative, Erewash)

Does the Minister agree that the words of the president—his point that there are already two experts in the case—are extremely significant? Of course there will be exceptions and good reasons why additional experts will be required from time to time, but will his comments set a marker?

Edward Timpson (Conservative, Crewe and Nantwich)

My hon. Friend is absolutely right. She will know from her own practice that the matter needs to be tackled, and I know that the president of the family division is right behind the reforms that we are introducing. I look forward to his playing a full and active role in delivering what we all want to be achieved.

Lisa Nandy (Labour, Wigan)

Will that work with the Association of Directors of Children’s Services extend to ensuring that the social worker involved in the case is the one who can attend court and give evidence? A crucial problem with children’s services being so overstretched is that it is often not possible for the social worker who has a really deep knowledge of the case, the family and, crucially, the child to give evidence. Will the Minister tell us what he is doing, perhaps with the ADCS, to tackle that?

Edward Timpson (Conservative, Crewe and Nantwich)

The hon. Lady is right to raise that issue. One factor in delays in care proceedings can be a change of social worker close to the point when the case comes to court. The new social worker does not have in-depth knowledge of the case to draw from and sometimes, as a consequence, it takes them longer to get to grips with writing a report for the court. That can cause delay. Developments in Hackney—for example, performing social work in social work units that hold a case collectively and manage it all the way through to its conclusion—may offer an innovative way to deal with that problem.

I mentioned the Children’s Improvement Board. Following awareness-raising events last summer, eight regional training seminars for local authorities are now being rolled out to demonstrate the importance of a public law case being conducted efficiently and without delay, to highlight the excellent practice in areas where the system is working, some of which I have mentioned, and to encourage others to replicate that themselves. A programme of follow-on training for local authorities is planned in the coming operational year. I am sure that the hon. Lady is pleased to hear that.

Those and other initiatives need to be considered in the context of the wider work that the Government have under way to strengthen social work skills. Working with professionals and lending support from the centre where that is appropriate is the right way forward. I urge the hon. Lady to withdraw the amendment.

Lisa Nandy (Labour, Wigan)

I am grateful to the Minister for making that clear. As I said at the outset, we support the thrust of what the Government are trying to achieve. As with so much of the Bill, our concerns are prompted more by what will happen in practice.

I am somewhat reassured by the Minister’s remarks about training and support available to social workers. I agree with the hon. Member for Erewash that they are experts and should be regarded as such. She is right that they should set the benchmark. Many social workers already do that and it is something they should be proud of. I am grateful to the Minister for telling us what he is doing to emphasise the role of social workers. Having seen what happens on the ground, I believe we need to do more to support social workers in this difficult, complex and important area of their work.

On the basis of what I have heard today, and given that I expect that we will continue to discuss this matter during the passage of the Bill and beyond, I beg to ask leave to withdraw the amendment.