Children and Adoption Bill [HL]

My Lords, I seem to spend a lot of my life on legislation. I cannot but echo some of the sentiment behind it. So, of course, we only put forward legislation that is vital, as the noble Lords will appreciate. I want to deal with these amendments in order. I completely understand the aim behind Amendment No. 9 but, for a number of reasons, I am nervous about it. The first reason is that I am never entirely sure that the best way forward is to have the Secretary of State give out guidance in this area—not because we do not have magnificent Secretaries of State but because there is an issue about how much guidance a Secretary of State should be giving to the courts. I am also nervous about prescription. While I take the point that has been made to me both inside your Lordships’ Chamber and outside that although we go on about how every case is different, noble Lords then point to the similarities between cases. I asked the judiciary how they approach the issue. They say, ““Of course the outcomes in many cases may look very similar because much of how we organise the lives of families with children who have broken up ends up looking pretty much the same””. But you have to start from the court’s perspective by saying, ““This case is unique””. In that way you can address the needs of the child and then look at the needs of the family from that unique perspective. So they are not actually contradictory. I believe that we should be nervous about prescription. I am also a bit nervous on the issue of who one consults in arriving at this set of guidelines. You only have to look at our debate today and the expertise in your Lordships’ House, never mind outside, to see that there are very differing views. I am not sure how we would reach the type of consensus that we would need to have. We have looked at setting up the parenting plans and consulted on a new set of parenting plans. I would be very keen to discuss with noble Lords opposite on both Benches what we have come up with to see whether there are any changes that we might make to the parenting plans. I accept that the issue that noble Lords are concerned with is partly addressed by the quantity of information and the quality of advice and the quality of the work that we do beforehand. So I make the absolute commitment that we will come to noble Lords with what we are drafting. I take the point about filling in lots of things. But the purpose of the proposal is to get parents to think about different issues—such as whether your child should have a mobile phone, who is going to attend parents’ evenings, and so on—and not just to get them to try to fill in all the information. However I take the point. I hope that we can have a really good discussion to see whether we can properly address those points. If noble Lords are willing to do that—as I hope they are—we will do that. We talk about jurisdictions. One of the difficulties which I think I have already indicated is that it is very difficult to get empirical research about what happens in different countries. We cannot find any research from other countries that shows the beneficial impact of parenting plans on the child’s welfare; if anyone has any, we would be very grateful to receive it. We have sought such information from other jurisdictions and looked at many research bodies but we simply cannot find any. If there is any we would be very happy to examine it between now and the next stage. But we do not think that such research exists. A lot has been said about the Florida model, which I am not going to dispute works in Florida. Again, however, we do not have specific advice. As the Committee will know, the Florida situation is based on parents’ rights and on children’s welfare. That is the approach that they have taken and it is for them to decide what they want to do. Florida does not publish guidelines on contact. In her Private Law Programme in July 2004, the then President of the Family Division focused on early judicial interventions and the extension of alternative dispute resolution supported by Her Majesty’s Courts Service and by CAFCASS. The consultation seeks to underpin that approach by looking at CAFCASS to frontload earlier interventions. So there is no dispute between us about the need to look at early intervention as the way forward. I agree with that. It is very important that people do not end up in court; hence the mediation issues. I also take what the noble Baroness said about the particular issue of, I assume, parental involvement in Bar Mitzvahs and Bat Mitzvahs. Perhaps we can have a think about that. I am sure that that would be taken into account, but I also take the point of religious groups in saying that there is an issue that we should think about. For those reasons, and with the commitment that we will bring forward the parenting plans to discuss with noble Lords in order to see whether we can improve them to achieve the objective at least in part, I hope that Amendment No. 9 will not be pressed. Amendment No. 10 requires the President of the Family Division to compile a list of mediators. Noble Lords will probably know that we have the UK College of Family Mediators. I am keen to involve it in what we do, rather than moving to create a different list held by the President of the Family Division—who I am sure would be absolutely thrilled to hear that we want him to add this to the list of things that he does. However, I am happy to talk to the UK college and to other mediator bodies about how we do this. I am not sure whether that would move into a regulation but I think that we could talk to them about issues of concern, if noble Lords would like to talk to me about that outside. The amendment includes a form of compulsory mediation. Noble Lords will know that there is a real issue in relation to Article 6 of the European Convention on Human Rights. In last year’s judgment, Lord Justice Dyson said:"““It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their rights of access to the courts””" That would be contrary to Article 6 of the European Convention on Human Rights. There is also an issue about whether forcing people into mediation could add to the delay in getting them into court when that might be the best solution. The amendment does not allow for the fact that they might have been through mediation already which proved unsuccessful. I am always nervous about compulsory mediation, for two other reasons. First, in many cases which have become intractable there is a difficult relationship between the parties which may include either domestic violence or certainly intimidation and bullying. To suggest that they are able to mediate as equal partners is not necessarily appropriate. So I am not keen to look at that as an absolute. The Bill already allows the courts to order people to participate in the information sessions. The Bill also enables us to order them to undergo counselling. My experience of talking to mediation organisations is that they are nervous about compulsory mediation for the reasons that I have given. Moreover, the families often need much more than mediation; they need counselling. There is a longer-term issue that can be addressed in the Bill. I too am not going to go over the early intervention pilot. We will wait for the evaluation. I hope that my noble friend—it will not be me—will make that evaluation available. I think that it was a good pilot that achieved a great deal, although I know that noble Lords will take a different view. We have committed about £7.5 million over the next two years to support and develop child contact services. Without wanting to go down the route that is proposed by the noble Baroness, I should be keen to have discussions with noble Lords on how we might use some of that funding to develop services for the purposes that noble Lords are seeking to achieve in the amendment.