Children and Adoption Bill [HL]

moved Amendment No. 2:"Before Clause 1, insert the following new clause—" ““MEDIATION    After section 8 of the Children Act 1989 (c. 41) (orders with respect to children in family proceedings), insert— ““8A   MEDIATION    Applications for a contact order under section 8 must be stayed, unless by order of the court, until the applicant has attended a meeting with a mediator and the mediator has certified that mediation is not suitable to resolve the issue which is the subject of the application.”””” The noble Baroness said: My Lords, at earlier stages of the Bill we moved a number of amendments aimed at encouraging mediation as we believe that, if a couple can be convinced that mediation may help them, and if they then go through mediation with a well qualified mediator, we will be able to keep a lot more families out of the courts. What is more, an arrangement that has been laid down by agreement is much more likely to be adhered to by both parties and therefore there will be less need for all the new sanctions the Government are introducing in Clause 1. In response to our Amendment No. 15 at Report stage, the Government told us that it would fall foul of the Human Rights Act because it limited access to justice. Noble Lords will remember that it said that parents must meet with a mediator to have the benefits of mediation explained to them before they could apply to the court for a contact order. Our purpose in having this condition pre-application to the courts was, first of all, to introduce the mediation idea early, but also to do it before one person became the litigant and the other the respondent. Once a woman metamorphoses into a litigant and her former husband or partner becomes the respondent, or vice versa, the whole atmosphere changes and becomes much more confrontational. We had hoped to avoid that. We also hoped to bring more equality into the system since Section 11 of the Access to Justice Act 1999 says that couples who are publicly funded have to undergo such a meeting before they can apply to the court. Noble Lords should note that that measure does not apply to those who are self-funded or who are litigants in person. It seems there is one law for the rich, who can afford the cost of their own litigation, and another for the poor, who have to apply for legal aid and have no access to justice without it. I would suggest therefore that if our amendment falls foul of the human rights legislation, then so does Section 11 of the Access to Justice Act 1999. I call upon the Minister to explain to the House why it does not. Besides, our earlier amendment would have only delayed access to the courts by a few days and would not impede it altogether. Although we would really prefer our previous amendment, in an effort to be helpful and propose something that certainly would not fall foul of human rights legislation we have proposed this amendment, which says that application must be stayed until a meeting with a mediator has taken place and the mediator has confirmed that going ahead with mediation would not be fruitful. Staying the hearing of an application until some event or other has happened is not unusual. It is done all the time and I see no reason why it should not be done in this case. In the interests of getting more couples into mediation and in the interests of ironing out the inequality in the current law, I do hope the Minister will be able to accept this amendment. I beg to move.