Children and Adoption Bill [HL]

My Lords, it will not have been recorded in Hansard, but my noble friend Lord Adonis and I can hear the noble Baroness’s voice, and know that she probably ought to be in bed with a rather large hot whisky. I am extraordinarily grateful, because it is a sign of her commitment to children, and to the passage of this Bill, that she is with us this evening. I want to put that on the record, because I am well aware of the position. I will therefore try to be as helpful in return as the noble Baroness has been with my noble friend and me in all our discussions during the passage of the Bill. I completely agree with the principle behind the amendment. I understand that we should offer all parties the strongest possible encouragement for mediation. As the noble Baroness knows, I am the Minister responsible for mediation within my own department, so I could not agree more with the sentiment. She and the noble Baroness, Lady Howarth, have raised the discrepancy—if I might call it that—between what happens in publicly and privately funded cases. I recognise that there is a discrepancy, and that we need to look further at this, as well as at the issue of those who choose to be unrepresented, who are a significant group in this whole process. It will not surprise either noble Baroness to learn that we do not think legislation is necessarily the way to address this point. We do not want to ensure that everyone always attends a meeting; there will be good reasons why the courts may decide that is inappropriate. It may be the history of the case, the particular circumstances or the individuals involved. Noble Lords will know how important it is for the courts to have the discretion to address this matter. When someone seeks public funding, they are in theory able to access a court without public funding, so we are not falling foul of Article 6 of the ECHR. I accept, however, that individuals who have public funding do not necessarily in practice have the funds to be able to afford to do so in their own right. The issue of a level playing field is something we need to consider. I am not sure I completely agree with the noble Baroness, Lady Walmsley, about how the atmosphere changes at the point of court. I wonder if she would agree that the atmosphere changes at the point at which you decide to go to court. There is a process where people get to the moment of deciding it is the only way through. It may be cathartic in those circumstances, but it is most likely to be the point of conflict where there is nothing else to be done. I do not suggest that the noble Baroness is wrong at all, but the point might be slightly earlier in the process, and does not affect the point she raises—indeed, it may strengthen it. This may sound like a rather bureaucratic solution to a problem of policy, but we want to look at the forms people fill in. Noble Lords will know that before people come into court, they fill in a form. We are interested in altering that form to say something like, ““We want you to say whether you have met a mediator to discuss mediation, or indeed have gone on to mediation””—and, perhaps more importantly, ““If not, why not?””. The courts could be allowed, in the way they look at the evidence before them about what would be best for these families and circumstances, to consider the answers that have been given and take them into account. In other words, if a court is not satisfied with the answers, the Bill gives it the power to direct that person to attend an initial meeting with a mediator. We think the process of strengthening what people have to give by way of information beforehand, together with ensuring that the courts understand that they have this power and that this might be a piece of evidence to put before them in order to make that decision, is probably a better route, only because we think there will be circumstances where the court should not order that someone attend a meeting on mediation. Building on what the noble Baroness, Lady Howarth, said, I want to say that the work CAFCASS is doing, which is part of the family programme published in January by the President of the Family Division that deals with the way we manage cases, includes referral to in-court conciliation provided by CAFCASS. We have just received, and will shortly be publishing, new research on the effect of in-court conciliation, which CAFCASS intends should be available in all cases—except, as noble Lords will understand, those that involve safety issues. We think that is an important part of this whole process, and I hope it partly addresses the points raised by the noble Baroness, Lady Walmsley. I can tell noble Lords that research so far suggests that in-court conciliation is highly effective, with over 70 per cent of those taking part reaching settlement. If we are able to develop that and roll it out across the country, which is our ambition along with our colleagues in CAFCASS, that will be an additional part of the process to achieve what I know is very dear to the noble Baroness’s heart: keeping people out of court if there are ways of dealing with the issues beforehand, for the benefit of the adults and, especially, the children. That is part of the process we think will make a big difference. It is also worth saying that there has been an increase in the proportion of orders overall that are made by consent. Nearly half of the cases—46 per cent—that go to court are now being settled by consent between the parties. I take nothing away from what the noble Baroness has said. We need to think about the level playing field. We think that by doing something about the information that goes into the court—the evidence base that the courts make their decisions on—requiring the adults to think about why they have not gone to mediation will help us solve the problems for those people for whom mediation would be a solution. I hope that by doing this, together with the in-court conciliation rolled out through CAFCASS, we will have addressed the noble Baroness’s concerns. We will of course keep her informed. On that basis, I hope she will feel able to withdraw her amendment.