Family Justice

I am pleased to serve under your chairmanship, Mr. O'Hara, and to have the opportunity to debate the fourth report of Session 2004–05 of the Select Committee on Constitutional Affairs on family justice and the operation of the family courts. The report was issued during the previous Parliament, which means that several of the Members who took part in preparing it are no longer in the House. Clive Soley, for example, is now Lord Soley, and is elsewhere, although he still takes an interest in these matters, as I am sure do the other Members who served on the Committee and others who are still in the House but are engaged in other Committees and in other work. The report was a very important part of our work, and we attached a great deal of importance to it. It certainly attracted a great deal of interest. Our interest in the field began with our work on the Children and Family Court Advisory and Support Service for the third report of the 2002–03 Session. The situation at that time was such that we had to produce a very critical report that led to the replacement of the entire board of CAFCASS and a fresh start for what was then a very troubled organisation. This report considers more widely the operation of the family courts. We took evidence from a wide range of organisations that represent families, mothers, fathers and children, as well as legal practitioners, academics and judges at all levels, from the magistrates court to the president of the family division of the High Court. Since the report was published, we have had the Government's response, the draft Children (Contact) and Adoption Bill last summer, and the Joint Committee's report on that Bill. Conveniently, the Joint Committee was chaired by Clive Soley while he was still serving on the Constitutional Affairs Committee. That provided helpful continuity between the work of the two Committees. The Bill is now well on its way through the House of Lords, and we look forward to receiving it in the House of Commons. The report examines the way in which the court system tries to deal with unresolved disputes involving the care of, and contact with, children in situations where parents have divorced or separated. In the vast majority of families where breakdown occurs, the problems are resolved without the involvement of the courts. Courts become involved when there is a great deal of emotion, bitterness and mistrust, which court processes rarely dispel and often make worse. Raking over bitter disputes in an adversarial process does not make them easier to resolve, and the delays and enforcement problems inherent in the process can mean that an aggrieved parent is denied the very contact that they seek, and the child is denied their right to contact with both parents. Our first conclusion was therefore that the courts are not the best place in which to resolve complex family disputes and should be a last resort. We heard a great deal in Committee and in public debate about non-resident parents who have persistently been denied contact with their children. Most, but not all, of those parents are fathers, many of whom have drawn the conclusion that the courts are biased against them, either because of the court's decisions or because contact has not been enforced. That view has led some to argue that the existing legal presumption, which puts the welfare of the child first, should be supplemented by a legal presumption that both parents should have contact with the children. We found two serious obstacles to that view. First, many cases involve allegations of domestic violence or abuse, and those concerns cannot simply be overridden by imposing such a presumption without regard to the safety of the child. Secondly, and more generally, the judges expressed their concern about attempting to operate two legal presumptions at the same time. Dame Elizabeth Butler-Sloss says:"““we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which one takes precedence?””" We therefore recommended that another way should be found to assert the principle, which is enshrined in the United Nations convention on the rights of the child, that a child has the right to have contact with both parents. We recommended that that should be achieved by adding it to the welfare checklist in the Children Act 2004. What is the Government's latest thinking on this central point?