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Bridget Prentice:
The hon. Gentleman makes a fair point, which is why I hesitate as I reply to him. I want to consider further whether the proposal should be in the Bill. I do not object to it in principle, but I want to think about whether it needs to be on the face of the Bill, or whether it would be more appropriate to leave it to take
effect through other procedures. I appreciate what the hon. Gentleman is saying, and I want to go as far as I can to allay concerns about what the review can and cannot do. That is partly why we suggest that the Justice Committee would play such an important role in setting out what the review can cover. It is important that the review should be seen by all concerned as entirely independent and robustly conducted. If it were to conclude that the second part should not go forward in its present form, that view would be taken very seriously. I hope that that gives the hon. Gentleman some comfort.
Government amendment 112 does not need a great deal of explanation. It subjects the Lord Chancellor's power to amend the definition of "relevant family proceedings" to the affirmative resolution procedure, so that the amending instrument may not be made without the prior approval of both Houses of Parliament. I hope that that allays some of hon. Members' concerns in that regard. The purpose of that power is to ensure that we can respond flexibly and promptly should there be any subsequent legislative changes in the way that court proceedings are classified, so that the appropriate range of proceedings will continue to be covered. For example, "family proceedings" can be proceedings under part 5 of the Children Act 1989 dealing with child minding and nursery care regulations.
Let me explain why I cannot accept the amendments tabled by the hon. Member for North-West Norfolk. It is partly because our amendments already address the concerns that have been raised-certainly those about the nature of the review, the move to phase 2, the Lord Chancellor's power to amend the definition of "family proceedings" and the clarity of identifying information. We have covered all those issues fairly comprehensively. I will start by making a more negative point: I have concerns about his call for a limit on the publication of financial information, which I think is misplaced. I do not believe that he or other Members on the Opposition Front Bench suggest that the need to protect information about a parent's finances is of greater consequence than the need to protect information about the children involved, but there are sufficient safeguards in place already, as the courts can decide whether it is appropriate to protect such information.
Amendments 30 and 91 would derail the provisions that will introduce phase 2 of the Bill. I have already explained that the move to phase 2 is not a given, because the independent review, the parliamentary scrutiny that will follow, including the affirmative resolution procedure, are robust enough to ensure that whether phase 2 becomes a reality will be entirely dependent on independent scrutiny.
Let me address the point that the hon. Gentleman made about uncontested adoption proceedings. They are not covered in the Bill, but I accept the tenor of his comments about such proceedings. I think that new clause 8 would backfire, because it would remove the Bill's protection from some of the proceedings that will be protected, and would not cover some of the things that he wants it to cover, but I would like to look at it again to make sure. I have some sympathy with him regarding the necessity of media scrutiny of entirely uncontested adoption proceedings. However, we do not, in the Bill, allow the media in to the final part of adoption proceedings.
The changes are important to the families who use the courts, and particularly to the children who rely on them. They are important to those who take the decisions that will keep children safe and also to the public, who have had doubts about some of the courts' actions and have called into question the effectiveness of the family justice system as a whole. That is why the changes are overdue. Clearly, we all agree that the family justice system should be more transparent and open.
I believe that the amendments that the Government have now tabled offer the best way forward. They offer a balanced approach to change and safeguards for the families involved, and give family courts a chance to shake off the allegations of secrecy. They mean that justice has a chance to be done and-it may be a cliché, but in this case it is an important principle-to be seen to be done.
I therefore ask the House to support the Government amendments. I hope that the other amendments will be withdrawn; otherwise, I will have to ask the House to reject them.
Mr. Timpson: At the outset I must declare an interest, in that I have been a family law barrister for 12 years, although I have not practised for several years.
It has taken me even longer than the Minister to speak on this part of the Bill, and I suspect that my experience is unusual, as I have had more influence by not saying anything than would have been the case if I had spoken. I appreciate and acknowledge what the Minister has done in trying to address some of our amendments, and we welcome the concessions that the Government have made. I am glad that our amendments have been taken seriously and given the attention and respect that they deserve. Nevertheless, it is clear even from this short debate that this part of the Bill is beginning to unravel even further from its initial presentation.
I want to make it clear that Opposition Members are in exactly the same position as the Government-and I am sure other parties-when it comes to considering the family court system. The Justice Secretary said that his objective in going through this exercise was
"to build a transparent, accountable family justice system which inspires the confidence of the people it serves, while continuing to protect the privacy of the parties and children involved."
I do not think that any of us could argue against that as a starting position for thinking about how we can give the public more confidence in the family justice system, which is so important to so many people. From that starting premise, the Government have made a number of welcome moves over several years.
However, I was not sure whether the Minister thought that the new rules introduced in April 2009 were a success or not, given that, after an initial burst of activity, no one from the media seems to have shown much interest in the family courts. What we do know is that the major reform in the Bill should be given proper and careful consideration, rather than being rushed through.
I agree with the pithy but important contribution from the hon. Member for Yeovil (Mr. Laws), who speaks for the Liberal Democrats. He said that we could not discuss such a fundamental sea change to family justice in such a short debate, lasting just an hour and a
half on the Floor of the House, and still be confident that it would play out on the ground and in the courts as we intend. As my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) said at the beginning of his speech, it is perhaps even more illuminating that we have managed to find ourselves in an unenviable position today, with even those who advocate full transparency for family courts saying that the legislation could end up doing more harm than good.
I am not here to defend the family courts. I recognise that many people who have been exposed to the system come away from it extremely disappointed and frustrated by what they have had to go through. However, when we think about opening up the family courts, we cannot and must not put the interests and welfare of children anywhere but at the top of the list.
The Government's hope and expectation is that the interests and welfare of children who, through no fault of their own, find themselves in the family courts system will remain at the heart of this part of the Bill. However, voices from all sides are telling the Government that there is still great concern that the involvement of the media in their cases will make children less, rather than more, willing to disclose problems and talk to professionals. The danger is that judges will have to make decisions in cases without having the full facts and evidence before them. I am sure that that is not what the Minister, or anyone else in the House, would want to happen.
8.45 pm
Will the Minister spend a little more time considering our new clause 7? When the Government sent round the letter telling us what their amendments would be, they prayed in aid the fact that many of the amendments were being introduced because members of the judiciary and other bodies, and particularly the president of the family division, had expressed concerns about aspects of the Bill, and that the Minister had, rightly, listened carefully to what he had to say.
We know from his oral evidence and his written evidence to the Public Bill Committee that Sir Mark Potter has grave concerns that unless there is a provision such as we set out in new clause 7, whereby the publication of any case through the media could not take place until the judgment, a case may be reported in a local or national newspaper in a way that gives a completely different version of events from what has been played out across the whole case from start to finish. The media could give a skewed account that did not reflect the facts of the case as they played out. I ask the Minister to look at that aspect again. She clearly believes that the views of the president of the family division are worth listening to.
The Opposition have tried to be constructive. I am delighted that the Government have taken on board a number of the amendments that we tabled-for example, on how involvement in the relevant proceedings are defined in clause 41. In some instances the Government could have agreed to our amendments as drafted, but they felt it necessary to rewrite them in almost exactly the same way, with the same meaning. Perhaps I should take that as a compliment.
Why can the Minister not accept new clause 2? In the debate this evening we learned far more about the Government's position and the thinking behind the independent review. It appears that all the elements that
we included in new clause 2-the anonymised judgments and the assessment and evaluation of the new rules introduced in April 2009-are very much in her mind as well. I ask her to be brave, to listen-as she has done, to her enormous credit-to the information that we have been giving her about our concerns, and to think carefully about why we should wait any longer for new clause 2 to become part of her Bill, as well as of our Bill.
Bridget Prentice: One of the reasons why I am hesitant about the Opposition's new clause 2 is that part of it is superfluous. The pilots will have been completed long before the review takes place, so that evidence will already be in the public domain. I do not know whether that helps the hon. Gentleman.
Mr. Timpson: In that case, what is the concern? Where is the guarantee in the Bill as drafted that those pilots will be completed before the independent review takes place? If the Minister is giving me that guarantee, I see no reason why it cannot be written into the Bill. We want the Bill to be transparent, just as we want the courts to be transparent, so we should practise what we preach.
I am conscious that we are coming to the end of our time and that other Members wish to speak, so I shall conclude by saying that the Opposition want the family courts to gain public confidence by being more transparent and accountable, but we need to make sure that all the people who work in those courts, who have to go to those courts and who report those courts have confidence in the Bill, and that it will work. I am sad to say that in its current form, despite our best efforts to help the Government produce a workable Bill, it will not do what it is intended to do. Even those on the edges of the spectrum of interest in the Bill share that concern. I hope the Minister will continue to take those comments on board as the Bill continues its passage through the House.
John Hemming: The hon. Member for North-West Norfolk (Mr. Bellingham) wants to speak for a minute just before 9 pm. I hope to finish in sufficient time for that.
Sadly, the Government have gone about this whole process in completely the wrong way, and as such they have created a monstrous mess. It is overly complex, reverses Clayton v. Clayton, makes secret documents of court orders that are currently public and achieves very little. I should like to cite an example that demonstrates the problems with secrecy in the system by referring to two babies who were born in Spain last week to families that emigrated rapidly from Suffolk because they faced the removal of their babies at birth, with the police in the delivery suite and social workers in attendance to take the children immediately into care. As everybody knows from the statistics, the vast majority of babies who are taken into care at birth end up being adopted.
One baby was born to Sam Hallimond and his fiancée Vanessa. They went through the family courts, and the press could in fact have named them because Clayton v. Clayton allows them to be identified. The Bill, however, aims to gag Sam and Vanessa: it aims to stop the press reporting their names. They are in Spain, the baby is all right, everyone is okay, the authorities are quite happy with them and there is no difficulty.
The members of the other family are Dale and Lorraine Coote and their daughter Megan, who are constituents of Mr. Deputy Speaker, the hon. Member for Central Suffolk and North Ipswich (Sir Michael Lord), and very pleased to have his support. They have not touched the family courts, so all the documentation on and discussion of their case can be made public; there is absolutely no difficulty whatever. The Bill will have no effect on them, because their case has never been to the family courts.
On the merits of the argument, Spain, according to UNICEF's report card No. 3, has one of the best records in the world for protecting children from death from abuse and neglect. The authorities have been around, seen the Cootes and said, "You're all right. Just stay in touch with us. We do not have a problem with you looking after your own child." The authorities here wanted to remove the child at birth, with a police officer in the delivery room-straight into care, feed the adoption machine.
There is a key point about the accountability in and transparency of the process. With the Cootes' case, all the documentation is public and not constrained in any way whatever. The fact that they are abroad means that, to a certain extent, they can do what they want anyway, because the court order stops at the border. The Hallimond case is much harder, because the press in this country cannot report the documentation. The press abroad can, however, so there is no difficulty there.
In care proceedings, the family courts are in essence the quality control system for a complex judgment. In social work, decisions about when and when not to intervene are critical judgments, and one needs to maintain an open mind and review the judgment. One can criticise the Department for making the whole system worse, but, crucially, the role of the family courts is to bring in that quality control.
Birmingham city council reviewed the practices of its own children's services department and identified that, in about 50 per cent. of cases, the judgment was poor: the practitioners were incapable of judging when a child was and was not at risk. The quality control for that judgment is the family courts, but the problem is that it often fails. It does not always fail, because there are some very good judges, but other judges basically accept any old rubbish that is put up by the local council, and the judgment goes through. The Court of Appeal subsequently says, "Oh, that's all judicial discretion," so it does not correct the judgment.
As a backstop for that process, we need transparency: we need to be able to look at what has happened. The Government's strategy has been to assume that a journalist will be sitting in the family courts all the time. A national newspaper reporter might go to the court in London once or twice, but they will not know in advance about a miscarriage of justice; they will know only in arrears. The process fails because it does not look at the situation from the point of view of the parties. It is the parties who know when a miscarriage of justice has occurred, so it is the parties who should be able to take that issue-yes, perhaps with certain constraints-and have a discussion about the merits of the case.
I have a constituency case in which a mother was put in the Appledore centre and her parenting ability assessed, and it was decided that because she breastfed her baby on demand-she did not follow Gina Ford's instructions,
in other words-she failed her parenting assessment. One would think that such an assessment, which I have in writing, would be rejected by the family court, but sadly it was not. The problem that we have with the appeal in that case is that the judge has not issued a written judgment, so the appeal will go in on the basis of no judgment being provided. Those sorts of things simply should not happen.
I should have declared right at the start-I think everybody knows-that I co-ordinate the Justice for Families campaign, which is why I am contacted by people from all over the country, including children in their late teens who are forced into care unnecessarily by the family courts system. It is those children, too, who are being gagged by the process. It would be a criminal offence for a newspaper to report the name of a child who is 17 and is wrongly subject to a care order. That would not have been the case prior to this Bill, because under Clayton v. Clayton the parties following the judgment can be reported.
There is only area where I would have some agreement with the proposed constraints on information. Obviously, it is at the judgment stage that information should be talked about, but the Government's big mistake is that they are going about this in completely the wrong way. What is important about the whole process is being able to look at the experts' reports, all the evidence and the transcript of the hearing, and ask, "Is it reasonable for the state to intervene in the way in which it is intervening in this situation?" These are very traumatic processes. The two families who are in Spain at the moment faced the real prospect of a police officer in the delivery room to take the baby at birth under a police protection order. That is massively traumatic, so it is not surprising that they, like several other families, have decided to emigrate.
Looking at the telegraphing that is going on between the Minister and the Conservative spokesman, it is probably fair to say that they could do with a little bit more than the minute that they asked for, so I will finish on this point. The Government have gone about this in completely the wrong way. The April 2009 stuff was really quite good, although it needed to go further in certain ways, but what needs to happen now is that we stop gagging the parties who are subject to miscarriages of justice.
Mr. Bellingham: We have had an interesting debate. Conservative Members are very keen to make this part of the Bill work. Our position is straightforward. We would rather that the Government put this part of the Bill on hold and waited until after the election, when the Government of the day could bring in a matrimonial family Bill of which this could be a part, so that rather than its being tacked on to a Bill that is being promoted by another Department, it would be a vital part of a free-standing justice Bill. I think that that is what people who work in the family courts-the judges, expert witnesses, solicitors and lawyers who are in those courts on a day-to-day basis-would expect.
I echo what my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson) said. I am afraid that while the Government have had the right intent, this part of the Bill is falling into a state of some chaos. If they insist on going ahead, it is important that we have new clause 2. The Minister said a moment ago that she
was almost with us on new clause 2, so can we go the whole way? Will the Government accept it, because if not, we will have to force it to a vote?
Bridget Prentice: I am with the hon. Gentleman-I accept new clause 2.
Mr. Bellingham: I am very grateful to the Minister for that. As I am on a roll, is she prepared to accept new clause 7? [ Interruption. ] Perhaps I am pushing my luck a bit too far, but I believe that we have put a convincing, compelling case for new clause 7 as well. It supports what Sir Mark Potter, the president of the family division, has urged us to do. I do not want to be unkind to the Minister, because I am very grateful to her, but on that basis I intend to press new clause 7 to a vote.
New clause 2 accordingly read a Second time, and added to the Bill.
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