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Baroness Hanham moved Amendment No. 17:


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The noble Baroness said: My Lords, in moving this amendment, and before I speak to several more in my name, perhaps I may remind the House that I am both a magistrate and a member of the family proceedings court.

In moving Amendment No. 17, I wish to speak also to Amendments Nos. 19, 20 and 31 which effectively concern the same issue. In doing so, it seems almost incumbent on me to quote the immortal phrase, "What's in a name?" Well, my Lords, what is? The acronym for the new service, with which we have all been labouring, is unwieldy and uncomfortable. It is also horribly easy to slip from saying "CAFCASS" into saying "Kafkaesque", a connotation which would be unfortunate in the extreme.

I am told that magistrates and those working towards the new service believe that, far from enhancing its stature, the acronym will bring it and them into disrepute. The full title of the new service is also cumbersome, even if it is not abbreviated. "Children and family court advisory and support service" is a great mouthful. It is no more descriptive of what is involved than the much simpler "family court child welfare service", which is well understood and respected and which we now propose.

At least the letters FCCWS cannot be shortened into anything other than FCCWS. I think hardly anyone would want to incur the humiliation of saying the acronym FCCWS. There is much in a name--pride, identification, professionalism. I hope the noble Lords will listen carefully to what has been said by those involved in the new service and spare them forever being members of CAFCASS.

Lord Bach: My Lords, we move into other waters from that of the Probation Service, but whether they are calmer waters or not the next few minutes will tell. The noble Baroness, Lady Hanham, was a magistrate and a member of the family court and speaks with the experience of one who has spent years working in those fields.

The noble Baroness knows what I am about to say. The amendment would change the name of the service to an existing and very similar one, the family court welfare service. That is one of the services that will go to form CAFCASS. We think that the amendment is retrograde and would be unpopular with those who work in and use the service. The family court welfare service is the name of one of the three services that would integrate into CAFCASS. We think that it would send a negative message to the other services that will become part of CAFCASS. Consultation on setting up the new service showed considerable opposition to the term "welfare". It may be that the noble Lords will feel that to have "welfare" in the title is a mistake.

I remind noble Lords that this service will be a new one, an amalgamation of three current services--family court welfare, guardians ad litem and the children's division of the Official Solicitor. We think that to name it after one of the three services only would, in effect, devalue the other two. An important

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argument against changing the name at this stage is that a huge amount of development work has already taken place. The new title and the acronym that the noble Baroness, Lady Hanham, does not like are well established with future staff and future users of the service.

Fathers' groups have been extremely critical of the family court welfare service. They would say that their fears that nothing is really changing had been justified if the name of the new service was so close to the current name. We think the new name is appropriate because it reflects what the service will do. It is the name that has been used throughout the consultations that have taken place over 12 months. It is common currency among those who would use the service and those who will be stakeholders in it. We think it is also a descriptive name. It uses a name that indicates what the new service does, and we think that is important. CAFCASS will provide advice and support to children and family courts. It will not just replicate existing services but build on their strengths to provide a better one, more child focused, more flexible and able to offer a better service to the courts.

It is for those reasons that we invite the noble Baroness to withdraw her amendment and allow the name to stand.

Baroness Hanham: My Lords, I thank the Minister for his considered reply. It seems a pity that names of services or matters to do with anything that is in a Bill going through Parliament should become so set in stone that it is apparently immutable when discussion is still taking place on a matter such as this. The name will be controversial. It is certainly something of which I have heard people say they are deeply unhappy. It is very cumbersome.

I wish to reflect on what the Minister said about support for the new service. It is a pity that support for the service should be diminished by the unwieldy nature of the title. For the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 18:


    Page 6, line 14, leave out ("13(1)") and insert ("13(2)").

The noble Lord said: My Lords, I beg to move Amendment No. 18 and speak to Amendments No. 32, 40 and 41 which are all government amendments.

I start with Amendments Nos. 40 and 41. They will ensure that the scheme that may be devised by the Lord Chancellor under Clause 15(1)--which we shall discuss shortly--falls fully within the definition of "regulations". Amendment Nos. 40 and 41 are concerned with Clause 25 of the Bill. It was felt that this clause was too narrow and would not cover the proposed amendments to which I have referred in Clause 15(1). Principally, this is because the word "regulations" does not appear in the amended text. The amendments, if passed, would ensure that the Lord Chancellor has the power to make regulations under Clause 15.

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Amendment No. 18 will ensure that individuals who perform functions on behalf of the service under Clause 13 are considered officers of the service for the purpose of the Bill or any other enactment. Amendment No. 32 would ensure that the powers conferred on the inspector by the Bill under Clause 17 are fully incorporated into Section 63 of the Justices of the Peace Act 1997. I beg to move Amendment No. 18.

On Question, amendment agreed to.

Schedule 2 [Children and Family Court Advisory and Support Service]:

[Amendment Nos. 19 and 20 not moved.]

Clause 12 [Principal functions of the Service]:

Lord Bach moved Amendments No. 21:


    Page 6, line 26, at end insert ("(whether or not they are exercisable for the purposes of the functions conferred on the Service by subsection (1))").

The noble Lord said: My Lords, I beg to move Amendment No. 21 and speak to Amendments Nos. 22 and 23. These amendments would ensure that CAFCASS would be able to act in all family proceedings under any of the current statutory definitions. The House knows that CAFCASS would bring together the family court welfare service, the guardian ad litem service and the children's division of the Official Solicitor.

Currently, there is no single statutory definition of the expression "family proceedings" under which the three existing services operate. To ensure that CAFCASS will be able to carry on the work currently undertaken by the three services it is essential that the definition of "family proceedings" in the Bill is comprehensive. These amendments ensure that the definition is comprehensive. CAFCASS would be under a duty and able to act in all proceedings classed as family proceedings under any of the current statutory definitions. I beg to move.

On Question, amendment agreed to.

Lord Bach moved Amendments Nos. 22 and 23:


    Page 6, line 35, after second ("in") insert ("the Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of").


    Page 6, line 41, leave out ("that Act)") and insert ("the Children Act 1989)").

On Question, amendments agreed to.

Clause 15 [Right to conduct litigation and right of audience]:

Baroness Hanham moved Amendment No. 24:


    Page 7, line 21, leave out ("an officer of the Service") and insert ("a suitably qualified lawyer").

The noble Baroness said: My Lords, this amendment relates to an area of the Bill which, in Committee, prompted a most detailed and thoughtful debate initiated by the noble Earl, Lord Listowel. Following the debate, I received a letter from the Minister, Lord Bassam, and I thank him for his courtesy. I read it with interest, but it probably does not go so far as I hoped. The Minister says in the letter

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that parliamentary counsel had been asked to find an alternative form or words that would more precisely reflect the current position, limiting to a particular group of officers the powers of CAFCASS to authorise officers of the service to conduct litigation and to have rights of audience. They are identified as those who are qualified litigators, that is to say, lawyers, of which I believe there are three in the Official Solicitor's department and those who work for them, of which there are many more.

Noble Lords will recall that there were and remain two central issues to the concerns raised by the noble Earl and myself. The first related to a possible confusion which may be caused by the words in Clause 15(1)--"an officer of the Service"--particularly in relation to public law cases where a child has a right to the help and support of a guardian ad litem and a qualified legal representative. The current wording is ambiguous in that regard.

The second issue is in private law cases--that is, those where arrangements are being made for a child's future, sometimes as a result of matrimonial breakdown or where parents have cohabited, sometimes briefly, and arrangements are being made for future contact or residence with one or other of the parents.

Sometimes, one parent is almost unknown to the child and there may have been a history of some sort of abuse or trauma to both the child and/or one of the parents. In many cases, the child has an independent interest and a view which must be expressed. It is imperative that the court service should ensure that proper legal advice is provided for such children from a qualified legal professional and not from an officer who, however skilled, has no formal legal training.

The concerns which the noble Earl and I expressed were that the words,


    "may authorise an officer of the Service",

to conduct litigation could seriously undermine those two principles. Those concerns are shared by both the Law Society and the National Association of Guardians Ad Litem and Reporting Officers. For that reason, I have tabled these two amendments.

The first amendment seeks to enshrine the principle of legal representation for children in all cases so that where it is mentioned it encompasses both public and private law. Secondly, we seek to secure the principle of the tandem law principle in public law cases. I believe that that is completely accepted by the Government. Indeed, the noble Lord, Lord Bach, went to a great deal of effort to explain in Committee. However, that could be potentially circumvented if the current wording survives. If my amendment were agreed to, it would underline the very clear assurances given by the Minister in Committee.

I know that the Minister also has tabled amendments in this regard and I hope that I may have an opportunity to comment on them after he has moved them. I beg to move.

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7 p.m.

Lord Bach: My Lords, the government amendments are grouped separately from the noble Baroness's amendments. That does not make much sense. Perhaps I may speak now to the government amendments on which the noble Baroness may comment when she responds in relation to her amendments. We are talking about the same issues.

I am grateful to the noble Baroness for the way in which she has expressed her argument and for her thanks to my noble friend for his letter. She will recognise, and has done so, that we have moved some considerable way since Committee. We are grateful to the noble Baroness and the noble Earl for pointing out the problems which might have existed if we had left Clause 15 as it was. But, of course, we have not done that. Our amendments seek to prescribe the "officers of the service" in regulations made by the Lord Chancellor. Those people will be able to act for children.

I want to make it absolutely clear once again on the record that the Government favour the tandem system in public law cases. We believe that it has worked well and we want it to continue to work well under the new system which CAFCASS will introduce. We are not trying to undermine that in any sense at all.

However, we seek to protect the role of caseworkers who work for the Official Solicitor. Caseworkers are an integral part of the system operated by the Official Solicitor and they need to continue to be so in CAFCASS if it is to be successful. I have said already and I repeat that we are committed to the tandem model and that commitment will be reflected in the revised rules of court which are out to discussion at present.

Reference to the tandem model on the face of the Bill, which is the last of the noble Baroness's amendments is inappropriate. The term "tandem model" would need to be clearly defined if it were to stand part of the Bill. That issue would be better dealt with by rules of court.

It is essential that the current functions performed by caseworkers on behalf of the Official Solicitor can continue to be performed by them in CAFCASS. Caseworkers play a critical role in the Official Solicitor's office. A caseworker in the Official Solicitor's office will take on his or her own cases, under the supervision--that is crucial--of a lawyer.

Typically, the caseworker will attend a first directions hearings in which the caseworkers will agree the timetable for the proceedings with the judge and the other parties involved. The caseworker will also assist the judge as is necessary. I am given to understand that the role performed by the caseworkers is greatly valued by the members of the judiciary who must deal with those difficult cases.

CAFCASS must be able to draw on the experience and expertise of these caseworkers if it is to be able to continue to provide the excellent service to the courts that the children's division of the Official Solicitor

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currently does. Indeed it would be no less than disastrous for the courts and for children and families if they were not.

The Government recognise the strong feelings on the tandem model form of representation in public law cases, which is why we have given--and I have done so twice this evening--an assurance on our commitment to the continued use of that mode by CAFCASS and our own amendments clarify that.

I repeat that the purpose of Clause 15 is not to do away with the tandem model of representation in public law cases but to allow those transferring from the Official Solicitor's office to continue to perform the functions that they currently perform.

I shall speak briefly to the three amendments. We expect that three lawyers and 21 caseworkers will transfer from the Official Solicitor to CAFCASS. The amendments would exclude caseworkers from being authorised by CAFCASS under Clause 15 to continue to undertake the valuable work that they currently perform. We believe that such an exclusion would gravely damage the service's ability to carry on its duties. CAFCASS could not take the same number of cases as the children's division of the Official Solicitor's office currently undertake if it could not continue to use those caseworkers in the same manner as is the Official Solicitor's current practice.

If caseworkers were not able to continue to perform the valuable role they currently perform, CAFCASS would be less effective. It would not be able to safeguard and promote the welfare of children as effectively as the three existing services currently do. In effect, there would be a reduction in the service currently available. We believe that that would be a grave matter indeed.

Amendment No. 30 seeks to place on the face of the Bill a duty on CAFCASS to provide representation in accordance with the tandem model in public law cases. I repeat the assurance about the tandem model working well. We intend to cover precisely these matters in the revised Rules of Court. where the tandem model is currently described and dealt with.

Perhaps I may quote from Rule 4.11(2) of the Family Proceedings Rules 1991 which states:


    "The guardian ad litem shall ... (a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and (b) ... instruct the solicitor representing the child on all matters relevant to the interests of the child, including the possibilities for an appeal, arising in the course of the proceedings".

The amendments seek to go far beyond the current arrangements by creating a duty in primary legislation which currently exists only in secondary legislation. We do not believe that that is necessary or desirable. Our intention is to amend the rules of court to reflect the creation of the new body, CAFCASS. We are currently discussing these matters with stakeholders, and we intend to retain the tandem model in the revised rules. I cannot say that more clearly.

We do not believe that the face of the Bill is the appropriate place to deal with these matters. If this amendment were passed, there could be real problems.

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One problem lies in the fact that a reference is made to the tandem model, but there is no statutory definition of, or reference in primary legislation to, that term. In order to stand part of the Bill such a term should have a watertight statutory definition, otherwise CAFCASS could face a number of difficulties, the main one being not knowing whether it had fully satisfied the duty imposed on it to act in accordance with the tandem model. Those are our reasons for suggesting that the noble Baroness should withdraw her amendments.

Perhaps I may mention the effects of our three amendments. First, our amendments would allow the current arrangements to be replicated in CAFCASS, with lawyers and caseworkers having the ability to conduct litigation and having rights of audience in all courts. Secondly, my noble and learned friend the Lord Chancellor will be able to exercise a significant level of control, through regulations, on those officers of the service that CAFCASS can authorise under Clause 15.

We looked at the drafting of Clause 15 in Committee and we have amended it. I make it absolutely clear that we do not intend to undermine the tandem model, nor do we want to compel guardians ad litem or family court welfare officers to conduct litigation or to act as advocates. I tell the House that so that it is crystal clear. I know that that is a concern of both organisations. I repeat: we do not intend that they should be compelled to conduct litigation.

Under our amendments, CAFCASS will be able to authorise only a "prescribed" officer of the service under Clause 15. Previously, CAFCASS would have had an absolute discretion as to which officers of the service it could authorise under the clause. That concerned the noble Baroness, the noble Earl and some organisations outside the House.

As the noble Baroness will know better than any noble Lords present, it is comparatively rare for children to be separately legally represented in private law cases. It happens, but not in the same way as in public law cases, where the importance of the case to society, as well as to the child, is paramount. In such private law cases where the courts judge that the child should have representation, normally the child would be made a party to the proceedings, as is necessary, and a guardian ad litem would be appointed, in which case the tandem model would immediately come into play, or the case would be referred to the Official Solicitor. Under our proposed amendment, CAFCASS will replicate the service provided by the Official Solicitor, a service which already is highly regarded by the courts and which we seek to preserve.

In other words--this is the important part of what I have to say on private law cases--there is no question of inexperienced officers, in private law cases or public law cases, being asked to conduct litigation in such cases. Our amendment will ensure that lawyers and experienced caseworkers, who support them and work under the lawyers' guidance, conduct litigation.

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I am conscious that I have spent some time on this, but it is an important matter. I have done my best to provide an answer in a serious manner.

7.15 p.m.

The Earl of Listowel: My Lords, perhaps I may ask for clarification on Amendment No. 25. Is the Minister concerned that the new powers of the Official Solicitor's office may lead to damage to the general partnership that is current between officers and the Official Solicitor's office? Inadvertently, it may greatly increase the power of the Official Solicitor's office, given that that office will have the power to appoint the officers of the service in the exercise of their functions.


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