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Justice Committee - Minutes of EvidenceHC 282
Taken before the Justice Committee
on Wednesday 13 June 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Nick de Bois
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Jonathan Djanogly MP, Parliamentary Under-Secretary of State, Ministry of Justice, and Tim Loughton MP, Parliamentary Under-Secretary of State, Department for Education, gave evidence.
Q1 Chair: Good morning, Mr Loughton. Welcome, Mr Djanogly, as well. You are familiar with coming before us. Why did you wait until 9 o’clock this morning to publish a consultation on a subject that you were being questioned about by this Committee at 9.30-and knew you were going to be questioned about? We, of course, did not have the consultation paper until we received an embargoed copy yesterday afternoon.
Tim Loughton: Shall I answer that? I believe we were due to appear in front of your Committee some weeks ago, Chairman, in any case, and that was cancelled. If we had appeared at the time that we thought we were going to appear, the two would not have conflated at all and we would have been even less able to talk about the upcoming consultation.
The consultation has taken some time to get clearance between the various Government Departments involved in it and from the Home Affairs clearance mechanism. That clearance was only finalised a few days ago. Out of courtesy, we made sure that the Committee was appraised of the consultation yesterday so that you could refer to it and we could speak about it in front of your Committee this morning.
In the same frame, I have to say that yesterday, when I did a two-hour session in front of the Education Select Committee-again, events were out of our hands-when we released the consultation about "Working Together", we, again, gave all the documents to the Committee the day before and they were perfectly happy with that. There is no discourtesy and I hope you have had the opportunity to go through what is a fairly slim consultation document in any case. But if there are still questions outstanding that you feel you might have been able to raise as a result of having it more in advance, then we are happy to come back with further information. I am sorry if there appears to have been some discourtesy. It certainly was not intended; that is the way it has happened.
Q2 Chair: I think the Committee is more concerned about the practical ability to examine in detail with you proposals that you may think are a slim document but actually are quite significant, and have many legal implications, than about the discourtesy issue. Your indication is an answer to a question that I would otherwise have asked you, which is that I think we may have to invite you back again at a later stage to look in more detail at the four different options canvassed in that document. Today we will probably look rather more at the general principle of whether any decision is needed in this area and whether new legislation can avoid a series of pitfalls. Who is the ministerial lead on this?
Tim Loughton: I am. I was tasked by the Cabinet to convene a ministerial group of six of us, I think, from five different Departments, to turn the agreement to changing the law, to which the Cabinet agreed, into practical proposals; to establish an expert working group; to report back their findings to the ministerial group; and to factor that into the consultation that we have launched today. I chaired that group and oversaw the whole procedure.
Q3 Chair: What has been the role of the Ministry of Justice in the process?
Jonathan Djanogly: We have been supportive; we joined the group. I worked closely with Mr Loughton on these issues, and, of course, we will be involved with legislation as and when required.
Q4 Mr Buckland: Dealing with the issue of shared parenting, you will probably recall the view of our Committee that, frankly, this was a road that was pockmarked with pitfalls.
Tim Loughton: That was an interesting alliteration, but, yes, I get your meaning.
Q5 Mr Buckland: Yes, I am prone to alliteration; it is a Welsh trait, I think. Please forgive me. It is a good one, I think, dare I say it. Why do the Government want to introduce legislation here?
Tim Loughton: Because we think that that is the only way we are really going to achieve the progress in terms of making sure that more children whose parents split retain a full relationship with those parents. The problem at the moment, depending on which surveys one looks at-it is a difficult situation to analyse exactly-is that up to a third of children whose parents split lose substantial or total contact with the nonresident parent in a matter of a couple of years. That nonresident parent is usually the father, but not exclusively. There are 12% of cases where residency is with the father.
Now, that is bad for the child. Again, empirical evidence will show that a child who has not benefited from the full engagement of both parents where that is possible will do less well in an education environment, employment, health and so on. I think we all accept that. The problem is that, despite changes in the law previously and despite changes in the law to the Children and Adoption Act 2006-I, in opposition, led on amendments that would have introduced shared parenting presumptions then, which were defeated by the Government at the time-we still feel that the situation has not actually improved.
So we are sending out a very clear message in legislation by adding a presumption as our favoured of the four options, but we are consulting on exactly how we get the wording of that right so that we do not have some of the unintended consequences that some people have warned about, particularly in the Australian experience. We believe that that will have the effect of deterring more parents-more of those 10% of splitting parents who pursue contact and residency arrangements through the court system. We hope that more of them will be deterred into actually coming up with arrangements themselves well upstream of it coming in front of the court, where the children are too often used as pawns in a rather aggressive game between two warring parents.
Q6 Mr Buckland: Is there not a danger that we are conflating a social problem with a legal one? Is it not really a social issue rather than one that can be resolved by changes to the law?
Tim Loughton: There are many social issues in terms of two parents not being as fully involved as we would like them to be with their children. We could go into all sorts of discussions about those parents who walk away from their parental responsibilities as well. There are implications for those in what we are trying to do. But the particular problem here is too many parents still thinking they can use the courts to freeze out or severely limit the influence and involvement in the nonresident parent in the upbringing of their children.
We think that is wrong. What happens in the courts at the moment is that many of these cases drag on for months and months and months, and that is part of the ammunition that the resident parent can use because, the longer that a child is away from the nonresident parent, the less familiar that child, particularly young children, will become with that parent and so they lose contact that way, despite the best efforts of the resident parent to keep that contact.
The system can play into the hands of those resident parents who I call serial breachers of contact orders; at the moment, the implications and penalties for those parents who use the court system in that way are limp, to say the least. That is why as part of this consultation we are also looking to see how practically we can beef up the enforcement side of this for those people who <?oasys [pc10p0] ?>still decide to go all the way to court but then effectively stick two fingers up to the court at judgment in order to freeze the nonresident parent out of that relationship.
Q7 Mr Buckland: Enforcement is really the main problem here, is it not, and a lack of confidence that the parties then have in the legal system because of poor enforcement?
Tim Loughton: Enforcement is a large part of the problem.
Q8 Chair: Can I just clarify something you said earlier? I know Mr Djanogly wants to come in and I will give him the opportunity, but you seemed to imply-perhaps you did not intend to-that the survey showing the significant breakdown in parental contacts results from wrong decisions by the courts that would not have been wrongly made if the role was cast in the way you are now suggesting, whereas you have rather moved on to suggest that there is a much bigger problem around enforcement.
Tim Loughton: There are two problems, Chairman. Many of those problems are not caused by wrong decisions by the courts; they are caused by lack of compliance by the parties involved and a perceived lack of teeth by the court then to do anything about it or by the authorities to do anything about it. That is a big problem. There are two big problems here.
Q9 Chair: It is quite a separate problem.
Tim Loughton: I do not think it is a separate problem. What we are trying to do is to take these problems at two stages. We would not be talking about enforcement if fewer people were choosing to go all the way down the process to the courtroom door. What we are trying to do with these proposals, which should be seen in the context of everything else that the Government are doing and what Jonathan Djanogly’s Department is doing with mediation and parenting contracts further upstream, is to achieve a very clear metaphorical warning sign at the door of the court, which says, "If you think you can play the court system in the ‘winner takes all’ scenario"-which it has become in many cases-"then forget it, because the presumption will be that, unless you can very clearly show that it will be to the detriment of the welfare of the child, and in no way are we looking to dilute the paramountcy principle of the welfare of the child, then the court will expect both of you to be as fully engaged in the upbringing of that child as possible."
If we can cut off at the pass many more of those parents so that the 90% figure becomes closer to a 100% figure, then that will be the best thing we can do, which is why a very important part of this is to send out that message about not using the courts to play that game. But, once you cross that court threshold, then we need to make sure there is a very seriously beefed-up and seriously perceived system whereby infringements of contact orders-serial breaches, which effectively is contempt of court-will be dealt with in a much more effective manner than they are seen to be dealt with at the moment.
Q10 Chair: Mr Djanogly, did you want to come in on this?
Jonathan Djanogly: Yes, I did. First, on enforcement, I very much agree with what Mr Loughton has to say. That is very much the position of the MoJ. In too many cases the judge’s order is considered by the party to be the start of the negotiating process rather than what has to be done. That mentality-that culture-has to be changed, and so looking at enforcement is a very important part of the process.
But what I actually wanted to come in on was the earlier stage because Mr Buckland addressed a very important issue-the relationship between the law here and the practice, which was how you put it, I think. This is an important issue because, if you look at the legal situation, you could easily say, "Why are we bothering with this consultation?" Given that the Government have agreed with the paramountcy principle, given that judges have to take on board at the moment as a primary consideration that parents should have contact and both parents should have an ongoing relationship with the children, why do you need to change section 1? But the reality is different from the law, and the reality is that we have had significant numbers of people coming up through various consultations-mainly fathers because of the statistics that Mr Loughton gave you-saying that, in practice, judges do not always follow the guidelines and the law.
It is hard to get hard and fast figures on that. However, from the weight of complaint and evidence that has come forward, we feel that it is an issue that needs to be addressed and where the existing law needs to be beefed up so that judges are forced to consider these things rather than be guided towards delivering these things.
Q11 Mr Buckland: Just dealing with the Government’s preferred option and the presumption-as I read it, it is a presumption that would be rebuttable, presumably, if certain evidence was tendered. What would be the measure, though, for that presumption to be rebutted? Would it be on a balance of probabilities or would it be a higher test? Has a determination been made about the threshold that needs to be reached before that presumption can be rebutted?
Tim Loughton: This is a matter for a judge to interpret. We are not trying to direct judges that this is what their findings should be. We are not in any way trying to undermine the independence of the judges.
Q12 Chair: It rather sounds as if Mr Djanogly did a moment ago. That sounds like exactly what he wanted to do, which was to beef things up and make judges understand that this is what the law means.
Tim Loughton: Yes, but you can beef the law up and say what it means without telling judges that they have to interpret in exactly that way for each case. Each case will be different, and a judge has to make a determination as to whether he thinks that the welfare <?oasys [pc10p0] ?>considerations are realistic and sufficient enough to say that we can park that presumption because there is a serious concern that the child would be detrimentally affected if contact was awarded in part, in full or whatever to the nonresident parent or which other parent there is suspicion about.
Q13 Mr Buckland: I entirely agree with individual discretion, but the fact remains that the courts are assisted by having at the heart of their decision making some form of objective threshold. For example, the Crown court will have to be sure of guilt. The standard of proof in a civil court would be lower-on a balance of probabilities. Surely some benchmark should be set at an early stage so that we do not end up with the inconsistent application of the law that Mr Djanogly quite rightly referred to, where judges, on his evidence, do seem to be departing from the norm.
Jonathan Djanogly: We agree.
Q14 Mr Buckland: You need to get that right, don’t you?
Jonathan Djanogly: Absolutely, and that is the purpose of this consultation.
Q15 Mr Buckland: In the consultation, more thought and attention will be given to perhaps suggesting some threshold-balance of probabilities, for example-through which this presumption could be rebutted. Will that be part of the consultation?
Jonathan Djanogly: No. We are just putting it on the face of the legislation, subject to consultation, that, for instance, there should be a presumption in favour of both parents having an ongoing relationship with the child.
Q16 Mr Buckland: You would agree that there are huge dangers in trying to go down the shared time route.
Tim Loughton: Oh yes.
Jonathan Djanogly: Yes.
Q17 Mr Buckland: We have to close that off even as a possibility, have we not, in any new legislation?
Tim Loughton: We have been absolutely clear and consistent all the way along. Six years ago, when I was proposing the amendments at that time, we chose our language carefully because I absolutely wanted to get away from any mention of equality of time-of shared care. That is what went wrong in Australia. The way in which the legislation was framed very quickly led to the whole situation being interpreted as equal time and equal shared care. That is a minefield.
We as MPs probably know this more than others. I am happy married with three children. There is no way I get to see my children 50% of the time, much as that would be nice. You may well be in the same position, I would guess. Then, in the, I hope, highly unlikely circumstances of my wife and I splitting up-though we are MPs, so who knows?-for a judge to tell me that I have to spend 50% of my time with my <?oasys [pc10p0] ?>children would be completely and utterly impractical.
The working title that I have used is that it is in the child’s best interests to have as full engagement as possible with both parents, and for different couples that will mean different forms of engagement and different times of engagement. The last thing we are going to do-we have made it absolutely clear in the consultation and everything we have said around it-is to try and prescribe any equality of timing or any specification of timings that that should amount to.
That is up to a judge in the individual circumstance of a divorcing couple appearing with however many children of different ages, of different requirements and support levels needed, as to what is realistic that those couples should be able to exercise for their children. Hopefully, that can be decided as grownups outside a court, but, for those for whom it cannot be, then it is up to the judge to make a discretionary judgment.
Q18 Jeremy Corbyn: You mentioned that practical consideration has been brought into the question of access to children, and I fully understand that. There is an issue that comes up frequently in my constituency, and I suspect many others. A couple divorce, they are both council tenants or a have a joint tenancy; usually the father is asked to leave the place. He may, if he is lucky, get a bedsit or a one-bedroomed flat supplied by the local authority, but quite often he will not. He pays quite a lot in maintenance; there is no objection to that, but he ends up living in a bedsit somewhere.
Practically, it is very difficult for the children to spend any time with him and, particularly if there is a teenage daughter involved or whatever, it becomes practically impossible to spend time. Over a period, not through any bad intentions by the father-or, indeed, by the mother in many cases-the reality of contact just disappears and the father ceases to be a figure in life. So there is an economic issue that has to be brought into this and I wondered what consideration you and colleagues in the Home Office have given to that.
Tim Loughton: I think that is a very fair, practical point. It is germane to but goes beyond the remit of what we are able to do in this consultation. Absolutely it is a situation I have come across as a constituency MP as well, where, typically, you will have somebody in very limited accommodation. If it is a bedsit or whatever and there are two teenage daughters, one would not expect two teenage daughters to be sharing one-bedroom accommodation with that father or mother. That is not something we can prescribe.
We cannot say that every separating parent should be entitled to sufficient publicly available accommodation suitable for entertaining teenagers or whatever, nice though that would be; that is just not what we are in the business of doing. That is a conversation that the nonresident parent needs to have with his or her local authority as to what might be possible, or not, to give greater flexibility. It is something that a judge needs to take into account as to what would be practical for that nonresident parent actually to be able to provide. It does not necessarily mean, in order to be meaningful contact, that it has to be overnight as well; there could be other ways of doing this.
Although this is not going to be practical in many cases, I know of a couple who split up where the nonresident father moves into the mother’s house and has care for those children for certain weeks at a time-holiday time and things like that. That is probably a slightly extreme way of doing it, but there are ways of getting round practical constraints. We cannot, within the legislation, be wholly impractical to specify otherwise, but it is a practical consideration which judges need to be cognisant of.
Q19 Jeremy Corbyn: But you can give guidance on the question of the splitting of assets where there is a jointly owned property. Normally the split would be agreed by the court on the basis of the caring parent having the lion’s share of the capital resource and the absent parent not getting it. Therefore, even if they are not council tenants, if they are owner occupiers, they can end up in exactly the same bind with insufficient resources to get anywhere big enough for the children ever to visit. It is an issue that is very damaging to an awful lot of children. I realise all the problems because I face them every day in my constituency, as I am sure you do, but I do think we have to be a bit more aware of this.
Jonathan Djanogly: If I could just add to that, I agree with everything that Mr Loughton said in his earlier response. Ultimately, it is going to be the judge who has to decide on the circumstances put before him. However, from our point of view-certainly the MoJ’s point of view-one of the concerns that came out of the Norgrove Review was that issues such as those that you have mentioned should be considered at an earlier stage.
We do not want judges to be starting from scratch on considering these issues, which is why it is so important that other agencies, like Cafcass and so forth, prepare better reports at an earlier stage. A lot of work is going into that at the moment, with agencies working together at an earlier stage before it gets in front of the judge so that less judge time is taken up doing the preparatory work. But the point that you make is an important one.
Tim Loughton: Chair, it is not just people in more deprived circumstances this happens to. I was sitting in a family court recently in a case concerning a rather welltodo middle-class couple, where the wife went out to work in the City and had quite a high-powered job; they had split up. Because there was a problem about selling the property they were both still living at the same property, with care of the children there. They came in front of the judge with very articulate, expensive solicitors, arguing about which room of the house the 42-inch plasma screen television should be placed and who had access at what times to the family computer. How childish was that?
Q20 Chair: Is that what the courts of this land should be engaged in?
Tim Loughton: Absolutely not. The judge quite rightly got them together before the formal hearing and metaphorically banged their heads together and said, "Look, start acting like grown-ups because we have got children we are talking about here, and, if people as articulate as you cannot actually come to some understanding, then what hope have we got?" Fortunately, rather shamed, they came back in front of the judge and we now have an amicable arrangement about the 42-inch plasma TV and some bigger issues that sprung from that. But this is the absurdity of what the courts are being used for at the moment and we have to deter them from that.
Jonathan Djanogly: One further point on this issue that we have been looking at in terms of making early assessment is that we have only been speaking about the parents in this conversation. For instance, you mentioned one party’s flat, the size of the apartment or whatever. We want an earlier assessment of the wider family situation-for instance, grandparents. Very often grandparents are only brought into the picture by the time you go to court, and one of the things we are trying to redirect the work of agencies towards is an earlier assessment of the wider family situation.
Q21 Chair: That was a previous recommendation of this Committee in fact.
Jonathan Djanogly: Indeed it was, Sir Alan. It is one that we are concentrating on.
Q22 Mr Llwyd: Maybe I do not have the position right, but I have practised family law for 35 years, both as a solicitor and barrister, and I have never come across a single family court judge who does not first of all believe in the paramountcy principle. Then the second and very important principle is that both parents should be fully involved in the child’s life. I cannot understand where we are at at the moment. Are we giving in to a vociferous minority, maybe 1% of people who feel they have been badly treated by the courts, and we are therefore going to legislate in terms of some bold statements such as "Clear signals to separated parents. Courts will take into account the principle that both should continue actively involved in children’s lives" and so on? Aren’t we playing to the gallery on this, to be honest?
Tim Loughton: I do not feel I am giving in to anyone. I do not have any gun pointed at me saying, "You must concede to these demands."
Q23 Chair: Not even from Downing Street?
Tim Loughton: Sir Alan, as you know, having been here longer than I have, as the shadow Children’s Minister this was a cause that I was arguing from 2003, on which we had a commitment in the Conservative manifesto in 2005 in which we argued and put forward amendments to the Children and Adoption Bill in 2006. So it is a very long time playing to any gallery or feeling under pressure to do something about it. Over that time the problem that we identified has remained a problem and the numbers of children who are frozen out of a relationship with a nonresident parent have remained worryingly high, with all the social consequences that that brings. That is the problem I am trying to address, not playing to any gallery or being held hostage by any lobby.
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Q24 Mr Llwyd: I am not questioning any goodwill on your part, Minister. Perhaps I phrased it wrongly, but what I will say is that I think Mr Buckland is right in terms of the need for enforcement. That is number one. Number two, touched on by Mr Djanogly, is that we need greater resources in terms of Cafcass being able to report properly in detail at an early stage. At the moment the weeks or months are drifting by, and, as you rightly said, Minister, the contact then naturally is dissipated in that time period and it makes it more difficult for all, including the judge at the end of the day. It is a question, in my view, of resourcing Cafcass and tough enforcement in terms of flagrant breaches of court orders.
Tim Loughton: Yes. There are three points on that. The first point is that the Cafcass record on private law cases has improved considerably.
Q25 Mr Llwyd: It has improved, but it is still bad.
Tim Loughton: Okay. What scale of badness it is at is rather less bad than it was a year or so ago. The continuing greater problem we have with Cafcass is the public law cases with the continuing surge in numbers of care cases coming before them. But in private law cases they have reduced, and the timeliness with which they have dealt with them and the time with which they have to deal with them has improved. We have much better working practices and we have much better productivity from Cafcass as well. There is still a long way to go-absolutely. It is not ideal by any means and there is still a lot of criticism that can be directed at Cafcass, but it has got better.
I think there is a fundamental misunderstanding of what we are trying to achieve here. I am not trying to set up more couples coming in front of the judge and in some way directing a judge to come up with a different determination. This is largely a deterrent measure. The measure of whether this has been successful or not will be whether there have been fewer divorcing couples who have children who decide to go all the way through that court door rather than take heed of the fact that they cannot play the "winner takes all" game; in too many cases, that still happens. That should be coupled with an understanding that, if they do go for a court-decided contact arrangement, if they then decide to flout it-that may have always been their intention-there will be repercussions and there will be penalties that are real and will happen.
At the moment, if you take the ultimate penalty, it should be and is that the residency of those children will change from the mum to the dad or vice versa. That happens in a handful of cases-barely at all. In practice, out of the thousands of cases that come before the courts, the chances of you losing custody of those children are nought point whatever it is. That is not a real sanction. Some of the other sanctions, which are there already in law and have been since 2006, are rarely used, so nobody takes them seriously. That is why we are consulting again on how we can beef it up but, more importantly, make the perception that something will happen to you if you are in contempt of those contact arrangements ordered by the court and therefore do not do it.
Jonathan Djanogly: Can I just make a point because it is an important one? Cafcass has improved dramatically. I will just say to the Committee that the latest figures show that the number of unallocated public law cases has reduced from 551 cases in 2010 to just nine cases in January of this year, and unallocated private law cases have reduced from 2,180 in March 2010 to 168 in January of this year. There have been some dramatic improvements in performance.
Q26 Chair: I am very puzzled by the confidence that you show that this will lead to fewer cases coming to court, because you also have to factor in the secondary litigation that will follow from appeals based around the belief that these two principles have not been properly reconciled and too much account has been given to one rather than the other.
Jonathan Djanogly: Sir Alan, I am not saying that fewer cases are going to court. In fact more cases are actually going to court in public family law.
Q27 Chair: I am talking private law now. These are litigious people, who believe that litigation is the way to deal with the problem.
Jonathan Djanogly: About 10% of private law situations will end up in the courts, and, as you say, they are the harder nuts to crack in terms of getting people to sort out problems between themselves rather than going to court. However, that is the cultural challenge that we need to face and that is one of the reasons why the MoJ and I personally have been pushing mediation so hard over the last two years.
Q28 Chair: In the cases we have been talking about here the likelihood is that you will get further litigation around whether the court has dealt with the new elements that have been introduced to the law by the changes you are making.
Jonathan Djanogly: We are hoping to minimise that.
Q29 Chris Evans: I just want to go back to the Australian experiences and talk more about that. What I am quite interested in obviously is that shared time is a problem in the Australian system. The Family Justice Review response by the UK Government said that it was more interested in a "meaningful relationship and the quality of parenting". Could you define what a meaningful relationship is and, also, how would that work itself out in the courts as well? What do you mean by the term "quality parenting"? Can you give me some sort of measure on that? How can you look, touch and feel that sort of wording?
Tim Loughton: Frankly, the answer to both questions is no, and that is where it went wrong in Australia because they very quickly got into an argument whereby equality of parenting time and parenting care became the issue for argument. As I said in answer to Mr Buckland, there are very few parents who have an equality of time with their children in the relationship when they are still together, let alone when they are living apart afterwards. But that is not what we are trying to achieve.
What I am trying to achieve is fewer people getting to that scenario because they are not using the courts to play that system and the judge being able to say very clearly, now backed up by what it says in clause 1 of the Children Act, that the starting point for this discussion is going to be on the basis that there are no welfare considerations and there is no harm that is going to come to a child from being exposed to either of you. The starting point for these negotiations is that you are both going to be as fully involved with this child or these children as possible.
That may mean 10% of the time, 20% of the time, weekends, during the week, holidays, staying at grandparents-whatever. I am not interested in that; that is for the judge to determine. But both of them should start with a mindset that says, "We are going to have to come to some cooperative agreement here", hopefully outside the court, but, if they take it all the way, then the judge will absolutely reinforce that and I hope the judge will effectively start by saying at the outset, "And don’t think that one of you can play winner takes all", because that is the game that some people still play.
Q30 Chris Evans: Is there not a danger of the legislation being too prescriptive then? What I am looking for is how you would define a "meaningful relationship". What does the word "meaningful" mean? I am still a bit stuck on that. These are the words the Government used when they responded to the Family Justice Review.
Tim Loughton: I have not used the term "meaningful". Remember, this is a consultation, and this is precisely the reason why, first of all, we got an expert working group together of people who were diametrically opposed to shared parenting arrangement changes anyway-Gingerbread and others, through to the Fatherhood Institute, Families Need Fathers and others who have been in the "change to the law" camp. There was actually quite a good consensus of agreement on carrying this forward there.
What has changed this time is that, when a previous Government did some consultation on this, they went on the basis of, "Should we have a resumption of shared parenting or not?", and they were very much weighed by the lobby that says, "No, you don’t want to go near it." We have taken a different decision. A policy decision has been made by the coalition Government that we are going to change the law and that the favoured way of doing that is by a presumption in the first clause of the Children Act.
However, we see that there is a whole list of obstacles and potential pitfalls-potmarked pitfalls or whatever you might call that road-that lies ahead. Therefore, we are setting out what we want to achieve and we are consulting on how we put in place the right mechanics to achieve that end without the unintended consequence. It is particularly important that we get the language right in how we amend the Act and in the regulations and the dialogue that goes around it. You start off by saying, "Aren’t we being more prescriptive?" That is entirely what we are not trying to be. This is where it went wrong in Australia.
Q31 Chris Evans: This is the concern I have about being too prescriptive. This is the final question, but I think you have covered the pitfalls of Australia- very much so. Is there anything positive you can draw from the Australian experience that we can apply in this country?
Tim Loughton: That is interesting.
Jonathan Djanogly: A lot of research has come out of Australia on that, which we have been reading.
Q32 Chris Evans: That is a really good answer.
Tim Loughton: I have seen some Australian academics and some legislative judicial people arguing in the same room and coming at it from the same evidence with completely different interpretations. One thing I am told is that the quality of the cases that did then ensue-and there was a big rise in the number of cases that went before the courts-and the quality of some of the judgments was quite good ultimately, but it just took up a heck of a lot of court time in order to achieve that. We are trying to achieve the opposite.
There are lots of different interpretations that can be placed on it, but in Australia the principles behind what they were trying to do were right. I hope our principles are right, and they are similar. The way they enforced them and the way they were then interpreted quite differently was what went wrong. That is what we are trying to avoid and will avoid by doing this consultation in this way, I hope.
Q33 Nick de Bois: I would just like to turn to transparency and media access. Mr Loughton, you said here, "I am an inveterate believer in greater transparency in the courts", which is laudable, but the Government have stated that the solution to transparency in these family courts should not be rushed, which is again sensible. But do you have a timetable in mind that is set out for consultation and proposed legislation on this?
Jonathan Djanogly: A number of consultations have happened over the last 10 years. The Government believe that there is a need for greater openness in the courts. That is our starting position. We accept that the current position is unsatisfactory. Our response to your own Committee’s inquiry was that we agreed with you, and we are now looking to bring in legislation to abolish provisions in Part 2 of the Children, Schools and Families Act 2010.
As Mr de Bois said, we also agree with your Committee that this should be dealt with sensitively and listening to stakeholders. We have of course been running a pilot-the Family Courts Information Pilot. We feel that the results were successful. The problem was that the procedure was a selective one, which will mean that it is unlikely to satisfy those who are in the camp who want a lot more transparency, and so we are thinking again on the issue. There are various routes that we could take, and at this stage what I would like to say is that we will be making a public statement on this shortly.
Tim Loughton: Can I add something to that, having led for the Opposition on the Children, Schools and Families Bill at the fag end of the last Parliament? The measures in Part 2 were never debated in Committee, or indeed on the Floor of the House, because we ran out of time, and yet they were nodded through, much against my better judgment. Subsequently, because it was so full of flaws, we took the decision not to enact it.
I have never seen such a coalition of diametrically opposed interest groups opposing that legislation. You had the press opposing it because it did not go nearly far enough; you had the judiciary opposing it because it impinged on their judicial integrity as they saw it; and you had the children’s charities opposing it because they thought it might compromise the welfare and privacy of children. Everybody was opposed to it. We all agree we need to do something about it; we need to inspire greater confidence in the way things are working. It is a really technical area as to how you achieve that without the unintended consequences, which is why we need to look at this in much more detail carefully.
Q34 Nick de Bois: Can I pick you up on that point, Minister, because I think the Children’s Commissioner, in their own evidence, were quite direct on the point that they feel this is a crucial stage in their lives? They do not want transparency; they want privacy on the matter, and it is a really difficult one to deal with. I suppose, as far as this Committee goes at this stage, we would like to feel comfortable that you can guarantee that the views of the children will be properly represented and there will certainly be attempts to incorporate it in the new legislation on transparency. Also, are you talking at the moment to the Children’s Commissioner?
Jonathan Djanogly: Yes, we are. I assure you that any proposals will take on board the views of the children’s organisations.
Tim Loughton: Speaking from the children’s perspective as the Children’s Minister, that is the most important consideration. The study commissioned by the Children’s Commissioner and undertaken by, I think, Dr Julia Brophy at Oxford, interviewed a good number of children and young people. There was a very strong message back that it would deter children from making their wishes and feelings known and wanting to come forward, appearing in court or whatever, if it was done in that way. I think that is really damning evidence that we should not have gone ahead on that basis.
Q35 Nick de Bois: Although I am personally loth to raise this subject, are you sensitive to the fact that there may be conflicts with the European convention on human rights and privacy?
Jonathan Djanogly: Of course any proposal that we look at would have to take that on board.
Q36 Mr Llwyd: Care cases are to be completed in six months unless there are exceptional circumstances, but I would submit that for every family where the state intervenes it is an exceptional case. What is the Government’s definition, however, of an exceptional case in this context or the kind of definition?
Tim Loughton: The Government have been doing a lot, as you know, around children in care and particularly on adoption. We have looked at this exhaustively, and one of my main concerns is the timeliness of care proceedings for children at the first stage of the care system-particularly for adoption, where I think there is a complacency among certain people, be it in children’s services or the judiciary, that it is better to do a bit more work and get it right at the expense of delay. The case I have made and the Government have made quite strongly is that delay, particularly for young children, is very harmful in itself, and being in limbo-as many of these children are-is deeply damaging, particularly around attachments at an early age. Therefore, we need to do better on timeliness, hence trying to put some time scales to speed up the process in court.
What I am not trying to do is in any way to undermine the quality of the judgments that are made-by social workers, Cafcass guardians producing their reports or by the judges needing to have all the relevant evidence in front of them to make those judgments. There are cases, though, where it is not as clearcut and there are certainly cases where you have some children with particular challenges who are less easy to place in various parts of care or in adoption. I particularly refer to sibling groups, children with special educational needs and other disabilities as well, for whom it will inevitably, I am afraid, at the moment take longer to find a suitable permanent placement. I think in those circumstances it will be perfectly legitimate for the judge to be able to say that some additional time may be required. That will not be the norm, but those are the sorts of exceptional cases that we are talking about.
That is why the adoption scorecards, for example, which are part of our adoption reforms, include contextual information. We are not just purely seeing the number of kids adopted and the time it took for them to be adopted. There may be other contributing factors where actually we have adopted four kids in the same sibling group and it took longer and therefore we should get some extra brownie points and that should be recognised, even if it did mean that our time scales were stretched. I think that is perfectly legitimate if it means that the quality of that placement was a better placement as a result of it.
Jonathan Djanogly: Mr Loughton has addressed it from the individual perspective, which is a very important perspective. I will just switch now to the wider strategic perspective, if you like. Obviously, the average time for public law cases is now over a year. In our best performing courts not more than 30% of cases will be dealt with within six months. So we need to appreciate, as I think you implied, that this is a hugely challenging target. On the other hand, as far as the Government are concerned, it is an incredibly important one because it is simply unacceptable that children are taking so long to go through the system. So it is one that we are putting a lot of resource into achieving.
There are wider issues that come out of having a period-the period is six months-and that is that, for any case where the six months is not achieved, the judge will have to say in open court why that has not been achieved. From a managerial perspective, that is going to have very significant benefits because, as of April of this year, we now have the new case monitoring system. For the first time we have the ability to record why delays are happening. In the past it has been basically sticking a finger in the air, an anecdote, but now we have a professional system. When judges stand up and proclaim in open court why there is a delay of six months, after a certain period of time-we have not worked out yet how long that is going to be-they will have to come back and say again why there is a further delay. We will be able to build up a picture of not only what the delays are but in what parts of the country those delays are happening.
If you add that to the new family board and the local boards, there will be the ability for all the various agencies then to be able to focus, in the individual parts of the country, on the problems coming out of their own courts. Rather than going back to the blame game that we have seen in the past of judges blaming Cafcass and Cafcass blaming local solicitors, we want to move away from that. We want to move away from it by having proper information and then the agencies working together at local level and then at strategic national level. We think and hope that that will provide the mechanism for pulling back the delays towards the six months on a more consistent basis.
Q37 Mr Llwyd: We all agree and hope the Government will get this right. My only question is whether it is feasible, given what we have out there on the ground. We will have to wait and see, but I hope you are right. However, earlier on, you referred to the great improvement in Cafcass in private law cases. I think there will be a huge switch now of Cafcass towards this particular arena because they want to comply with the six-month rule and hence there will be a knockon detrimental effect on the private law cases. Is that something you have considered?
Jonathan Djanogly: Cafcass is DfE, so I will hand that one over.
Tim Loughton: Cafcass are already focusing their efforts on public law because that is where the biggest problems have been. Cafcass welcome the proposals to speed up delay, but the really important point here is that certain courts in the country are achieving this already as a matter of course. There are big divergences in performance between courts in different parts of the country, just as there are in local authorities in the way they are dealing with care cases, both in terms of the quality and the number and the timeliness of them. So this is not just some pipe dream as to what could happen.
What is quite interesting is that, when Norgrove took his team to Australia, one thing they came back very enthusiastically about was that in Australia the family courts have productivity tables so that you can see and compare and contrast just how well certain courts are at processing their cases, and because of that they have less divergence performances between the courts. The nature of a care case coming before a court in your constituency will be little different from that coming before one in my constituency, yet why might it take twice as long in my constituency to deal with the same scenario as it does in yours, for example? Too much of this is happening. When I speak to judges as well, many of those who have been around the block a few times have said to me, "This is what we used to do. So, actually, this is not unachievable. This is getting back to how we used to run things."
Q38 Chair: I am going to take you back to a final point about the private law issue and it is where the interests and views of the child come into play. If you take, for example, a young teenage child with separated parents living in two different towns, that child will have interests that they want to pursue, whether it is sport or youth activity or social activity. The young person says, "I don’t want to go to dad’s this weekend or regularly at weekends because my group of friends are involved in a sports team", or they may say, "I don’t want go back to mum’s because that stops me doing such and such on Sunday nights", or whatever it may be, to which the answer is, "The court has ordered that you need a relationship with both parents."
That is a very different position for those children affected in this way than most children, who simply argue with their parents about the merits of what they are going to do. When does the court hear the child’s view about the implications for their personal and social life in these decisions?
Tim Loughton: The court’s judgment is still going to be predicated on what is in the best interests of the child, and the views and wishes of the child need to be better articulated through the reports, through Cafcass agents and social workers and others to the court. My concern at the moment and a criticism of Cafcass guardians can be that the guardian had half an hour with that child in the last three months. Have they really had the opportunity to formulate a proper view of what the child really wants and what the child really thinks about the ongoing relationship with each parent?
I have to say I have been in this position myself because my parents split up. I went to live with my father, and my brother and sister went to live with my mother, so I have been there. It is very important that the social worker speaks to the child in private and ascertains the wishes and the feelings in private without the influence of one parent in the background or not. We can do better in articulating in front of the court exactly what the child’s views on all of this will be. But, Sir Alan, what this says more than anything is that, if parents want to be responsible parents, they should behave like responsible parents and grown-ups and agree among themselves what is in the best interests of little Johnny, without having to do it in front of a court and use the children as pawns in an ongoing war of aggression between two people who can no longer live with each other.
Jonathan Djanogly: Yes. In some family courts the judge liked to have a Cafcass officer sitting in the courtroom.
Tim Loughton: Alongside them in some cases.
Jonathan Djanogly: Yes. Then if an issue comes up there may be an adjournment, they pop outside and Cafcass has a chat with the child. This is hardly ideal, Sir Alan; it is too late-stage. We want to move everything to a much earlier stage.
Q39 Jeremy Corbyn: Following Sir Alan’s question just now, is there not a danger that what you are suggesting would become so prescriptive that practical arrangements over how a child spends the summer holidays-sporting activities, youth clubs, whatever-end up being resolved by going back to court or one parent being accused of being in contempt of court because they insisted on their child going to the other parent when they wanted to stay with them? So it ends up with greater interference rather than less. Is there not a danger of that with what you are suggesting?
Jonathan Djanogly: It is important to remember that in the majority of private family law cases, the parents will sort things out between themselves.
Q40 Jeremy Corbyn: That is what we all want.
Jonathan Djanogly: That is what we want. Indeed, that is what we want more of, which is why we are heavily pushing mediation and which is why for the last year privately funded cases, as well as the publicly funded cases, have been forced to go through a mediation assessment before they file their FM1 divorce papers, for instance. That has increased mediation by 12% in the last year alone, so the figures are looking good. I want to now build on that further. Ultimately, you are going to get a small number of people who, whatever happens, are going to want to go to court because that is what they are going to want to do. The question that we have to address, for instance, on the legal aid bill, is whether the taxpayer should have to pay for that.
Tim Loughton: What I keep saying time and again is that we are absolutely determined not to be prescriptive, and the way we are doing it is to be as unprescriptive as possible. The problem at the moment, as I see it, is a lack of trust between the warring partners who go down that route, such that we get the worst possible scenario where you are coming back to court every week in order to ascertain that little Johnny can go to the football match with dad on the Friday afternoon and can do the judo course with mum on the Monday. That is absurd.
Part of the reason why there has been such a breakdown of trust between separating parents is a strong perception, which may be right or wrong, by nonresident fathers, mostly in some of these extreme cases, that the system is working against them. It should be made really clear that both parents are presumed to be fully engaged and expected to be. They have responsibilities here because, actually, we have not talked about the flipside of this. For a parent who has been given various contact arrangements, if little Johnny is sitting waiting to go out with dad to the football and dad does not turn up, that is a big problem as well. It needs to be made very clear that, if there is a presumption that you are going to be getting this contact because it is in the best interests of the child, the court should expect you to live up to those arrangements as well and there should be repercussions if the nonresident parent does not do that.
But we need to get to a position of trust whereby more people believe that the court is acting in a fair way and that the resident parent will not be allowed to get away with flouting the contact arrangements, deciding at the last minute, "No, actually we’re going off somewhere else for the weekend, so that weekend away that you had arranged months ago can go whistle." If that cannot happen without repercussions, then I think we will have less prescriptive and more common-sense grownup arrangements between the parents themselves without the judge having to set out a menu of exactly what they need to do.
Chair: At that point, we must stop you as we have other witnesses, but thank you very much for your answers this morning. We will be in touch.