§ '(1) Within each county court and magistrates court there shall be created a family division which, together with the Family Division of the High Court, shall operate as a Family Court.
§ (2) The Lord Chancellor shall by rules of court specify the procedures to be followed in order to—
- (a) identify the welfare of the child;
- (b) avoid unnecessary formality;
- (c) reduce delay and inconvenience to the public in resolution of family disputes;
- (d) reduce the harm to children and families resulting from the court process and
- (e) introduce conciliatory methods of dispute resolution.
§ (3) There shall be a welfare and conciliation service attached to the Family Court and it shall include—
- (a) guardians ad litem and reporting officers;
- (b) a family conciliation service in respect of children subject to proceedings under part two.
- (c) social workers appointed to report to the court in proceedings under part two.
§ (4) This section shall come into force on such day as the Secretary of State may appoint, being not later than eighteen months after the Children Act receives Royal Assent.'.
§ Government new clause 18 and Government amend-ments Nos. 240 and 242.
§ The Solicitor-GeneralWe now come to the debate that the House has been waiting for: the debate on the family court. In this debate will will discuss new clause 1, the Government's new clause 18 and, above all, the Government amendment incorporating new schedule 9A.
We had some interesting debates on the family court in Committee. Now we shall see how the Government's proposals match those of the Opposition—both those in new clause 1 and others that are not formally before us, but which we have had the opportunity to consider. I trailed our proposals a moment ago when speaking to 552 amendments on legal aid, and mentioned the view of the president of the Family Division that the Bill, in essence, would set up a family court. I must qualify that to some extent because of the scope of the Bill, but I must also make it clear that there is much truth in what the president said about how far it is possible to create a family court in the context of the Bill.
When considering major reforms of this nature, it is essential to assess the extent to which jurisdictional changes can be of any significance unless and until we have got the substantive law right. My right hon. and noble Friend the Lord Chancellor has been making that point ever since he was appointed, and I have done the same In the House in questions to the Attorney-General, answering those who have supported the family courts campaign or the family courts lobby in one form or another.
It is now recognised that, if we are to make progress on procedural aspects, we must first make progress on substantive law. The Bill begins by creating a new and coherent body of child law, which applies in all relevant courts at every level. Let me explain how our proposals, embodied in new clause 18 and amendment No. 240, achieve what, to a great extent, are shared goals. I shall be interested to hear how the hon. Member for Monklands, West (Mr. Clarke) and others on both sides of the House reiterate their goals.
There is, I believe, widespread acceptance of the need for a properly supported specialist jurisdiction in family matters, encompassing the courts at all relevant levels. That includes the magistrates courts, the county courts and the High Courts, and it is the achievement of those goals within the scope of the Bill that we are about to debate.
It is, as I have said, essential to realise that whether we are discussing only matters relating to child law—as covered by the Bill—or the whole range of family law, including divorce, before we can gain any worthwhile benefit from a reform of court structures or from a unified jurisdiction we must create that unified body of law, applicable at all levels and to all relevant matters.
§ The Solicitor-GeneralI shall do so in a moment.
I propose first to explain how we intend to achieve our goals, and then to demonstrate how they take their place in the Government's rolling programme of review and reform to which I referred in Committee and on Second Reading, and to which my right hon. and noble Friend the Lord Chancellor referred on Second Reading in the other place. We are dealing with children's law not in isolation —although we can go no further than is allowed by the scope of the Bill—but in the context of a general and rolling review of family law as a whole.
§ The Solicitor-GeneralI feel that it would be courteous for me to give way first to the hon. Member for Leicester, East (Mr.Vaz).
§ Mr. VazNo one in the House disagrees with the Solicitor-General's comment that this is an historic Bill, which will reform the substance of child care law. Does he agree, therefore, that now is the time to reform the 553 procedure? If Parliament changes child care law radically, and we do not get the support structure right, the Bill will be completely ineffective.
§ The Solicitor-GeneralI agree to a considerable extent. That is what we are about to do—indeed, what we are in the process of doing.
§ The Solicitor-GeneralThe hon. Gentleman says, from a sedentary position, "So we have a family court", but it is essential to understand that family proceedings go much wider than proceedings on children. Important as the matters of public and private law dealt with in the Bill may be, the Bill—as must be obvious to everyone in the House and in the country—does not deal with the whole matter of divorce. If we are to have a family court, we must consider how that can encompass the whole area of family proceedings.
Our rolling programme takes what I submit is a first and major step towards what might be described as a family court, although—not least simply because of the scope of the Bill—it cannot go the whole length to create the family court. There is much more to it than the scope of the Bill. As we know, in proceedings relating to children the magistrates court has only a comparatively limited jurisdiction, and one has to jog about from one court to another at different levels, from the county court to the High Court, to exercise different powers.
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With this Bill we are in the business of creating, first, a single body of law and then a unified jurisdiction that runs through all courts. That is greatly to be welcomed, but it does not apply to other areas. For example, it does not apply to the whole concept of divorce, to domestic violence or to access or denial of access to the matrimonial home. Therefore, a great deal of careful review, which is under consideration by the Law Commission, among others, will need to be thought through to create a substantive body of law which is appropriate to all levels before we can take further steps in that direction.
§ Mr. VazI do not wish to harass the Solicitor-General; I want to be fair to him and I follow his argument. He has referred to the rolling programme, and he has used the phrase, "the first step" which he used in Committee and he has sought the endorsement of the president of the Family Division for his proposals. If he is on a rolling programme, and bearing in mind the fact that it has taken about 100 years radically to reform the law governing children, what is his timetable? When can Parliament return again to discuss this crucial issue? How long will we have to wait for the second step?
§ The Solicitor-GeneralI shall develop that point later in my speech. The timetable is nothing like 100 years; I suggest that it is nothing like a decade. The programme is already in force. For example, the Law Commission is to report on a number of important matters next year. By the time we are digesting this legislation, which will have to be absorbed and implemented and which will require a great deal of training, we will find that thinking is moving 554 forward faster than the hon. Member for Leicester, East (Mr. Vaz) realises, and possibly faster than his own pace of thinking, but I would not like to do him an injustice.
Mr. Robert HughesWill the family courts now being proposed be able to deal with so-called transracial adoptions, where social work practice with which I profoundly disagree takes for granted that if a child has any black parentage or grandparentage the placement should automatically be with a black family?
§ The Solicitor-GeneralI shall return to the way in which adoption links into this matter. However, when considering a unified jurisdiction in relation to children, and that is certainly not beyond the scope of our contemplation, we are considering a court which ought to be able to deal with that aspect. I shall give the hon. Gentleman a more precise answer when I have more detailed instructions.
In summary, the Children Bill provides for a single body of substantive child law, and thus it can and does go on to provide for a unified jurisdiction at whatever court level is appropriate for a particular case with swift and expert means to determine and adjust that level as circumstances require, with the same law and the same powers applying at every level. That means that a case that falls within the scope of the Bill may start in the magistrates court, as many cases do, but there may be other family proceedings, for example a divorce, which start in a High Court, or there may be proceedings which start or may be appropriate to go to the High Court, and can rapidly and readily be moved to the appropriate level.
The changes that the Bill will enact and further changes in the wider field of family law are based on and developed from existing structures designed to make the best use of, and to grow out of, existing resources. I refer not only to financial resources, where one starts from where one is today, but, much more importantly, to human resources. The resources of manpower and expertise that are currently available must be built on by way of training and selection. They will require time for absorption and for a formidable programme of selection and training, but I hope to convince the House that when implemented they will constitute a major step towards what I believe are our shared goals.
Turning in detail to a single code, our amendment allows us to create a single concurrent jurisdiction for children's cases in the Bill only because the Bill also creates a single code of substantive law applicable in all the courts. Talk of a single jurisdiction without such a code would be nonsense. I hope that I do not need to overstress the fact that without a code of law that can be applied at every level —and we do not have that until we enact the Bill, and we do not have it in relation to divorce proceedings, for example—it is quite pointless to set up a single jurisdiction. However, elsewhere on the statute book the applicable family law varies from court to court, with, for example, different rules relating to financial provision, domestic violence and rights to occupy the family home depending on the level of court in which a case is heard.
Other parts of the law, such as divorce, are either in a state of transition—I have already said that the Law Commission has a number of works in hand —or they are so carefully grafted on to the structure and constitution of the courts which presently deal with the matter as to make the reorganisation of the wider body of family law an 555 extremely complex task. For example, one can only commence a divorce case by a petition and no one has ever heard of a petition in a magistrates court; and one can only obtain an injunction out of the county court or out of the High Court as it is wholly inappropriate to the magistrates court. A number of procedures in the magistrates court are equally inappropriate to the higher courts. Having pointed that out, I should add that the job of creating a single body of law is in hand. The Law Commission has already issued discussion papers on domestic violence and the right to occupy the family home and on grounds for divorce. Final reports on both are expected next year and a joint review of adoption law by the Government and the Law Commission is also on foot, and that will be relevant to what the hon. Member for Aberdeen, North (Mr. Hughes) said.
As to financial provision, we shall take that on board in the rolling programme to which I shall refer in more detail later when I talk about the work that is going on between relevant Departments. However, it must be recognised that until the same law applies at all levels there can be no overall single family jurisdiction.
The next essential step towards our ultimate goal is to ensure that the courts hearing family proceedings are specialists. That theme has rightly come through all the campaigning and is certainly recognised by my noble Friend the Lord Chancellor and myself. The Government's new clause and schedule provide that, in the case of the magistrates, by creating the new magistrates family proceedings courts we shall meet that specialist need. When I mentioned the magistrates family proceedings court, the hon. Member for Leicester, East sought to pass that off as a mere change of name. I hope that he has thought more about it since, because it involves a great deal more than that.
The magistrates on the new family panels will receive special training on children's and family matters, which they do not receive today. The form of care proceedings which they, the county courts and the High Court will have jurisdiction to hear will differ significantly from those presently heard in the juvenile court. There is to be a move away from what is sometimes called, in rather inelegant jargon, orality—from having everything done by the spoken word—towards the parties being expected to disclose their case, and their evidence, in advance and in writing. I am glad to see the hon. Member for Ynys Môn (Mr. Jones) nodding assent because I think that he recognises, as I do, that early, clear disclosure in writing is of the greatest assistance when one is trying to clarify the real issues in a case and to shorten proceedings, and it concentrates the mind of the court that has to hear the case on the matters it has to determine.
Magistrates will be expected to read papers ahead of the hearing and to give reasons for their decisions. It is expected that the court will take a more active role in the case, ensure that unnecessary delays are avoided and, for example, use the guardians ad litem to ensure that all matters relevant to a case are investigated. The hon. Member for Wakefield (Mr. Hinchliffe) mentioned guardians ad litem and the Government have the issue under consideration.
Generally, it is intended that procedures in magistrates courts and superior courts in care-related cases should be brought into line as far as possible, or at least made compatible. That will ease the movement of cases between different levels of court.
556 In the High Court, cases will continue to be dealt with in the specialist Family Division. In the county courts, the great majority of orders will be made, as now in the case of divorce proceedings, by divorce county courts. The intention is to concentrate children's and other family proceedings in the hands of selected judges and registrars, many of whom will have had long experience in this area, either as practitioners or on the Bench, and who will have made a special study of such proceedings and built up expertise in family matters. Others who have shown an aptitude, willingness and personal interest in this type of case will be suitable for training. The Government are currently considering how best that can be arranged.
The next step that we would need to take would be to ensure that individual family proceedings within the single jurisdiction are dealt with at the right level. Until the same substantive law is applicable at all levels, that cannot happen. Now, as the Bill creates a single body of child law, it is possible to give the Lord Chancellor power to provide for the allocation of children's cases and some non-children's family cases within the concurrent jurisdiction and to consolidate them with proceedings about a child. We are making real progress towards the objectives set by those who are calling for a family court.
We intend to use the allocation powers in the amendment to specify where proceedings should start and to provide for the transfer of proceedings for three purposes. First, the powers will be used to ensure that, as far as practicable, all proceedings relating to a child and a family are consolidated and heard together.
If there are already family proceedings afoot, such as a divorce or maintenance dispute between parents, we intend that subsequent applications in respect of a child should usually be made to the court hearing those proceedings. If the proceedings are started in different courts, we intend to provide for transfer so that they can be heard together.
For example, if there is an application in a county court to adopt a child who is subject to a care order and the parents are applying to a magistrates family proceedings court to discharge that care order, the rules will ensure that the two applications can be heard together. This important need to consolidate proceedings which may affect the same child is why the powers in these amendments, unlike those which we considered in Committee on the present clause 82, now extend to family proceedings other than those covered by the Bill.
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In proceedings not centred around a child, the powers can be used only to consolidate them with proceedings that are. For example, we could require a divorce case to be started in the same county court in which the spouses were contesting an order about the child, but we could not transfer a divorce case where other family proceedings were unconnected with children. Unfortunately, to attempt to take powers to do that would be outside the scope of the present Bill.
Secondly, subject to rules aimed at consolidating them with other proceedings, care and supervision proceedings will be required to start in a magistrates family proceedings court. However, provision will be made for their transfer to a county court or to the High Court, if it were considered more appropriate for them to be heard by a superior court. In the amendment, we are taking power 557 to prescribe criteria which will identify the cases which need to transfer up. Consultations and research are already in hand to enable us to draw up those criteria.
Complicated law or forensic complexity—for example, a case that involves a lot of contradictory medical evidence —are the sort of factors which are likely to affect transfer. We consider that it should be possible to transfer cases up or sideways to a court at the same level if the court seized of the case cannot hear it within a reasonable time. We passed an amendment without discussion or controversy that militates against delay in this kind of proceeding. If the court cannot hear a case within a reasonable time, or if the case needs to be expedited or to be heard over several days and the court cannot provide consecutive hearing days—as some courts, with the best will in the world, cannot—the provisions, which I hope we shall enact, will enable the system to divert the case to a court that can hear it promptly and which has all the necessary expertise.
At present, we intend that the magistrates or their clerk should be able to transfer a care case at any stage, but should they refuse to do so and should an aggrieved party wish, he will be able to apply to a county court registrar to pluck up the case if he considers that the statutory criteria are satisfied. That registrar can allocate the case either within a county court or to the High Court. I stress that there will not be a need for a further delay as another transfer procedure is gone through if the case merits a High Court hearing. It is recognised that there will be a need for administrative back-up and co-operation between the courts to run such a scheme for care-related cases. That need will be met through a central committee structure, under the aegis of the president of the Family Division.
The Government consider that it is important to have the flexibility that these powers confer so that transfer criteria and rules relating to where proceedings should be initiated can be altered if experience shows it to be desirable.
As I have already mentioned, we intend, initially, to require all local authority care applications to be made to a family proceedings court. If we find that most of them are subsequently transferred up to a county court, we may wish to allow care applications to be initiated in a county court, while providing for subsequent transfer down to a family proceedings court in appropriate cases.
Conciliation and what are often broadly called the support services need to be thought about separately. Conciliation has been the subject of a very comprehensive research project carried out by the conciliation unit at Newcastle university on the Government's behalf. The unit reported earlier this year, but those concerned with family matters in the Government have had comparatively little opportunity to consider its findings or the comments that have been made on them, because of their work on this Bill.
This is a subject which merits the most careful consideration and the thinking that we have been able to devote to it thus far has led us to the preliminary conclusion that the future of conciliation cannot be properly considered in isolation from the divorce law, on which the Law Commission will report next year.
558 The intrinsic relationship between the two can be demonstrated if one thinks about the options for change canvassed by the Commission in its discussion paper on grounds for divorce, which was published earlier this year.
§ Mr. DevlinI have listened carefully to what my hon. and learned Friend has said and I agree with much of it. What has concerned me in correspondence over the summer has been that the Government appear not to be willing to give any form of commitment about funding needs to existing conciliation services until such time as the Government make up their mind on the issue. That is of great concern to many good conciliation services that currently face financial crises which may not be solved and which may lead to some of the conciliation services going to the wall. May we have an undertaking that, while the Government consider these complex matters, proper funding will be made available for conciliation services so they are still there when the Government recognise that they are necessary?
§ The Solicitor-GeneralI shall let my hon. Friend develop that point a little more if he speaks later in the debate and I shall seek to answer him then. I want to develop the point about the intrinsic relationship between conciliation and child cases, and the whole question of family matters and divorce.
One option canvassed by the Law Commission was a system that would require parties to identify—this is an important point—the consequences of divorce and, if they still wished to divorce in the face of all the likely problems, generally to resolve those problems as a precondition to ending the marriage. That will strike a chord with many hon. Members, but such a system would be likely to put reconciliation, as well as conciliation, in the front of the process so that only real disputes ever reached the court and then only as a last resort.
The House will appreciate the difference between conciliation and reconciliation. Conciliation aims to enable the parties who are determined to break up the marriage, or who see no other option, and who regard it as irretrievably broken down to decide what will happen thereafter. Reconciliation, which those who are not used to the jargon often confuse with conciliation, is the idea of getting the parties to go back together and not to get divorced at all.
Arguably, conciliation might be structured and provided for under such a system in a very different way from that which has grown up round the present divorce system, in which the parties initiate the process by seeking a divorce from the court and by making bruising allegations at the outset, which often make conciliation and reconciliation much more difficult. The consequences, such as the custody of children and financial provision, are only then treated as ancillary issues to those opening steps. I throw those ideas out simply as food for thought for the House. We are indebted to the Law Commission for pointing them up. They show how important it is that we see the matter in the round before we achieve anything like the goal that a high proportion of us seek.
It is, of course, too soon to say whether divorce law should be reformed and, if so, how. I merely wish to demonstrate that it and conciliation must be considered together. That task is also to feature as an item in the rolling programme, which I have mentioned.
559 I shall now deal with the support services. The courts will need support if they are to carry out their functions both under the Bill and under any wider procedures the House may seek to enact in due course and which the Government may seek to bring forward. Those services include the provision of welfare reports, the work of the guardians ad litem, the work of reporting officers and the functions of the Official Solicitor in High Court cases. By virtue of clause 6. welfare reports are to be available to all courts in all children's proceedings, either from a probation officer or through a local authority, which may use one of its own officers or ask a voluntary organisation, such as the National Society for the Prevention of Cruelty to Children, or any other qualified person to prepare the report. Guardians ad litem are to be available in all the specified proceedings set out in clause 37(6), including applications for a care or supervision order, and are to he appointed unless the court thinks that it is unnecessary to do so to safeguard the child's welfare. Both clause 6 and clause 37 represent improvements on the present law, under which the courts do not always have power to call for welfare reports in children's cases and there is not the same near imperative on the court to appoint a guardian ad litem in care proceedings.
§ Mr. HardyIt is relevant at this stage to ask whether the comments of the Solicitor-General make it clear that the Government understand that the implications of this legislation are that inevitably, even where the courts do not exercise the right to appoint, there will be a greater need for more guardians ad litem to be appointed under these arrangements. At present, there are serious difficulties in securing the appointment of a sufficient number of people for that role. What action does the Solicitor-General envisage will be taken to meet the need that arises from these provisions?
§ The Solicitor-GeneralThe hon. Gentleman has intervened at the appropriate moment. The Government recognise that there is concern about the present arrangements which involve among others not only guardians ad litem, but probation officers, independent social workers, local authority social workers, and the Official Solicitor and his staff. It has been suggested that the functions they perform could be better organised, perhaps being centralised or even attached to the court. There is also the question of the overall level at which they are provided. Such reorganisation and redeployment of resources would be a major undertaking and the issue needs to be examined in detail before a decision is reached. That matter is also to be included in the rolling programme, where it can be examined in the context of the other changes under consideration.
I have referred to the rolling programme several times and I want to elaborate on it. It is a rolling programme to review family law and procedure and by now the House will want to know how it is to be carried forward. To give it reality, Ministers have agreed that the officials in all the relevant Departments will come together in an interdepartmental working party under the following terms of reference:
The Working Party shall oversee a programme of work directed at improving all aspects of family law and business. In particular it shallIt will meet regularly and its first task, in addition to overseeing the implementation of this Bill, will be to decide on the detail of its work.
- (a) consider the arrangements for the implementation and operation of the new scheme for children's cases under the Children Bill;
560 - (b) draw together the management information requirement for operating and evaluating the effectiveness of the new scheme; and
- (c) assess and monitor the resource consequences of- the arrangements."
The programme will cover the areas of the substantive law I have already mentioned—domestic violence and rights to occupy the family home, financial provision and adoption. It will consider the linked issues of conciliation and divorce law reform, as well as the arrangements for providing support services such as guardians ad litem, welfare officers and the role of the Official Solicitor in family cases.
I hope that the House will see that the Bill makes formidable progress towards achieving a single and properly supported specialist family jurisdiction and in many aspects goes as far as is possible given its scope and progress in related areas, such as reform of the substantive law. I also hope that I have shown that there is little, if anything, in principle, as the debate will highlight in a moment——
§ Mr. VazI am grateful to the Solicitor-General for giving way again and for setting out the criteria for the rolling programme. We are almost there in terms of an agreement. What is the timetable for the working party to consider establishing a unified family court system? Will it be one year or two? The Solicitor-General's list did not answer that. Will it be established at the start of the review or at the end? Will it happen before this Bill comes into effect?
§ The Solicitor-GeneralIt is important to emphasise that this is a rolling programme. The programme will not start and stop. Many aspects are already under consideration. The Law Commission work is already well under way and it reports next year. The implementation of the provisions in the Bill will commence as soon as it reaches the statute book and much thought about its implementation has already begun. The programme will make progress in the immediate years ahead. To try to put an overall timetable on it would be foolish, but I emphasise that the programme is rolling and it will continue to roll.
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I hope that I have shown that there is very little, if anything, in principle between what those who seek a family court want and what could be achievable through the Bill and the programme to which the Government are committed. I suspect that successive Governments have been impeded in making progress in the family court issue over the years by the tendency to see the problem in institutional rather than functional terms and, therefore, to see the answer in setting up—at a stroke—some new gleaming steel and glass institution with different coloured robes called a family court without recognising all the steps necessary that would be involved and, most especially, the necessary reforms to the substantive law.
Our approach examines the problem in terms of functions and its component parts and then moves step by step to reform the many matters that will make up progress to a rationalised and improving system of law and procedures dealing with family disputes and breakdowns.I believe that that is the right way to approach the matter and the Bill makes a real advance.
§ Mr. Tom ClarkeI commend new clause 1 to the House with confidence because it represents the will of the House given any test that we have had so far of the views of hon. Members on both sides of the House. On Second Reading, apart from the Ministers who spoke, all hon. Members who referred to family courts supported the principle very firmly indeed. In Standing Committee we had a comprehensive discussion and hon. Members—apart from the Ministers—clearly and firmly supported the principle of family courts.
The hon. Members for Chislehurst (Mr. Sims) and for Stockton, South (Mr. Devlin) spoke particularly effectively about family courts, and I am sure that they will do so again if they catch your eye, Mr. Deputy Speaker. I remind the House of the views expressed by the hon. Member for Stockton, South who said, with a great deal of support from hon. Members on both sides:
The Government will never have a better opportunity than they have now to introduce the long overdue system of family courts."—[Official Report, Standing Committee B, 8 June 1989, c. 423.]The hon. Gentleman was right then and if he repeats those views he will be right tonight.The Solicitor-General will be aware that I do not speak through any personal malice when I state that, notwithstanding his commitment to a working party which could have been announced earlier on Second Reading or in Standing Committee, the hon. and learned Gentleman gives me the impression that his proposal has much more to do with persuading Conservative Members not to support new clause I than it has with establishing the principle of family courts. I am sorry to have to tell the Solicitor-General this, but his proposal represents a pathetic little mouse of an offer in terms of realising family courts. It is a tragically lost opportunity.
§ Mr. VazDoes my hon. Friend share my disappointment about the fact that the Solicitor-General has announced this working party and the rolling programme, but he has not given an effective starting or finishing date? The programme has no timetable, so it is not much of a programme.
§ Mr. ClarkeI agree with my hon. Friend. The House will be aware that when my hon. Friend the Member for Leicester, East (Mr. Vaz) specifically asked the Solicitor-General whether he had a timetable in mind, he received a negative reply.
In the Government's new clause 18 there is no indication of the criteria that will be applied to decide where cases should begin their journey through the courts or the mechanisms which might be put in place to ensure their effective transfer. If some hon. Members mistakenly believe that the Solicitor-General is offering us something that is new, we should attach more importance to what the Solicitor-General said earlier when he said that the proposal was the best use of existing resources. All the advice that we have received is that the existing resources cannot begin to solve the problems and the objective of family courts could not be achieved within the limitation of existing resources.
Far from establishing family courts or offering hope for their realisation, the proposal might be an impediment to their creation. It is not simply a matter of the emperor having no clothes; if this proposal is the best that the 562 Government can do for family courts, it seems that we have not yet had sight of the emperor. Even the promises about the Law Commission do not offer us that prospect.
Hon. Members will be aware of the history of this issue. Much time has been wasted in trying to achieve a form of family courts and many people will be extremely disappointed with the Government's statement tonight. We all recognise the input made by our former colleague, Mrs. Renée Short. She chaired the Select Committee on Social Services which reported in 1984 declaring that it was very enthusiastic about the prospect of establishing family courts. However, just as important, that Select Committee deplored the introduction of such a measure by dribs and drabs. My heavens, if the Government are making any kind of offer tonight, I am afraid that it represents dribs and drabs as against the very clear commitment made in new clause 1 that the measure would be introduced within 18 months.
The report produced by the Select Committee under the chairmanship of Mrs. Renée Short was influenced by the Scottish system which had been in operation for several years. Scottish Members will not pretend that we accept that the children's panels in Scotland represent everything that we want to achieve; they do not. The remarkable aspect of their activities is that, after 17 years, they are beginning to consider how they can develop on what has already been achieved. It is staggering that after all this time, and despite the Scottish experience identified by Renée Short, there is no element of informal hearings or family courts elsewhere in Britain. The Solicitor-General outlined the difficulties of adapting English law to the informal system that we support but, if it was not beyond the wit of the Scottish legal system to adapt and introduce a version of family courts and children's panels, surely the English and Welsh legal systems are not so hidebound that they could not achieve the same objective if there were the will.
Prior to the introduction of children's panels in Scotland I sat as a magistrate in the juvenile court. The major change represented by children's panels in Scotland should not be underestimated. I recall children of seven and eight years of age being paraded before great formal courts for having gone into a superstore and lifted a tin of luncheon meat when they thought no one was looking. The fear of being before such a court and its aura were appalling. As one who experienced and deplored that system and saw a dramatic change when family courts in the shape of children's panels were introduced, I have no doubts about the advantages of the new system, and I believe that the experience of those involved supports that submission.
We do not have to look to other parts of the United Kingdom as we discuss an English and Welsh Bill. Both Conservative and Opposition Members stated clearly their enthusiasm for the established success of family courts in Canada, New Zealand, the United States of America and Australia. We welcome informality, and accept that such courts already demonstrate that the welfare of the child is paramount. Above all, we welcome the non-adversarial nature of family courts and the genuine conciliation that is possible, as opposed to reconciliation—important though that may be.
Where children are involved as witnesses, people are brought together in an informal setting and made to feel that they have a vested interest in the success of the agreement reached. That historical success should not be 563 underestimated. Too often today professional lawyers see themselves as winners or losers. They seek a clear decision one way or the other and, sadly, when a child is involved, the prize to be won or lost is the welfare or future of that child. In view of the evidence that we have heard today, surely that is unacceptable.
Yet again, the Solicitor-General asks us to wait. This time he told us that a Commission will be set up and in due course—at a date unknown, unless he clarifies it later in the debate—will produce a report. With great respect—
§ The Solicitor-GeneralIt seems that the hon. Gentleman has misunderstood. The Law Commission has been working on the matter for more than a year and is due to report next year.
§ Mr. ClarkeI was referring specifically to the proposal for a working party. The Solicitor-General referred several times to a rolling programme. He did not give the impression that action would be taken urgently.
We have had the advantage of the recommendations of the Finer report for 15 years. Is that not enough time? How much longer are people—especially children and families—expected to wait? We have heard far too many excuses from the Lord Chancellor's Department, I accept, on whose behalf, the Solicitor-General is expected to speak. Five years ago we were told that there was uncertainty about costs. Three years ago we were advised to wait for the civil justice review—yet another review. Now we are asked to see how the legislation works out. Why?
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There is tremendous support for the concept of the family court. Baroness Faithfull, who follows our discussions with great interest, put up a noble fight. She is supported by the Family Courts Campaign, which is also to be highly commended. If their collective efforts as well as those of Barnardo's British Agencies' for Adoption and Fostering, British Association of Social Workers, Children's Legal Centre, Children's Society, Family Rights Group, National Children's Bureau, National Children's Homes, and a host of other informed bodies, has met with so little success, we are entitled to conclude that the influence of the Government's barristers is out of all proportion to their numbers and wisdom.
The Solicitor-General referred to the view of the president of the Family Division. There is a degree of vested interest, which does not suggest that the views of consumers have been taken on board. The Government's response to the call for family courts is woefully inadequate, and nothing that the Solicitor-General said changes that. It reveals a wilful misunderstanding of the nature of the path that the Government are being urged to tread.
Lord Denning said:
While our substantive law has changed beyond all recognition … our procedural law remains embedded in the past … a hotch-potch of courts and procedures that have never been brought up to date.Yet the Government's new clause 18 simply renames the domestic panel of the magistrates court and the business transacted there. It does nothing more than seek to establish concurrent jurisdiction for the five courts that deal with family matters and perhaps leave a marker for rules and regulations to facilitate transferring cases between the courts. The same criticism is true of Government amendment No. 353.564 The Solicitor-General may feel that we are treating his commitment with some scepticism, but the Government's position reminds me of St. Augustine's prayer:
Oh Lord, make me chaste, but not yet.We have heard "not yet" for too long. The Opposition's new clause offers an alternative, unified system that would be served by adequate conciliation services and seeks to develop expertise among the judiciary, administrators and professionals. Above all, it would be organised to gain public confidence.It is not without significance that the Society of County Secretaries has claimed:
With a family court in being, we cannot see that the Cleveland situation could have developed.The case for family courts is overwhelming and before we return the Bill to another place we should seize the opportunity that it offers in the interests of millions of our children. They are everybody's children. It is not simply a case of dismissing children who might appear before present courts or future family courts as being naughty or difficult —somebody else's children. They are the children of Great Britain. They are entitled to a sympathetic ear and, in many cases, entitled to make their contribution to solving the problems that are being discussed. We are considering their futures.Not to deal with this matter in a positive way would be to betray the honest bipartisan approach that has characterised the passage of the Bill in both Houses. It would also represent a betrayal of the intelligent and thoughtful work of the Committee and of the other place. It would be a betrayal of the professionals who are active in this matter, and a betrayal of the expectations of the House and of the citizens whose interests we seek to promote. In that spirit I commend new clause I to the House and look forward to its unanimous approval.
§ Mrs. Elizabeth Peacock (Batley and Spen)I and many other people in this country have studied family courts for many years. They will play an important part in future family welfare. Each year, there are about 670,000 petitions and applications on what may be termed family issues. That means that more than 2 million people come into contact with some aspects of family law each year. That contact is almost inevitably confused and confusing, because proceedings can take place simultaneously several courts. My hon. and learned Friend the Solicitor-General referred to that point in his opening remarks. For example, a wife who is married to a violent man may bring proceedings in the magistrates court for an exclusion order and, at the same time, petition for divorce in the county court. The local authority may already have taken care proceedings in the juvenile court and may have made the woman's children wards of the High Court. That demonstrates how complicated such issues are.
The variety of jurisdictions can only lead to unreasonable delay, and lawyers incur unreasonable costs during such delay. It is vital for a family court to encompass many jurisdictions and gather them together in a coherent body. Perhaps the Government should change their priorities. My hon. and learned Friend is wrong to want to perfect the substantive law before setting about reforming the procedure. I listened carfully to what my hon. and learned Friend said about that matter. However, a lawyer spends more time and incurs more cost in manipulating procedures, often on his client's instructions, than in considering the substantive law. In an adversarial system, the procedure provides a lawyer with most of his 565 armoury. If we remove procedural problems before we deal with substantive legal problems we may obtain questionable legal results. That could be a drawback, but at least a result will be reached and all parties will know where they stand.
The Government have set out their intentions, and we must work realistically around them to enable future reform to take place. The important question that we should ask my hon. and learned Friend is how long we must wait for the working party and for its recommenda-tions to be implemented. Cost is always a vital factor in reform, particularly in relation to family law proceedings. I am not one of those who consider that a family court would lead to a cost saving—it most certainly would not —nor do I believe that its introduction could be achieved at a relatively small cost. It will require a large amount of money to do the job properly.
Perhaps a new court system will be required—preferably a three-tiered system. A vital appointment in that three-tier arrangement would be a family court registrar, who would be the entry point for all family cases. He or she would allocate business to a basic working tier or to an upper tier that deals with appeals or first instance cases of exceptional importance. A body of judicial officers would also be needed to man the new court system. They would all need to be fully trained in aspects of law, adjudication, conciliation and so on.
There must be a mix of judges, family professionals and magistrates. The latter group would be of great importance, as the great majority of family court officers will have been magistrates. Magistrates have experience of adjudication and the community, which will be necessary in the new system that I propose.
I disagree with those who argue for the exclusion of magistrates because of their lack of understanding of the real world. That accusation could have been made many years ago, but it certainly does not apply to magistrates today. Although I have sat as a magistrate, I am not doing so at the moment, so I am not thinking about my own contribution. However, I certainly have experience. Since being appointed in 1975, I have had experience with the juvenile bench, domestic court proceedings and adoption proceedings. Perhaps just a little of what I learnt during those years brings me to my present-day conclusions.
New, separate buildings to house the family court would be required. That is essential to give the new system an identity of its own, which is what we all want, and to give the parties involved a clear appreciation of its new role. There must also be some provision for conciliation in a family court, and the bench must perform a more inquisitorial role than at present. I recognise that there is danger in both approaches. Parties could be regarded as clients rather than as parties to a legal dispute. However, although the court must perform a legal function, the introduction of comprehensive in-court conciliation may help to lessen some of the tensions that arise in family matters. Over many years we have paid insufficient attention to conciliation and, in some cases, reconciliation.
In-court conciliation began in 1971. Although it has become more of a buzz word in recent years, it is not particularly new. It has some faults, the greatest of which is that parties may regard it as part and parcel of the adversarial process. Also, parties may feel under pressure 566 to reach agreement. In New Zealand, where the court performs an inquisitorial role, parties who refuse to attend conciliation are encouraged to think again. Perhaps that is not such a bad idea in our present society.
However, such drawbacks as I have recognised are preferable to the indecision that results from out-of-court conciliation, because agreements are not legally binding and are often made on incomplete facts due to lack of financial information. In-court conciliation must be a vital element in any family court system. It would be nonsensical to set up a new system without it.
We could have an extremely long debate on family courts, as they are an important part of this legislation. Hon. Members discuss legislation affecting children and families perhaps once every decade. We must ensure that, when we legislate for the welfare of children in this decade, we get it right. We have a great responsibility to make sure that the legislation will ensure good provision for future family life and children in particular.
Mr. Robert HughesWhen I intervened in the Solicitor-General's speech to ask whether family courts would deal with the issue of so-called "transracial" adoptions, he helpfully advised me that the Law Commission was looking at the whole issue of adoption. If I heard him aright, I think that he said that the report was expected next year. I do not know whether that time scale is the optimum one for receiving such a report, but in my view we must move much faster and further than we are at present.
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I am gravely concerned at some trends in fostering and adoption practice. The first priority must always be the needs of the children; their needs must be paramount. I understand and accept that many adoptive parents—perhaps the majority—wish to adopt a child in their own image, as the saying goes. However, that is not necessarily always the case.
I know of a couple who have successfully adopted a child of mixed parentage. A few years ago they saw an advert in either The Observer or The Guardian seeking a foster home, with a view to adoption, for a girl of mixed race who was then in a children's home in the care of the local authority. I believe that the couple did nothing at the time, believing erroneously that the child would soon be placed with a satisfactory couple and be well looked after. However, a year later virtually the same advert appeared in whichever newspaper it was. The child was still in care —still living in a children's home, with apparently no prospect of fostering or adoption. The couple wrote to the local authority concerned, expressing their interest and explaining their experience and background.
They were astonished and astounded to receive a reply stating that they could not be considered because they were white and the authority's policy was to place such children with black families. The reaction of that family was unprintable and, in recounting their story to the House, I would be out of order if I attempted to repeat that reaction.
As far as is known the girl is still in the care of the local authority and still in a children's home. I believe that that is intolerable, that it is not good social work practice, and that it is certainly not in the interests of the child. I do not accept—indeed, I entirely reject—the theory that such practice helps to foster a non-racial society. I do not accept 567 that the race of a father or mother irrevocably classes a child in the narrow way that social work practice mistakenly assumes in such an arbitrary fashion.
Anyone who has knowledge of adoption knows and understands that there are difficulties when a child is adopted. At some time adoptive children may—and will —suffer an identity crisis and encounter real difficulties when they discover that their father and mother are not their natural parents. So-called "transracial" adopted children do not undergo more severe crises than adopted children who might be adopted in, as is sometimes said, the image of the parents.
The problem at the moment is that the social workers involved—I acknowledge that are concerned—go to extremes to try to justify their policies. I accept that they are sincere, but I believe that they are disgracefully mistaken. Some of the ways in which they seek to denounce those who, like myself, argue in favour of the adoption of mixed-race children by parents of any colour —white or black—are intolerable and disgraceful and do not help in the serious debates that we should be having.
Every family may have times of trauma when bringing up children. Anyone who has had natural children knows that that happens in ordinary families. The problems of adopted children can be dealt with just as easily and just as readily by concerned parents, irrespective of whether they are adoptive or whether they are the "right" racial mix, according to the social workers. The only factors to be taken into account in this matter are the needs of the child. If the race classification argument that is sometimes forced down people's throats in the public debate on this came from South Africa, the people who oppose "transracial" adoptions would throw up their hands in horror and cry that this is an apartheid society. If we believe—as I do—in a truly non-racial society in this country, it is grotesque that any social work practice should seek to classify children by race and so determine social work policy.
The needs of the children should always be paramount and the children should always be put first. An abstract theory should never take precedence over the real needs of real children and their relevance to today's society and real world.
I hope that the Minister who replies to the debate will make it perfectly clear that the Government will press ahead rapidly with a proper code of social work practice. I hope that that will be one of their first priorities when drawing up the details of the ways in which the family courts will operate. I hope that that will feature as one of the first details when they flesh out the bones of what is now an inadequately drafted new clause.
§ Mr. DevlinFirst, I thank the hon. Member for Monklands, West (Mr. Clarke) for his kind remarks, supporting what I said in Committee. It is interesting to note that new clause 1, tabled by the hon. Gentleman and his hon. Friends, has the exact text of the all-party amendment that I tabled in Committee with the support of five other hon. Members, from all three parties. I notice that some of those hon. Members are present.
At the same time, I commend new clause 30 to the House. It gives a much more detailed treatment of the topic and has found its way miraculously into new schedule 9A. It has received 37 signatures, including from most of the hon. Members who have signed new clause 1.
568 The reason why I am in some difficulty in supporting the hon. Member for Monklands, West and his colleagues tonight is twofold. First, the subject matter of the amendment is redundant, having been covered as far as possible by the new clause moved by the Government. Secondly, those parts of the intention of the new clause that are not covered by Government amendments are beyond the scope of the Bill, with one notable exception. Therefore, I am slightly surprised to see that what was a probing amendment in Committee has now returned as new clause 1. It must have been tabled before Her Majesty's Opposition had considered the Government's further proposals.
It was a great honour and privilege to carry this provision as a banner for the Family Court Campaign in Committee. My hon. Friend the Member for Mid-Kent (Mr. Rowe), the hon. Members for Leicester, East (Mr. Vaz), for Middlesbrough (Mr. Bell), for Southport (Mr. Fearn) and for Ynys Môn (Mr. Jones) joined me in tabling that amendment in Committee. We were further supported by effective interventions from my hon. Friend the Member for Chislehurst (Mr. Sims), the hon. Members for Eccles (Miss Lestor), for Newcastle-under-Lyme (Mrs. Golding), for Wakefield (Mr. Hinchliffe), my hon. Friends the Members for Salisbury (Mr. Key), and for Batley and Spen (Mrs. Peacock) and from the hon. Member for Monklands, West. In other words, 13 out of 18 hon. Members serving on the Committee supported the amendment. I remind the House that the other five were the two Ministers, their Parliamentary Private Secretaries and the Government Whip.
In an effort to persuade us to withdraw the amendment, my hon. and learned Friend the Solicitor-General announced that the Bill was the beginning of a rolling programme of reform. Many of us therefore look forward to some announcements tonight that will tell us that in the Queen's Speech further reforms will be put before us. Furthermore, my hon. and learned Friend argued that fuller Government proposals would be presented on Report. I believe that they are now included in new clauses 18, 23 and 28.
The reason why the establishment of a family court is long overdue is not only that such an improvement was suggested 15 years ago in the Finer report but that since then the full statistical horror of cases involving children has been magnified. Since June, when we last discussed this matter, Relate—formerly the marriage guidance council —has published last year's figures. They show that 149,000 children were caught up in divorces last year. Nearly 1,000 per week were under-five. Divorce costs the country about £35 million per day in fees, court costs and social security payments. Last year 151,000 marriages ended in divorce. Whilst that process is extremely painful for the adults involved, it is often the children who suffer most, regressing whilst parents go through the difficulty of getting their own lives back together. Each year, of the 30,000 cases of physically, mentally or sexually abused children, a good section of the abuse is perpetrated by the mother's boyfriend, the stepfather or even stepbrothers. Duplication, alternation and confusion abound in our court system, yet millions of people have a pressing need for the reform of procedure proposed by the Opposition.
The Finer report, published all those years ago, proposed a unified family court to eradicate the hotchpotch of conflicting legislation and different jurisdictions. The new court was to adopt an inquisitorial 569 rather than an adversarial approach. It was to be based on six principles—that there should be impartial adjudication according to law, a unified system of family law, the provision of the best possible conciliation facilities, a team of professionally trained social workers, that there should be a close relationship with social security law and that the whole thing should be organised in such a way as to gain public confidence.
In 1979 further proposals were made by the Law Society, in 1982 by the Justices Clerks Society, in 1984 by the Association of District Registrars and County Courts. In 1984 the Select Committee on Social Services went further and said:
The introduction of a family court system could offer the possibility of a significantly better deal for children and parents.The hon. Member for Monklands, West has not only stolen my amendment, but he has stolen my speech as he mentioned that the Cleveland affair might have been prevented by a family court system. I will not repeat that point nor the list of organisations supporting the Family Courts Campaign because they are far too extensive to mention. Looking back over the past 15 years it is clear that a strong case was made right from the start. The Government sought to avoid the need for action with a variety of ruses and excuses. First, they spoke about cost, then they said that what was asked for was too vague. They also said that there was no precedent. Now they say that they are already planning such a court system, but, tonight, they say that it is beyond the scope of the Bill.At last in this Bill we have made some essential headway towards our new system of justice for families. Since the Whips are wandering around bullying people I shall quickly examine the Minister's proposals which he has said
go further and are drafted more carefully than the amendments."—[Official Report, Standing Committee B,8 June 1989; c. 451.]I note that my hon. Friend the Member for Solihull (Mr. Taylor) is approaching, but I shall not give way to him. I can assure the Opposition that I have not had my knuckles broken nor have I been offered a holiday in the Bahamas to avoid making this speech.New clause 18 sets up family proceedings courts and family proceedings panels. They would be the newly reconstituted magistrates court part of the family court. The rest is left to the Lord Chancellor to make orders with respect to what that court can do. The next new clause that the Government rely on is new clause 23, which is pregnant with good potential, but one that may not be carried into execution. The procedure can be altered, parties can be redesignated and the whole new classes of evidence can be demanded. A registrar can deal with initial applications, just as we suggested, and ex parte proceedings rules can also be made. New clause 28 goes further with respect to procedure to be adopted. I appeal to the Solicitor-General to use the clauses as imaginatively as possible to ensure the effect of what the Family Courts Campaign is calling for is carried out.
Altogether the Government have done an excellent job with the clauses to meet many of the demands of the family courts campaign—or as many as they think are possible at the moment. Rab Butler once reminded the House that
Politics is the art of the possible.570 The Government, however, could do a great deal more and they could go a great deal further, but perhaps not in this Bill. New clause 30, which is supported by many hon. Members, must show them the way forward.However, I shall measure the Government's proposals so far against the original six recommendations of the Finer committee so that I can draw attention to the obvious gap that I see. There is no doubt that the Government proposals will continue to provide an impartial adjudication according to law. Those proposals, as well as the Bill in general, which I remind the House, deals with children only, moves us much closer to a unified system of family law with new amendments. Trained social workers working with the courts find their place in the Bill. Public confidence will undoubtedly be enhanced by the greater powers given to parents, grandparents and, of course, children.
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The gap—here it is—is in the provision of the conciliation service alongside the new procedure. During the summer recess I attempted to find out from the Attorney-General, the Lord Chancellor and even from the Prime Minister what the future of conciliation services will be. The answer, if one can call it that from the usual Civil Service stonewalling, is that with the report of the Newcastle study project under review and with, in any case, the Law Commission re-examining and reporting on the law of divorce next year, there is no answer just yet. Unfortunately, as I said in my earlier intervention, in the meantime our excellent conciliation service in many parts of the country—I mention Cleveland specifically—will go to the wall for lack of funding. However, conciliation is a fundamental of any family court system which the Government may later attempt to establish. In the meantime, it is also a successful tool in the resolution of disputes.
Let me recap the findings of the New Zealand conciliation service—19 per cent. of those who went to the conciliation service resumed the marriage, 39 per cent. reached full understanding, 16 per cent. went back for guidance and 26 per cent. only reached no agreement. The Relate figures show that, in English terms, 200 children a week under the age of five could be saved from the pain of parental divorce if there was a properly funded conciliation service in this country.
Even if I am in an optimistic mood today, it seems that the Government are moving slowly down the road to proper conciliation services just as they are progressing to a family court. The excuses, however, are the same. On 8 June in Committee at column 465 the Solicitor-General argued about the cost of the service and in the next paragraph he deployed the vagueness argument. In column 466 he argued that there was no precedent. In a letter since received from the Prime Minister and from the Lord Chancellor I hear that we are already planning something. So long as the Solicitor-General or the Attorney-General argue that such conciliation services are beyond the scope of the Bill we should look forward to some serious and far-reaching reforms to be introduced in the next Queen's Speech.
What has my hon. and learned Friend offered us tonight? He has offered to gather together all the officials from all the relevant Departments into one splendiferous committee, which will consider all the aspects of family law. It will consider the implementation of the Children 571 Bill and evaluate the efficiency of the Bill and look at the resource implications of change. It will consider conciliation and the law relating to divorce. It will also consider the support services. Has anyone in the House any idea how many civil servants will be involved in that exercise? It will have to run into hundreds. Has anyone any idea how long it takes hundreds of civil servants to make up their minds about anything? It will take absolutely years. We are talking about another 15-year rolling programme before we get the matter back before the House. I ask the Solicitor-General whether that rolling programme will roll out in the life of the Government. Unless the Solicitor-General can come up with a more satisfactory timescale, I may have to go back to supporting the Opposition in their amendment.
What is on offer now after 15 years is that the civil servants have won. If the choice tonight is between the will of the House and the will of a huge committee of civil servants from all the different Departments discussing until kingdom come what the future law of the family will be, I shall support the will of the House.
§ Mrs. Rosie Barnes (Greenwich)I shall speak briefly in favour of a policy of speedy implementation of family courts. A less adversarial judicial system for family matters has been advocated for many years. While I welcome the minor shift in the Government's mood in this direction, I, along with many others, feel that this is an invaluable opportunity, perhaps the only opportunity for a decade or more, for the Government to take it much further and commit themselves wholeheartedly to the full establishment of family courts.
The Bill unifies the law relating to children. As the White Paper, "The Law on Child Care and Family Services" of January 1987 stated:
it would not be sensible to make decisions on most of the Child Care Review's recommendations concerning jurisdiction in advance of a decision on the family court issue".The Bill, which has consolidated much of the law relating to children, provides the right opportunity to make a decision on family courts.One of the most important elements of this issue that has been much debated tonight is conciliation, which has been extremely effective in other countries. Not only is it highly desirable in itself, but it can lead to massive savings in legal aid. Earlier this year the Lord Chancellor's advisory committee on legal aid reported that a family court could make savings of up of £14 million in legal aid. Although I accept that to introduce family courts would have considerable cost implications in other spheres, this element must not be ignored.
Both branches of the legal profession and all those working in the area of family breakdown have long been convinced that family courts are the only economic, effective and appropriate way of dealing with family law matters. It is difficult to understand the Government's reluctance to embrace this measure wholeheartedly. We have skirted around it for far too long and should move rapidly towards a commitment in this direction. I look forward to hearing what sort of time scale is proposed for this long, rolling, decision-making process about which many of us are cynical.
§ Mr. Roger Sims (Chislehurst)My interest in the cause of family courts is long standing and is on record. In our discussions in Committee I referred to the fact that the appearance of the Finer report, with its advocacy of family 572 courts, coincided with my election to the House in 1974, and that soon afterwards I convened a conference on the issue. I hasten to assure the House that I have no intention of repeating my Committee speech here. In response to pleas over the years from me and others, the Government have consistently taken the line that they must first get the law right and then they can alter the structure of the court.
Let us at least give the Government some credit for not waiting until they have got the law right or until the Bill is enacted but have decided to start the process now. They have decided to adopt an evolutionary rather than a revolutionary approach or, to use my hon. and learned Friend the Solicitor-General's expression, a rolling programme. Certainly, my hon. and learned Friend has announced some important steps this evening. I should like to have heard a lot more, but we have to be realistic and we cannot ignore the fact that a family court would have to cover a number of issues that are not the subject of the Bill and could not feasibly be added to it.
Certainly, I have no criticism of Opposition Front Bench spokesmen seeking to raise this issue again, despite the fact that we discussed it fully in Committee. Apart from anything else, it has given my hon. and learned Friend the opportunity to expand on the remarks that he made to the Committee, and his contribution was most helpful. However, it would be a pity if the Opposition were to divide the House on this matter, which I understand they are considering. Apart from incommoding a number of hon. Members on both sides of the House, it would undermine the bipartisan approach to the Bill which has been a feature of our proceedings and to which the lion. Member for Monklands, West (Mr. Clarke) referred.
My hon. and learned Friend the Solicitor-General referred to the interdepartmental working party and what it is to do. I am sure that he will understand that, while we realise that it cannot specify a timetable, there is a suspicion that a working party is a vehicle for inaction rather than action. I hope that before the end of this debate he will assure us that this rolling programme will roll and not simply creak.
Many of us would like to see many more suggestions included within the proposals. However, what my hon. and learned Friend has suggested this evening is certainly more realistic than the over-ambitious measures un-derstandably advocated by the Opposition Front Bench. My hon. and learned Friend has explained why he has not incorporated conciliation services into the new pattern which he has outlined. However, I endorse what my hon. Friend the Member for Stockton, South (Mr. Devlin) said about the value of such services which have been running for a number of years.
In my area of Bromley we have one of the pioneers of the conciliation services. There are now 50 services affiliated to the National Family Conciliation Council. A feature of those services is that they have all been set up on a local basis, all been a product of local initiatives and every one of them is now struggling for funds.
I am aware that the Newcastle project report is under consideration but my hon. and learned Friend will remember that the report states:
conciliation generates important social benefits and rationalisation of it is a priority need.I hope that the rolling programme will consider this matter as one of urgency. The danger is that, meanwhile, the conciliation services might wither, which would be disastrous.573 I plead with my hon. and learned Friend for adequate interim funding. He does not have to commit himself as to what form the conciliation services will take in the final structure of the family court, but it is important that they should be preserved in their present form. I urge him to support them as much as he can.
§ Mr. Ieuan Wyn Jones (Ynys Môn)Hitherto the Government have been reluctant to give us a firm view on the establishment of a family court. In Committee we were able to recap the way in which successive Governments, but mainly this Government, have sidelined the issue, principally because it would cost money to set it up. In the past 15 years there have been a report, two consultation papers and an interdepartmental committee.
I recall a former Cabinet Minister telling an after dinner audience that when he was in trouble on a policy matter he would go to Cabinet to demand that it set up an interdepartmental committee. Therefore, it hardly inspires confidence when the Solicitor-General tells us that there is to be yet another interdepartmental working party.
However, let us not be churlish, because pressure from the family courts campaign and other groups has paid off in some respects. The Government have had no alternative but to respond in view of the growing and increasingly well-argued case for the family court.
Let us examine some of the Government initiatives which were conveniently set out in their response to the report by the Social Services Select Committee. First, they say that the Children Bill creates concurrent jurisdiction in the High Court, the county court and the magistrates court, which will hear proceedings under this Bill and in cases of adoption. The Lord Chancellor, we are told, will have power to provide for the allocation of cases within the hierarchy of the courts, and the Government hope to arrange for judges and registrars with expertise in this field to be responsible for the conduct of such cases.
We have also heard that, with regard to magistrates courts, a family proceedings court is to be established and magistrates are to have special training. There will be more reliance on the use of written documents—I welcome that approach—and magistrates will be expected to have read them before the hearing and to give reasons for their decisions. In other words, the court is to have a more active role in the conduct of cases.
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Procedure in the courts is to be streamlined, and cases involving disputes that may have started in different courts will be merged so that they can be dealt with together. All these measures are to be welcomed, although a note of caution must be entered, in that the Government say that most care and supervision-related cases will be suitable for hearing by the family proceedings court—that is, by lay magistrates. One cannot escape the conclusion that that is done for reasons of cost—it is much cheaper to administer justice through the lay magistracy. The view that I have always held is that family courts should be a unified court with lay magistrates sitting either with a judge or, in some cases, a registrar.
Although there are powers to transfer cases between courts, some delays are inevitable as some administrative procedures will have to be carried out by at least two sets of court officials. However, all the Government's 574 initiatives will be flawed until they address the central issue —the removal of the present adversarial system of family proceedings and the introduction of a properly funded counselling, conciliation and mediation service.
All the evidence that we have so far supports the view that the only way to remove the courtroom pain and anguish of family disputes is the introduction of an inquisitorial system backed by conciliation. I mentioned courtroom pain and anguish advisedly. We know that we cannot remove all the pain and anguish involved in these cases, but that is no excuse for allowing the courts to be used as a vehicle for venting the anger, frustration, bitterness and—often—guilt which are associated with these matters. Court proceedings are also seen by many as occasions for winning and losing, a view perpetuated by our present system. No palliatives given to the family courts campaign can ever be successful until this problem is tackled.
We must also consider the facilities that are available in many magistrates courts. They are often appalling. Many courts have no facilities for conducting private interviews, which are held in corridors and passageways. The waiting rooms in many of our courts are cold, forbidding places where witnesses have nothing to do but glare at each other. Is that the way in which we should treat people who are already under considerable stress? Is that the way in which to resolve these difficult issues? A congenial setting is more conducive to better understanding all round. That is why the family court system in New Zealand places so much stress on the setting in which cases are heard. Basics such as the positioning of tables and chairs and how court officials, including judges, are dressed are considered important.
During the recess I met a representative of the embryonic North Wales family conciliation service, a group set up about three years ago in the hope that it would be able to offer conciliation services to all the courts in north Wales. Yet three years later it does not have a penny with which to begin to put that system into operation. Recently the group asked me for my support to persuade the Welsh Office to give it finance.
To be fair, in their response to the Social Services Committee the Government conceded that we have a patchwork of systems in England and Wales which is nothing like the system that we need—a universal, properly funded system. I want to ask the Solicitor-General when the university of Newcastle report will be published. When will we be told whether we shall have a properly funded conciliation service? Conciliation services offer couples opportunities to meet in a structured setting so that they can begin to resolve conflicts and work jointly with children to agree decisions. That is important, because conciliation aims to find a way of reducing the pain, anger, confusion and sadness experienced by children caught up in the process of their parents' separation and divorce.
We must never forget that parents need support when reaching and maintaining responsible decisions about custody and access. Because their parents lack support at the time of separation, children are not properly informed of decisions that will affect them. That leaves many children helpless, confused and lonely. Children want to be consulted and involved in decisions that will dramatically affect their lives. They want basic, practical information.
575 They want to know where they will live, whether they will stay at the same school, whether they can still see their grandparents and where their absent parents will be living.
For these and other reasons, a conciliation service would play an invaluable role. Experience of the family court system in New Zealand is that there has been a dramatic reduction in the number of custody cases that proceed to the traditional blood-letting of a court hearing. There has been a dramatic acceptance of the need to change traditional approaches and procedures on the part of judges, administrators and the legal profession.
I believe that the campaign for a family court has come a long way, but not far enough. I confess that I did not come to this debate expecting that the Government would come forward with a system to establish family courts, because I knew that they would repeat what was said in Committee. But it is important for the House to have had the opportunity once again to debate this issue. As surely as night follows day there will inevitably be a family court in England and Wales. The House has an opportunity to place an important milestone along the way to the establishment of that system, and I hope that we will divide tonight so that we can properly gauge the support in England and Wales for its establishment.
§ Mr. RoweMy hon. and learned Friend the Solicitor-General left me in no doubt about the Government's intentions in the matter of a family court. I have no doubt that the Government clearly see many of the absurdities in the present system and are anxious to end them. I welcome the commitment to a unified jurisdiction so that we can at least consider all matters relating to one family in one place at one time. That is probably as far as it is reasonable to expect the Government to go in this Bill.
I share a number of hon. Members' concerns about this rolling programme. I take issue with my hon. Friend the Member for Stockton, South (Mr. Devlin). I do not see a huge army of civil servants. I see three or four, some of whom have probably been up to their necks with the Bill hitherto, being switched, probably quite gladly, to the next great issue. The more that they come under pressure from outside, the harder it will he for them to work speedily. I hope that the Government will make sure that there are enough civil servants to do this important job expeditiously.
I received one nasty tremor during the Solicitor-General's speech when he quoted other people. He said that he thought that they had in their minds a wholly new structure, a new steel and glass building, he said, staffed by people with robes of a different colour. I hope that he completely distances himself from that attitude not so much because of the separate system but because of the robes of a different colour. The last thing we want is a reshuffle of existing wigs and gowns into a new pattern of formality and authority. We need a wholly new direction based on non-adversarial procedure.
The need is to support the family and the child. Most people who have got into matrimonial difficulties desperately want either to resolve them or, if they cannot, to leave one another amicably and equitably. Adversarial proceedings make that harder not just in court but outside it. It is similar to the insurance company's injunction that one should not even be polite to the driver with whom one has just had an accident in case one gives the impression that one was at fault. Such an attitude is disastrous for the 576 children and destructive for the family. I suspect, although I could never prove it, that it has a knock-on effect because if one of the spouses remarries the bitterness of the divisions may make it much harder to establish a good future relationship.
The third objective must be to get agreed solutions where possible. That will reduce the likelihood of a spouse losing access to the child in later years or a wife—it is usually the wife—not getting maintenance. Formality simply does not help.
When it comes, the family court should be bold, as it was bold in Scotland. Kilbrandon made this great radical leap of differentiating between questions of fact and questions of treatment, especially in criminal cases. It would be a serious error if the family court left juvenile crime to one side. How otherwise are we to reduce our appalling record of incarcerating young people, the worst record of incarceration in western Europe? How can we support the idea of family responsibility if at an incredibly early age we start treating the child who has committed an offence as some kind of criminal standing on his own? I realise that there are risks and I understand that in Scotland at this very time some of the children's panels are anxious lest some of their agreed treatment procedures are oppressive, but they are not questioned because there has grown up a culture of not questioning. Perhaps some should be taken to the sheriff for examination on a voluntary basis to make sure that that is not the case. However, that is a minor matter. I agree with my hon. Friend the Member for Chislehurst (Mr. Sims) that we have to support the existing family conciliation services while the rolling programme wanders on.
Every so often in India there is a great ceremony at which an enormous goddess called Juggernaut is taken out of her temple, put on rollers and taken through the streets. Many devotees allow themselves to be crushed to death under the rollers. I cannot believe that it is the Government's intention with their rolling programme to crush to death the existing family conciliation services by starving them of money while they wait for the Newcastle report to be properly evaluated.
§ Mr. HinchliffeWe have heard some excellent speeches. The speech of the hon. Member for Mid-Kent (Mr. Rowe) was commendable and raised some important issues. I should like to concentrate on what could be described as practical grass-roots issues rather than the complex legal procedures raised by the Solicitor-General and some hon. Members.
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In Committee our proceedings were dominated by hon. Members who were either magistrates or lawyers. I am aware that I am competing with at least four Opposition lawyers who are trying to catch your eye, Madam Deputy Speaker. I speak as a non-lawyer, but as someone who has had extensive and on occasions bitter experience, especially in the juvenile courts, of social work practice. On the basis of that experience, may I say that the existing system of the administration of child care law is a discredited shambles long overdue for reform. It would be shameful if we were to allow the opportunity presented by the Bill to pass without a clear change in the procedures that are long out-dated for the work that they are expected to do.
577 It is a matter of great regret that the Government have not proposed anything positive. I suspect that what the Minister said today is not much different from what he said in Committee. I am disappointed by that because I think that some Conservative Members, some of whom are not in the Chamber, firmly believe in the principle of the family court system and recognise the major problems.
We all accept that in many ways the Bill is a great step forward. It answers the question about the principle of the welfare of the child and affords protection for children and young persons. It advances in law the rights of children and the rights of parents and carers and other relatives in respect of children. However, the Bill leaves the administration of these important changes in a court system that is clearly a hangover from the past.
In Committee I spoke about my concerns on the practical issues, some of which have been referred to. They certainly concern me and many users of the courts. We should not forget that not many hon. Members have had the experience of being before a juvenile court and having to defend themselves. Not many have had the experience of seeing their children before such courts. Many hon. Members have had experience of being professionals in court, but they have not seen the other side. That is the side that we should consider when we contemplate legislation.
I am worried about the system as it stands and the one that we will have in being to administer the new legislation. First, there is the matter of formality which has already been mentioned. The system that I met as a young social worker was markedly different from my perception. I had been led to believe that the juvenile court was informal and assisted children to bring forward their views and express themselves. My experience of the juvenile court is completely to the contrary. It is a highly formal system and terrifying for young children. I can recall seeing tearful children being made to stand up straight by magistrates who were offended because the child was so embarrassed that he was looking at the floor when speaking. We must aim at a system that assists children in frightening circumstances to express themselves, and that must be done in a caring and effective way rather than in a daunting way.
In Committee I mentioned the matter of sensitivity in dealing with children and families. Some hon. Members have spoken about the adversarial system. In Committee I spoke about giving evidence in a serious case of sexual assault on two young children. I was asked to give detailed evidence about the assaults in front of the two children. I objected, but I was forced by the magistrate to give evidence. That is not on, and it is not the kind of system we should have in a civilised country. Vulnerable young children should not be treated in that way. Formality must be tackled as a matter of urgency.
The other issue that caused some offence to one or two hon. Members who were magistrates was that many people who administer justice, particularly in magistrates courts and juvenile courts, have no insight whatever into the lives of the people with whom they are dealing. They do not come from areas where children have the problems that lead them to end up in juvenile courts.
I know that the hon. Member for Batley and Spen (Mrs. Peacock) was deeply offended when in Committee I referred to flowery hatted magistrates, and she continues 578 to assure me that she does not possess a flowery hat even though she is a magistrate. However, she took the point that magistrates come from certain parts of the community and tend not to be a reflection of the people brought before the courts. We must challenge that and then tackle it. Many benches are unrepresentative of local communities and have no insight into the problems that cause people to end up in juvenile courts.
The hon. Members for Mid-Kent and for Ynys Môn (Mr. Jones) referred to the physical conditions of many courts. People have to wait in appalling conditions to make a daunting and frightening appearance in court, often with the people whom they are opposing.
The pressure and the demands on the court system have a bearing on the way people are treated. Although the Government are not introducing the necessary reforms, I hope that they have given some thought to the pressures that the Bill will place on the court system. I can see that huge increases in the workload will result from the emergency protection orders, and the appeals that will result from the Bill.
As my hon. Friend the Member for Monklands, West (Mr. Clarke) said, we must look at the Scottish system. Through the auspices of my hon. Friend the Member for Aberdeen, South (Mr. Doran), I was fortunate enough to make a visit to see the Scottish children's panel in operation. That was an education, because it was a completely different from a court hearing in the juvenile court system in England and Wales. It was like a breath of fresh air, because it was informal and sensitive and allowed the child, in a non-threatening situation, to express his views. It was non-adversarial and it offered a lot at which we should look. Our colleagues from Scotland should not be afraid to boast about what they have. They are asking how they can improve on that and we are a long way behind them. We should look to Scotland for a lead, particularly on a family court system.
The central issue is that we need a court system for children that, like the Scots system, has at its heart not the convenience of lawyers, magistrates, police and social workers but the central principle that underlies the Bill —the welfare of the child. We are long way from that principle with the system as it stands. New clause 1 sets out the principles that should underpin the legal system dealing with children, young persons and families. It also sets out the principles that would underpin the operation of the family court system that we envisage, identifies the welfare of the child, and avoids unnecessary formality, which inhibits and confuses most children. It also reduces delay and inconvenience to the public, which often occurs as a result of the way that cases are handled, reducing the harm to children and families that comes from the system. The court system's purpose is to help young children, but when they are involved in it, they suffer. Another vital principle is the introduction of conciliation into our method of resolving disputes. That seems an obvious thing to do.
I urge the Government to rethink their position. I am unhappy that new clause 23 and the Bill do not include the central principle that all Labour Members, and many Conservative Members, believe should be included in the court system to administer the Bill. It may be another 10 years before we get the chance to debate a similar Bill. It is crucial that we do not sit back and set up committees on 579 rolling programmes. Instead we should get down to business, bring about the procedures for these reforms, and include them in the Bill.
§ Mr. FearnMy party has campaigned for many years for the introduction of a family court. I remember standing up in Southport district council in 1974 to speak on the Finer report and to support family courts. This is far from being a new subject, but we are still debating it.
We are all aware of how the present system of numerous courts dealing with family matters causes confusion and distress for families. In many cases, the children suffer most. Therefore, it is right to attempt to clarify the Government's position on the family court. Under the Bill, the interests of the child are paramount, and that lies at the heart of all the calls for a family court. By providing for the introduction of concurrent jurisdictions, the Bill may go some way to improving the legal and administrative tangle in which families are so often caught. However, because of so much reliance on secondary legislation, that cannot be guaranteed and the results may be worse.
The Bill does not go far enough. The adversarial nature of the British legal system—there must be a winner and a loser—is often at the root of the problem. Many cases dealing with some element of family life do not need a formalised court hearing. What is required is the ability to arrive at the truth in a fair, comprehensible and civilised manner, which would lead all the parties, including the children, to believe that they had had a fair hearing that would allow a proper assessment of what was in the child's best interests. A family court is the only way to achieve that.
A separate family court that would also cover young offenders would help to reduce delay in cases involving children. It would prevent cases from being allocated to an inappropriate level of court, and would prevent bottlenecks from arising because of other cases fighting for priority. In some areas, the courts are already severely overburdened, with devastating consequences.
A family court system with proper and adequate auxiliary services, such as conciliation, mediation, probation and welfare services, would prevent family problems from being dealt with on a piecemeal basis, would allow the whole picture to be considered and would allow for many cases to be resolved before coming to court. It would also enable the judiciary and other members of the legal profession to build up expertise in all sorts of family problems.
On the whole, there is much common ground between all parties and among the public. It is generally accepted that the best people to resolve problems concerning the needs of children are the parties involved. However, occasionally the state must intervene to protect the welfare of children. That must be done within a coherent framework of services and, whenever possible, with the agreement of those involved. That could be achieved by creating a properly resourced and serviced family system. The system that the Solicitor-General has set out is not a family court.
The arguments in favour of such a system are well known to all hon. Members. Although I welcome the Government's moves towards the family proceedings court, and understand to some extent their desire for gradual reform, I believe that family courts are an important factor in safeguarding and promoting the 580 welfare of children and their families. Delay is not justified, but delay is what we are getting tonight. It may be 15 years before the rolling programme brings forth the priorities that we need. The time is now right to make that commitment and set the reform in motion.
§ Mr. VazIn Committee, the Solicitor-General coined the memorable phrase "an all-singing, all-dancing, family court". When he started his speech, and busied himself around the Dispatch Box looking for his notes, I thought that he was giving us an example of what the all-singing, all-dancing court would look like.
The scenario put forward by the hon. Member for Mid-Kent (Mr. Rowe) of the Solicitor-General standing on rollers being pushed down the hill as devotees sing around him as a metaphor for the rolling programme is an interesting spectacle. If the Solicitor-General has listened to the speeches tonight, as I am sure that he has, he will have found himself in a minority of one. I suppose that, as he is in the Government of a Prime Minister who decides that a vote of 48 to one at the Commonwealth conference is a victory, he will apply the same criteria and say that he has won the debate on his arguments.
My hon. Friend the Member for Monklands, West (Mr. Clarke) quoted St. Augustine and talked about chastity. The Solicitor-General is like a reluctant legal virgin, unwilling to take the final step that is necessary to bring him close to us on ideas on the family courts. He introduced the extraordinary phrase in Committee about the rolling programme, and I pressed him as to what that was. It is a remarkable programme with no real beginning and no real end. There is no timetable, just loose criteria based on the points that the Solicitor-General mentioned earlier.
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The Bill has, for the most part, achieved a large degree of consensus. The Standing Committee divided on only a few occasions, and I suspect that there will be few Divisions on Report. Nevertheless, this is one of those occasions. Before I was elected to the House I was a senior solicitor for a London borough. I must tell my hon. Friend the Member for Wakefield (Mr. Hinchliffe)—and it is a confession to appease him—that I have never been a private solicitor taking private fees; I have always worked in the public service for various local authorities. As someone involved in child-care law, I saw this Bill as a great, historic opportunity to achieve a unified family court system—but we are being bought off. I hope that some Conservative Members will join us in the Lobby when we divide on this matter, especially the hon. Members for Mid-Kent (Mr. Rowe), for Stockton, South (Mr. Devlin) and for Batley and Spen (Mrs. Peacock), who all spoke eloquently about the need for family courts. We shall have to wait to discover whether they will vote with us or whether the holiday in Bermuda offered to the hon. Member for Stockton, South has been accepted.
It is 100 years since family law has been considered as carefully as it has been during the passage of the Bill. We are all aware of the historic nature of our work. I agree with my hon. Friend the Member for Wakefield that the opportunity to act may not arise for a decade, although I think that it will be even longer than that. Unfortunately, these issues are too low down the political agenda for Governments to include them in their programmes. Despite the eloquence of my hon. Friend the Member for 581 Monklands, West and the fervour with which he will no doubt carry out his tasks as Minister of State in the next Labour Government, he will have to fight very hard to get these matters debated early in the programme of that Government.
The Solicitor-General, as a lawyer, must know that it is necessary to have a timetable. It is always good to end something that has been started. It is a reasonable suggestion and I hope that he will be teased into commenting on it when he replies to the debate. He said that, as yet, the substantive law is not quite right, but when it is that will be the time for a change in court structure. As many hon. Members have already said, the Bill will become law shortly—including, I hope, Opposition amendments. Its passage is almost a foregone conclusion —if saying that does not usurp the authority of the House —and there will be in place a substantive and radical piece of law that will repeal six statutes and amend a further 30.
It is only reasonable to consider the question of structure, and surely it is best to do so at the same time as considering the substance. I think that that is the sensible way to proceed, but unfortunately the Solicitor-General does not agree with me. We accept all that he said about the need for special training for magistrates and for those who will assist in the processing of cases. We agree that the new proposals in clause 67 will provide the opportunity to switch jurisdictions between courts. The hon. and learned Gentleman claims to have the support of the president of the Family Division, who has said that we now have a family court in all but name. If that is the only problem, I urge him to take that little step forward.
The hon. and learned Gentleman said that we cannot change procedures because certain courts have petitions while others have summonses, yet he is proposing to do just that by changing the way that evidence will be made available to the domestic courts. He mentioned the introduction of affidavit evidence and of magistrates considering evidence well in advance. That is a substantial change in procedure, and if he is prepared to go that far, he should go just that little step further.
I listened carefully to my hon. Friend the Member for Aberdeen, South (Mr. Doran), although I did not think it the appropriate time to raise the matters that he did. I accept that he was entitled to do so, but I disagreed with everything that he said about transracial adoption. If we are to consider questions of creed and linguistics, we must also consider the question of race. However, that is a larger argument which is not really relevant to a discussion about family courts. My hon. Friend and I must discuss the matter later, when I shall try to convince him of my view and he can try to convince me of his. My experience as a solicitor at the juvenile court in Islington was of enormous pressures being placed on children. That led me to believe that the only solution would be a unified family court and conciliation system. Children in court settings have to face the terrible experience of hardship and bitterness. Time and again I would turn up at the courts, there would be an adjournment and the children would have to wait almost all day before the hearing for interim orders, full-care orders or supervision orders. They would then have to return to the court 28 days later.
I acknowlege that the Government have recognised the problem and I supported the Solicitor-General when he 582 moved amendment No. 37, which sought to reduce delays. We supported the idea of a timetable for cases that will be made possible by the rules of court, which is important, but the best way to solve the problems of delay is to have a family court system with properly trained magistrates and clerks who understand the nature of what is at stake.
I and the hon. Member for Stockton, South—it sounds like a mutual admiration society, but this is probably the only legislation on which we will agree during our time in Parliament—rue the fact that wardship jurisdiction will be abolished by the Bill. I have an affection for wardship because I believe that it allows for a better system of justice. I should have liked to have a family court system along the lines of the system in the High Court, with experienced judges of the Family Division having affidavit evidence placed before them.
§ Mr. DevlinI understand that while I was out of the Chamber the hon. Gentleman expressed the concern that I might have disappeared to Bermuda. I assure him that I had only gone to pick up the ticket. He mentioned our mutual admiration society, and indeed I rushed back from the other end of the building as soon as I saw his name on the monitor. I agree that wardship should have been retained. It proved to be an invaluable part of the proceedings in Cleveland. Had children not been put in wardship during that unfortunate crisis, we would probably never have had the matter sorted out. As I said in Committee, I regret the Government's view that wardship should be phased out.
§ Mr. VazI am glad that the hon. Gentleman returned to the Chamber rather than going to Bermuda. I hope that he will join the Opposition in the Lobby and support new clause 1.
I agree with the comments of some hon. Members about the way in which the courts operate. The juvenile and domestic courts in Leicester are prime examples of the problems and the pressures on families. There is only a small room in which more than 70 people, including children, have to wait for their cases to be called, and only one court is available. No refreshments are available, there are no telephone facilities and there is no appointments system. All that adds to the burden on families.
If the Solicitor-General were to say tonight that the reason that he could not introduce the measure was because it would cost more, I should refer him to the points made by so many people and especially to the report of the Chartered Institute of Public Finance and Accountancy and to the document "The Price is Right", named after a popular quiz show, which suggested that there would be savings of more than £10 million. If he is afraid that the Chancellor will say that he has not enough money to pay for the new system, I suggest that he hand the Chancellor a copy of that document, which will show the tremendous savings to be made if the system is introduced.
We need to bring the many aspects of children's legislation into a single system. Wardship, adoption, divorce, custody, access, maintenance, domestic violence, guardianship, affiliation and care orders are all aspects of law and social policy that affect children directly. If the Solicitor-General does not accede to the demands of new clause 1—if he continues to maintain that the change of name that he proposes in Government amendment No. 353 meets the requirements laid down by hon. Members, 583 the family courts campaign and other outside organisations—I feel that he should reconsider the Government's proposals. Merely changing the name will not solve the problem. If he does not reconsider, the hon. and learned Gentleman will go down as the first Solicitor-General in history who has introduced such a radical measure and then sabotaged it because he has not the courage, or perhaps the political muscle, to go a step further and introduce a new system that will ensure that the Bill—many parts of which we support—constitutes an effective body of law.
§ Mr. DoranMany powerful speeches have been made on both sides of the House in favour of the family court system, and I do not intend to repeat points that have already been made. I should like, however, to speak from the perspective of one who has specialised in family and child care law for many years, and also from the Scottish perspective.
I was pleased to hear the compliments that have been paid to the children's hearing system, in which I worked for some 12 years as a solicitor employed both in private practice and by a local authority. I am mystified by the fact that, after all our years of experience of the Scottish system —which got under way in 1971—a similar system has still not been introduced in England and Wales. After reviewing the literature, I have concluded that the only reason why it has not is that the magistrates are far too powerful a lobby to be overcome, and that they want to keep the jurisdiction for themselves. What the Government do not perceive is the damage being done to families and children in the process.
I listened carefully to what the Solicitor-General had to say, and I should like now to deal in particular with two points that he made. He said that those of us who see the need for a family court consider the problem institutional rather than functional. I consider that rather an insult: it suggests that we ignore the reality of the present system as it affects those who must appear in court, both children and adults. It also assumes that we are talking in a vacuum, which we are not. We have experience both of the damage done to families and children by the present system, and of the Scottish system. But I do not want merely to praise the Scottish system; I want to put on the record something of what it means in practice.
The Scottish system is informal in that the legal process is separate from the actual hearing and disposal of a case. Every local authority area is required to have a children's panel, consisting of people chosen from and intended to reflect the community, lending an element of democracy to the procedure: lay people are exercising the juvenile justice and child care systems.
Every children's panel is split up into children's hearings, which hear individual cases. The hearings comprise three members, one of whom must be female and one of whom is elected as chair. My hon. Friend the Member for Wakefield (Mr. Hinchliffe) described his experience of attending a children's hearing in Edinburgh, and I understand why he felt that that was a breath of fresh air. Such an informal set-up, with parents and children sitting around a table with the members of the hearing and everyone not only allowed the opportunity to state his point of view but encouraged to do so, would come as almost a cultural shock to someone who had grown up in the English system—or, as did my hon. Friend the Member for Monklands, West (Mr. Clarke) with the old 584 Scottish juvenile justice system. Decisions are not imposed on people; they discuss the disposal by the hearing, and are involved in decision making. That, I think, is crucial.
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It is also important to emphasise, as did the hon. Member for Mid-Kent (Mr. Rowe), the importance of the Kilbrandon report. Let me here record the sad death of Lord Kilbrandon a few weeks ago, and the debt owed to him by the Scottish legal profession—and, I am sure, the social workers—for his legacy of the children's hearing system. As long ago as 1964, the Kilbrandon committee saw the necessity of bringing together children who were in need of care and treatment because they had been neglected or abused by parents, and those in need of such care and treatment because they had offended. The two should not be distinguished, and following the report they were dealt with in exactly the same way. That was a fundamental reform in Scots law, and it is the essence of the children's system. The English system seems incapable of similar action: it still forces children to appear before a court. This may be a newly contrived court with a different name in an attempt at subtlety, but the old formality will remain, as will magistrates with no real training or experience of the problems faced by families.
The Solicitor-General—still basing his remarks on the view that Opposition Members see the problem as institutional—spoke of the difficulties that he has faced in considering the concept of a family court. It seems to me that he himself saw the problems in an institutional context: he confused the need for procedural reform with the need for legal reforms in many other spheres—divorce, for instance, and matrimonial violence.
Surely it would not be very difficult to establish what should be the jurisdiction of a family court: to establish the rules for such a court, and to change the law in other areas later. I see no need or justification for saying that the whole idea of a family law must wait on the stocks until we have reformed divorce law. What must be reformed are the rules of court relating to divorce. If it seems appropriate to make what I would describe as the cosmetic changes announced by the Solicitor-General today and in Committee, it surely would not be difficult to establish a family court. Let us by all means make other essential changes later.
I have wrestled with the difficulty that faces me, as a Scots lawyer with experience of the children's hearing system—containing, as it does, informality and a lay element—when it is clearly intended to retain the formal court system to deal with children's cases. I feel that a hybrid system is needed; certainly I do not wish to see the end of the important lay element in the Scottish system.
A few years ago I worked on the idea of a family tribunal, similar to the industrial and employment tribunals. In my view, we must retain the legal element simply because of the many important legal questions that come before the courts. None of the speakers today, apart from the Solicitor-General, has suggested that the present system which operates in England and Wales should be retained. They realise the need for informality, to remove the barriers and to encourage the proper sensitive solution of cases rather than throwing them to the mercies of the adversarial system. A hybrid sytem with the best of both systems which retained the legal element but introduced a 585 lay element should be explored. The Bill does not do that, but it goes some way towards recognising the need for radical change.
I catalogued my experience in child and family law in Scotland before going on to the meat of what I had to say. I have another relevant experience to bring to today's debate, and that is as a child witness before a court in Scotland. At the age of eight I was the victim of an assault and was required to appear in the sheriff court at Edinburgh. I have never forgotten the terror that I felt as a young child standing in the witness box and being required to answer questions from the bench and from the solicitor who defended the woman who had assaulted me and from the prosecutor. It is a terror which I have seen since in children I have taken to court to meet the judge when, for example, there has been a dispute over custody and the presence of the children has been required by the judge because they were old enough to express a view. It is a terror which every child who appears before the juvenile courts in England must face today. I want to see it stopped, and that is why I will support new clause 1.
§ Mr. Stuart Bell (Middlesbrough)I am grateful for the opportunity to follow my hon. Friend the Member for Aberdeen, South (Mr. Doran). In his short speech, he brought to the House his own experience as a child, and reflected on the trauma that he felt and that he saw other children experience when they had to appear in court.
I shall begin my speech by speaking directly to the Solicitor-General. After listening to my hon. Friend the Member for Leicester, East (Mr. Vaz), I felt that the Solicitor-General is a much-maligned man, having to suffer many of the slings and arrows of Opposition fortune. I should like to congratulate him on keeping the promises that he made in Committee. He made a series of commitments to family courts and he has fulfilled them in schedule 9 and new clause 18. I am grateful to him for keeping his promises. Politicians are not supposed to keep promises. The Solicitor-General is a politician as well as being a Law Officer and he kept his promise.
My hon. Friend the Member for Monklands, West (Mr. Clarke) made a vigorous speech enunciating his opposition to what the Government were doing and making the strong policy commitment that the Labour party has to a family court. He called the Bill a "lost opportunity". He said that the Solicitor-General had produced a "small little mouse" by way of a family court. I accept that we are unifying the jurisdictions of the High Court, the county court and the magistrates court. That is a welcome step, but I believe that the Solicitor-General has builded a small and modest house.
I should point out to the Solicitor-General that it is always a risky business to make one major reform, such as the creation of a family court, dependent upon other reforms. As the hon. Member for Chislehurst (Mr. Sims) will understand, it has taken so long to bring forward the Children Bill because a whole series of investigations and Commissions were looking at children's rights. We had the Law Commission and other reviews and each Lord Chancellor waited for the outcome of the next review before the Children Bill was produced.
I shall make a great effort not to mention Cleveland. I will leave that to my hon. Friend the Member for Monklands, West, but a steer had to be given to the variety 586 of Commissions before the Children Bill was produced. If we have to wait for the Law Commission's proposals on divorce and adoption, we may have to wait a long time. We shall also have to wait for the working party to which the Solicitor-General referred, and which is a novel arrangement, to produce its conclusions. It is not as if we do not have a divorce law. We have divorce law and proceedings in relation to conciliation, we have adoption laws and laws dealing with access and matrimonial violence. Why do we have to wait until the Law Commission's report on all those matters before we take the bold step of creating family courts? That is why I and my colleagues support new clause 1 which is in our names and, as the hon. Member for Stockton, South (Mr. Devlin) said, was in his name and that of the hon. Member for Batley and Spen (Mrs. Peacock) in Committee.
The debate has referred to the Finer committee on which we had a great discussion in Committee. When the Solicitor-General referred to the new working party that he was setting up, he did not take up one of the recommendations of the Finer committee which was that there should be a close relationship with social security law. Perhaps the Solicitor-General should look again at that recommendation by the Finer committee and add it to the working party discussions. We do not want to overburden the working party, but we want a family court that reflects the considerations of the Finer committee.
Finally, I should like to refer to what the hon. Member for Chislehurst said. He said that the Committee had a great consensus and was essentially a non-political committee. We made many references to resources, which have been mentioned again tonight. If the Opposition were in government we would put more resources into child care than the present Government are doing.
It is clear that we shall be dividing the House on the issue. The hon. Member for Stockton, South said that my hon. Friend the Member for Monklands, West had referred to his speech in Committee which was a felicitous speech. I appeal to the hon. Members for Stockton, South, for Chislehurst, for Batley and Spen and for Mid-Kent (Mr. Rowe). If they wish to show clearly their own personal commitment to a family court they should join us in the Lobby and vote for our new clause.
§ The Solicitor-GeneralFirst, I am grateful to the hon. Member for Middlesbrough (Mr. Bell) for his opening remarks, although I must disagree with his closing remarks. The Government have fulfilled their engagements given in Committee. Although it is in his absence, let me draw on the words of the hon. Member for Leicester, East (Mr. Vaz). The Government have put in place a radical and substantial piece of law. When we enact the Bill, it should be recognised on both sides of the House that that is exactly what we have done.
One of the difficulties is that discussion on family courts tends to be long on rhetoric and short on thought. Quite frankly, I must say that very firmly about the speech of the hon. Member for Monklands, West (Mr. Clarke). The speeches that suggest that hon. Members should support in the Lobby the Opposition clause instead of the Government's clause are, frankly, misguided.
The first point to recognise, and the hon. Member for Middlesbrough will recall this as he at least has researched these matters, is that it was Finer himself who recognised that a family court would have to apply a single unified body of substantive law. I have constantly reiterated the 587 fact that we are creating in the Bill a single unified body of substantive law in relation to this aspect of children's law, and to that extent we can and shall create a unified jurisdiction and those aspects of what might be described as a family court.
§ The Solicitor-GeneralI will answer the hon. Gentleman. I have had the oportunity to look at the Labour party's own clause—new clause 1—which would be brought into force in not more than 18 months, and then there are the allotted rules of court to be made. Within that time scale—about two years —the House can expect the provisions of the Children Bill to be up and running and in effect. I did not give a time scale for the further rolling programme because that programme goes into wider aspects of family law where we have to do exactly what Finer said and create a single unified body of substantive law.
By the time that two years is up we can expect to be well down the road. We will have had two or three reports from the Law Commission. We will have considered with constructive care the Newcastle university reports on conciliation. The hon. Member for Ynys Môn (Mr. Jones), who has paid a good deal of attention to the debate, asked when the Newcastle report will be published. That is an example of the amount of thought that has been given to this Bill. The report was published last spring, and I am rather surprised that he has not read it.
Labour's new clause 1 contains perfectly reasonable hopes, which we will very largely fulfil by our substantive clauses, but they are no more than hopes.
The hon. Member for Monklands, West referred to other jurisdictions. He mentioned Australia as being in the forefront, but he should be aware of the major difficulties that Australia has had with its family courts—perhaps New Zealand would be a better model.
The hon. Member for Monklands, West referred to the family and conciliation. It is interesting that new clause 1 applies those aspects only to part II, when they are quite clearly equally applicable to part I.
The truth of the matter was brought out by my hon. Friend the Member for Stockton, South (Mr. Devlin), when he said that, in new clause 1, the Labour party intends to divide the House upon something that is no more than the clause that he put down for probing purposes in Committee. That illustrates the barrenness of the Opposition's stance.
§ Mr. Tom ClarkeThe Labour party made it quite clear from the beginning that it was no disgrace to look for consensus on an issue where we were assured that consensus existed. New clause 1 reflects the all-party view expressed in Committee. The difference between the Labour party and the Government—and I now know what it feels like to be savaged by a dead mouse—is that we are honouring the commitments that we gave.
§ The Solicitor-GeneralI am grateful to the hon. Member for Monklands, West for that intervention, which says little more than his earlier speech.
The Bill produces major changes in substantive law on children, in jurisdiction and in court structure to enable the 588 family court concept to come into effect in care and family proceedings. I commend the Government's new clause and amendments warmly to the House.
§ Amendment agreed to.
§ Amendments made: No. 354, in page 149, line 18, column 3, at beginning insert—
| 'Section 1(4)(a). | |
| Section 5(2)(d).'. |
§ No. 355, in page 151, line 9, at end insert—
| '1972 c. 18. | The Maintenance Orders (Reciprocal Enforcement) Act 1972. | Section 41.'. |
§ No. 250, in page 151, line 10, leave out 'paragraph' arid insert 'paragraphs 4 and'.
§ No. 249, in page 151, column 3, leave out lines 14 arid 15 and insert—
| Sections 42 to 44. | |
| In section 52(1), the definition of "custody". | |
| In Schedule 2, paragraph 11.'. |
§ No. 446, in page 151, line 16, at end insert—
| '1973 c. 45. | The Domicile and matrimonial proceedings Act 1973. | In Schedule 1, in para-graph 11(1) the defini-tions of "custody" arid "education" and in paragraph 11(3) the word "four".'.' |
§ No. 451, in page 151, line 43, column 3, at end insert—
| 'In section 28(5), the words "or the organisation".'. |
§
No. 452, in page 151, line 54, after 'safety' insert
', in the definition of "local authority" the words from "and" to the end'
§
No. 437, in page 151, leave out line 59 and insert
'11, 19, 21 and 22.'
§ No. 251, in page 152, line 16, leave out 'paragraph' and insert 'paragraphs 10 and'.
§ No. 252, in page 152, column 3, leave out lines 18 to 20 and insert—
| 'Sections 9 to 15. | |
| In section 19, in subsec-tion (1) the words "following powers, that is to say" and sub-paragraph (ii), subsections (2) and (4), in subsection (7) the words "and one interim custody order" and in subsection (9) the words "or 21". | |
| In section 20, subsection (4) and in subsection (9) the words "subject to the provisions of section (11)8 of this Act". | |
| Section 21. |
| In section 24, the words "or 21" in both places where they occur. | |
| In section 25, in subsec-tion (1) paragraph (b) and the word "or" immediately preceding it and in subsection (2) paragraphs (c) and (d). | |
| Section 29(4). | |
| Sections 33 and 34. | |
| Sections 36 and 53. | |
| Sections 64 to 72. | |
| Sections 73(1) and 74(1) and (3). | |
| In section 88(1), the definition of "actual custody". | |
| In Schedule 2, para-graphs 22, 23, 27, 29, 31, 36, 41 to 43, 46 to 50.' |
§ No. 453, in page 152, line 25, column 3, at end insert—
| 'In section 65(1), in the definition of "local authority", the words from "and" to the end and, in the definition of "specified order", the words "Northern Ireland or".'. |
§ No. 447, in page 152, line 34, column 3, at beginning insert—
| 'In section 65(1), para-graphs (e) and (g) and the paragraph (m) in-serted in section 65 by paragraph 82 of Schedule 2 to the Family Law Reform Act 1987. | |
| In section 81(8), in the definition of "guar-dian" the words "by deed or will" and in the definition of "sums adjudged to be paid by a conviction" the words from "as ap-plied" to the end. | |
| In section 143(2), paragraph (i).'. |
§ No. 253, in page 152, line 34, column 3, leave out `paragraph 78' and insert 'paragraphs 78, 83, 91, 92, 110, 116, 117, 138, 157, 158, 165, 166 and 199 to 201'.
§ No. 438, in page 152, line 40, column 3, at end insert—
| 'In Schedule 14, Para-graphs 45 and 46. |
§ No. 448, in page 152,line 43, column 3,at end insert—
| 'In section 28(1), the words "(including an order under section 38 of the Sexual Offences Act 1956)".'. |
§
No. 254, in page 152, line 45, leave out 'and 35' and insert
';35, 44, 50 and 51'.
§
No. 439, in page 152, line 58, leave out
590
'10 to 14, 20, 21'
§
and insert
'9 to 14, 20, to 24, 27, 28, 34, 37'.
§ No.440, in page 153, line 3, leave out from '48' to end of line 5.
§ No.454, in page 153, line 7, column 3, at beginning insert—
| "In section 118(1) in the definition of parent or guardian, paragraph (b) and the word "and" immediately preceding it.' |
§ No. 255, in page 153, line 7, leave out 'and 16' and insert',16 and 17'.
§ No. 256, in page 153, line 7, at end insert—
| '1984 c.23. | The Registered Homes Act 1984. | In Schedule 1, in paragraph 5, sub-paragraph (a) and paragraphs 6, 7 and 8'. |
§ No. 357, in page 153, line 7, at end insert—
| `1984 c.37. | The Child Abduction Act 1984. | In section 3, the word "and" immediately preceding paragraph (c). |
| In the Schedule, in paragraph 1(2) the words "or voluntary organisation" and paragraph 3(1)(e). | ||
| ' '1984 c.42. | The Matrimonial and Family Proceedings Act 1984 | In Schedule 1, paragraphs 19 and 23.'. |
§ No. 358, in page 153, line 7, at end insert—
| '1984 c. 56. | The Foster Children (Scotland) Act 1984. | In section 1, the words "for a period of more than 6 days" and the words from "The period" to the end. |
| In section 7(1), the word "or" at the end of paragraph (e). | ||
| In Schedule 2, paragraphs 1 to 3 and 8.'. |
§ No. 441, in page 153, line 7, at end insert—
| '1984 c. 28. | The County Courts Act 1984. | In Schedule 2, paragraph 56.'. |
§ No. 238, in page 153, line 8, column 3, at beginning insert—
| 'Section 39(5). | |
| In section 37(15), the words "and is not excluded from this Part of this Act by section 52 below". | |
| Section 52.'. |
§ No. 257, in page 153, line 11, leave out Paragraph 19(a)'and 22'.
§ No.449, in page 153,line 15, column 3, at beginning insert— 591
| 'Section 9(c). | |
| Section 20(2)(b) and (c).' |
§ No. 450, in page 153, line 15, column 3, at end insert—
| 'and (5). | |
| In Schedule 3, paragraph 1(2).' |
§ No. 442, in page 153, line 23, at end insert—
| '1986 c. 45. | The Insolvency Act 1986. | In section 281 (5)(b), the words "in domestic proceedings". |
| 1986 c. 50. | The Social Security Act 1986. | In Schedule 10, paragraph 51. |
| 1986 c. 55. | The Family Law Act 1986. | In section 1(2), in paragraph (a) the words "(a) or" and paragraph (b). |
| Section 3(4) to (6). | ||
| Section 4. | ||
| Section 35(1). | ||
| In section 42(6), in para-graph (b) the words "section 42(6) of the Matrimonial Causes Act 1973 or", in para-graph (c) the words "section 42(7) of that Act or", and in paragraph (d) the words "section 19(6) of the Domestic Proceedings and Magistrates' Courts Act 1978 or". | ||
| In Schedule 1, para-graphs 10, 11, 13, 16, 17, 20 and 23.'. |
§ No. 433, in page 153, line 25, column 3, leave out lines 25 to 27 and insert—
| 'Section 4 to 7. | |
| Sections 9 to 16.' |
§
No. 444, in page 153, line 28, leave out 'paragraph 11' and insert
'paragraphs 11, 14, 51, 67, 68, 94 and 95. In Schedule 3, paragraphs 11 and 12'.
§ No. 239, in page 153, line 28, at end insert—
§ Page 153, line 28, at end insert—
| '1988 c. 34. | The Legal Aid Act 1988. | Section 3(4)(c). |
| Section 27. | ||
| Section 28. | ||
| In section 30, subsections (1) and (2). | ||
| In Part I of Schedule 2, paragraph 2(a) and (e)'.—[Mr. Mellor.] |