§ Sir John Stanley (Tonbridge and Malling)
I warmly welcome my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department to his maiden voyage at the Dispatch Box. I am sure that he will have a successful time there and stay there for many years to come.
I have initiated this debate in my capacity as a vice-chairman of the all-party child abduction group. With your consent, Mr. Deputy Speaker, I know that the chairman of the group, the hon. Member for Nuneaton (Mr. Olner), wishes to intervene briefly in the debate. The all-party group felt that this was an important moment to have a debate on the Hague convention on child abduction, given that the third review meeting of the Hague convention will take place early next year.
Mercifully, child abduction is not numerically a severe problem. There are between 100 and 200 new cases a year of children abducted from the UK which come to the Lord Chancellor's Department as the central authority under the Hague convention. There are another 100 to 200 cases of children who have been abducted to the UK, which also fall to that Department to deal with.
However, the trends are disturbing. The figures that my hon. Friend the Minister gave me in a parliamentary answer yesterday show that cases of abduction both to and from the United Kingdom have risen in each of the past five years since 1991. Although the problem may be numerically relatively small, one cannot overstate the magnitude of the distress caused to those who are involved in the forcible removal of their children. There is the distress caused to the parent from whom the child is abducted and the distress caused to the children.
There are five issues on the working of the convention that I wish to bring to my hon. Friend the Minister's attention. First, there is the issue of entitlement to legal aid. The convention's provisions are effective only to the extent that they are legally enforceable in the jurisdiction that is dealing with the case. Inescapably, many parents— probably the great majority—find the cost of lengthy litigation beyond them. Eligibility for legal aid is of paramount importance for their ability to enforce their rights under the convention. The UK has a reasonable and creditable record on that. The chief executive of the Legal Aid Board, Mr. Stephen Orchard, has confirmed to me that what is creditable about our position is that the country of residence of the individual is irrelevant in deciding whether legal aid can in principle be made available.
The answers that my hon. Friend the Minister gave me yesterday showed that our expenditure on legal aid in child abduction cases in the past financial year was higher in respect of overseas claimants than in relation to claimants who are resident in this country.
Unhappily, the position is different for cases that involve UK residents who have had their children abducted overseas and who seek to obtain legal aid in countries overseas. There are many cases of UK residents having had extreme difficulties in getting legal aid to enforce their rights under the convention. There is a serious issue of reciprocity. In equity, it is only right that, if we extend a level of legal aid availability to overseas residents pursuing cases in Britain, the same legal aid rights should be extended to UK residents who are pursuing cases overseas by those countries.
273 The second issue that I want to raise relates to one of the most difficult parts of the convention, but it is critical. It is the extent to which the wishes of an abducted child should be taken into account in determining to which parent he or she should be returned. The relevant provisions of the convention are set out in article 13, which states:The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.The wording is unexceptional in itself. There is no doubt that an inflexible provision whereby every abducted child would be automatically taken back to the parent from whom the abduction had taken place would be wrong. In some compelling cases, there might be justice, in the child's interest, in the child remaining with the parent who had abducted the child.
The provision is sensible, but it is evident from the study of individual cases that it can be used exploitatively by a parent who has abducted a child. A young child will be easily capable of being influenced by the parent that the child is with. It is possible to manipulate a child to express a wish that he or she should remain with the parent who had carried out the abduction, rather than going back to the parent from whom that child was abducted.
In the forthcoming review, close attention must be paid to how that provision has worked in practice, and, as far as possible, steps should be taken to try to ensure that it is not exploited and abused by parents who have carried out abductions to try to secure the retention of the children that they have abducted.
Thirdly, there is the critical issue of the extent to which independent professional advice is made available to the courts in the jurisdiction in which the case is being held about which parent the child should reside with. In part, that flows from the previous point that I made about the wishes of the child.
It is clearly essential that the court has access to the wholly independent advice of child psychologists, possibly psychiatrists, social workers and others, who have been professionally involved with the child and are able to advise the court on where the child's best interests lie. It has been patently clear in many cases that the court has not taken steps to have before it fully independent advice, wholly divorced from one of the parties.
My right hon. Friend the Member for Chelsea (Sir N. Scott) brought home the lack of fully independent advice that had been available in the court proceedings in Germany concerning his constituent, Mrs. Catherine Laylle, in a debate that he initiated in July last year. It is imperative that wholly independent professional advice is made available.
My fourth point concerns the operation of the convention's rights of access, which are set out in article 21. The wording of article 21 is very reassuring. It refers tothe effective exercise of rights of accessand continues:The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights … The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.274 There is clear evidence in individual cases that those clear rights of access, especially for the parent who does not have possession of the child—invariably the parent from whom the child has been abducted—are not being properly fulfilled. Given that such rights concern the only point of contact that the parent has, it is essential that there are effective rights of access as stated clearly in article 21.
My fifth point is that the convention's wording is generally satisfactory and has stood the test of time since its drafting was concluded in 1980. The convention's weaknesses concern the way in which it is operated and interpreted in some overseas jurisdictions. Clearly it would be an extremely laborious task to amend the convention.
Will my hon. Friend the Parliamentary Secretary consider extremely carefully whether we could improve the convention's operation by introducing an internationally agreed code of practice on the operation of its sensitive provisions, especially in the sort of areas to which I have referred? I hope that he will consider tabling at the review meeting next year a draft code of practice for such areas, to try to improve the effective and fair working of the convention's provisions.
The Government have frequently stated that they are in favour of open government. This issue provides an excellent opportunity to practise that desirable principle. The review meeting will take place early next year, and many people outside the House and beyond Whitehall have a contribution to make to it.
I therefore hope that my hon. Friend the Parliamentary Secretary and his Department will consider issuing a consultation paper or letter, so that those who want to contribute from their own experience of the convention's operation can do so when the Lord Chancellor's Department is formulating its policy on the review meeting. Many very experienced practitioners outside the House have a great deal to offer. The excellent and most effective charity Reunite National Council for Abducted Children has a major contribution to make, as do, perhaps most importantly, people who have been the victims of child abduction.
I hope that I have put a constructive series of proposals to my hon. Friend the Parliamentary Secretary. I know that he will bear in mind when considering the issue the fact that, although, numerically, child abduction does not occur on a huge scale, it is as heart-rending a human issue for adults, and particularly children, as one can find.
§ Mr. Bill Olner (Nuneaton)
I congratulate the right hon. Member for Tonbridge and Malling (Sir J. Stanley) on securing this very important debate, and I thank him for leaving me a few minutes in which to add to his excellent comments. I also congratulate the Parliamentary Secretary, Lord Chancellor's Department on his new post. I think that the first time I saw him was when we were both being issued with our security passes in early April 1992.
I should like to follow the latter points made by the right hon. Member for Tonbridge and Malling on the review of the workings of the Hague convention. I know that Reunite National Council for Abducted Children is doing some excellent work in considering all the problems that people face. It certainly has strong links not only with 275 the Lord Chancellor's Department but with the Home Office and the Foreign Office, and is well able and professional enough to bring all those strands together.
I also think that it would be very difficult to get all the signatories to the Hague convention to alter the wording. We need to take action fairly quickly, however, so I hope that the Government will first concentrate on considering mediation. Perhaps mediation should be included in the international code of practice that will be given to judges. Many cases begin domestically and could be sorted out before they become involved in all the ramifications of the Hague convention. Some guidance needs to be given on the starting point, because many problems could be avoided.
I am grateful to the right hon. Member for citing the statistics on legal aid, because our nationals feel that it is a great injustice that foreign nationals are able to get legal aid immediately over here. Foreign nationals do not have to prove whether they are rich or poor, but automatically receive legal aid in Hague convention cases. That is not so for our nationals when they are abroad. Such differences should be looked at strictly, because legal aid provisions should be mirrored in other Hague convention countries.
While we are considering the review, we must look at the quality of the interpretation of the signatories to the Hague convention. Countries sign it, but very little seems to be in place to ensure that it is possible to put right all the things that need to be put right.
I want to leave the Parliamentary Secretary a fair amount of time to answer the important questions, so I shall leave him with a point that ought to be considered. All child abduction cases are heart-rending, and many people—standard families as well as others—are badly hurt. Even with the best legal process, there can be some injustice. Will the Parliamentary Secretary give serious thought to establishing an international panel of arbiters, so that, when two national law-making bodies clash and cannot agree, the case can be sent somewhere else, where it can be properly, fairly and independently judged?
I accept that, whatever decision is reached, one of the parties will be disappointed; but at least that decision would be taken out of everyone's hands and made by an independent arbitration panel.
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Gary Streeter)
First, I thank my right hon. Friend the Member for Tonbridge and Malling (Sir J. Stanley) and the hon. Member for Nuneaton (Mr. Olner) for their kind remarks. The hon. Gentleman referred to an episode that we shared in the photographic booth in another place, which I remember with great affection and fondness.
I thank my right hon. Friend for initiating this important debate. I pay tribute to him, the hon. Member for Nuneaton and all members of the all-party group on child abduction for their efforts on behalf of children and parents who are involved in such unhappy situations. I also readily acknowledge the excellent work of Reunite National Council for Abducted Children. In common with my right hon. Friend and the hon. Member for Nuneaton, I recognise that the distress caused in such dreadful cases is real.
276 I believe that my right hon. Friend, and indeed all hon. Members present for this debate, support the important purposes of the 1980 Hague convention on the civil aspects of international child abduction. Those are primarily to prevent international child abduction and to promote the lawful exercise of rights of contact with children. The convention aims to achieve them by requiring a contracting state to return promptly children who have been wrongfully removed from another contracting state in breach of existing custody rights. The prompt return of children in that situation is intended to restore as nearly as possible the status quo before the wrongful removal, and to require both parents to pursue their custody and access claims in the courts of the country where the child is habitually resident.
As international contacts grow, the need for and use of conventions of that kind will increase. To illustrate the point, the total number of convention cases has doubled in the past five years, and further growth is likely, as my right hon. Friend said.
I shall attempt to persuade my right hon. Friend that the convention is generally, although not in every case, operating in a satisfactory manner. If that is right, we may reasonably assume that it also performs the valuable function of deterring would-be abductors and encouraging them to resolve their difficulties through judicial processes or mediation. Deterrence of this kind would not, of course, show up in the statistics collected by our child abduction unit.
I had intended to give the House some background information, but, in view of the time constraint, I shall refer immediately to the specific matters that my right hon. Friend and the hon. Gentleman have raised. My right hon. Friend has argued that the convention is in need of a general overhaul in order to increase its efficiency. He also made a number of specific criticisms of it. As he said, a general review of the convention's operation is planned for early next year.
The Hague conference on private international law regularly reviews the workings of existing Hague conventions; the one on child abduction was reviewed in October 1989, and again in January 1993. A special commission of the conference, which is a working group of experts from the contracting states, will meet next March to consider an agenda prepared by the permanent bureau. The review will cover any problems with the convention's operation that member states wish to raise.
The Government take that opportunity for review seriously. In the coming months, we shall do what is necessary to ensure that all relevant problems are identified and included on the agenda, and that they are then discussed by the special commission in as constructive a way as possible.
As a result of my right hon. Friend's representations today and previously, for which I am most grateful to him, I am glad to say that we have decided to carry out consultations in advance of the special conference meeting to help us to decide what matters to put forward for discussion. We have had some interesting suggestions today.
One of the problems raised by my right hon. Friend concerns the evidence of expert psychologists in applications for the return of the children under the convention. It is said, quite rightly in my view, that in 277 that situation psychologists must be independent experts, offering objective and professional opinions on all aspects of the cases on which their advice is sought.
It is also said that that has not happened in the case of Catherine Laylle, to which my right hon. Friend drew our attention, in her attempts before the German courts to secure proper custody and access arrangements in relation to her children. I have the greatest sympathy for Mrs. Laylle, as I have for all parents who are separated from their children in unhappy circumstances such as those that we are discussing today.
It seems that Mrs. Laylle has failed to secure the appointment of a psychologist who is able to speak both German and French, the languages spoken by her children, and who is clearly independent. The one who has in fact been appointed by the court speaks only German—not Mrs. Laylle's language—and is a local practitioner, from Bremen. Mrs. Laylle does not have confidence that his advice has been, or will be, unbiased.
I should point out that the proceedings in relation to which the psychologist's advice has been sought are not proceedings under the Hague convention. Those proceedings were concluded in October 1994 by the decision of the Celle higher regional court, which decided that Mrs. Laylle's children should not be returned to England. That decision was based on interviews with the children, not on the evidence of psychologists.
My view at present—I should emphasise that I do not have a closed mind on the issue—is that there is not a general problem with the evidence of psychologists who are not properly independent being given in proceedings under the convention for the return of children. Such proceedings are concerned only with which court should have jurisdiction to make orders in relation to the children, and are therefore necessarily summary in nature. In those circumstances, psychological evidence will not generally be of particular relevance, but if my right hon. Friend has any further material on the matter, I should like to hear from him as soon as possible.
The second specific matter raised by my right hon. Friend concerns the weight that should be given under the convention to the wishes of the children—an important matter. Under article 13, the courts of a country to which a child has been wrongfully removed may refuse to order his or her return if they find that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
The suggestion here is that in some cases excessive weight has been placed on those wishes, thereby frustrating the return of children in circumstances where the general principle of the convention should operate— that wrongfully abducted children should be returned to the country of their habitual residence for the courts of that country to make orders relating to their long-term future.
That is a difficult area, where each case turns very much on its own facts. However, some general propositions can be stated with confidence. There is always a difficulty about the weight to be placed on the 278 child's wishes where the dispute is, in effect, only on the limited jurisdictional question as to which court should determine that matter. The general principle of the convention is that abducted children should be returned to the country of their habitual residence. A number of exceptions to that principle are laid down, but it is plainly desirable that they should not be interpreted in an overly broad way; otherwise, the general principle will be undermined.
In that context, it is important that undue weight should not be attached to the wishes of the children, and that only in clear cases should those wishes be sufficient to undermine the general rule of return to the country from which the children have been abducted. It may be that, in certain cases, that exception may have been interpreted too widely and that, as a result, children have not been returned when perhaps they should have been. We are looking into this further, but my right hon. Friend will be glad to learn that it is one of the issues on which we will be consulting to determine whether we should place it on the agenda for the meeting of the special commission.
My right hon. Friend rightly complained that, although legal aid is available in this country in the usual way for applications under the convention, it is not always available in the contracting states. That remains the case in a number of countries, which I will discuss with my right hon. Friend at some stage in more detail.
I agree with my right hon. Friend that the provision of proper legal aid in such circumstances is of the upmost importance. There appears to be a problem in the United States, but it is not apparent in other countries. I will reflect further on whether any useful purpose would be likely to be served by putting that matter on the agenda for the special commission, or by taking the matter up bilaterally. If I consider that there would be, I can assure my right hon. Friend that that will be done.
My right hon. Friend referred to rights of access and the operation of article 21.I should be grateful if he would let me have details of any particular cases that I should take into account before the meeting of the special commission.
A number of interesting suggestions have been made today about what should be considered by the special commission—for example, a code of practice and an international panel of arbiters. I will reflect further on them.
My right hon. Friend is also rightly concerned about the enforcement of return orders made under the convention. That is of crucial importance, because, if a court order cannot be enforced, it is effectively worthless. There are a few cases in which the enforcement of orders by foreign authorities is at best dilatory and inefficient. In particular, there is one case in Germany about which we are concerned and which we are pursuing with as much force as we can.
I am grateful to my right hon. Friend for drawing attention to the various problems that have been shown to exist. He has put up a robust case, and I can assure him that we shall pursue those points with vigour.