Family Mediation Scotland

HC Deb 22 January 1997 vol 288 cc1049-56

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Brandreth.]

10.17 pm

Mr. Allan Stewart (Eastwood)

I am grateful for the opportunity to raise the important subject of Family Mediation Scotland. I know that my right hon. and learned Friend the Minister of State recognises the importance of the topic, as do Scottish Members of Parliament on both sides of the House, including my hon. Friend the Member for Ayr (Mr. Gallie) and the hon. Member for Moray (Mrs. Ewing) who, I recall, asked me a question on this very topic on 30 March 1994. I see the hon. Member for Edinburgh, Leith (Mr. Chisholm) on the Opposition Front Bench. The hon. Member for Monklands, East (Mrs. Liddell) was courteous enough to apologise to me for being unable to attend because of a particular commitment; I know that she, too, is interested in the subject.

My right hon. and learned Friend's commitment to Family Mediation Scotland was demonstrated this morning, when he met me at short notice. He has given an extremely positive and speedy response to the representations made to him in respect of grants for Family Mediation Scotland under section 10 of the Social Work (Scotland) Act 1968, and he will no doubt want to bring the House up to date tonight.

Mrs. Margaret Ewing (Moray)

I am grateful to the hon. Gentleman, who has always been kind in this context, for giving way. I understand that only six of the 10 services will receive funding. Has the hon. Gentleman any indication of that? We all want the family mediation service to be fully funded at all levels and in each region of Scotland.

Mr. Stewart

I understand that all the applications have been granted, but I would rather leave the details to my right hon. and learned Friend when he replies to the debate.

Misunderstandings sometimes arise about what mediation is. It should not be confused with arbitration or marriage counselling. It is a voluntary process in which a trained, skilled mediator enables people to negotiate their own mutually acceptable resolutions to issues arising from separation or divorce, especially concerning the continued parenting of children. The advantages of mediation are clear. Although it must be recognised that it will not always be successful, at the other end of the spectrum it can sometimes save marriages. The major advantages of mediation are that it takes place at an early stage and that the children's interests are a priority of the process.

Everyone recognises the desirability of resolving problems, if possible, before they reach the courts. That is in the best interests of parents, children and the legal system.

The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

Will my hon. Friend accept, in response to the point raised by the hon. Member for Moray (Mrs. Ewing), that all who applied have received grants?

Mr. Stewart

I am grateful to my right hon. and learned Friend for confirming my understanding of the situation. He is to be congratulated on his response to the representations made to him.

How sad it is to hear a husband or wife say in court, "It should never have come to this." That is recognised in legislation, and the availability of accessible family mediation services is essential to the implementation of part I of the Children (Scotland) Act 1995, which my right hon. and learned Friend so ably piloted through the House. Part I of the Act, which was implemented on 1 November 1996, aims to create a new climate within which children experience parental separation and divorce. It is based on the following principles: first, that parental responsibility and rights in relation to children will not be affected by parental divorce; secondly, that co-operative parenting should be the basis of the relationship with children after divorce; thirdly, that parents should seek to take a non-adversarial approach to parental separation and divorce; and, fourthly, that court is not the appropriate place to resolve disputes in relation to children.

Family mediation services provide not only opportunities for parents to resolve disputes but potential on-going support for parents in the co-operative parenting which the Act presumes. The Act also imposes specific obligations on the courts to give children an opportunity to express their views and to have them regarded by the court. As from 1 November last, the courts are obliged to make that further inquiry, which may involve sending an appointed person to seek the child's views. Litigation could become more lengthy and costly, but that could be avoided through mediation. It is crucial that services are readily available to ensure that the spirit of the 1995 Act is implemented.

The Scottish Office is to be congratulated on its early, consistent and sustained support for Family Mediation Scotland through section 10 of the 1968 Act. Funding is available from a variety of other sources—trusts, fees, local authorities and fund-raising by organisations. My right hon. and learned Friend confirmed in his response that applications for continued section 10 funding from Borders, Tayside, Western Isles and Central Scotland have been granted, together with applications for new services in Dumfries and Galloway and in Grampian.

There has been a growth in all-issues mediation—mediation as one process covering issues related to the children, property and financial issues. There are two possible sources of mediation in Scotland, including all-issues mediation: the services provided by the family mediation service, which is the subject of this Adjournment debate, and the services supplied by solicitor-mediators—people who are solicitors and trained mediators.

The Scottish Legal Aid Board launched a pilot project in 1995 to pay out to solicitors as an outlay to a solicitor holding a legal aid certificate or as a payment under the legal advice and assistance scheme. I recognise that the pilot project will need to be evaluated. My right hon. and learned Friend will not be able to give such an evaluation this evening, but I hope that he will accept that the present legislative position seems to create a problem in Scotland, as against that south of the border. Under present legislation, the Scottish Legal Aid Board cannot make a block grant to the family mediation service without primary legislation. I am glad to see the hon. Member for Moray nodding in agreement. I understand that, in England, such a grant can be made under the Family Law Act 1996.

With regard to the pilot project, there is a question about whether it is right to go down the solicitor-mediator route. The training of solicitors is adversarial: that is their role. I do not criticise them for that, but mediation is an entirely different process.

A further question concerns the public expenditure implications of the other methods of financing mediation services. I make no criticism of the hourly rate paid to Scottish solicitors, which I believe to be of the order of £80 an hour under the legal aid arrangements. That is about 10 times the sum that mediators are paid by the family mediation service. Legal aid is demand led, and my right hon. and learned Friend will know the problems that demand-led programmes can create. My right hon. and learned Friend will not be able to provide answers tonight to questions about the pilot project because the evaluation has not been completed, but I hope that he agrees that those questions must be considered seriously. I hope that he will agree also to examine the legislative difference between Scotland and England and Wales, as it is clearly creating problems.

My right hon. and learned Friend's commitment to mediation is extremely well documented and well known. During debate on the recent Children (Scotland) Act 1995, he emphasised that we must put the interests of the child first in this process. I look forward to hearing him respond to the debate tonight. I am happy to give the Floor to my hon. Friend the Member for Ayr (Mr. Gallie), who wishes to make a brief comment.

Mr. Phil Gallie (Ayr)

My hon. Friend will have noticed in the Scottish press comments by the hon. Member for Cunninghame, North (Mr. Wilson) about my right hon. and learned Friend and his ability to listen and take the message on board. It seems that my hon. Friend has certainly been listened to, and he must be delighted by the way in which the message has been taken on board in this instance.

10.31 pm

The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

I congratulate my hon. Friend the Member for Eastwood (Mr. Stewart) most warmly on bringing this matter before the House. The presence of my hon. Friend the Member for Ayr (Mr. Gallie) and of the hon. Members for Edinburgh, Leith (Mr. Chisholm) and for Moray (Mrs. Ewing) in the Chamber tonight demonstrates the importance of the subject. In responding to my hon. Friend's speech, I shall try to present our thoughts about the future of family mediation services in Scotland. I will also deal with the future of the organisation, Family Mediation Scotland, which I visited recently.

My hon. Friend has recalled the origins and development of family mediation in Scotland from the time of the establishment of the first service in Lothian in the early 1980s to the service that is now available in almost every part of Scotland. That is truly a remarkable achievement in a relatively short period. Those who pioneered the service in its early days must be proud—and justifiably so—of that achievement. Those who continue to provide and develop family mediation in Scotland must share that feeling of pride. It has not always been easy for them and they have come through some difficult times, but the sustained growth of a family mediation service in Scotland is a tribute to their determination and perseverance.

I am pleased that the Scottish Office was able to play a part in the service's development from the very beginning of family mediation in Scotland. We funded the Lothian service from the outset in the early 1980s when it was an innovative pilot project. That project demonstrated the value of mediation, and services began to be established in other parts of Scotland. By the mid-1980s, the headquarters body—Family Mediation Scotland, or the Scottish Advisory and Family Conciliation Service as it was then known—had been set up. Again, I am pleased to say that we have also assisted the headquarters body with central Government grants totalling just under £600,000 over 10 years.

During the past three years, we have provided support for several local services. We currently support five such services. When combined with the grant paid to the headquarters body, we are currently making available just under £220,000 for family mediation in Scotland. I say "currently" because, as I announced earlier today, from next year we intend to extend our support by some £50,000 in order to introduce a further two local services—Family Mediation Grampian and Family Mediation Dumfries and Galloway. In addition, we shall be able to renew the grants for four services beyond the end of their current funding period. I am sure that that will come as welcome news for those services, as it will for all those in Scotland who are concerned with mediation services.

Mrs. Ewing

I am delighted to hear that there will be an extension of the service to Grampian. The Minister and I have been in correspondence about the extension over several years. Can he say how many qualified and trained mediators will emerge from the new project? It is not merely a matter of talking to somebody; we need people with qualifications. Will the Minister comment on that?

Lord James Douglas-Hamilton

I shall be happy to make inquiries and to write to the hon. Lady with the precise detailed facts that she requires.

33333333 As a Government, we believe in marriage and the family as the proper foundation for a civilised and responsible community. For this reason, we propose to offer additional support totalling £50,000 to marriage guidance in Scotland. We believe that this will help to save marriages that still have hope of reconciliation. We shall shortly be advising the individual organisations about this.

Sadly, a proportion of marriages nevertheless break down. Marital breakdown is a cause of distress, and it is exacerbated when there are children of the marriage. Our policies have generally been designed to ensure fairness to both parties when a marriage breaks down. This underlies the Family Law (Scotland) Act 1985. We have also promoted the need to consider the welfare of the marriage, and this principle is given legal status in part I of the Children (Scotland) Act 1995. It is generally accepted that where a marital breakdown is acrimonious, this is more damaging for the children. We therefore want to minimise the opportunities created by the law for acrimony between the parties.

In the 1985 Act we provided that the matrimonial property should be shared fairly between the parties to a divorce. The Act provides that fairness demands equal shares, but the court has a wide discretion to make orders meeting the actual needs of the parties. One of the factors to be taken into account is the burden of caring for children, which may fall more upon one party than upon the other. In the Child Support Act 1991 we removed the issue of child maintenance from the divorce courts. This was another means of reducing the scope of litigiousness between the parties.

In part I of the Children (Scotland) Act we have created a clear framework for the welfare of the children of a marriage to be the paramount consideration for the court in making orders concerning children. The Act sets out in sections 1 and 2 the responsibilities and rights of a couple as parents. Those responsibilities and rights should normally survive separation and divorce. Each parent is given an active responsibility to promote the child's continued relationship with the other parent. Ideally—this is a most important message—the parties should agree arrangements between themselves for the continued discharge of parental responsibilities and rights.

Part I of the Children (Scotland) Act embodies the concept of minimum intervention by the court. Only if it appears to be in the interests of the welfare of the child should the court intervene. This reinforces the fact that the burden of making appropriate arrangements for the children now lies with their parents. The parents should explore all avenues and agree as much as possible between themselves before approaching the court. There may even be no need for the court to be involved, other than to grant the decree of divorce.

Most importantly, if it proves necessary for the court to be involved, part I now requires the court to take into account the views of the child—if the child has sufficient understanding and maturity to express these and wishes to do so. There is a presumption that a child over 12 has sufficient maturity. It is no longer possible for the parents and the court to develop proposals for the child without the child being given the opportunity to be consulted, except in the case of very young children and those who cannot understand what is going on. Similarly, before reaching any major decisions which would affect their children, parents are required under section 6 to take into account the views of their children.

It is against that background that we reaffirmed the important place of family mediation services in various remarks in this House and in the other place. We fully accepted that such mediation services have an important part to play in making certain that couples discuss any difficulties that they have concerning the future of their children. That reduces the scope for acrimonious litigation and the consequent harm that that can cause the children caught up in separation or divorce.

For some years now, rules of court have enabled the court to refer parties to mediation at any stage during the process where questions arose about children in a family action. That rule has been re-emphasised with the commencement of part I of the Act by enabling the court to arrange a hearing at a very early stage of a case, to take out of contention the issues between couples involving children and thus to maximise the possibility of early resolution of such matters. We will monitor the effectiveness of court referrals to mediation as part of our general evaluation of the Children (Scotland) Act reforms. This may be an appropriate time to point out that neither the primary legislation nor the rules of court prescribe which organisation is to provide the mediation.

My hon. Friend the Member for Eastwood drew attention to the fact that Family Mediation Scotland is the major player in family mediation in Scotland, and that through its affiliated services it has a very important part to play in our programme of reform. There is another source of mediation through solicitors who are members of Comprehensive Accredited Lawyer Mediators, otherwise known as CALM. They may provide mediation if either party is referred by their solicitor or the court.

We are currently funding a research programme to study the effect of participation in mediation, whether provided by Family Mediation Scotland affiliates or by accredited lawyer mediators. That research is proceeding well and we believe that it will be successful in providing qualitative evaluation. It will also look for evidence that mediation is more cost-effective than traditional dispute resolution through the legal process in Scotland.

The qualitative arguments for mediation are, to my mind, every bit as important as any financial arguments. It appears intuitively likely that a mediated agreement between couples about such issues as care of children after separation or divorce is likely to be a better quality agreement and to be more durable. We shall look for evidence of that from the research that is in hand.

Mrs. Ewing

I am very interested in what the Minister is saying about the assessment that will be made. Will it include an assessment of the implications for aid and assistance? As constituency Members, most of us find that legal aid is often one of the major problems, from whichever direction it comes. Will an assessment be made of that?

Lord James Douglas-Hamilton

On the subject of legal aid, as the hon. Lady and my hon. Friend know, in the White Paper on crime and punishment we have undertaken to consult on civil legal aid. Proposals for the future funding of family mediation is one of the issues that could be covered in that consultation. I hope that that will be of assistance.

One challenge that I would like to offer to Family Mediation Scotland in its future development concerns the matter that I mentioned earlier of considering the views of children. If it is to play its full part in these reforms, it will need to develop ways of ensuring that parents accept their responsibility to take the views of children into account in reaching mediated agreements.

I have already announced extensions to the funding of Family Mediation Scotland affiliated services from social-work-related grants, but I am all too well aware of the arguments that that is not a satisfactory long-term basis for funding these services. We have had extensive discussions with Family Mediation Scotland about the suitability of seeking to fund its services by charging the parties. That would unlock the possibility of its being funded as a legal aid outlay where the reference is made by the court or by a solicitor acting for a legally aided party.

While Family Mediation Scotland has seen some scope to introduce charging for its services, I understand that it does not regard this as a way of securing the future of the local services. It stresses that mediation is most effective introduced early in the process of divorce and separation, when it is unlikely that the parties will have approached a lawyer. We have noted those points.

We have also noted the support that Family Mediation Scotland has given to the approach south of the border, where the availability of mediation will be explained to parties seeking a divorce when they attend the compulsory information session at the beginning of the process. The Lord Chancellor intends mediation to be funded through block contracts with the Legal Aid Board, and to be subject to tests of means.

We have not yet decided whether it is right to reform Scots family law in line with what has been done in England and Wales. In Scotland we have a background of less acrimonious divorce generally than south of the border. In 1995 around 65 per cent. of divorces in Scotland were on the grounds of non-cohabitation, but we accept that that percentage falls to 47 per cent. in relation to couples with children.

We believe that the process of mediation can and should take place between the parties and their lawyers and should not be seen only as a diversion from the legal process. We shall certainly be examining the present state of our family law to see whether further reform is desirable to achieve that. Our examination will include consideration of such issues as whether fault grounds for divorce should remain. We shall also consider whether mediation by mediation organisations should be given a more prominent place in the process.

Mrs. Ewing

Will the Minister give way?

Lord James Douglas-Hamilton

I have only a few moments left in which to speak, and I have already given way twice to the hon. Lady.

I hope that what I have said offers some reassurance to hon. Members, including my hon. Friend the Member for Eastwood. The main good news tonight will be the success of the applications for section 10 grant from Dumfries and Galloway and from Grampian. As for the longer term, I must stress again that we have under active consideration the future place of family mediation, both in relation to legal aid and in relation to family law generally. We shall of course consult widely on any new proposals, and I can tell all hon. Members who have been public-spirited enough to attend this important debate that they—along with interested organisations including Family Mediation Scotland—will be able to influence the outcome. I look forward to hearing their representations in due course, and I thank them for their welcome for the extra steps that we have taken.

Question put and agreed to.

Adjourned accordingly at fourteen minutes to Eleven o'clock.