New clause

HC Deb 04 November 2002 vol 392 cc107-14

Lords amendment: No. 44, before clause 110, to insert the following new clause—"Orders with respect to children— In section 8 of the 1989 Act (residence, contact and other orders with respect to children) there is inserted— (5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section."

The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton)

I beg to move, That this House disagrees with the Lords in the said amendment.

Madam Deputy Speaker

With this we may discuss Lords amendments Nos. 48 and 49, the Government motions to disagree thereto and amendment (a) in lieu thereof.

Ms Winterton

First, I must make it clear that in moving motions to disagree with amendments Nos. 44, 48 and 49 made in the other place, the Government are not disagreeing at all with the principle that children should have a say in decision making regarding their future. The Government amendment in lieu seeks to meet the spirit of the amendments made in the other place while eliminating some technical flaws and reducing duplication.

Neither the amendments made in the other place nor the Government amendment would add to the existing powers of the courts or the Lord Chancellor. The courts can already order that a child be made a party and separately represented in any family proceedings. However, we have listened to and respected the views of the House and the other place, and we agree that those powers should be explicitly referred to in primary legislation.

The Government, in tabling their own amendment in lieu of those made in the other place, seek to address three key concerns that have been raised during the passage of the Bill. First, there is too stark a distinction between public law cases in which the state intervenes in a family's life—for example, care proceedings—and private law disputes between individuals. Secondly, the power to provide for the separate representation of children is not referred to explicitly in primary legislation. Thirdly, children should have access to separate representation more frequently than they do at present.

The Government's amendment would make it clear in primary legislation that applications for the making or revocation of a placement order will be specified proceedings as defined by section 41(6) of the Children Act 1989. The child will he a party, a children's guardian will be appointed, and the child will be separately represented in every case. The issue has been raised both here and in the other place. The Government have already said publicly that they will make such proceedings specified; the amendment would embody that commitment in the Bill.

Using Lords amendment No. 49 as a basis, the Government's amendment in lieu provides that proceedings for section 8 orders—such as contact and residence orders—can, in circumstances to be established by rules of court, be designated specified proceedings. That will give us the necessary flexibility to take into account the outcome of planned public consultation on the representation of children in private law proceedings. Using section 64 of the Family Law Act 1996 as a basis, the Government's amendment amends section 93 of the Children Act, dealing with rules of court, to enable the Lord Chancellor to make rules to provide for the separate representation of children. He has made such provision in the current rules, but the amendment sets his power in primary legislation. That is intended to address Lords amendments Nos. 42 and 48.

The Government's amendment goes wider. It will apply not only to applications for section 8 orders, but to other proceedings under the Children Act—for example, applications for special guardianship orders. It makes it absolutely clear that we have power to specify certain categories of private law proceedings as requiring children to be parties automatically, and to be separately represented. The amendment would place in primary legislation the ability for rules to provide for children's separate representation in private law cases. It goes further than Lords amendment No. 44, as it applies to all proceedings under the Children Act.

Mr. Dawson

What would be the effect on children appearing at adoption hearings? Will they have ready access to separate representation?

Ms Winterton

Not all adoption proceedings will require separate representation. The issue has been much discussed, and I think it is agreed that it will not be appropriate in some cases. We are trying to adopt a belt-and-braces approach to the current situation. We want it to be stated in primary legislation that other circumstances can also be specified in regard to automatic representation.

The amendment should not be seen in isolation. We have already completed a "scoping" study of how children might have a more effective voice in family proceedings. There will be full public consultation, which will begin later this year. That consultation will also address the third concern raised in debates here and in the other place about the need for greater consistency in how the powers available to the courts are used in practice. If necessary, following consultation, we can add to the definition of specified proceedings and use court rules to guide the courts in those cases in which the separate representation of the child may be especially important.

The amendments do not change the existing position. Children may already be separately represented in any family proceedings, but the Government's amendments are intended to make that commitment explicit in primary legislation in order to address the concerns that have been raised. Those changes in primary legislation must not be the end of the story. We need to ensure that the powers provided under the Children Act 1989 work effectively, and that is why we need to have the flexibility to take into account the results of consultation when making court rules. It is important that we listen to the views of children and young people themselves. I ask the House therefore to disagree with Lords amendments Nos. 44, 48 and 49, and to support the Government's amendment in lieu.

Dr. Evan Harris

Strictly on a non-love-in basis, I wish to congratulate both Ministers on the mastery of their briefs and to thank them for their courtesy. I even extend my thanks to the Conservative spokesman, the hon. Member for East Worthing and Shoreham (Tim Loughton), who has occasionally been courteous to me and was, no doubt, very courteous to my hon. Friend the. Member for Romsey (Sandra Gidley). She has been promoted out of this portfolio, but wished me to pass on her thanks. [Interruption.] I will not be drawn on whether she has escaped or been punished.

I come late to the issue, but I do not intend to oppose the amendments in lieu. However, I wish to raise several points on behalf of those who have supported our campaign. I have received help from the NSPCC. Women's Aid, NCH and the legal department at BAAF in promoting the approach that the Government have now accepted. The original amendments, the spirit of which the Government have accepted, were tabled by Lord Listowel, but were moved by my colleague, Baroness Thomas. We would appreciate some clarification on certain issues: if not now, then in the other place when the original movers of the amendments will have the chance to put their view.

I shall not rehearse the basis of the amendments, because the Minister has done that admirably. I thank the Minister for accepting the thrust of the amendments and, indeed, for going further in some of her amendments in lieu, which are of course more correctly drafted. My first question is whether the necessary and relevant court rules will be made as promptly as possible, because without them the amendments would add nothing to the Bill. The existing framework is in place, so the addition of the court rules would be straightforward. Does the Minister have in mind a timetable for her proposals to consult? We remember section 64 of the Family Law Act 1996, which was never implemented, so people with an interest in the matter will want to see the actual regulations.

The Minister has clarified that children will be full parties in the circumstances in which she envisages that the court will feel that to be appropriate. The children will then have the benefit of both the children's guardian and a solicitor.

9.30 pm

Another question is whether it is appropriate to replace Lords amendment No. 48, which requires the court to have particular regard to the wishes and feelings of the child considered in the light of his age and understanding and the need for his separate representation. The Minister in the House of Lords who argued against the amendment pointed out that the court has a duty in any case under the checklist in section 1 of the Children Act 1989 to consider the child's wishes and feelings. That is true, but only to a limited extent. Section 1(4) of the Children Act sets out the circumstances in which the court is required to use the checklist, and those circumstances do not include applications by stepparents for parental responsibility orders under new section 4A or for special guardianship orders, which the Minister mentioned, under new section 14A, both of which the Bill inserts in the Children Act. In both cases, it is particularly important that the court has an opportunity to hear the child's wishes in respect of the application.

In the case of applications by a step-parent for parental responsibility, there is to be no requirement for any kind of report from a social worker or children's guardian and no easy means for the court to ascertain the child's wishes and feelings unless it is specifically required to inquire into them. Among other things, special guardianship orders place severe restrictions on parents' rights to exercise their parental responsibility and to give special guardians the power to exercise their parental responsibility "to the exclusion of" another person with parental responsibility. It could therefore have more serious consequences than a section 8 order, yet the section 1 checklist is not automatically applied.

I presume that the Government intend that the court should have regard to the child's wishes in both types of application. They will probably say that they will make appropriate provision for consulting the child in the regulations governing local authorities' duties to report to court in respect of special guardianship applications. I accept that, but I fear that even that safeguard is not present in respect of the step-parent applications.

I should be grateful for the Minister's clarification, either now or later, on whether the absence of Lords amendment No. 48 would leave a lacuna in the need for the children's views to be covered in respect of stepparent applications. Otherwise, I am reasonably happy with the Government's proposals and repeat my thanks to them for accepting, after what I understand was an exciting vote in the House of Lords, the principle behind the need to have written into primary legislation the provisions that the Minister has outlined.

Margaret Moran (Luton, South)

May I add my welcome to the introduction of the proposal, which incorporates the spirit of the amendments that were put forward in another place? Throughout the Bill's proceedings and in the Special Standing Committee, the issues surrounding child protection were focused on the need for an independent voice for the child as well as the protection of children in contact cases. The Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Doncaster, Central (Ms Winterton), is probably fed up with hearing me talk about that. However, together with the coalition of children's charities and Women's Aid, I welcome the Government's proposals.

The House will not be surprised to learn that the coalition of children's charities is keen that these rules be introduced at the earliest possible opportunity. They believe that there needs to be special consideration of the circumstances for separate representation of children. They have indicated a number of areas that they would like covered in separate representation, such as cases in which implacably adversarial parents create high levels of conflict in which the child's interests are disregarded or where there is a history of violence. As we have said throughout the Bill's proceedings, children are at their most vulnerable when there is violence in the household, and it is vital that their voices are heard as clearly as possible.

The children's charities also believe that separate representation is important where a child is unaware of their relationship with an absent parent; where the court accepts the need for medical or psychological reports on the child in family proceedings; where concerns about the welfare of a child in a family fall short of child protection measures or of a direction under section 37 of the Children Act 1989; where a clear conflict of interest between one or both parents might include conflicts that arise in the future if a child disagrees with court-approved arrangements made some years earlier when the child was young; where a child who was previously the subject of divorce proceedings is going through such proceedings on a second or subsequent occasion; and where there has been unreasonable denial of contact or when a child's parent is to be committed for contempt of a court order issued to allow contact with another parent.

Those are examples of the circumstances that the children's charities want dealt with under the rules at the earliest opportunity. The introduction of an independent voice for children is but one plank in a range of measures to protect children. As my hon. Friend the Parliamentary Secretary is aware, our special concern is to protect children when there is domestic violence.

My hon. Friend will also be acutely aware that, despite some of those measures, there will still be cases where children are vulnerable. We heard recently from Women's Aid of a child contact order case in which a solicitor had to have alarms installed because of the fear of attack and had to flee the court, alongside the judge, because of the violence of the parent. Despite all that violence, even in the court, the violent parent was granted contact with the child.

That is one example of the many that my noble Friends related to show their concern that we may need further legislation to protect children in such circumstances. I am sure that the independent voice of the child will add to our armoury of protection, but I invite my hon. Friend to acknowledge the concerns of many Members on both sides of the House by assuring us that there will be early consultation on such measures and that, if necessary, there will be further legislation, as was suggested in the other place, to ensure that the full protection of the law, is available to children in contact cases where there is domestic violence.

Mr. Dawson

I rise to congratulate my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department on the real progress that has been made on separate representation.

I join my hon. Friend the Member for Luton, South (Margaret Moran) in urging that the section 8 provisions be introduced quickly. At my constituency surgery last Saturday, some worried grandparents told me about contact proceedings in a local court, where the judge had found it necessary to tell an 11-year-old child that he could have her dragged kicking and screaming to a contact session, even though there had been child protection issues and Allegations in the past.

I hope that we are dealing with the final aspects of the Bill, so I want to emphasise the importance of separate representation for some children at adoption hearings. I accept the Minister's view that it would not be necessary in all cases—for example, where many problems were sorted out when making the placement order and where young children were involved. However, the fact that so many issues can be sorted out at that stage makes it especially important that some young people have a further opportunity to raise problems at the adoption hearing.

We have acknowledged throughout debates on the Bill and today that adoption is changing; it is a much more open process and much more contact is involved. It is highly likely that many contact issues, particularly those involving older children, will need to be resolved at adoption hearings. That would not necessarily be terribly contentious, but it is important—particularly for contact with siblings, but for contact with the wider family as well—that there should be an opportunity to allow the child's voice to be clearly heard and articulated in court.

9.45 pm

Ms Rosie Winterton

This has been short debate, but, as might be expected, very many important issues have been raised. First, may I thank my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) for his usual wise comments and the experience that he brings to our debates. He is absolutely right to say that it is important that everything possible be done to ensure that the voice of the child is heard in adoption proceedings, but, as he says, of course there may be some cases where separate representation is not appropriate—perhaps the adoption has been undertaken by a family member and all parties, including the child, are happy.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) asked about the timing. We intend to consult on the secondary legislation—the court rules—and hope to do so by the end of this year. There will be a three-month consultation period, following which we will draft rules, and they will be laid before Parliament for 28 days. It is therefore not possible for me to give an absolute guarantee on timing. We have to undertake the consultation; we have to take note or that consultation and ensure that it agrees with what we are proposing, and then it has go through the parliamentary procedure.

The hon. Gentleman raised an issue in connection with Lords amendment No. 48. The courts already have to pay attention to the child's wishes and feelings under section 13 of the Children Act 1989, and section 93 of the Act is also relevant. It is important that we do not duplicate what already appears in primary legislation, and I assure him that the courts have to ascertain the wishes and feelings of the child in the light of his or her age and understanding.

The hon. Gentleman also suggested that there is a lacuna in respect of step-parents. We do not believe that such a lacuna exists, but I shall certainly come back to him if one does.

My hon. Friend the Member for Luton, South (Margaret Moran) spoke with her usual passion about consultation and how it relates to contact issues. I hope that I can reassure her by saying that we have specifically asked the stakeholder group looking at cases involving allegations of violence to consider how we take the views of the child into account in those cases. In terms of making certain proceedings specified, we will consider many of the issues that she rightly raised. The group that we will be consulting includes the National Society for the Prevention of Cruelty to Children, CAFCASS, Barnardo's and NCH. I hope that the group will produce recommendations by the end of the year. I know that she is very much aware, too, of the fact that we are considering in the round all the issues that she raised tonight.

The need for further legislation is always kept under review. At the moment, however, I am very keen to make sure—given the changes that we are making here and the changes that we have made in the past—that the legislation works adequately and for the benefit of children in vulnerable situations. I look forward to working closely with my hon. Friend the Member for Luton, South, who is chair of the all-party group on domestic violence, and with the organisations that are already working with us to look at how we can increase protection for children.

Having given those explanations, I hope that the House will agree to Government amendment (a) in lieu of Lords amendment No. 49.

Lords amendment disagreed to.

Lords amendment No. 45 agreed to.