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House of Commons Hansard
15 November 2017
Volume 631

    [Joan Ryan in the Chair]

  • I beg to move,

    That this House has considered family justice reform.

    There are not many more challenging areas where the law intervenes than the safety of vulnerable children and family breakdown. Judgments about such things as whether a child should be removed from their parents’ care or how a separating couple share parenting reflect our values as individuals and as a society. They go to the heart of how we see family life and how we wish our children to be raised. A nation is only as strong as the families that create it. A strong family unit of whatever form is where strong citizens are nurtured. That is why it is vital that the family justice system works as well as possible. I am grateful to be able to call this debate. Since I introduced my ten-minute rule Bill on this subject back in March, I have seen how we need to have a constructive debate on the future of the family justice system. I thank the Minister for being here on behalf of the Government.

    Let me say at the outset: there has been significant progress in this field under the Conservative Government. The Children and Families Act 2014 marked a sea change in how our family justice system operated. It introduced a new family court in England and Wales that made it easier for the public to navigate the system and reduced delays. The 2014 Act introduced a new 26-week time limit for care proceedings. New child arrangement orders were enacted with the aim of encouraging parents to focus on a child’s needs, rather than on what they saw as their own rights.

  • My hon. Friend is talking passionately about the changes that have been made. Will she accept—I speak as the chairman of the all-party parliamentary group on alternative dispute resolution—that a great contribution has been made by mediation? We should seriously encourage the use of mediation services in this area because they have a positive impact.

  • I thank my hon. Friend for raising mediation. Compulsory family mediation information meetings were one of the measures introduced in the 2014 Act. They have had the benefit of diverting conflict and cases out of the adversarial system.

    The Conservatives and the Government should be proud of a record that leaves family justice in a better place than where we found it in 2010. Why did I call this debate? I called it because there is further to go.

  • I thank the hon. Lady for calling the debate on an important issue, but we have to have a reality check. The Government have withdrawn legal aid from the important areas she has been describing. Mediation has been badly hit by the reforms to which she has referred. We have gone backwards, not forwards. Will she accept that this is a time for reviewing the current situation so that the people who come to my surgeries, who cannot get any help to navigate the complex system, can find help?

  • As I said, I think there have been improvements since 2010 because of the measures in the 2014 Act, but I called the debate because there is further to go, and I do not deny that at all. I am raising some elements that should be considered in a review or commission led by this Government. That review or commission could cover three main areas: strengthening child wellbeing and families; instilling a fairer divorce regime; and creating a more transparent justice system.

    First, on strengthening families and child wellbeing, I have been inundated since March by stories from families from all over England and Wales who have endured our family justice system in the event of a divorce. Months and sometimes years have been spent caught up in a labyrinthine court system and bureaucracy where typically, but not always, the non-resident father has had to fight to see his children at great emotional and financial expense. The sad truth is that many of those being failed by the system are good parents. They want to spend time with their children and be proper dads or mums. They accept that divorce will mean a change in living circumstances and they may not be the main carer, but they are pitted against their former partner who is the resident parent. They can face years of heartache, protracted court proceedings, exorbitant legal fees and diminishing relationships with their children.

  • I congratulate my hon. Friend on securing this debate. She talks about the disruption caused to families by divorce and other family breakdown circumstances. Does she agree that those situations can extend beyond just parents and their children to grandparents? Does she agree that there is a possibility of looking into changing the law so that grandparents have a right to access their grandchildren, and vice versa?

  • I thank my hon. Friend for raising the issue of extended families. Kinship carers and grandparents in particular can play an essential role in the upbringing of our children, and they too can be cut out of children’s lives because of the obstacles placed in their way through our system, which needs some change.

    Many parents in these situations have lost their life savings, their home and, perhaps worst of all, their hope. What price is too much? For those who cannot afford it, the cost can be even worse: no contact and no relationship with their children. In one of the saddest cases I came across, a dad was permitted to send merely a Christmas card every year. In another, a father spent three years and more than £100,000 fighting to see his children eight days a month, rather than the six days originally granted by the court.

    Children are entitled to a meaningful relationship with both parents, but the current system enables a parent to be erased from a child’s life. It is not about parental rights; it is about child wellbeing. Children who have a good relationship with both parents are less likely to experience depression, teenage pregnancy and delinquency. Children without a father in their life often struggle to reach their full potential academically, socially or professionally.

  • I thank my hon. Friend for facilitating this important debate. Is she aware of research I have done on the comparative death rates of resident and non-resident parents, which indicates that it is almost twice as likely for a non-resident parent to pass away while their children are small? I indicate that that probably means that it is normally men actually committing suicide because they no longer have contact with their children.

  • It is a tragedy. Those cases are unspeakably sad and a reflection of the need for reform. There is a clear need, if we are to fight the burning injustices in our society, to start with the foundation of our society: families and, more specifically, parents. That change is vital.

    My first proposal is to enshrine a rebuttable presumption of shared parenting. In the majority of divorce cases, parents are able to agree on how their children will be cared for, with whom holidays will be spent, how decisions about a child’s life will be made and how the child may spend time with grandparents and other extended family, as my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) mentioned. However, in many cases—approximately 165,000 in 2016—agreement cannot be reached. In those cases, a judge will determine the contact and residence for the parties, and that is when problems can start. As well as the paramountcy of the welfare of the child as the guiding principle, parental involvement—direct or indirect—is the relevant test in deciding access and residence. I see the former Minister, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), in his place. He should be applauded for his efforts in campaigning to secure considerable progress in this field and improving the lot of non-resident parents through the 2014 Act.

    My point today is that that standard is too low, as it does not enable a meaningful relationship to be fostered between parent and child. A rebuttable presumption in favour of shared parenting would go further and, as a starting point, actively enable more of that vital, meaningful relationship to be fostered between parent and child, in the event of family breakdown. To be clear, I am not talking about equal parenting. A crude, mathematical, 50:50 division of time is not always practical, desired by the parties, or optimal for the child. Rather, legislation that emphasises the importance of both parents in a child’s life is needed—other than in cases of violence or where the child is not safe, obviously.

    Shared parenting is commonplace throughout the world, and operates without difficulty in Sweden, Canada and the US states of Florida and Iowa. Alternatively, Dr Hamish Cameron has suggested that there could be a presumption of the continuity of the previous arrangements. If both parents used to take the child to school, that should be the starting point. If both parents provided equal care, they should continue with that arrangement. Such examples would improve on the parental involvement—direct or indirect—position that we have now. If we are going to continue to tell fathers that they have equal responsibilities, we also need to give them equal opportunities to carry them out.

    Secondly, child arrangement orders, which determine the contact and residence of children upon divorce, need to be better enforced. The current enforcement scheme sits alongside the general contempt powers of courts. If satisfied beyond reasonable doubt, courts can refer the parties to a separated parents information programme, vary or make orders for compensation, or commit to prison—remedies that are so rarely applied, it is easy to forget that they actually exist.

    Although the majority of orders are complied with, too often they are breached with impunity—usually by the resident parent, due to the reluctance of courts to penalise non-compliance effectively. In 2015, of the 4,654 enforcement applications made to court, a mere 1.2% were successful. I question whether the criminal standard of proof is the right one, when family courts make other decisions, including placement in care or change of residency, on the lower threshold of the balance of probability.

  • I pay tribute to my hon. Friend; this is a really important subject that does not get sufficient airing in this place. She is absolutely right: we can give a child the very best start by maximising the relationship with both parents wherever possible. Despite the important reforms that came in with the 2014 Act—albeit a slightly more diluted version of shared parenting presumption than some of us wanted in the legislation—in too many cases the enforcement remains weak, and parental alienation syndrome is doing serious damage to children as a result. Does she agree that the nuclear option of a change of residency needs to be used in those extreme cases, to make the point that a child is not a pawn between two warring parents? The child’s welfare is paramount, and that must be reflected in the court, and in the involvement of both parents.

  • I could not have put the point better myself. It goes to the nub of the issue: unfortunately, the courts are too slow to act when those orders are being breached, with the effect that they are meaningless and not worth the paper they are written on. I agree that a tougher approach is needed: one that includes the option of transfer of residency in appropriate and reasonable circumstances; one where community service is applied realistically and in practice, not theoretically; and one where confiscation of driving licenses or passports is considered. Furthermore, the costs of making those applications should be borne by the parent in breach. Currently, there is often no order when it comes to costs. Shared parenting and robust enforcement must be at the heart of reform if we are to strengthen families and child wellbeing.

    The second main area ripe for reform is our antiquated divorce law. It is time for no-fault divorce. As the recent Court of Appeal case of Owens showed, not all marriages end because of fault. However, we have a law that promotes the farce of allocating blame, setting parties on a needlessly confrontational path that only fuels animosity and costs. In 2015, my hon. Friend the Member for South Norfolk (Mr Bacon) introduced a private Member’s Bill proposing no-fault divorce, and has since been an energetic campaigner on the subject. The principle is supported by Baroness Hale, Sir Paul Coleridge of the Marriage Foundation, the solicitors Vardags, and the Family Law Bar Association.

    There has always been sensitivity around the notion of undermining marriage, but we need to fundamentally rethink that position. The current system forces couples to find blame, creating acrimony where it may not have existed. Divorce is a fact of life—at least for the 120,000 couples that went through it last year. It is not always about fault, but because the parties are obliged to justify fault, they often just make it up, which creates hostility at the outset. By encouraging parties to start their divorce with accusations of misconduct, the current process pushes them towards falling out, which can often affect the children who are caught up in the process. Fault-based divorce can also exacerbate domestic abuse for those women in abusive or violent relationships, because the partner whom they are trying to divorce can refuse their petition and drag it out for much longer than is safe.

    Fault-based divorce increases the cost for both the state and the litigants. The need for judicial scrutiny of those 120,00 applicants per year places a significant burden on the courts; a streamlined process would save time and money. As Baroness Hale has made clear, this is not about quickie divorces, but about removing the fallacy of fault. A 12-month cooling-off period would enable that balance to be struck.

    The problem was starkly highlighted by the Court of Appeal in the recent case of Owens, now on appeal to the Supreme Court, in which the petitioner—married for 27 years—was refused a divorce as she simply could not prove unreasonable behaviour, adultery or desertion. Sir James Munby, the president of the family division, described the current law as

    “based on hypocrisy and lack of intellectual honesty.”

    The Court was bound to uphold the appeal and refuse the divorce, and held that it was down to Parliament to establish no-fault divorce. Scotland is an example of where it has worked well, not causing a long-term rise in divorce rates as feared. Divorce is painful enough, but the current law only makes things worse.

    As part of reforming divorce law, Parliament should also establish the enforceability of pre-nuptial agreements. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before and during their union. If the parties agree, those assets should be protected, not put at risk. A review should look into that, as well as into reform of the Matrimonial Causes Act 1973 and financial remedies and maintenance, which are rooted in a bygone era. That framework dates back to a time when women were entirely financially dependent on their husbands, but today many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments. A commission or review should make recommendations on how to strike a better balance, so that England can shed its reputation as the divorce capital of the world.

    Cohabiting couples should be afforded protection on separation. Cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in that position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. An inquiry looking into what basic protections are justified would be valuable.

    Lastly, transparency in our family courts is much needed and I urge the Minister to look into that. Reform of the way in which the family courts operate in public law needs wholesale review. Far too many children are taken into care on the basis of wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the family division. Only the glare of publicity will enable that to stop, so we need to remove the cloak of secrecy and open up the family courts.

    Shared parenting, enforcement and no-fault divorce must be the bedrock of reform, but a broader review that covers the other points I have set out today is also required if we are to make progress. It is an opportunity that Members from both sides of the House, working alongside the Government, must seize, if we are to stop parents and, most importantly, children from suffering unnecessary emotional trauma.

    I know that this Government’s commitment to social justice is unrivalled. The stories of injustice and hopelessness are too many to ignore. I hope that the Government and this House will begin the important work of making our family justice system fit for the 21st century.

  • I congratulate the hon. Member for Fareham (Suella Fernandes) on setting out such an effective case. When researching this subject, I was very conscious of its complexity—she referred to that—and I want to look at a couple of points in particular. The scope of the debate far outweighs the allocation of time that we have to explore, discuss and come to conclusions, but it is an opportunity to put down some markers on constituency cases that need consideration. I am pleased to see the Minister in his place and, as always, I look forward to his comprehensive reply.

    I mainly work in my Ards constituency office, with four female members of staff. There is one male and another female staff member in one of my other offices. It is hard to believe that there are so many women in what the media has made out to be a male-dominated world—in my office, they outnumber us by three to one, and that is the way life is. During a recent coffee break conversation, some of my staff highlighted to me a legal issue they had dealt with, which I want to put on record—it is one of two things I want to put on record in Hansard today.

    Northern Ireland, and I suspect other parts of the country, has very little legal protection or standing for those who are common-law partners. A lot of people have the perception that common law gives the same protection as a marriage licence, but that is not the case. It was only when that came to my attention through my constituency office that I recognised that this is an anomaly that needs to be addressed, and I want to present that case today. What I found surprised me, but it is certainly the case, and the Northern Ireland Direct website provides further information:

    “Most people think that after they’ve been living with their partner for a couple of years, they become ‘common law husband and wife’ with the same rights as married couples. This is not the case. There is no such thing as ‘common law marriage’. In fact, couples who live together, also called co-habitants, have hardly any of the same rights as married couples or civil partners. Legal and financial problems can arise if you decide to separate, or if one of you dies. And while you do have legal protection in some areas, you should take steps to protect yourself and your partner.”

    The website is clear and makes people aware of that, but the fact is that people do not look at those things unless the need arises.

    In my office, we have had a couple of examples of people who have been together for a long time, and I would like to give an example without mentioning any names or circumstances. Let us take a couple who have lived together for 10 years. The lady moves into the man’s home and begins to pay into the house. Her name is not on the deed, and therefore there is little protection. I put it to the Minister that that should not be the case. I can understand that when there is a short-term relationship that does not work out, but not in cases where partners are co-habiting for years. They have no legal protection whatever. It is up to us to step up and put in place those protections.

  • The hon. Gentleman is making a very good point, which I make in my forthcoming private Member’s Bill about extending civil partnerships to opposite-sex couples. There are 3 million couples in this country living in the circumstances he describes, more than half of whom have children, who have no rights—financial, tax or inheritance, and so on. I hope he will support my Bill, which would extend the rights that married couples have to couples who do not want to enter a formal marriage. That relationship could be recognised by the state and they could be given all those rights through extending civil partnerships.

  • I thank the hon. Gentleman for his intervention and explanation. There is no reason why we cannot support that—indeed, I am going to say those things right now. I fully support what he has put forward.

    In the example of the lady who moved in and paid into a mortgage, everything in her relationship was in the name of her partner—their house, their car and every other loan they took out. At the end of the relationship, which ended through no fault of her own, she ended up with absolutely nothing. I find that quite annoying, and I want to put that on record. There should be no young woman or man who has paid off someone else’s mortgage, only to receive marching orders because the grass is greener on the other side.

    I ask the Minister to consider working with all the devolved Assemblies—as long as we have a Northern Ireland Assembly, of course—to tighten up protection and responsibilities for long-term co-habiting partners. At the very least, people should be made aware that the common-law principle is a myth. When they chose to move in with someone rather than to formalise their choice, they are left open, and legal redress is a long and drawn-out process. There is a process, but it is laborious, convoluted and difficult to see through. In my introduction, I said how complex the situation is; the stories of the people who come to tell me what they have had to go through to try to get to the end of the road are quite unbelievable.

    People can prove they have lived in a house through direct debit and other bills that they pay, but that process should not be difficult or open to badness—if I can use that terminology—from one partner, leaving the other partner homeless and hopeless.

  • The hon. Gentleman is making a compelling case. There is a horrible consensus emerging in the debate, particularly on common-law marriage. The idea emerged from I know not where, but it has never ever existed. The other important aspect is that the whole process is hideously expensive. For someone to establish their rights through the courts, which may be possible through a resulting trust or a constructive trust, is impossibly expensive for most ordinary people.

  • I am glad that the hon. Gentleman made that intervention, because that is something I had not focused on and it is good to have it on record. The process is hideously expensive, and prohibitive, by the very nature of the costs involved.

    I am very conscious of the time, so I shall fire on, but another issue I wanted to focus on is reform of grandparents’ rights, which the hon. Member for Mid Worcestershire (Nigel Huddleston) commented on. I have dealt with a number of cases in my office where this problem arises. Grandparents have no special right to see their grandchildren in England, Wales and Northern Ireland, but can ask for contact, just like any other interested party. I tell you what, Ms Ryan, people go through that process only because they love their grandchildren and would do everything they can to try to see them; the process would put people off.

    Winning contact through the court system is, at best, a two-step process. The first step is to ask for leave from the court—in other words, grandparents must ask the court for permission to petition. If the first step is successfully negotiated, grandparents must ask for a contact order. Contact orders specify direct or indirect contact. I am a doting grandparent of two young girls, and I would find it impossible to comprehend being kept from them. Grandparents come to me and tell me about their cases, and I understand the heartache and pain they feel if, perhaps due to the actions of their child, they are prevented from seeing their grandchild. To petition the court is onerous and frightening. For cases in which the behaviour of the grandparents is not an issue, I say respectfully to the Minister that he should implement a new system, whereby access is expected unless there is a reason not to grant it.

    I do not pretend to be a legal expert. When legal issues are referred to me in my office, I always seek a legal opinion from those who know best, as I should. I believe that it would be a worthwhile use of the Department’s time to give grandparents the knowledge that, no matter what the circumstances of the familial breakdown are, they have a legal right to see their grandchild for a set amount of time. That should be there for them. I ask the Minister to take that into consideration when undertaking a review of family law.

    Families exist in many different forms, and the law must be fluid and capable of changing to best meet their needs. It is impossible to legislate to cover every eventuality, but we can and must offer more help and protection. I say respectfully that the Government need to do that. I ask the Minister to consider those two examples, which I have been directly involved with through my office, in looking at how we can have better laws.

  • Before my hon. Friend concludes, does he agree that, although mediation does not always end up in a happy place, if it is entered into amicably by both sides, it can assist in resolving matters at an early stage or in making the separation much less distressing, particularly for the children?

  • Yes, mediation can help. In many cases in which I have suggested it, there has been a successful conclusion. That does not happen in every case, but it is good to have a mediation process in place so that we can negate the negative and problematic conclusions.

    I look to the Minister for support and advice about how best we can address these examples—I gave two, and other hon. Members will put forward many others. We need better laws and better protection.

  • I am grateful for the opportunity to contribute to this afternoon’s debate. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on securing this important debate and on her tireless campaigning for family law reform in England and Wales.

    As a Member representing a Scottish constituency and a former solicitor, notwithstanding the fact that I did not have anything to do with family law, I will contribute to this debate from a slightly different perspective. Scotland has a different legal system and a different approach to family law matters. I will keep my comments relatively brief. I do not intend to give an opinion about the adequacy of family law south of the border, but I will speak a bit about Scotland in the hope that my comments inform this afternoon’s discussion.

    The Scottish legal system has been distinct from that of the rest of the United Kingdom since long before the devolution of family law to the Scottish Parliament. Scots family law has certainly changed during that time. In 1864, there were only two recorded divorces in Scotland. The modernisation of Scottish family law has come gradually. Until as recently as the 1980s, husbands had a common law right to choose the matrimonial home, and a legal presumption existed that a wife acted as a domestic manager to her husband’s home. Things have certainly changed in Scotland in recent history. We have come a long way since then. We reached the milestone of legalising same-sex marriages shortly before this Parliament—something I was happy to vote in favour of during my time as a Member of the Scottish Parliament.

    However, there are some fundamental differences in approach in Scots family law. For example, in Scotland, it is almost impossible for a person to disinherit their spouse or children, no matter how much they want to do so. In England, an individual’s views, as expressed in their will, are given much greater weight. We have the “clean break” principle for divorce: there is the presumption that, unless a spouse will suffer severe hardship following the divorce, each party should be entitled to a share of the fruits of the marriage.

    There are also practical differences in Scotland. A speedier divorce mechanism was introduced by legislation in 2006. Pre-nuptial agreements are generally considered enforceable in Scots law, and co-habitees have greater rights than those in England and Wales—the hon. Member for Strangford (Jim Shannon) made that point.

    I certainly recommend looking at different systems to see how family justice in England can be reformed, and Scotland would be an obvious place to start. However, I urge caution in putting Scottish law on some sort of pedestal. Although it is easy to criticise the generous financial provision often awarded to spouses in England and Wales after a divorce, some might argue that the Scottish system does not well serve spouses coming out of a marriage late in life with no employment.

    Although it is difficult to compare divorce rates in Scotland with those in England and Wales because of the different ways they are recorded, the numbers seem to be roughly similar. There are just over 100,000 divorces a year in England and Wales and just under 9,000 in Scotland—a similar rate, based on the number of people involved.

    There are real concerns about the way in which Scotland’s key Act relating to this matter—the Family Law (Scotland) Act 2006—is working. The Scottish Parliament’s Justice Committee recently suggested a wholesale review of how it operates. We should reflect on that before we rush to replicate the Scottish system south of the border. Some parts of the legislation are seen as ineffective and insufficiently clear, and it is said that they cause unnecessary problems in often already acrimonious family law cases.

    I again commend my hon. Friend the Member for Fareham for securing this important debate. I encourage her to look to Scotland for guidance, but with a critical eye.

  • I came to this debate because this is a very important subject. I am a solicitor by background, although it was a very long time ago and I have never been a family lawyer. I am grateful to the hon. Member for Fareham (Suella Fernandes) for securing this debate. We have had an interesting discussion.

    I often come across family cases in my constituency because I am the end of the line for my constituents. I am sure colleagues here share that experience. Those individuals are often in very distressing circumstances, are dealing with important relationships with their children—those cases disturb me most of all—and cannot find any help to negotiate the very complex and difficult system.

    I have no doubt that the legal changes since 2010 have largely improved the situation for children, but they will have an impact only if they are properly enforced, and enforcement depends on equal access to justice. We need a legal system that reflects the society in which we live. I strongly agree with the hon. Lady’s comments about our divorce laws, which predate my legal training, and are therefore completely out of date and need to be reconsidered.

    In this Parliament, in which there is a lack of political consensus the likes of which we have never seen before, this is the kind of area on which we can work together as Members of Parliament. There is no profound political difference on this matter, so there is scope for making progress if we can agree on a way forward. The key point I want to make is that we need to have a system that gives decent access to justice to all the people who need it in this country.

    I have a constituent, a very committed father, who has been to see me on numerous occasions throughout a long legal case involving contact with his children. Despite the fact that I have tried to use some of the avenues available through the good people who provide voluntary services to support individuals before the court, my constituent really needs a solicitor to deal properly with his case. The present system has deteriorated since 2010 because for him legal aid is not available in the way that I used to know it. I therefore strongly welcome the investigation of the Bach Commission that the Labour party has conducted. The Government have indicated they are prepared to look at the matters again. I welcome that, too, because I believe there is a broad consensus, although it is not spoken of very often, on the need to have better access to justice, particularly in cases that involve children.

    I hope this debate will be a starting point for us to look again at access to justice and to recognise that there are real problems in our communities, which we see in our constituency offices and arise because of the lack of access to justice. The system is hideously complex. It is difficult for any individual to negotiate it and we have an obligation to try to revisit it and make it better.

  • I did not intend to speak today, but I feel I ought to comment on the mediation aspect, which has numerous advantages. Of course, any mediation is only as good as the mediator. If we acknowledge that, we can take the collaborative approach of mediation to put together something that is in the interests of the parties involved. There are a couple of other aspects of mediation that I want to bring up. First, it saves a considerable amount of time in dealing with the problems, rather than taking them, perhaps on several occasions, before a judge and expanding on them there. Secondly, it saves a considerable amount of money. I have been trying to get to the bottom of how much money mediation saves, and I think it is a considerable sum.

    There is an important overriding aspect, which is that mediation is the best way of ensuring that we deal with the emotions involved. There is no doubt that a divorce is a very emotional time for both parties and for third parties such as children. Mediation can deal with matters in a non-emotional way.

  • My hon. Friend makes a good point about mediation, but how can it work without guidelines for parents, depending on the age of the children, on what contact might be reasonable and what they might expect? One of the main reasons why conflict over contact with children is so intense is because there are no guidelines on what parents might expect on separation. It is basically the all or nothing rule, so people go into battle and they could come out with nothing or they could come out with complete contact. That is the crux of the problem.

  • My hon. Friend makes a valid point. However, there is much more to be gained out of mediation in terms of working out what the arrangements for contact are. I fully accept that that is a major difficulty, but there are many more opportunities for getting it right in a non-emotional way and by trying to take those raw emotions out of the situation than there are in a formal legal battle. That is why I emphasise taking away the difficult emotional aspects through mediation.

    Above all, mediation leaves control of the situation in the hands of the parties. It does not take it away and give it to a judge. The parties do not lose control of the process or of how to deal with the children and with access. They retain control. Anyone who sits through a mediation will experience the enormous amount of power that that gives people to be able to decide for themselves, rather than passing it off to a third party. In the session that the all-party group on alternative dispute resolution had on family mediation, that came across strongly as one of the things that should be valued.

  • I hear what my hon. Friend is saying and I absolutely agree about the parties keeping control over the contact levels they have with their children. Normally in a court that is farmed out to the Children and Family Court Advisory and Support Service, which came out of the family court welfare service. In correspondence with CAFCASS, we have established that in all the time that CAFCASS has been set up, there has never been any training for its main function, which is making recommendations to a court on the allocation of contact time for various parents. How can it be that it has such power, yet it admits to me in correspondence that it has never had any formal guidance, and it does not record the contact that it recommends at various stages? There is no record of the contacts awarded and whether they are right. Also, CAFCASS’s statements are not sworn, so it cannot even be held to account for the recommendations it gives in court.

  • My hon. Friend makes the very point that I was making about the difference between that system and the mediation system. Mediators are not people who have no knowledge. They are not appointed off the street. They have spent a large part of their time in office going through training to make sure that they understand the process and the sensitivities of the issues, particularly the emotional sensitivities, and can deal with those in a professional way. Certainly if there any examples of mediators who do not do that, I would like to hear about them, because that is contrary to the whole mediation process, which provides enormous benefits to couples. I say that as a final comment and contribution to the excellent debate that my hon. Friend the Member for Fareham (Suella Fernandes) secured.

  • It is exceptionally kind of you to call me, Ms Ryan, especially as I was a few minutes late arriving for the debate. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on securing it. I had hoped to push my luck with a lengthy intervention on the Minister, but as time allows I can perhaps offer some thoughts in a slightly different area.

    A female constituent came to me 18 months or so ago to complain that her ex-husband had been using the family courts vexatiously to incur costs and to cause her pain and control her. I wrote to the Minister’s predecessor, who was kind enough to reply. I thought that case was a one-off, but a second constituent has come forward and indicated the same thing. So, today, as we talk about family justice reform, I wonder whether I may add to the learned and wise recommendations that my hon. Friend the Member for Fareham has made and suggest that we encourage the Department to consider how, if at all, access to the family courts may be adjusted so that equal access to justice is maintained, but we have clear processes for denying access to the courts for those who seek to use them vexatiously or to cause pain and to control.

    In one constituent’s case, they have been awarded the measure that denies use of the courts for up to a year, but, as soon as the year elapses, further legal processes are embarked on, which causes further pain to my constituent and her children. In another case, there is a significant imbalance in wealth between my constituent and her ex-husband. He brings about legal proceedings, incurring the cost in doing so, but when my constituent arrives for the proceedings, having also incurred costs in attending and being represented, she finds that her ex-husband does not turn up and has merely brought the case to cause her distress and financial cost.

    It seems that in the case of my two constituents the family courts are allowing themselves to be a part of the very unpleasant and controlling behaviour of abusive ex-husbands. I wonder whether a better balance could be struck between equal, free access to the courts and denying their use to those who seek to use them to cause their ex-wives pain.

  • I congratulate the hon. Member for Fareham (Suella Fernandes) on securing the debate, and wish her well in seeking reform of the law. I shall not labour for long, because of course, as we have heard, Scotland has a distinct legal system, and I do not want to lecture or give lessons from Scotland. I simply want a sharing of best practice between the two nations, and to ensure that where legal reform is necessary we seek to proceed in tandem, so that there are not huge disparities between England and Scotland.

    For clarity, I will mention that the area of family justice reform covers marriage, civil partnership and cohabitation; what happens when a relationship ends—separation or divorce; and the relationships between parents and children, including parental rights and responsibilities and the interplay of children’s panels incorporating the rights of the child. In Scotland we have gone further than most of the other nation states in the UK to ensure that the voice of the child is paramount, and that it is ultimately the principal consideration in a divorce or resolution settlement about custody of children. However, I want to echo the sentiments expressed by the hon. Member for Fareham and reinforce what she said, encouraging continual reform and review of the process, as family life evolves. We no longer have the 2.4-child nuclear family that the system was perhaps built around. It is necessary to consider the legal system now and how family life will evolve. Valid points have been made about no-fault divorce and encouraging shared parenting, and they are worth considering. I hope that the Minister will take what the hon. Lady said into account.

    I am grateful to the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont), who spoke about Scotland’s distinct legal system; his learned experience will be welcomed by the House. The hon. Member for Strangford (Jim Shannon), who is no longer in his place, explained that Northern Ireland also has a distinct legal system, which does not necessarily recognise common-law or cohabiting partners. I hope that protections in that regard, and in connection with the rights and responsibilities of grandparents, may be strengthened. That would be a welcome adjustment.

    The hon. Member for Berwickshire, Roxburgh and Selkirk spoke about work that has been done in Scotland on family justice and reform, and what will happen as of 2018. There is a strategy for review of this area of law, including the Children (Scotland) Act 1995. That is clearly necessary because things have evolved; as a law graduate I recognise that there is a need to review and update the law continually, as family life and society evolve. As I said, it is necessary for the voice of the child to be at the heart of the principle.

  • As to grandparents’ rights, I wonder how the hon. Lady would accommodate that question. The Scottish Government have considered it in the past and have refused to confirm that they want to amend the law proactively to accommodate it. I wonder what her view of that is.

  • Personally, I am happy to say that I think grandparents should play an active role in their grandchildren’s lives. There is room, in the next review period, to consider the role of grandparents, but as I sit in this place I have no locus in the matter and my opinions are frankly irrelevant. However, I agree that children and their grandparents should be able to have a relationship, and there is room in the review for consideration of the role of kinship carers, as it is not simply grandparents but also aunts and uncles, or other relations, who often take on parental responsibilities or care-giving roles.

    I believe that there is room for the Children (Scotland) Act to be transformed into something fit for 2017, and fit for purpose in the future. That is why I fully support the motion, and why I argue that we need continually to review family law and to consider the possibility of consulting on simplifying the process and making it more user-friendly. That is our ambition in Scotland—to make the process easier for families. Families have a difficult enough time when relationships are dissolved; the last thing they need is to be pulled through a family court system that does not necessarily make sense to them or seem user-friendly.

    In Scotland, we have made a specific commitment to encourage legislation on domestic abuse, which includes coercion and controlling behaviour. I hope that that will be replicated across the UK. I think that it is necessary to cover all aspects of family law, including domestic abuse and violence, and that there should be protections for anyone who finds themselves in that dangerous situation.

    An area of law that has not been covered, which is not specifically relevant to the title of the debate but is relevant to the area, is gender recognition. The Government have on several occasions had the opportunity to respond to the inquiry by the Women and Equalities Committee on the Gender Recognition Act 2004. I hope that there will be progress across the UK, as there has been in Scotland, and a commitment to non-medicalisation, self-identification, and the ability for anyone who identifies themselves as transgender to have recognition in law for their chosen gender. It is entirely reasonable and fair and I hope that the Minister and the Government will take the opportunity to respond to that aspect of law reform in the debate.

  • It is a pleasure to serve under your chairmanship, Ms Ryan. I congratulate the hon. Member for Fareham (Suella Fernandes) on securing the debate. Before I became a Member of Parliament I was a practising barrister and dealt with cases in the family courts. Because family court proceedings are held in private, not much is known about their operation and decision making. Yet those courts make decisions affecting more than 200,000 families. I believe that the courts need to be opened up, and that that can be done without the identity of parties being disclosed. The expression “child A” or “family A” can be used to stop identification of parties. The concept of no-fault divorce should be looked at and implemented, as the current law effectively forces spouses to throw mud at each other, when the truth is probably that the marriage has just come to an end. Cost is another issue that adds to the worry, as many people who are separating will already face financial difficulties and challenges.

    Another important aspect of family courts that has been alluded to is what happens when partners have separated, including questions about the enforceability of child arrangement orders. The courts make those orders to regulate the contact and residence of children, but, sadly, they are breached regularly. I remember distressed clients complaining about how their ex-partner would not turn up, would be very late, would make excuses for not allowing the child to be picked up, and would generally be manipulative. It caused a lot of frustration. The only legal solution was to go back to the court, but that meant spending more money, which, often, the clients did not have, and getting cases listed before courts, which would take months. They therefore lost valuable time with their children. The hon. Member for Wells (James Heappey) mentioned one of his constituents facing similar game-playing by the other parent. I agree with the hon. Member for Fareham that there should be a much quicker method to deal with people who manipulate the system.

    When orders are being arranged, the judge could, in a very severe way, inform the parties of the consequences of non-compliance. We must also not forget about parenting orders for cohabiting families. The hon. Member for Strangford (Jim Shannon)—he is not in his place at the moment—spoke about the rise in the number of cohabiting families, and it is important to consider how to protect those families and the challenges that have arisen.

    Another point about family courts often does not get mentioned—it has not been mentioned much in this debate, but it is important and I hope that the Minister will consider it. The president of the family division, Sir James Munby, recently said that too many children are being taken into care for wholly inadequate and poorly argued reasons. Again, from my experience, I tend to agree with him. Although it is inevitable that some children must be taken into care, there are too many such cases, and there seems to be an almost unseemly haste to take young babies away from their families—many people are waiting to adopt little babies, as opposed to toddlers or young children. Perhaps we should consider what assistance, advice and guidance can be provided to new mothers so that they can look after their children themselves, as opposed to social services getting involved and taking the children.

    Child safety and protection is obviously paramount, and we heard about famous cases such as that of baby P and other children. However, from my practical experience, and that of others who have spoken to me, I know that there are occasions when local authorities, social workers and other people do not make enough effort to work with families. Perhaps that is because it is more time consuming or resource intensive, but we should think about that because far too many children who go into care go into foster homes, and not many are being adopted, as they should be. Some children who go into foster care are with one family for one year, another family for two years, then another for one more year, which causes them a lot of instability. A lot of those children are affected by being moved around, so I urge local authorities—I know they are facing massive funding cuts—and the Ministry of Justice to consider incentivising social services and local authorities to work with families so that we can keep as many children as possible within the home, as opposed to shunting them around the care system.

    There is some anecdotal evidence—I hope the Minister will consider this—that BME communities and working-class families have a higher incidence of children being taken away than the rest of the population. It is almost as if sometimes they are being judged on what an ideal, upper middle-class lifestyle might be like, and perhaps there should be more of a reality check about what happens in ordinary families. I also believe—this happens very infrequently—that judges should take it upon themselves to talk to children involved in these proceedings to get more information about what they feel about the reality of family life. That does not happen enough. CAFCASS officers, social services and other people should hold many more discussions with children about how they see the situation and what their experiences are.

    The hon. Member for Fareham did not allude to the big elephant in the room—legal aid—although my hon. Friend the Member for Wrexham (Ian C. Lucas) did mention it. There has been a real cut in civil legal aid, especially in family courts, because the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished free early legal advice. Often lawyers were able to encourage clients to seek mediation and agree to arrangements, but that is not happening now because so many people are unrepresented. More people are now coming into the court system and clogging up court structures, and often district judges and legal advisers have to draft complex care orders, which is having an effect on the backlog of cases in court. It also means that unrepresented individuals often do not know the procedures and it takes much longer, so again, a backlog is forming in the courts.

    When I sat on the Justice Committee in 2012, the fears about LASPO were raised, and it has been confirmed that, although there have been austerity cuts, in reality, no savings have been made because court time has increased, and dealing with those cases takes much longer.

  • My hon. Friend makes a strong point, and I have heard court staff say that courts are under increasing pressure. It is not really the role of judges to advise the parties; the judge is there to determine the case, but they are being placed in the difficult position of having to supplement that by advising the parties they are judging.

  • That is absolutely right. The judge’s job is to adjudicate, but now legal advisers and judges have to take a proactive role in the legal processes. That causes a lot of difficulties for them, and it is clogging up a lot of court time. Cases are taking much longer to progress through the court than they would if we had a system in which people are represented, so many of the issues could be cut down and a debate held on the main features or issues of that case.

    We were told that victims of domestic and child abuse would have access to free legal aid, but in reality that is not happening in the majority of cases because of the number of bureaucratic rules that people have to satisfy to apply for funding. One in four women suffer from domestic violence, and every week two women are killed by their current or former partners. One of the most distressing aspects is that victims of domestic violence can be cross-examined by their abusers. I cannot imagine how bad a situation that would be.

    The Legal Aid Agency’s failure to apply exceptional case funding has caused major hardship. Many parents with significant learning disabilities cannot get legal aid and are therefore unable to protect their interests as well as those of their children. Will the Government consider the Bach Commission report and whether exceptional case funding could be established to help people who suffer from domestic violence? The Government suggested that 847 children and 4,888 young adults would be granted exceptional case funding, but between October 2013 and June 2015 only eight children and 28 young adults were granted legal aid. That is unacceptable, and I look forward to the Minister telling the House what action the Ministry of Justice will take to deal with that issue.

    We must also address the ability of the Child Maintenance Service and the Child Support Agency to work efficiently and quickly to ensure fairness for all involved. In many instances child support arrangements are not working well, which causes difficulties for the parent who has responsibility for looking after the children. What action will the Minister’s Department take to ensure that those orders are working?

    In conclusion, this has been a good debate and hon. Members have shared their experiences. I particularly thank the hon. Members for Berwickshire, Roxburgh and Selkirk (John Lamont) and for Lanark and Hamilton East (Angela Crawley), who have given us a bird’s eye view of Scottish law, and all hon. Members who spoke about cohabiting families and legal aid. I hope that the Minister will address some of our concerns.

  • It is a pleasure to serve under your chairmanship, Ms Ryan. I begin by passing on the sincere apologies of the Minister of State for his absence. He is attending to urgent parliamentary business to do with the European Union (Withdrawal) Bill.

    I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on securing the debate, and I thank her for that. She has professional experience from before she joined the House and is already developing a fantastic reputation for work in this area. I recognise the strength of feeling on the subject of family justice and the importance that hon. Members from all parties attach to the issues involved, and I am therefore grateful for the opportunity to discuss them.

    The family justice system is responsible for making decisions that change lives. The issues at stake are sensitive and complex, and the decisions of the court can have far-reaching implications for those involved. We need to ensure the system is delivering the best outcomes for children and families, with emphasis on protecting the vulnerable. As my hon. Friend said, strong families create strong citizens.

    The welfare of the child is the paramount consideration for the court when making a decision that will affect a child’s life. I for one am proud of the child-centred approach that our family justice system takes. As my hon. Friend recognised, there has been significant recent progress in that area.

    To address my hon. Friend’s comments about the importance of fathers in the upbringing of their children, following a change to the law in 2014, the court must now presume that a parent’s involvement in the child’s life will further the child’s welfare, unless the contrary can be shown. That change was intended to strengthen children’s rights to each parent’s involvement in their life.

    Orders limiting such involvement to indirect contact—my hon. Friend mentioned a case in which only a Christmas card was permitted—are usually reserved for cases where face-to-face contact is deemed unsafe. Such orders are relatively rare and the court will not take the decision lightly.

    Where parents are in dispute and seek a court decision, the court must decide what form of parental involvement will best meet the child’s welfare needs. The quality of parenting, rather than any particular pattern of it, is the most important thing for a child. Parliament stopped short of introducing a presumption of shared parenting because every family is different and every child’s needs are different—the law provides for the maximum flexibility.

    Courts apply the presumption of parental involvement in a child’s life unless there is risk of harm to the child or the other parent. Given the prevalence of domestic abuse, however, the court must consider carefully any evidence of a risk of harm to the child or other parent when deciding child arrangements. The president of the family division, the country’s most senior family judge, only last month issued a revised practice direction setting out the practice and procedure to be followed by courts dealing with child arrangements cases where domestic abuse is alleged. That makes it clear that the court should have full regard to the harm caused by domestic abuse, including the harm that can be caused to children from witnessing such abuse. The Government welcome the development, and I am sure the House appreciates that the aim is always to produce the best outcome for the child.

    My hon. Friend the Member for Fareham went on to argue that child arrangements orders must be enforced more robustly. When such an order is breached, a pragmatic response is often to vary the order to make it work for the child. Punitive enforcement can increase hostility and make the child feel responsible. In 2012 a Government consultation concluded that measures designed to punish parents were unlikely in many cases to be appropriate or to encourage them to be co-operative in future. In 2014 changes were made to return enforcement cases to court sooner and to improve judicial continuity.

    When a child arrangements order is breached without reasonable excuse, sanctions are available. A parent who breaches an order can be ordered to pay financial compensation, ordered to carry out unpaid work, fined or even imprisoned. The reasons for breach are varied. In a 2012 sample study, only 4% of the breaches could be characterised as resulting from resident parents being implacably opposed to contact. I understand my hon. Friend’s concerns about the low number of successful enforcement order applications but that reflects a more complex picture, including sometimes technical breaches. How a breach is addressed will depend on the individual circumstances of the case, and the focus of the court will be on making the order work for the benefit of the child.

    My hon. Friend also argued for no-fault divorce. Only last month the Nuffield Foundation published a research report on that, led by Professor Liz Trinder. We are aware of the strength of feeling on the issue. It is important to note, however, that the existing law already allows people to divorce without needing to cite fault, as I am sure the House appreciates. Parliament has determined that the law should provide for divorce only if the marriage has irretrievably broken down. One way of demonstrating that is to cite a period of separation. Some are concerned that the periods required are too long, but many things need to be balanced when considering whether reform is necessary. We will study the evidence for change, but will not rush to a conclusion.

    In response to my hon. Friend’s concerns about the law on financial orders in divorce, I point out that the law is gender-neutral and gives the court wide discretion to make financial orders based on individual circumstances. The court’s primary concern is always the needs of any children. We have no plans to change that key principle of fairness.

    My hon. Friend asked whether the process would be improved if couples could make nuptial agreements that they were confident could be enforced if the marriage ended. She called for a commission to look into that. The Law Commission has already published proposals on the issue, and the Government will consider those and make their position known in due course.

    Marriage is of course only one part of the picture. Many people now live together without being married or in a civil partnership. Some people, including the Law Commission, argue that the law should give cohabitants rights in finances, but others disagree. I can give no indication as to how those differences will be resolved, but the Government will in due course consider how to respond to the commission’s proposals.

  • Who disagrees with the approach to changing the law on no-fault divorce?

  • I thank the hon. Gentleman for his intervention, but I do not know the answer to his question. I will ask my officials to reply to him in writing.

  • Will the Minister concede that under existing law the resident parent often has a financial incentive to withhold contact from the non-resident parent, because the fewer the nights spent with a non-resident parent, the greater the amount of child maintenance paid over? How do we square that?

  • I thank my hon. Friend for his intervention. As a constituency MP, of course I recognise examples of the situation he describes. I assure him that I will pass on his concerns to the Minister responsible.

  • I think the Minister said he was about to conclude, but I wanted to intervene before he did. I know he is not the Minister directly responsible, but individuals in the Chamber have brought some things to his attention. May I request a response from him on each of those individual issues—a comprehensive response, I hope? I certainly wish for a response on the two examples that I brought to his attention.

  • I thank the hon. Gentleman for his intervention, but I will come on shortly to questions asked in speeches and interventions. If I fail to answer all the questions, of course a response will be arranged.

    My hon. Friend the Member for Fareham is not alone in calling for greater transparency in family proceedings. Openness can lead to greater accountability and improve public understanding of the decisions of the court. The Government therefore fully recognise that family proceedings should be as transparent as possible. That is why we welcome the progress that has been made in this area in recent years. Since 2009 accredited media have been allowed access to certain hearings in the family courts, and in 2014 the president of the family division introduced judicial guidance that has resulted in the publication of more judgments than ever.

    Arguments in favour of greater transparency, however, must of course be weighed against the need to safeguard children and their family’s privacy. The family courts often consider extremely sensitive information about individuals which should not become public. They must be cautious about putting information in the public domain that, even if anonymised, could lead to the inappropriate identification of vulnerable parties. We continue to work with senior judiciary to ensure that the right balance is struck between transparency and privacy.

    I will now respond to some of the specific points made by hon. Members during the debate. The hon. Member for Strangford (Jim Shannon) raised the role of grandparents. We recognise the important role that grandparents can play in a child’s upbringing. It is obviously preferable to reach an informal agreement on contact with the family, and we encourage families to consider the role that mediation can play. If that fails, grandparents can apply to the court for an order. In answer to the question on cohabitation and civil partnerships, cohabitants have some legal protections under the general law. Parents who have cohabited also have access to the court for orders relating to children. The Government Equalities Office is evaluating the impact that the marriage of same-sex couples has on the take-up of civil partnerships. It will also carefully consider the Court of Appeal judgment before the Government decide on their next steps.

    The hon. Member for Wrexham (Ian C. Lucas) raised the question of access to justice and support for litigants. The Government have taken action to improve support for litigants in person, including sponsorship of plain English guidance. The Family Justice Council has produced a range of accessible guides for separating couples, which are available on the advicenow website. In answer to his earlier intervention with regards to legal aid cuts destroying access to justice, I respond on behalf of the Government that that is not the case. Legal aid is a vital part of our justice system but we must ensure that it is sustainable and fair for those who need it, for those who provide legal services as part of it, and fair for the taxpayer who ultimately pays for it. We have made sure that legal aid continues to be available in the highest priority cases, for example where people’s life or liberty is at stake, or where their children may be taken into care.

    My hon. Friend the Member for Wells (James Heappey) raised the challenges of potential vexatious use of the family courts. We have been working closely with the judiciary to improve in-court protections for vulnerable court users. New court rules and a practice direction come into force this month with the same aim. We are determined also to give family courts power to prevent unrepresented abusers from cross-examining their victims and the court has powers to manage cases appropriately and to prevent vexatious litigation.

    My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) raised the question of the Government agreeing to introduce 50:50 parenting. The Government are aware of the difficulties that non-resident parents can face when attempting to spend meaningful time with their child following separation or divorce. However, introducing an automatic presumption of shared parenting in all cases would not always be in the best interests of the children involved.

    I will turn to the first question raised by the shadow Minister, that too many children are taken into care for inadequate reasons. The law is clear that local authorities must first consider placing a child with relatives or friends. A loving, supportive family is the best place to bring up children. The Government have always been clear that the right to permanence option—whether adoption, special guardianship, kinship care or foster care—will always depend on a child’s individual needs and circumstances. The ultimate decision to remove children from their families rests with the court.

    With regards to legal aid for private family law proceedings, we have made sure that such aid remains available for victims of domestic abuse. We have reviewed the arrangements for making legal aid available to victims of domestic abuse in private family cases, and we will announce further improvements shortly.

    We have had a fantastic debate, with contributions from my hon. Friend the Member for Fareham, the hon. Member for Strangford, my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont)—who contributed to my belief that the Conservatives should look north of the border for sensible solutions on so many things, including family law—the hon. Member for Wrexham, my hon. Friends the Members for Henley (John Howell) and for Wells, and the hon. Member for Lanark and Hamilton East (Angela Crawley). I am hopeful that we can work across the House and beyond as we continue efforts to improve the family justice system.

  • I have nothing but gratitude for all hon. Members who have contributed to this very constructive and wide-ranging debate from all parts of the country. Only Wales was not really represented.

  • Yes—my apologies. That reflects the widespread support for the subject of the debate. I am grateful for the response from the Minister and I am hopeful that we will continue the work to ensure that we get justice for families, strengthen child wellbeing and provide the context for equitable resolution in this difficult area.

    Question put and agreed to.

    Resolved,

    That this House has considered family justice reform

  • Sitting suspended.