This Bill was defeated in the UK Parliament (see here), but we have included it here to give readers an idea of the child protection system in the UK. For instance, this Bill has provisions for grandparents to be informed and to have a say in child protection cases, which tells us now even grandparents are not permitted to participate in the decisions on their grandchildren when the parents are seen to fail in the system.
We are also reproducing below the entire debate on the Bill in the House of Commons on 26 October 2012. For Indians and others outside the West who are bewildered by their child protection regimes, hardly able to believe that such a vicious State machinery was brought into being in the name of children, this debate will give some insight into how things came to such a pass, and hopefully, educate us in how to avoid the folly, not only of Western child protection, but of the wider choices we make as a society that lead us to these perverse ideas of child protection.
John Hemming Liberal Democrat, Birmingham, Yardley 9:34 am, 26th October 2012
I beg to move, That the Bill be now read a Second time.
It is indeed a privilege to propose legislation in a private Member’s Bill. When I found out, through the usual process of an immediate torrent of lobbying phone calls and e-mails, that I had the opportunity to promote the sixth private Member’s Bill this Session, I was certain about what I would like to propose. I spent some time considering it, however, and was pleased to receive an offer of assistance from Ron Bailey, who has considerable experience of private Member’s Bills and assisted me greatly in a number of ways, particularly in meetings with groups outside Parliament. I also declare an interest as chair of the Justice for Families campaign, which campaigns for improvements in this policy area.
My conclusion was to propose legislation that would improve life for children and families. I was aware that there is a serious problem with the quality of expert evidence in family court proceedings, and that therefore had to be part of the Bill. I was also aware that there are problems with the treatment of children in care, so that issue had to be included in the Bill. Additionally, I have for years been concerned about the impact of increasing energy prices on families, and that is also part of the Bill. I am concerned about how certain procedural aspects and judicial proceedings assist public authorities in covering up malfeasance by public officials, so in one sense, this Bill could be called the “No more cover-ups Bill”.
When I tabled the name and short title of the Bill, I was unaware of events and issues that have arisen over the summer and make the urgency of this Bill much greater, and I will come to those points later.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
Does my hon. Friend agree that in putting together three elements in the Bill, he seeks to use this opportunity to get three bites of the cherry?
John Hemming Liberal Democrat, Birmingham, Yardley
This is about justice for families in the wider sense. Our society should be based on making life better for families in this country, and making people’s lives easier through better judicial proceedings, fewer cover-ups and cheaper energy bills is all about justice for families.
Over the summer, I worked mainly outside Parliament to consult bodies interested in these matters. As a result of those consultations, I aimed to compromise and ensure that, in a very contentious area, my Bill had support from a broad swathe of opinion. That I have managed to do; the only collective group set in opposition is the Association of Directors of Children’s Services.
Nadine Dorries Conservative, Mid Bedfordshire
May I back the hon. Gentleman on that point? Mothers across my constituency have asked me specifically to support this Bill because they feel that it contains the measures they need to help them through the court system.
John Hemming Liberal Democrat, Birmingham, Yardley
I thank the hon. Lady for that support. Many people wish to see the Bill proceed, and the Association of Directors of Children’s Services is the only collective body I know of that is opposed to it.
The group 4Children said that it supports many of the aims of the Bill, in particular the emphasis on the role of the extended family in supporting vulnerable children and children in care. It stated:
“Our family commission in 2010 called for all families facing family court proceedings to be offered a family group conference, so we warmly welcome in particular the provisions in part 1 of the Bill.”
The British Association of Social Workers said that, although it will not support the Bill formally, most elements relate to good practice, and we have made changes following consultation with it. I have also spoken with the Government who, even if the House gives its assent to Second Reading today, remain in control of the Bill’s progression. For a Bill Committee to meet will require a motion tabled by the Government.
Tobias Ellwood Conservative, Bournemouth East
The hon. Gentleman has mentioned a number of organisations that support his Bill. He named one group that does not, but did not say why. For reasons of clarity and inclusivity, will he elaborate on why that group has concerns about the Bill?
John Hemming Liberal Democrat, Birmingham, Yardley
I circulated a copy of a letter from the Association of Directors of Children’s Services that stated merely that it opposed the Bill although did not explain why. I have provided all its reasons for opposing the Bill—perhaps it will give me other reasons. One aspect that would cause concern is the independent scrutiny of children in care that is built into the provisions, but the association has not explained why it opposes the Bill. I circulated a copy of its letter to all Members, and I would be happy to read that out if the hon. Gentleman would like me to do so.
Tobias Ellwood Conservative, Bournemouth East
indicated dissent .
John Hemming Liberal Democrat, Birmingham, Yardley
No—the hon. Gentleman is quite happy. This is a contentious area, and it is challenging to find a measure that will take the issue forward without any stakeholder raising a major concern. The Bill is substantially supported by the people to whom things are done—the children and the families—but the people in overall control, the directors, are not so enthusiastic about it, but they will not explain why.
I have always said to the Government that I am willing to compromise on the details of the Bill. I am sure that the Government agree with me on the objectives, and some of the clauses have been deliberately phrased to facilitate improvement in Committee, because that is where we need to work on the details of how to deal with the issues in the Bill. As is often the case, there are siren voices in Whitehall calling for delay and suggesting that everything could be dealt with in a later Bill. That implies that there is no urgency and gives the impression of a bureaucratic machine attempting to repel all boarders on the basis of “not invented here” syndrome. Is that an adequate reason to prevent the progress of the Bill?
The previous Government, admittedly of a different hue, made attempts to deal with the issue of transparency in 2005 and in 2009. Although those changes—made through statutory instruments—made improvements, they were not adequate and problems remain. The creation of the independent reviewing officer has not protected children in care well enough. The problem is essentially that an employee of a local authority is not independent of the local authority. Whitehall still does not recognise the managerial conflicts of interest to which employees of public agencies are subject.
The question for the House and the Government is why now. Why not listen to the siren voices calling for delay and the Sir Humphreys calling for the Bill to be exterminated on Second Reading? Earlier this year, Professor Jane Ireland’s study of expert evidence raised concerns about the quality of psychological reports in two thirds of family court proceedings. However, things have moved on.
During the summer, the Slovak Republic became officially concerned about the way in which Slovak citizens had been treated by the English and Welsh family courts. On 23 August, a statement was published on the Slovak Justice Ministry website which, translated by Google Translate, is headed, “Declaration on adoptions case of Slovak children without the relevant reasons in the UK”. The key to this declaration, according to JUDr Marica Pirošíková, who is the Slovak Republic’s representative at the European Court of Human Rights, and to JUDr Andrea Císorová, who heads up the central authority in the Slovak Republic—their equivalent of our Official Solicitor—is that the decisions to forcibly adopt Slovak children, who are Slovak citizens, living in the UK away from their families, are illegal. In case hon. Members do not know, JUDr is the abbreviation for doctor of law for Slovak citizens. The Slovak ambassador has also expressed his concerns to me, and I have been told that the Slovak Republic has identified 40 cases in the English courts, involving 89 children, in which it is unhappy with the lawfulness of the process.
It is worth spending a little time to explain how all of this works. Under the international conventions on child protection—the Hague convention and Brussels II bis—the courts in the area in which a family is habitually resident are the courts that have jurisdiction in respect of the laws for child protection. England is out on a limb in comparison with the rest of Europe in having a child protection system in which the most likely outcome for a child under five leaving care is to be adopted. In the year to 31 March 2011, 5,200 children under five left care in England, 1,900 were adopted, 1,110 were subject to residency orders or a special guardianship order and only 1,100 returned to their parents. That is a substantial shift from 1995, when it was the norm for children to return to their parents. There is no sense arguing about the merits of that at this point. The key to the transparency aspect of the Bill is to ensure that there is greater academic scrutiny of the merits of such decision making, which, essentially, is absent at the moment.
Over the summer, we have had a change in that the Slovak Government have publicly expressed concern about 40 cases, involving 89 children, but they are not the only Government to be concerned. Justice for Families has recently had contact with Hungary, the Czech Republic and Latvia about cases. Two weeks ago, a case was reported from Haringey in the London-based newspaper Polish Express, obviously in Polish. This case has all the symptoms of similar Slovak cases and I would not be surprised if the Polish Government became involved in the near future.
Yesterday I received a letter from Isil Gachet, who is the director of the office of the commissioner for human rights in the Council of Europe. It refers to concerns raised with the commission about the process for the placement of children for adoption in the UK. The key part of it is that the commissioner for human rights, Mr Nils Muižnieks, had received information from various sources on this case. It states:
“The Office of the Commissioner is therefore closely following on the situation regarding the placement of children and adoptions in the UK. However, I would like to stress that the Commissioner’s mandate excludes the possibility for him to investigate into specific cases.”
It also draws attention to an inquiry on human rights and family courts by the Council of Europe.
If the Government seriously wish to argue that there is no urgency in introducing greater academic scrutiny in family court proceedings, they need to explain how they can ignore—
Tobias Ellwood Conservative, Bournemouth East
I am following the hon. Gentleman’s argument carefully. He started by mentioning the “not invented here” syndrome, which I have also come across and which is very frustrating, but is he aware of what the Government are doing? The Minister may wish to intervene later to confirm this, but I understand that in January the Government are planning to look at provision for families and children in the law courts. Has the hon. Gentleman taken that into account?
John Hemming Liberal Democrat, Birmingham, Yardley
I accept that the Government are progressing issues. To be fair, I have been working on these proposals with bodies outside Parliament, so I have not gone into the minute details of the Government’s proposals. My concern comes back to the issue of academic scrutiny, although other aspects come into it as well. I wish to see progress in this area, but I am not too bothered about how we achieve that. I would prefer it if the Bill were considered in Committee. If a lot of the clauses are dropped in Committee because that seems appropriate, so be it. What is important is that we achieve the outcome of a reliable judicial system with decisions taken on the basis of the best academic knowledge available at the time. That is not what we have at the moment. It is the outcome I am focused on—getting a better system—and I am not particularly bothered about how we do that.
If the Government are to oppose the Bill, they need to explain how they can ignore the serious concerns of other countries. In June, we were aware of the maltreatment of girls in care and the prosecutions that had resulted. However, the true enormity of the magnitude of abuse of children in care over many decades, not all by Savile, had not been revealed at that point. I was personally aware of the cover-up at Haut de la Garenne, and I highlighted that in September when I referred to the banning of the US journalist, Leah McGrath Goodman, who had been excluded from the UK in an attempt to stop her reporting on the saga at Haut de la Garenne. I did not, however, know exactly what had been covered up. The Government may try to argue that the existence of the independent reviewing officer means that there is no urgency about making any changes. However, the cases in Rochdale and Rotherham, as well as the case of the children in A and S v. Lancashire County Council, demonstrates clearly that the existence of an employee of a local authority who is called “an independent reviewing officer” is not sufficient to protect children from abuse while under state control. Can we really accept that there is no urgent need to ensure that children in care are listened to? The recent report from the children’s rights commissioner revealed that children in care had been running away—and one was living in a cave—because they had not been listened to.
A further issue, which has arisen since June, is the revelation of the cover-up at Hillsborough. I would not claim that the Bill would definitely have prevented that: however, the provisions on judicial review will make it easier for more ordinary people to ensure that public authorities do what Parliament has said they should do and facilitate the revelation of cover-ups at an earlier stage. Making it an offence to threaten and prevent people from talking to regulators or elected representatives would help to prevent cover-ups, many of which succeed because people are intimidated into not reporting things to the appropriate authorities.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
We understand that more public figures are to be questioned in the wake of the Jimmy Savile scandal. Does my hon. Friend agree that his Bill might have been a great help in this instance? Had it been around, the children might have been listened to, not punished for reporting the abuse?
John Hemming Liberal Democrat, Birmingham, Yardley
Indeed, some of the children were punished for complaining; that is the scandal. If one aspect of the Bill would prevent cover-ups, it is the part that would make it an offence to punish or threaten somebody to prevent them from talking to their MP or going to the police. In America, that is an offence, but in England it is not, and that allows bullies to use all sorts of techniques to prevent people from complaining.
We should protect people’s right to complain. Interestingly, a key clause in the first amendment to the US constitution is the right to petition all aspects of the state. It means that the courts cannot prevent people from talking to elected representatives. That sort of provision is perhaps in article 5 of the Bill of Rights, but we do not really enforce it in law. We have many situations in which people are intimidated in an attempt to prevent them from complaining. Yes, some complaints are wrong, but it should be for the police to decide if a report is wrong, not for somebody else to decide to punish children for complaining about their maltreatment.
Nadine Dorries Conservative, Mid Bedfordshire
Does the hon. Gentleman agree that large organisations, as we have seen recently with the BBC and various parts of the NHS, breed a culture almost of intimidation? We have seen the problems that whistleblowers have, and we have seen it in other areas too. Big organisations, particularly those belonging to the state and Government, seem to breed this culture of intimidation to prevent people from protesting.
John Hemming Liberal Democrat, Birmingham, Yardley
That is very true. If Parliament wishes its laws to be enforced, it needs to protect people who want them implemented, but at the moment we do not so. We have seen it with the Savile saga, but that is not unique. Let us remember all the bullying and threatening that went on to cover up Hillsborough. That is another example of a cover-up that succeeded in part through intimidating people.
Jim Cunningham Labour, Coventry South
I support the hon. Gentleman. We had a case some years ago—I will not go into it now, because this is an intervention—involving the NHS in Coventry and a doctor who was a whistleblower. The whole thing ended up in court, and he is still suspended.
John Hemming Liberal Democrat, Birmingham, Yardley
That is the problem. Unless we allow people to complain and we protect people’s right to complain, the rule of law cannot apply, because we do not know that somebody has infringed the law. This applies in all areas.
If the Government decide to knock out all but one of the clauses, leaving only protecting the right to complain, that will be progress. There are many clauses, but they do not all have to go through. I would like a lot of them to progress, but, at the end of the day, the Government are in control. There is no doubt about that. If we keep only one, however, let it be the one about the right to complain, protecting whistleblowers, preventing cover-ups and protecting children who complain. These children were not only ignored but punished—their punishment was only the withdrawal of privileges, but still that cannot be right. Parliament cannot tolerate such a thing.
Nadine Dorries Conservative, Mid Bedfordshire
It is true that children who complain must be protected, but we are not only talking about the removal of privileges from children. Adults can lose their jobs, livelihoods, careers and homes, if they decide to do the right thing, take the higher moral ground and complain. Their punishment prevents others from coming forward, and that is how the culture grows and the cover-ups happen.
John Hemming Liberal Democrat, Birmingham, Yardley
The hon. Lady is exactly right, and we almost endorse that by our laxness in protecting people with valid grievances.
Philip Davies Conservative, Shipley
The hon. Gentleman, who raises some important issues, said that his Bill contained many clauses but that he was not particularly bothered which ones went forward. Why is energy efficiency part of the Bill? I do not know whether he was after the world record for a piece of legislation with the widest scope, but what on earth does energy efficiency have to do with all these important issues?
John Hemming Liberal Democrat, Birmingham, Yardley
It is about improving the quality of life for families, and it fits within the short and long title of the Bill. We are here to improve the quality of life for families. I think of the Longitude Act 1714, when Parliament took action to encourage innovation that produced all the work of the Royal Observatory. That is a good example of how Parliament can improve things. I do not think that anyone will disagree that reducing families’ energy bills will improve life for families, and that is what the Bill is about. I will come to that in more detail later, however.
Philip Davies Conservative, Shipley
To help the hon. Gentleman, I was wondering whether it would be in his best interests to focus on what he felt was most important in the Bill, which presumably is the stuff he is talking about now, rather than spraying far more widely and possibly running into trouble in Committee and on Report.
John Hemming Liberal Democrat, Birmingham, Yardley
I accept the hon. Gentleman’s point that on Report it might be quite challenging, because people might wish to stop the whole Bill in order to stop certain aspects of it, but that is a decision for later. As it stands, the Bill contains many useful clauses, all of which would achieve positive things for families and people in this country. I would like them all to progress on to the statute book, but I am realistic and will have to work with the Government. I will also need the House’s support on Report, because without that the Bill will not get on to the statute book. I have to be realistic about that. The clauses are in the Bill, however, because they are good clauses for families in this country.
I was talking about Hillsborough. The siren voices of Whitehall should not be listened to. Action is needed now. The Bill cannot progress after Second Reading without the Government’s support, so they should not fear its progressing beyond today. I am happy to work with them and to compromise in order to improve the lives of children and families, but we must start now.
The Bill has three parts, which at first sight might appear different but which all have an underlying philosophy centred on the word “justice”. The general theme and overall purpose of the Bill is to help ensure justice in three areas: in the family justice system, which includes the Court of Protection; in related areas where there are injustices that need to be dealt with; and for families who suffer the injustice of cold homes and fuel poverty.
Part 1 concerns the family justice system and the work of children’s services authorities and related matters. The interim report of the family justice panel found in 2011 that the system was not working and that it had identified much the same problems as the previous seven reviews of family justice carried out since 1989. The House of Commons Justice Committee reported on 14 July last year and spoke of its doubt about the current system’s ability to cope with future challenges. Both the Munro review of child protection published last May and the final report of the family justice review published last November highlighted the need for urgent reform. The latter said:
“We found general agreement with our diagnosis: a system that is not a system”.
A clause-by-clause explanation of the Bill will illustrate some of the improvements to the system that it seeks to make.
Clause 1 deals with the point at which most families will commence contact with the family justice system or their local children’s services authority. This will currently be at a case conference or, more accurately, a child protection conference—a meeting of professionals who decide what steps the local authority should take in respect of a child who might be deemed at risk. However, children, if old enough, and their families might be excluded from the meeting or might not see the reports being discussed, so decisions may be taken without their input. This means that the meeting will not have as much information as possible when making difficult decisions, such as to take children into care.
Another practice, called family group conferencing, is now developing. This approach involves the children, where old enough, the families and, where appropriate, the wider families, and it has widespread support in the social work and child care fields.
In evidence to the family justice review, the British Association of Social Workers said:
“Some aspects of the Public Law Outline have also helped to promote more positive engagement with families (i.e. there has been increased use of Family Group Conferences which can be very effective in empowering of families if used appropriately and practitioners have received the necessary training to equip them to undertake this work). These reach out to engage in a way that says to families, ‘you have the knowledge and expertise, we want to work with you to make things better for you and your family’. There should be increased roll-out of this approach. It requires very little adjustment in terms of skills, but it does require a different attitude/values set.”
Barnardo’s told the House of Commons Justice Committee inquiry into the operation of family courts that a
“better option” is
“a requirement to have family group conferencing…our experience of one” such service
“was that for 27 families for whom care proceedings were considered none of those children went into care.”
Page 93 of the Justice Committee’s report concluded:
“We were very impressed by the account of Family Group Conferences in Liverpool. It is a matter of regret that a service with an apparent 100% success rate is being cut back.”
Subsections (1) to (3) of clause 1, while not abolishing child protection conferences, as they may be deemed necessary at times, establishes as the norm the wholly different approach of a family group conference by requiring that families are offered such a facility. A family group conference is defined as
“a family-led decision-making meeting, convened by an independent co-ordinator…in which a plan for the child is made by the family, involving the child (if old enough), the parents, and potentially extended family members and friends which addresses any concerns about the child’s future safety and welfare”.
Subsection (2) then gives the family six weeks to come up with a family plan for the child, and this is submitted to the children’s services authority, which has to approve or disapprove it. In the latter situation, under subsection (3), the children’s services authority is required to “try to reach agreement” with the family on a revised plan. If this is not possible, the view of the children’s services authority will prevail, but pursuant to subsection (4) the child or the family can appeal that decision to the scrutiny committee of the local authority.
This is in line with the view of the former children’s Minister, Tim Loughton, who told the Education Select Committee on 12 June this year:
“This is particularly important when it comes to adoption proceedings and other forms of permanence, where…the consequences are far reaching. I am…conscious…as to what further safeguards we might…institute…a sort of appeals mechanism.”
Subsection (6) provides for emergencies by stating that the children’s services authority is not under an obligation to offer a family group conference
“in the event of emergency action being required to protect a child”.
Subsection (5) deals with the provision of information to children and families. Since 1999, Government practice guidelines for children’s authorities, entitled “Working Together”, state that
“the local authority has a responsibility to make sure children and adults have all the information they require to help them understand the processes that are followed when there are concerns about a child’s welfare.”
In practice, this may not be happening. According to page 5 of the Norgrove family justice review of November 2011:
“Children and adults are often confused about what is happening to them. The need to address this will rise.”
Page 4 of the Adoption UK response to the family justice review states:
“From the perspective of adopted families Adoption UK often hears of limited information and explanation being provided to families about what will be happening and why.”
Paragraph 2.26 of the Munro review of child protection states that families
“are confused…and they don’t understand the processes”.
Gingerbread’s evidence to the Justice Committee, reported under question 78, on 25 January 2011 was:
“We surveyed about 453 single parents…over half found the system dreadful and poor; about 73% find it difficult to navigate.”
The House of Commons Justice Committee investigated in some detail the need for guidance to be given, especially because of the increasing number of litigants in person. It reported the unanimous view of judges that this slowed things down, thus causing severe wastage of court time, and so concluded:
“This will require guidance to be developed to accommodate the challenges posed by a larger number of litigants in person.”
Subsection (5) of clause 1 deals with this matter by requiring:
“Any child or parents or other relatives of the child attending a Family Group Conference must be given in advance a publication explaining the childcare system and how it may affect them in the future and referred to an independent advice and advocacy organisation.”
We recognise that in these difficult times the cost implications are important, and in this regard, I draw attention to the words of the BASW quoted earlier:
“It requires very little adjustment in terms of skills, but it does require a different attitude/values set.’
As regards the staffing impact, the results of the family group conference approach, quoted by Barnardo’s, are also relevant: no children were taken into care, so less spending of money resulted.
The Munro inquiry highlighted a report from Oxfordshire county council children’s services authority:
“These types of evidence-based programmes are expensive to set up but there is increasing evidence that, by avoiding the need for looked after children to move to more intensive and expensive placements, they not only provide better outcomes for children and young people, but are cost effective…Collectively in Oxfordshire, these intensive programmes have contributed to lower than average numbers of Looked After Children and resulted in identifiable savings within the existing Children and Young People’s budget. They have helped to address general recruitment issues for foster carers, resulting in an 11 per cent rise in fostering. All types of carers (including foster carers and adopters), have reported improved levels of support, resulting in improved long term stability (67-75% in 2009/10), reduced adoption breakdowns and quantifiable savings in excess of £400,000.”
Nadine Dorries Conservative, Mid Bedfordshire
I would like refer to his comments about the importance of making information available to those going through the system. I can quote a constituency case, although not a name, of parents and adoptive parents being told during the process of contact with the previous family not to miss a contact session because they will not get their placement and the child might be taken from them. It is important that parents, adoptive parents and foster parents have something in writing—in an easy to understand way—about what exactly to expect from the system, so that when this culture of slight intimidation or bullying kicks in, they actually know what their rights are in the process.
John Hemming Liberal Democrat, Birmingham, Yardley
The hon. Lady is entirely right. One of the difficulties that sometimes arises is that people are told to do one thing at one stage, but when they have done that, they are told that it was the wrong thing to do. If things could be put in writing so that people knew what they were supposed to do, they should not then find that they are punished for sticking to it. That happens far too often. There are too many cases where people are not given adequate information.
Steven Baker Conservative, Wycombe
From the way the hon. Gentleman sets this out, it sounds as though there is a substantial element of arbitrary power. Will he reassure me that his Bill would eliminate all such areas of arbitrary power so that people could have certainty?
John Hemming Liberal Democrat, Birmingham, Yardley
The hon. Gentleman is right that there is too often an element of arbitrary power. The difficulty flows from insufficient academic scrutiny of the whole process—in other words, things are left to the discretion of individual practitioners, all of whom have their individual attitudes. When someone moves from one practitioner to another, the arbitrary power will often be exercised in a different way. I spoke about this to Professor Sue White, a professor of social work at Birmingham university. She is concerned about the change in practice that does not seem to be evidence-driven, but she is not allowed access to family court proceedings unless she is actually involved in the individual case. The ability to do proper peer-reviewed research on the decisions taken and what is happening on the ground is simply not there. The system just goes on.
I try to look at the reports from a scientific point of view, and find that some of them do not hold water. As I said, Professor Jane Ireland’s work pointed out that two-thirds of the reports she looked at were either poor or very poor, which is not adequate for the purpose of making life-changing decisions. That lack of intellectual rigour leads to arbitrary power, as the hon. Member for
Wycombe (Steve Baker) says. The introduction of intellectual rigour would make that go away and get us back to the rule of law rather than some people having massive discretion. At the moment, we do not have the rule of law setting out what should happen in these situations. That is what gives rise to many different problems in many different areas.
Nadine Dorries Conservative, Mid Bedfordshire
It is worth mentioning that the change of case worker, social worker or court worker happens frequently, so arbitrary power is exercised in a number of different ways, often resulting in huge delay, which is not in the best interest of any of the children involved in the cases.
John Hemming Liberal Democrat, Birmingham, Yardley
The hon. Lady is right. Delay does cause a problem, although speeding things up and not getting things right is another problem. The most important thing is to get things right. When that has happened, that is the time to do things reasonably quickly.
I now return to the Bill and look beyond the issue of family group conferences. Clause 2 looks at the wider issue of scrutiny—academic scrutiny and the like—to which I have just referred. One issue is that of people having other people with them. McKenzie friends are generally allowed to attend court, but it can be a very intimidating process for families. If a young mother is not allowed to take her own mother to court with her for support, the court will not be a very good environment.
A case in, I believe, Finchley involved a Czech family, but the court would not allow a representative of the Czech embassy to attend the court hearing. That strikes me as very strange. Given that it is possible for a person to talk confidentially to almost anyone and ask for advice, why is it not possible for one or two people to sit with that person in court? It would make the whole process more effective, because it would provide psychological support.
Family courts sit in secret. It is generally accepted that anonymity is required, and that demands a certain amount of secrecy. It is not possible for the newspapers to publish all the details of a case. It is true that one of the Slovak cases is being discussed publicly on prime-time television in the Slovak Republic, but if it were on YouTube, YouTube would be subject to a court order to prevent the television programme from being seen in England. I think that the principle of anonymity is reasonable, but beyond that, dangers arise. The lack of academic scrutiny, which I mentioned earlier, is critical.
Steven Baker Conservative, Wycombe
It seems to me that it is not necessary to have secrecy in order to have anonymity. Does the hon. Gentleman propose any measures that would make it possible for the necessary information to be available to academics, so that trials would not be secret but anonymity would be protected?
John Hemming Liberal Democrat, Birmingham, Yardley
That is the purpose of clause 2(2), which allows academic research to be involved in family court proceedings. The former children’s Minister said that we needed more transparency in the courts, and the National Society for the Prevention of Cruelty to Children has said that it supports efforts to make the family courts more transparent if they do not make it more likely that children will be identified. The Bill achieves that sort of balance.
Proceedings in the family court can be daunting and intimidating for people taking part in them. The report of the recent family justice review by Professor Norgrove found that
“the common complaint” was
“that the courts are daunting and intimidating places for families”.
Detailed research by the London Safeguarding Children Board established that when families arrive in court to see a large number of lawyers and professionals lined up,
“professionals need to understand how intimidating it is”
for parents
“to be so ‘outnumbered’.”
Clause 2(1) permits parties to have two friends with them to support, advise or advocate on their behalf. In fact, only one of them, the McKenzie friend, will advocate, and obviously if a lawyer is present a lay person will not be required. Much of the evidence that I cited in relation to clause 1(5), including the conclusions of the Justice Committee, demonstrates the need for that.
Clause 2(1) also ensures that the confidentiality of the proceedings is maintained by making the two friends subject to the same confidentiality rule as the party to the proceedings. The protection already exists; the Bill merely provides for someone to be present to offer support—not necessarily to advocate or offer advice, but simply to be there. That is important. Why should a young mother, aged 19 and threatened with the removal of her child, go to court alone? Why can we not allow her mother to go with her? What is wrong with allowing her mother to sit next to her? What is wrong with allowing a representative from the Czech to accompany a Czech citizen to court? Why do we allow so few people to go there?
Clause 2 (2) deals with accountability by permitting the involvement of bona fide academic research in proceedings in the family courts. The Justice Committee concluded that, while family courts sit in private to protect the anonymity of children,
“there is a danger that justice in secret could allow injustice to children”.
That point was made by Professor Jane Ireland, who carried out research on the quality of expert evidence used in the courts. Her study showed that there was a risk of injustice because one fifth of expert psychologists were not deemed qualified, and two thirds of the reports reviewed were “poor” or “very poor”.
In a recent case in the Court of Appeal, it was ordered that a child should be removed from his family on the basis of incorrect evidence concerning his injuries. The Principal Registry of the Family Division ordered that the toddler be returned to his parents after it was established that he was vitamin D and calcium deficient and had undiagnosed rickets. The issue of vitamin D is very relevant. An excellent firm of solicitors in Birmingham, Brendan Fleming, has helped to identify about eight vitamin D-related cases in which miscarriages of justice are likely to have occurred. It is probable that children have been removed from their parents because mum had a vitamin D deficiency and was breastfeeding at the time. It is currently contempt of court to allow an expert medical person to look at all the documents and write peer-reviewed reports. Why is that? How does preventing the more intelligent people from reviewing the paperwork improve justice?
Subsection (2) also recognises the need to keep proceedings confidential, stating that
“any publication of the research removes all identifying details and… it shall be a contempt of court for any person receiving or publishing information pursuant to this section to reveal the identity of any person whose details he has received.”
The Bill protects anonymity while ensuring that there is an intellectual challenge, and that is surely a massive improvement.
Clause 2(3) relates to grandparents and other wider family members of the child. Subsection (3)(a) enables such people to attend the part of a hearing that involves consideration of whether the child should be placed with them. Currently, a court will decide not to place a child with a grandparent when that grandparent is not present. There has been a great deal of debate about whether grandparents should be allowed to be party to court hearings. The problem is the huge amount of paperwork, which creates a massive burden. However, merely allowing grandparents to be present and to participate in discussion of whether or not they would be adequate carers for their grandchildren would not pose a major problem, and would allow any erroneous concern about their ability to look after the children to be corrected at that point rather than being dealt with on the basis of a report written by a representative of the local authority.
Nadine Dorries Conservative, Mid Bedfordshire
In the event of a crisis, children are often placed with their grandparents in the immediate instance, and the grandparents then find that they are not allowed to participate in the court process that leads to a decision on the child’s future.
John Hemming Liberal Democrat, Birmingham, Yardley
Exactly. I understand the reasoning behind not allowing everyone to be a party, and then lawyers being a party, and so forth. However, not allowing a child’s grandparents to be in the courtroom and answer questions about the problems of looking after that child cannot be right. It cannot achieve anything for the child. Ultimately, we should be focusing on the children and what is best for them. In most cases, it is far better for children to be cared for by their grandparents than to be placed with foster carers. In practice, children are often cared by their grandparents as part of normal life. That is not deemed to be in any way exceptional.
Nadine Dorries Conservative, Mid Bedfordshire
The hon. Gentleman is being incredibly generous in giving way.
One of the problems, and the reason why so many grandparents have to go to court, is the fact that they are not recognised in the benefits system. Foster parents receive far more financial help, as indeed do parents. The grandparents have to go to court in order to attempt to qualify for such help, and, as the hon. Gentleman says, they are prevented from giving any information about the child during the process.
John Hemming Liberal Democrat, Birmingham, Yardley
Kinship caring happens anyway without state funding, but it is much cheaper than foster care at £800 a week, as well as being generally better for the child’s identity in the long run because the child remains within the wider family. Clause 2(3)(b) relates to grandparents who have a long-term involvement with their grandchildren and have information that can assist the court, which is a slightly different pattern.
Subsection (3) recognises that children may be inhibited from giving evidence in front of certain people. It therefore provides that a judge may exclude the grandparents from the part of the proceedings in which the child is giving evidence if, in the judge’s opinion, their presence would inhibit the child. Obviously, there are difficult circumstances in which such discretion is needed.
Subsection (4) allows grandparents to have
“direct and indirect contact with their grandchildren if the child so wishes without this contact being supervised” unless that is not in the best interests of the child. That is intended to rectify a problem that has been highlighted by many grandparents.
In their response to the Norgrove review of family justice, the coalition Government said that
“a child’s ongoing relationships with their grandparents and wider family members should be considered when making arrangements for a child’s future.
The Government supports the Review’s recommendation that the importance of relationships children have with other family members should be emphasised”.
The Conservative older people election manifesto 2010 promised to:
“Reform family law to provide greater access rights to grandparents when families break up…
“Grandparents should be one of the first ports of call when a child needs to be taken into care, but at the moment they are not…We will change that”.
That has not been done yet. Labour’s 2010 manifesto stated:
“we will ensure that grandparents and other family members are always given first consideration for adoption or fostering.”
All I am proposing is that they are part of that decision, so if it is suggested that the child should not be placed with them they will be allowed to argue with that proposal and explain where any misunderstanding may exist.
Subsection (5) proposes to amend the Children Act 1989 to require that children taken into care by their local authority are placed near their home, unless that
“is not in the interest of the welfare of the child”.
It does so because of the plethora of evidence showing that placing children far from their home puts them in greater danger. A London Evening Standard report on 12 September said:
“The Standard today exposes the scandal of London children being ‘exported’ to care homes across the country where they are at increased risk of abuse.
Almost two thirds of youngsters taken into care are sent outside their borough and…maltreated and introduced to drugs.”
It goes on to say that police warn that this places the children “in greater danger”.
BBC Radio 4’s “The Report” programme said on 31 May:
“The leader of Rochdale Council says children should no longer be sent to care homes in the borough because their safety ‘is not being guaranteed’.
There are 41 children’s homes in Rochdale, which house vulnerable children from all over England.”
It also said that last year
“an inquiry into Lancashire’s 101 children’s homes…found the council and the police had little knowledge of some of the…homes…It also estimated 21,000 children…were being cared for in areas outside their home local authority.”
It reported Councillor Steen’s view that
“placing vulnerable girls, who are susceptible to grooming, so far away from home, can lead to them” becoming
“‘invisible…so they cannot be monitored or helped.’”
In May this year, a joint inquiry by the all-party group on runaway and missing children and adults and the all-party group on looked after children and care leavers called for urgent action to be taken to reduce that practice of sending children far away from their original areas. Subsection (5) provides that urgent action.
Nadine Dorries Conservative, Mid Bedfordshire
The hon. Gentleman is talking about vulnerable children in care who become invisible and are susceptible to grooming. They not only become invisible, but they lose the networks that they could turn to for support and disclose things to. These children are away from their family, friends, teachers, school, neighbours and community, so even if there may have been somebody to whom they could disclose that grooming was taking place, they have been completely taken away from that comfort zone.
John Hemming Liberal Democrat, Birmingham, Yardley
I agree entirely with what the hon. Lady says about the networks issue. There are so many reasons why this is wrong, but it happens. Urgent action has been called for to fix it, and the Bill provides that.
That leads me successfully to clause 3, which deals with the issue of children in care. We all now know, and it is becoming increasingly obvious on a daily basis, that children in care are not safe. There are always going to be children in care homes, but they are not safe. At the moment, the independent reviewing officer is actually an employee of the local authority. We have talked about how public bodies have a bullying management style, and people are often pressurised. We have talked about how whistleblowers are not protected—the independent reviewing officer’s job is to be a whistleblower in a culture that reacts against whistleblowers.
Clause 3 states that
“if a child in the care of an authority has made a complaint of serious harm—
(a) that complaint shall be investigated and determined by an independent body”.
There is considerable evidence that local authorities have not investigated or have ignored complaints by children in their care.
On 24 September, The Times reported that
“confidential papers showed a decade of abuse in South Yorkshire.”
It said that
“police and child protection agencies have held extensive knowledge of this…for ten years.”
It continued:
“Girls were collected from…residential homes…in Rotherham… Internal care reports and individual case files show that countless girls were betrayed by…police and social services…Confidential documents…reveal how one young girl known by social services to have been abused…was offered classes…to engage her in education.”
It also said:
“As long ago as 1996, a social services investigation uncovered concerns that girls were being coerced into ‘child prostitution’ by…men who regularly collected them from residential care homes.”
It also stated:
“A July 2010 independent review for the Rotherham Safeguarding Children Board…described the offences as ‘child sexual exploitation at the top end of seriousness’.”
Last month, Mail Online reported that Rochdale council and police had had
“127 warnings about sex abuse”.
Its headline contained the words “gang raped dozens of children, finds damning report”.
The article continued:
“NHS warned Rochdale Borough Council…on dozens of occasions over six years about sex abuse risks”.
There are numerous other examples of this.
In the Lancashire case—A and S v. Lancashire county council—Mr Justice Jackson concluded that children in care had “suffered real, lifelong damage” but that the council’s actions
“did not come under independent scrutiny.”
Jon Fayle, chair of the National Association of Independent Reviewing Officers, told Parliament that
“the local authority cannot always be trusted to act in the child’s best interest.”
He also said that having an “independent scrutineer” is “essential”. It is also the wish of children to have an independent complaints system. As Maxine Wrigley, the chief executive of A National Voice, told Parliament:
“an independent person to help you, particularly to make a complaint…seems very important to young people.”
Subsection (4) would make it an offence to discriminate against children in care or care leavers. There is considerable evidence that such discrimination is widespread. A care leaver told us:
“I have twice lost my job when my employers have come across my upbringing, despite having more professional experience and qualifications than my managers. We are viewed as mad, bad or sad.”
Another told us:
“I lost my job and at the Employment Tribunal the barrister told them that as a result of being ex-care I would have a residual tendency to fabricate.”
In July, the current children’s Minister, Mr Timpson, launched a report by the all-party group on looked after children and care leavers. It said:
“There was also concern raised that the attitude of teachers towards children in care remains mixed, with some children being labelled as troublemakers simply because of their looked after status.”
A documentary entitled “Barriers to Employment”, made in 2010 by the young people themselves, reported:
“Young care leavers face discrimination from employers because they are stereotyped as being prone to crime”.
The Who Cares? Trust website states:
“The discrimination faced by children in care is brought to life time and time again through our interactions with young people.”
A lot of these things were raised with me by a group of professional care leavers, who had managed to succeed having left care over a number of years. One of them was Ivor Frank, who was brought up in care but is now a family court barrister. His concern was that no remedy was available for care leavers; there was no way they could adequately challenge the system.
It is worth examining what happened in the A and S case. They were two children in the care of Lancashire county council. They were known as “statutory orphans”: they had been freed for adoption before 2005 but had never been adopted. As at 31 March 2011, about 1,300 children had been freed for adoption or placed for adoption more than two years before that date without having then been adopted. If we are going to worry about the adoption of children placed for adoption, we should be examining the situation of those 1,300 statutory orphans. They have been told, “Your parents are no longer your parents” but they have not been found any other parents.
In the case of A and S, when the older boy got to be an adequate age, he found a solicitor who then acted on his behalf. We should not have to wait until these children get to 16—if the NSPCC, as advocate, feels that something is going wrong, it should be able to get an independent review and, if needs be, to take the case to court. That is why subsection (2) proposes a scheme whereby a “litigation friend” can be appointed for a child to take the issue to court. The A and S case was not looked at by the court from the time they were placed in care until about 10 years later, because nobody took it back to court to challenge the authority. An independent reviewing officer was in place, but the local authority obviously does not want to be challenged. In practice, it was concluded that human rights had been abused to the extent of not only maltreatment but the breaking of article 3—the no-torture article. There was inhumane treatment of the children when they were in care—we are not talking about before they went into care.
This issue about a remedy being available for children in care does not mean that everything has to go to court, because it is the facility for something to be taken to court that makes people respond. If the local authority feels it can just fob everyone off and ignore them, it will do so and nothing will happen. However, if the local authority knows that someone can take the matter to court if they want and the authority will be forced to deal with it, it is more likely to respond. That is why subsection (2) is important. If the Government do not like subsection (2), it can go away under statutory instrument at the point at which the Government have found a better way to deal with the issue.
There is no alternative but to have an independent mechanism by which a child can complain—potentially, the general practitioner. If the GP feels that a child in care is not being looked after adequately and there is a serious problem, the GP should be empowered to take that through a proper process that could end up in court. The difficulty with the system at the moment is the eternal question of quis custodiet ipsos custodes? The organisation responsible for the quality of care is the local council. In other words, the council is responsible both for providing the care and for monitoring its quality. We should all know that that sort of system does not work and cannot be allowed to continue.
On criminal records, children in care complain that the police are often called for things that they would not be called for if the children were not in care. A relatively recent prosecution involved a child who threw a bowl of cereal at the carer at breakfast. The real problem is that that prosecution follows the child through life. Events that would have been ignored normally end up in a criminal record for assault. When the child becomes an adult, tries to find a job, gets a Criminal Records Bureau check and is told, “You assaulted someone when you were 13,” it comes across really badly. In fact, the child might just have thrown a bowl of cereal. To be fair, that might not happen that often, but it is the sort of thing that can happen when a child is upset. People do get upset from time to time. A parent would generally not take that through the legal system.
I do not suggest in the Bill that we should force people not to take such things to court. All I am saying is that such things should not follow children through the rest of their life just because they got a bit upset when they were 13. That creates an environment where children get used to a higher level of interaction with the authorities, and that is not a good thing. So clause 3 deals with children in care.
On adoption without parental consent, clause 4 basically says that when parental consent is dispensed with for an adoption, the courts should explain why and give the reasons, because normally they do not. In section 1(4) of the Adoption and Children Act 2002, Parliament laid down legal safeguards to which the courts must have regard that include the child’s wishes, where old enough, and needs; the lifelong effect of the child’s losing contact with the birth family; the harm that the child has suffered or might suffer; the child’s relationship with their relatives and the value to the child of its continuing; the ability of the relatives to provide a secure home for the child; and the wishes of the relatives. Parliament has decreed that that must be considered by the judge, but that does not happen a lot of the time. Clause 4 would ensure that that is considered.
Dr Roger Morgan, the Children’s Rights Director for England, told Parliament that children have a strong message: always look to see whether there are family or friends. That is what children say. If a decision is to be taken to move a child from one family to another, the court should explain the basis of that decision, not just say, “We think that it’s a good idea,” which is normally what the judgments say.
On the other duties of local authorities, clause 5 basically talks about improving the relationship with grandparents and deals with the duties of local authorities and other bodies when children are in care. Although clause 5 would maintain the position established by the Children Act 1989 that the welfare of children is of paramount importance, it would also require the local authority to ensure that the child has access to and contact with both parents and grandparents, unless such contact was not in the interests of the welfare of the child.
As pointed out previously, clause 5 is in accordance with the coalition Government’s policy and in the manifestos of the Conservative and Labour parties. I would personally prefer to go further. A quite serious problem is developing with the assessment of grandparents. At times, the same assessment is used for grandparents as for foster carers. As part of the consultation, we excluded from the Bill a clause that would have said, “If the grandparents of looked-after children have looked after them adequately, do not assess them,” but I should like to see that in law. If we go round assessing everyone all the time about everything, we achieve nothing.
What often happens, as in the example given by Nadine Dorries, is that children are removed from grandparents because they have not been assessed, when in fact there is no evidence of a problem. Obviously, there are circumstances where, perhaps historically, those grandparents have a bad record of looking after children and have been subject to child protection proceedings. However, just to say simply that all grandparents need assessments is not right. Again, as part of the consultation in an attempt to make the Bill less contentious, that proposal was dropped.
On the provisions that relate to the administration of justice, these are again similar issues, some of which are dealt with by the family courts and the Court of Protection, but they are also dealt with more widely. I have previously talked about the right to report wrongdoing, but this goes beyond the whistleblowers charter; it is the business of ensuring that, for instance, the police who threaten the hon. Lady’s constituents in an attempt to stop them reporting problems to her would be committing an offence. If we wish the rule of law to apply, we cannot tolerate people being prevented from complaining. If they are prevented from doing so, the authorities do not know that the rule of law is being breached and therefore no action can be taken.
Clause 7 is one of two “no more cover-ups” clauses. Subsection (1) would ensure that people have the right to complain to regulators, whether the police or anyone else. I have encountered a number of court orders that have been purported to prevent people from complaining to regulators. In fact, notwithstanding the Family Proceedings (Amendment) (No. 2) Rules 2009 No. 857, it is still a contempt of court to report experts who are clearly talking nonsense to regulators at times. However, similar constraints have existed on reported crimes. If such orders are appealed to the Supreme Court, they are likely to be struck down, but it is quite difficult to take cases through the appellate system, hence protection is needed at a lower level.
Stephen Barclay Conservative, North East Cambridgeshire
Can the hon. Gentleman clarify the relationship with the Public Interest Disclosure Act 2010 and say why those who want to report issues to regulators are unable to do so under that Act?
John Hemming Liberal Democrat, Birmingham, Yardley
I understand the Public Interest Disclosure Act as it relates to employment proceedings and particularly to court orders whereby people are banned from reporting things to the Financial Services Authority. One of the difficulties with a court order that prevents someone from talking to someone else is that it stops not just publication but possibly the reporting of a crime.
There was a murder in Australia, and the police there concluded that, notwithstanding injunctions, they could investigate that crime, but the police here concluded that they could not do so because the case was subject to a super-injunction. The Bill deals with that situation.
I am not 100% on the Public Interest Disclosure Act, but I believe that it is mainly to do with employment proceedings.
We have a number of examples. I have had a situation where a doctor was prevented from providing evidence to the General Medical Council to demonstrate that another doctor was treating patients wrongly, because of the law of confidentiality. That cannot be right. The GMC needs to decide on the evidence that it has.
Stephen Barclay Conservative, North East Cambridgeshire
On reporting doctors to the GMC, it is very odd that, for example, the GMC does not see the complaints data held by the Department of Health or Care Quality Commission, but I think that issue is being looked at. Such things can be reported, but the legal risk would sit with the doctor. In other words, doctors are protected by PIDA in reporting to the GMC, but they are often bound by special severance clauses or other confidentiality clauses, which are covered by other litigation. Doctors are covered by patient confidentiality in other respects, not confined by PIDA, but the legal risk sits with doctors, who are often reluctant to take that legal risk.
John Hemming Liberal Democrat, Birmingham, Yardley
I accept the hon. Gentleman’s point, but I could cite a specific case. I have not got the reference on me, but I could give it to him by e-mail later if he is interested. The case involves a published judgment where the court had a court order saying that the doctor is not allowed to provide evidence to the GMC. There is a High Court order to say that that evidence must not be provided. That cannot be right. If that order got to the Supreme Court it would be struck down, but there is a problem with the appellate process and a real challenge with all these things.
Clause 7(2), perhaps the most important part of the Bill, is to prevent cover-ups. Most substantial cover-ups involve people being threatened or pressed to prevent them from complaining to regulators. That clearly happened with Hillsborough and the Savile paedophile network, where children were punished for complaining. Although details of what sort of offence should be involved needs to be left for consideration in Committee, this absolutely key change is needed. The USA already has in its criminal code elements that protect complainants from the prosecution apparatus.
On “Matters relating to court proceedings”, clause 8(1) deals with the problem that Mr Hain faced. The judiciary do at times make use of defamation law, which is entirely right, but people should not face criminal proceedings for making truthful statements about the operation of the legal system.
Clause 8(2) deals with the imprisonment of people in secret for contempt—quite a few people are in prison for contempt. The Official Solicitor is supposed to protect their interests, but nothing much seems to happen. I wrote to him and asked him, “What do you do about people who are in prison for contempt?” and he did not tell me anything—he just said, “I suppose we’re supposed to do something.”
Deborah Paul, a London mother, was imprisoned earlier this year. Those who are aware of her case believe that it was an oppressive act. There is no formal report. Although in theory the step of imprisonment is supposed to happen in open court, in practice, a court flashes into public session in the blink of an eye and goes back in camera—it might as well not bother. Clause 8(2) would protect contemnors from oppressive imprisonment and the abuse of power by the court.
Clause 8(3) would assist in dealing with cover-ups. For people to challenge public authorities, they need particularly deep pockets. The problem is the uncertainty as to what costs they face paying if they lose the application. The court has developed through the common law protection in limited circumstances. A more general application of a pre-emptive costs order would allow people to challenge bodies such as the GMC or local authorities about wrongly given planning permission without having to bet the farm. I would wish for an element of one-way cost-shifting for judicial review, but in the interests of compromise and so that progress is made, I have suggested a smaller shift towards the power of the individual against the state.
Clause 9 is on the activities of the Official Solicitor. As it stands, the Official Solicitor is accountable merely to secret court proceedings. I know of a number of cases in which people have wrongly had their mental capacity removed—they are then submitted to the decisions of the Official Solicitor. RP v. UK—I made an application to the European Court of Human Rights to assist RP and her brother—demonstrates how cataclysmic a wrongful removal of mental capacity can be. RP’s GP and a second expert have indicated that she had mental capacity and was not too stupid to instruct a solicitor, but the system—all the way through—wrongly treated her as somebody who does not have mental capacity.
In order to appeal, a party needs a transcript of the judgment. However, that is often far too difficult to obtain—I am having problems with a constituency case in that respect. The official recording is frequently lost. The simple solution to the problem would be to allow people to take their own recordings, so that they can produce their own transcript.
On clause 11—“Right to assert litigation capacity”—when somebody has been deemed too stupid to instruct a solicitor and has normally had the Official Solicitor appointed as a litigation friend, it is almost impossible to get a solicitor to act to challenge such an appointment. The clause would make it clear that someone can challenge the appointment of a litigation friend. The proposal in RP v. UK that the Official Solicitor should be asked to review the appointment did not work in the case of Lee Gilliland, a gentleman in Bristol who had his mental capacity removed because he did not trust public authorities. He found himself evicted without notice, because the Official Solicitor did not tell him he was about to be evicted.
I would happily accept in Committee that clause 12 —“Ambit of reasonableness and capacity”—is too advanced and progressive for the English system, but it is worth considering. It would make the lives of those who have limited capacity much better. It is based on a clause from a province of Canada that tries to limit the controls exercised on people who are deemed not to have capacity. I am particularly concerned about the imprisonment of people using mental capacity. The deprivation of liberty safeguards are clearly inadequate in that they are overwhelmingly subject to conflicts of interest. I remain concerned about a constituent who was, in my view, wrongly imprisoned using that mechanism in order to prevent the investigation of a crime. However, the issue needs detailed consideration in Committee.
Nadine Dorries Conservative, Mid Bedfordshire
Given that there are court transcribers, one would assume that anybody attending the court would have a right to the transcription when a judgment has been passed in their case. Not only is it not possible always to get a transcription, but when it is possible, it takes a considerable length of time. In that considerable length of time, the appeal is in abeyance and kept waiting—it cannot be lodged.
John Hemming Liberal Democrat, Birmingham, Yardley
The hon. Lady is entirely accurate, but in addition, the tape recording gets lost.
Nadine Dorries Conservative, Mid Bedfordshire
Conveniently.
John Hemming Liberal Democrat, Birmingham, Yardley
Whether it is convenient or not, the fact that the tape recording is lost does not help the process.
In part 3, clauses 13 and 14 aim to reduce fuel bills by being more efficient. When I visited the Royal Observatory in Greenwich, I was impressed by the efforts of Parliament in the 18th century to encourage the development of advanced timekeeping technology in the Longitude Act 1714. That was an early demonstration that Parliament can, through statute, achieve positive outcomes in the development of technology. As someone whose academic qualifications are in science—my first degree is an MA from Magdalen college, Oxford, but I specialised in atomic, nuclear and theoretical physics—I sometimes feel that the physical laws are treated as insufficiently important in the public sphere. I take the view that the laws of physics will always trump the laws of economics, and do not understand a reality in which that is not true.
Two key laws are relevant to energy policy—one is the law of conservation of energy, which is also known as the first law of thermodynamics, and the other is the second law of thermodynamics. The first law says that we cannot get any more energy out of a system than we put in. If we take the chemical energy in a hydrocarbon such as methane, ethane or propane, and oxidise or burn it, no more energy can come out than goes in. We can get a mixture of energy out. We could get a physical force such as torsion to provide motive force, or electricity plus heat, or just heat—and, of course, any residual chemical energy.
Of the second law, Lord Kelvin says:
“It is impossible, by means of inanimate material agency, to derive mechanical effect from any portion of matter by cooling it below the temperature of the coldest of the surrounding objects.”
That means that there is a limit to how much work, such as torsion, can be obtained by burning a fossil fuel or other hydrocarbon. The rest of the energy goes as heat. Interestingly, the maximum efficiency of an ideal heat engine—the Carnot cycle—is calculated as the ratio of temperatures in degrees Kelvin.
The combined-cycle gas turbines that we use for a lot of electricity generation manage an efficiency of 55% in generating electricity and 45% in producing heat by having two heat engines running in series. Attempts are made to make use of the waste energy from power generation by combined heat and power schemes by circulating hot water. Clause 13 develops a strategy for smaller-scale combined heat and power schemes, so that more like 90% to 95% of the chemical energy in the gas can be effectively used, rather than the current maximum, which is more like 50%, particularly when transmission losses are taken into account.
The Bill also involves passive flue gas, which is another step in converting more of the chemical energy into heat for warming water rather than its going out into the air. Clearly, therefore, if we get almost twice as much useful energy from the energy source, over time, we would reduce energy bills by around half, which is a good outcome for families and fuel justice. The economic models that have been issued show that there is no cost to the public purse. If implemented properly, the measure would simply achieve a result. The aggregate cut of energy bills from the use of passive flue gas would work out at about £1 billion a year for the whole country, which is a substantial saving for families and an improvement in fuel justice. All those measures are cost-effective for the consumer and the taxpayer.
However, it is important that a critical mass is created so that the market can make appropriate investments in technology. If we manage to halve energy bills and reduce the winter heating bill, we would reduce fuel poverty. The mechanism improves fuel justice for families.
Stephen Barclay Conservative, North East Cambridgeshire
The hon. Gentleman makes an important point on using energy more efficiently rather than simply producing more of it, but the Liberal Democrats are pushing hard for some of the most costly forms of renewable energy production. Does he support a greater subsidy for better energy usage as opposed to such a large subsidy for production?
John Bercow Chair, Speaker’s Committee for the Independent Parliamentary Standards Authority, Chair, Speaker’s Committee on the Electoral Commission, Speaker of the House of Commons
Order. May I just say to John Hemming that his dilation on these matters so far has been dazzling? We are all seeking to come to terms with the intellectual ferocity that he has deployed. In responding to that intervention, I hope he will not stray too far away from the core of his most interesting Bill.
John Hemming Liberal Democrat, Birmingham, Yardley
I shall follow your guidance, Mr Speaker. We have strayed quite substantially from the Bill, because it does not propose any subsidies. It merely says that we should, through statute, guidance and regulation, improve efficiency. That does not require Government funding or subsidy; it can be entirely funded through the private sector. There is no debate about subsidy because none is proposed.
Tobias Ellwood Conservative, Bournemouth East
In response to your guidance, Mr Speaker, I shall try to be more specific. Britain has lagged behind other European countries in the level of insulation in our dwellings and seeking to improve it is an honourable pursuit. However, I am confused by the fact that the hon. Gentleman is pursuing code level 6 insulation when the Government’s target is code level 3. Code level 6 is clearly higher, but would add an additional cost of about £30,000 to any dwelling that will have to come from somewhere—for example, from the local authority or the Government. Why is he saying code level 6 when the Government are saying code level 3?
John Hemming Liberal Democrat, Birmingham, Yardley
The idea is to move in that direction over time. In Committee, I might accept that we could stick with the Government’s limited objectives—[ Interruption. ] Yes, without subsidy. The key objective is to do this without a subsidy. The Bill does not require additional public funding; its aim is to improve the lives of families and family justice in the widest sense.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
The Bill requires the aim to be achieved by 2020. Does my hon. Friend agree that it would be a sad thing, with all the innovations that are being worked on at the moment, if we were unable to move as far as code level 6 by then?
John Hemming Liberal Democrat, Birmingham, Yardley
I thank my hon. Friend for that helpful intervention. This issue will clearly need detailed discussion in Committee.
Stephen Barclay Conservative, North East Cambridgeshire
I share the desire of Lorely Burt to reach code level 6 and think that it is good to have such an aspiration, but the cost would either fall on those who require affordable housing—the hon. Gentleman’s party speaks frequently on the need for more affordable housing, a view which I share—or be met through diverting subsidy. I accept that the Bill does not require any subsidy, but surely an aspiration to meet code level 6 would lead us to take the view that we might need to reapply the subsidy from one area to another. Perhaps that should happen.
John Hemming Liberal Democrat, Birmingham, Yardley
That might be a debate for Committee. These are all issues of important detail, but the nub of the Bill is not to look for further public subsidy but to focus on how we can reduce people’s energy bills without it.
Tobias Ellwood Conservative, Bournemouth East
I appreciate what the hon. Gentleman is saying and his knowledge about all these matters of family law and so on is hugely impressive, but we must tie into current legislation and thinking. The Government have made a commitment that by 2016 all new homes will be zero-carbon and I must make it clear that the target for code level 6 already stands as a voluntary target.
John Hemming Liberal Democrat, Birmingham, Yardley
I thank the hon. Gentleman for that intervention. The Bill sets a target for 2020 and perhaps in Committee we will feel that we should extend it. Those debates must be held in detail, however, and the principle must be improving efficiency in an cost-effective manner. We are discussing issues of detail, but we need to make progress down this route.
Earlier, I emphasised how the news over the summer highlighted the urgency of taking the actions in the Bill. I conclude that the Bill should urgently make progress to Committee. I am entirely happy to work positively with the Government to make steps towards a better future for children and families and I therefore ask Members to support the Bill.
Jim Dobbin Labour, Heywood and Middleton 10:53 am, 26th October 2012
I congratulate John Hemming on presenting the Bill to the House and on how he has gone through a number of clauses in detail.
The hon. Gentleman and I have discussed some of these issues in the past, including the problems I have had with constituency matters as regards the courts and local authority departments. I speak as the Member for
Heywood and Middleton but also as one of the Rochdale borough MPs and a leader of Rochdale borough council before I came to this House. The hon. Gentleman referred to a recent case in Rochdale that received global coverage, and the local council’s safeguarding children board recently presented its initial report. Members will appreciate why I have a great interest in these matters and strongly support the Bill. I congratulate him on his choice of subject.
A second independent report from Rochdale’s local authority will become available quite soon. The safeguarding children board’s report was transparent and hard-hitting and strengthens the case, in my view, for improvements to child care and the protection of children in not only Rochdale but other local authorities across the country. It presents some 15 recommendations, which are now a matter of public record, that are designed to develop a much more effective strategy for family care.
Members might be interested to hear some of the recommendations and how they might affect local authorities across the country. More than 10,000 staff in agencies throughout the borough have received briefings in respect of recognition and response to sexual exploitation. More than 1,500 staff have had face-to-face training with plans to reach the whole work force by the end of this year. Awareness-raising workshops have been given to almost 10,000 children in local secondary schools and there are plans to deliver similar sessions for parents in schools and community centres. Training for staff who work with young people at risk of child sexual exploitation is happening, too.
The formulation of a multi-agency strategy to ensure a more co-ordinated response to child sexual exploitation is also part of the recommendations. Improvements to the way in which Greater Manchester police and other criminal justice organisations deal with victims of child sexual exploitation is at the top of the list and staff numbers will be increased in the Sunrise team, which is a multi-agency team jointly funded by all agencies and created to prevent and tackle child sexual exploitation. The new procedures to be followed when staff refer possible child sexual exploitation cases are an important recommendation, as is the introduction of one point of contact for referrals of concern. All referrals to children’s social care services for children over the age of 12 will be screened for early signs of child sexual exploitation. More guidance will be issued to professional staff, which is an important point, and there will be more training, too.
Greater Manchester police and the council’s licensing authority will work more closely together and regular multi-agency information-sharing meetings will be held to ensure that services share concerns about possible victims, abusers and hot spots in the borough and develop appropriate responses.
Stephen Barclay Conservative, North East Cambridgeshire
The hon. Gentleman is correct to highlight the importance of training and multi-agency work, but is not one of the difficulties the lack of accountability? The buck does not stop with any single individual in tragic incidents such as that which occurred in Rochdale. What would he like to see happen to improve accountability? It is great to train 1,000 or 1,500 people, but we also need to address the accountability of individuals.
Jim Dobbin Labour, Heywood and Middleton
I fully understand and I agree with the hon. Gentleman. I have the report with me and if he wants to take a look at it at some stage, he will see how the council intends to tackle that problem, which it recognises as important. I should also point out that the leader and chief executive of Rochdale council have both appeared in front of the Select Committee on Home Affairs and further senior staff are due to appear in due course.
Stephen Barclay Conservative, North East Cambridgeshire
Has any individual lost their job as a result of the events in Rochdale? Does he believe that any individual should lose their job? It is all very well appearing before a parliamentary Committee, but what are the real-term consequences for those who are accountable?
Jim Dobbin Labour, Heywood and Middleton
That is certainly an important question that people are asking. The difficulty is that many of the staff involved have retired, as these cases arose a number of years ago. Recently, the head of the department concerned resigned, so things are happening there, but at present, the local authority is reviewing the whole process. It still has another report to come out; after that, it will be fair to accept that members of staff may well lose their jobs because of the affair. That is a possibility, but I do not want to pre-empt the decision of the local authority.
I have referred to better staff training. Partner agencies, such as the police, community groups and schools, must be better co-ordinated. Criminal justice organisations should be encouraged to support entirely young people who have been exploited, throughout the entire process—when reporting the crime and making statements; in pre-trial preparation; when they go to court; and after the trial. The recommendations refer to holding
“Regular multi agency information sharing meetings” to ensure that possible victims and abusers are identified, and proper responses are developed; at present, none of that is happening anywhere, as I understand it. The Rochdale case is not the only one; this is a problem across the country—and indeed the globe, as the hon. Member for Birmingham, Yardley, said.
I illustrate the need for this Bill by referring to a constituency case. A constituent, Mr X, came to one of my surgeries to complain that the local social services children’s unit was threatening to remove the youngest of his five children. The child had cerebral palsy. The other four children were well looked after and were doing very well at school. The department refused to accept that the child’s cerebral palsy was the reason for his unhappiness at school. Even though a consultant paediatrician, with whom I was acquainted, diagnosed cerebral palsy, the diagnosis was questioned by the department and the professionals. They had to bring in an independent paediatrician to verify that the child had cerebral palsy. That was verified, but even then there were question marks. I knew that the parents were a caring, loving couple.
The social worker complained to the family court judge that Mr X was seeking my intervention. The judge ruled that Mr X could no longer seek any help from his Member of Parliament. I raised that issue in the Chamber with the then Solicitor-General, who appeared to support what I said, and thought that the ruling was wrong. When she checked, she found that the judge was within his rights to rule as he did. That is why I am pleased that that issue is tackled, as I understand it, in the Bill. Eventually, the department backed off, but not before Mr X had a massive heart attack and died. It is my view that the worry about the threat of his son being removed, and the possibility of his other four children being removed, caused his death.
Members may remember the perceived satanic abuse cases that suddenly appeared on a council estate in my former council area. That followed similar episodes in the Orkney islands a number of years ago. Professionals were encouraging a theory that some families were involved in satanic abuse. A number of children were removed from their families. The courts tackled the issue, and eventually ruled that there was no evidence to prove the claims, and the children were allowed back to their families.
I use those local experiences as examples of why I support the Bill. I am convinced that there is a need for changes in departments that are responsible for the protection of children, and that family courts need to respond to these challenges in parallel; that is most important. I am absolutely amazed that the Association of Directors of Children’s Services opposes the Bill. I hope that it will eventually see the error of its ways and bring itself into the 21st century.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
My hon. Friend John Hemming was a little coy when he was invited to speculate on why that august body did not support his Bill. I wonder whether Jim Dobbin has any idea why it does not.
Jim Dobbin Labour, Heywood and Middleton
I can only guess. I feel that the ADCS is absolutely acting as a protective body, and it is protecting its membership; I think that is the only reason why it has made that statement. We will not know otherwise until it clarifies why it has taken that stance.
I have been appointed the United Kingdom’s delegate to the “One in Five” campaign, which is a sub-group of the Council of Europe’s Committee on Social Affairs, Health and Sustainable Development. It is to hold a major conference on trafficking and child abuse.
John Hemming Liberal Democrat, Birmingham, Yardley
To go back to the hon. Gentleman’s point about preventing children from being maltreated, trafficked and so on, does he agree that they need an advocate who is not employed by the local authority?
Jim Dobbin Labour, Heywood and Middleton
Indeed. That is an extremely important point, and I assume that will be part of the Bill.
John Hemming Liberal Democrat, Birmingham, Yardley
I thank the hon. Gentleman for allowing me a second bite at the cherry. Yes, it is part of the Bill to ensure that somebody who has no vested interest in concealing malpractice is an advocate for the child.
Jim Dobbin Labour, Heywood and Middleton
The “One in Five” campaign is convening at a conference in Moscow in November, which I will take part in, and if the hon. Gentleman agrees, I will refer to his Bill on that platform.
Stephen Barclay Conservative, North East Cambridgeshire 11:07 am, 26th October 2012
I want to make three points. First, I shall draw attention to a particularly troubling constituency case relating to a grandparent’s access to his grandson—an issue that the Bill speaks to in part, but I would like further clarification on the subject. Secondly, I want to address the point that arose in exchanges with John Hemming about accountability and the multi-agency approach, and points raised in the last exchange about the introduction of new champions; I want to ask whether, for all the benefits involved, that would not add a further layer of complexity and confusion. I shall seek clarification from him on that in his closing remarks.
Thirdly, in the wake of recent hearings held by the Public Accounts Committee, I want to look at points relating to the cost of living and lower fuel bills, a particularly pertinent issue in the fens and North East Cambridgeshire, the constituency that I have the privilege of representing, where there is a long tradition of independence. As a result of that independence, many local parents do not take up, for their children, the free school meals to which those children are entitled; that has an impact on our schools’ funding. There is the same issue of independence in the elderly community with regard to fuel. Fuel poverty is an acute issue in many rural villages in the fens. The Bill covers that issue, and I shall touch on it.
On the first point relating to grandparents’ access, I think we would all accept that the role of grandparents in society has changed greatly. I want to highlight the case of a constituent. His daughter split from the father of her child. The father is known to have a number of difficulties. The daughter moved away to live near the grandfather. As she was a single mother, with a grandfather very nearby, the grandfather became a quasi-parent—the quasi-father. He had a huge amount of access to his grandson. Very tragically, his daughter died so the relationship of the grandfather to his grandson became even more acute but, because of the limited rights that he had as grandfather, the child has now moved to a different part of the country. The grandfather does not have rights of access, yet the unsuitability of the father is such that the child is currently subject to a child protection plan. For many months a lack of improvement in the care has been noted by protection officers but despite this, very little seems to happen. At a recent court hearing the failure of two expert witnesses to turn up meant that the case was delayed further.
With each month that passes, not only is the grandson playing truant from school, not only are other problems arising because of the unsuitability of the father to care for the child, but the relationship between grandfather and grandson, which was once so strong, is becoming frayed because the grandfather cannot get permission for the grandson to spend time with him. Getting a passport so that he could take his grandson on holiday proved a real ordeal because the father, who was not engaging, had to sign the passport.
The hon. Member for Birmingham, Yardley is right to draw attention to the need to reflect in his Bill the fact that the role of grandparents has changed from previous generations, but there is a lack of clarity—perhaps the hon. Gentleman intends to address that in Committee —about how the Bill would work in the real-life case that I draw to his attention, where the mother who was the primary carer has died. The case is not one in which, with parents still in place, the question arises whether the grandparent should have more or less access, but is one where he is the more suitable prime carer of the child than the father, who is known to the family courts and who has experienced difficulties, and where the inappropriateness of that care is reflected in the child’s truancy from school and other measurable metrics.
John Hemming Liberal Democrat, Birmingham, Yardley
One aspect that I may not have emphasised sufficiently was that one difficulty of relying too much on court proceedings rather than a family group conference is that they create an adversarial environment, which a family group conference is less likely to do. Although it does not provide a complete solution to the case that the hon. Gentleman presents as an example, if the issues could be discussed in a family group conference rather than in adversarial proceedings, it might be possible not to create a greater rift among the parties involved, which makes it harder to achieve some form of compromise.
The family group conference approach starts out by looking at what are essentially therapeutic decisions—what is best of for the child, which is not so much a traditional legal adversarial decision as an attempt to answer the question, “How do we best achieve a positive outcome for the child in the circumstances?” If that fails, the case has to go to court. Recognising article 8 rights for grandparents in that context is helpful. The Bill tries to get issues resolved outside court first so that fewer cases end up going to court.
Stephen Barclay Conservative, North East Cambridgeshire
I thank the hon. Gentleman for that clarification and I agree with that intention. One of the impediments to speedy resolution of such cases is the length of time it takes to prepare court papers, with frequent delays in the court process such as the one I mentioned. I endorse the hon. Gentleman’s desire for resolution outside court. On almost all legal issues, I suspect that few hon. Members across the House would demur from that as an aspiration.
John Hemming Liberal Democrat, Birmingham, Yardley
One of the difficulties with contact proceedings is that if things are not working, an application to court is initiated. I accept that the Government are looking towards mediation, but a family group conference, trying to get people together, is an environment in which mediation can occur. One has to look at the system and the entire process—what initiates something and what are the likely outcomes. We have tended to pick little bits in isolation, rather than look at a flowchart of the whole system. The family group conference should be where it starts, not where it goes after an application has been made to court. At that point, in a sense, it is too late.
Stephen Barclay Conservative, North East Cambridgeshire
I thank the hon. Gentleman for that further clarification and I fully support his intention. My question is whether that fits with human behaviour. Throughout all arms of Government we often see policy put forward with the very best of intentions, but it clashes with logic or behaviour at an individual level. If, at that conciliatory meeting, all the players were coming to the table with the best interests of the child at heart, of course one would expect that approach to work and I am sympathetic to it, but how does it work where the father has previously been estranged and is known to have difficulties, yet the bar to removing the child from that father and placing him with the grandparent is so high, because social services see that as such a retrograde step? There can be all the nice conversations in the world; the question is whether we shift the bar at which the child is moved.
John Hemming Liberal Democrat, Birmingham, Yardley
That comes to the question of what is in the best interests of the child. The children’s services authority has decided in the circumstances that in its opinion it is in the best interests of the child for him to remain with his father, not with his grandfather. I tend to share the hon. Gentleman’s view that that seems a perverse decision. However, that decision of the children’s services authority is not subject to any intellectual scrutiny beyond the court hearing. To a very great extent, judges are trapped in a situation in which they have to accept the expert opinion provided to them. The hon. Gentleman may be aware of the Daubert procedure in America, where expert evidence is taken to an expert evidence appeal. I am not suggesting that here. What I am suggesting is that there should be a scrutiny process to look at such situations. What he describes is not unique. I am aware of other similar situations—
John Bercow Chair, Speaker’s Committee for the Independent Parliamentary Standards Authority, Chair, Speaker’s Committee on the Electoral Commission, Speaker of the House of Commons
Order. Mr Leigh could be forgiven for thinking that he was intervening on the person making the speech. I remind John Hemming that he is intervening on Stephen Barclay. It should be an intervention, not a mini-speech. Has he just about concluded?
John Hemming Liberal Democrat, Birmingham, Yardley
indicated assent.
Stephen Barclay Conservative, North East Cambridgeshire
I am most obliged, Mr Speaker, for your very courteous intervention on my behalf, and I am more than willing to take an intervention from such a senior colleague as my hon. Friend Mr Leigh.
There are two issues that arise from the worthy intention of the hon. Member for Birmingham, Yardley. First, as I understand it, it is the current position of the courts that the welfare of the child comes first, so proposing a new structure to achieve that aim raises the question whether that is not the existing position. Secondly, the hon. Gentleman seems to be suggesting, paradoxically, that we take an expert witness’s advice to the court, but we cannot trust that advice to be in the best interests of the child’s welfare so we need to put it to some other expert witness. Is that really what he is proposing?
John Hemming Liberal Democrat, Birmingham, Yardley
I am not proposing in the Bill that there is, in effect, an experts appeal. I am proposing that we use the body of expert evidence and the process of peer review to improve the quality of expert evidence. The expert might find, having read the peer review of their evidence, that perhaps they should have given different evidence. The difficulty is that what is in the best interests of the child is not always that clear. We need a better review of what is in the best interests of the child, and such a review does not currently exist.
Stephen Barclay Conservative, North East Cambridgeshire
I put it to the hon. Gentleman that the primary aim should be to improve the quality of the expert witness advice given in the first place, rather than putting it to a second expert witness, which potentially adds a layer of confusion.
John Hemming Liberal Democrat, Birmingham, Yardley
The second expert’s evidence goes to the same court hearing.
Stephen Barclay Conservative, North East Cambridgeshire
Indeed. But the hon. Gentleman’s suggestion means that we would spend more and more money on experts, even though he and I would agree that what we should be doing is spending our scarce resources on the primary focus, which is the interests of the child.
John Hemming Liberal Democrat, Birmingham, Yardley
We already have academics in place doing research, but they are not given access to that particular material.
Stephen Barclay Conservative, North East Cambridgeshire
I defer to the hon. Gentleman’s experience as an academic—he speaks with more authority on these matters than I do—but in my limited experience of discussions with academics I have found that, invariably, what one says is different from what another says. Again, I am not sure why the academic cannot be the expert witness in the first place. The point still stands that we need to ensure that the quality of advice from any expert witness is sound.
John Hemming Liberal Democrat, Birmingham, Yardley
How do we improve the quality of expert witness advice without peer review?
Stephen Barclay Conservative, North East Cambridgeshire
The hon. Gentleman goes to the nub of my argument. Many of these issues go back to that iconic and hugely emotive film, “Cathy Come Home”. Taking a child from its mother is something that no one wants to see. I think that the bar has been set so high because it is felt that it is not in the interests of a child to remove it from its natural parent, in this case an unsuitable father. The blood tie is considered so precious that breaking it requires such a high bar and very rarely happens. In my example we have a grandfather who, in essence, had day-to-day contact with his grandson, alongside his daughter, who was the primary carer. He was very closely involved in his grandson’s life. Following his daughter’s death, he would have been the more suitable custodian, in my uninformed view, but the so-called experts take the view that the estranged father, purely because he is the father, is the person the child must live with, even though he allows the child to play truant, even though the child is subject to care protection and even though the grandfather is an upstanding member of the community.
John Hemming Liberal Democrat, Birmingham, Yardley
As things currently stand, the evidence provided by expert witnesses is not subject to any process of peer review, so over time, their expert evidence will never change.
Stephen Barclay Conservative, North East Cambridgeshire
I hear what the hon. Gentleman says and will seek to make progress.
Edward Leigh Chair, Public Accounts Commission
When I was a practitioner in the family courts, my general view was that the content of the evidence of so-called experts was inversely proportionate to common sense.
Stephen Barclay Conservative, North East Cambridgeshire
I thank my hon. Friend for that intervention. He appears to side with my analysis of the suitability of the grandparents. He makes a serious point, as a former practitioner, about the amount of time experts often have to come to these conclusions. To be fair, the engagement of some of these experts is often so limited that it is difficult.
That brings me to my second point—I want to make progress. It strikes me that in this hugely complex area—the complexity is signalled by the range and scope of the Bill—one of the difficulties is the lack of accountability. What concerns me about the measures the hon. Gentleman puts forward is that he seems to be adding a further layer of complexity by having champions who are in some way more independent. That is another layer.
John Hemming Liberal Democrat, Birmingham, Yardley
The guardian ad litem is already a litigation friend. It is not a question of having a new body; it is a question of having one that is clearly independent of the previous proceeding.
Stephen Barclay Conservative, North East Cambridgeshire
Again, the lawyers present should have a duty to the court. When I qualified as a solicitor it was my primary duty to—
John Hemming Liberal Democrat, Birmingham, Yardley
The litigation friend is not necessarily a lawyer.
Stephen Barclay Conservative, North East Cambridgeshire
I feel that we are splitting hairs. What I am saying is that a multitude of professionals are engaged in the welfare of the child. Do they not have professional duties? Is the hon. Gentleman saying that they are compromised, or that he cannot trust that their vested interests will not get in the way of the interests of the child?
John Hemming Liberal Democrat, Birmingham, Yardley
The evidence from the case of A and S v. Lancashire county council indicates that that is the case; that the independent reviewing officer was not sufficiently independent.
Stephen Barclay Conservative, North East Cambridgeshire
I thank the hon. Gentleman for that clarification, because he makes my point. The point is that we do not address a failure by adding more complexity; we address it by fixing it. The issues that go wrong in life are almost invariably the result of over-complexity. There is a distinction between simple and simplistic. One of the difficulties we have in child protection is the whole range of people involved and the complexity of the different organisations involved. At any one time, one person might be on holiday, another might be off ill, someone sent an e-mail, someone else spoke to someone or did not visit the child, another person has too many cases to deal with and so did not engage properly, or the expert witness did not produce a report of sufficient quality. The point is that when it goes wrong no one is accountable.
A case that rightly drew great concern across the House was that involving the official, Sharon Shoesmith. I draw attention to the fact that the courts—I do not criticise them for this decision—gave Ms Shoesmith a significant payout. When I discussed the case with my constituents at the time, they expressed great frustration, because clearly there had been a huge failure and a child had been very badly let down, but they could not work out who had been accountable.
The hon. Gentleman’s proposal is extremely well intentioned and I share his objective—I hope that all Members do—but my concern is that it would add yet more complexity to an already complex structure.
John Hemming Liberal Democrat, Birmingham, Yardley
My contention is that it would not add more complexity; it would merely ensure that we do not have to wait until a child is considered competent before their complaints can be heard by the court.
Stephen Barclay Conservative, North East Cambridgeshire
Let me give a parallel example to illustrate my point better. The Public Accounts Committee had a hearing for the Care Quality Commission, the body set up by the previous Government to protect many of our most vulnerable—not those in child protection, but those in care homes. Yet for the first two years of its existence it did not carry out a single major investigation. Just one of its predecessor bodies carried out 15 such investigations in the preceding years. The commission even abolished its dedicated whistleblower line, so it passed its responsibilities to general staff, which is why the Winterbourne View case, which was flagged up by whistleblowers on more than one occasion, was missed. It took the BBC’s “Panorama” programme to bring that to light.
What I am driving at is that the answer to the difficulties we face is not the current fashion of having yet more multi-agency work and more partners getting involved and, when it goes wrong, everyone saying that it was not them or, as was suggested earlier, that someone has retired or moved on. That is not a new situation. Twice a week in the Public Accounts Committee we hear of vast sums of money wasted under various Governments, and almost invariably the official concerned has moved on. We have had three permanent secretaries of the Department for Transport since the last election. A former Chair of the PAC is present in the Chamber: my hon. Friend Mr Leigh. I am sure he is very familiar with officials moving on—perhaps retiring—and therefore not being accountable. I support the worthy aims of the hon. Member for Birmingham, Yardley, but his proposals add more complexity to the system, and I question whether that will aid accountability.
Lower fuel bills is a particularly pertinent issue in the fens, and especially the fen villages. I take on board fully Mr Speaker’s direction that it is not the purpose of our debate today to discuss the issue of subsidies, but the best way for us to address fuel poverty is to ensure we better utilise the energy that is being produced. That is why the green deal is particularly welcome.
I should put on record a concern, however. When I spoke last week to one of the green deal assessors in east Cambridgeshire—one of the districts covering my constituency—I was concerned to learn that he is still not in a position to carry out green deal assessments of local homes, and he does not think he will be in a position to do so until the new year because the software is still not in place.
It is laudable to seek to go to level 6 of the code for sustainable homes, but my hon. Friend Mr Ellwood drew the House’s attention to the current provision—level 3. The difficulty is that that cuts across human behaviour. We will not get to level 6 through wishful thinking; we will not get to level 6 because it is the right thing to do and it is a lovely, inspirational aim. We will get there by shifting behaviours. That will come either from expecting people to pay more for their homes—which they are not able to do—or through subsidy. Subsidy will require a shift, particularly in respect of turbines, which are decimating the fens. Bizarrely, the area has now become known as the “forest of the fens”. When the forest protests erupted over a previous Government policy, many electors wrote to me about saving the forest—which is somewhat ironic given that the fens has very few forests and is predominantly flat land.
Phillip Lee Conservative, Bracknell
Does my hon. Friend agree that the key point here is subsidy of energy forms? There is little justification for the subsidy of wind farms. There is much more justification for an up-front subsidy of nuclear power. Throughout the country vast tracts of beautiful countryside are being impacted upon by onshore wind farms. I would rather see a concentration of energy generation in fewer sites, and the only way we can achieve that is through nuclear.
Stephen Barclay Conservative, North East Cambridgeshire
My hon. Friend is absolutely right. One of the most welcome moves made by this Government is to give a greater local say on wind farm developments—such as at Tydd St Giles in my constituency, which has galvanised the local population. The vast majority of people are deeply concerned as we already have many wind farms in North East Cambridgeshire. Fenland now produces more energy than it requires for its own needs. The local countryside was asset-stripped of most of its rural services under the last Government, and one of the few things being added to rural communities is something they do not want. My hon. Friend is right: because of the cost and environmental impact of such schemes, we should instead embrace the big-ticket energy solutions that are going to work.
Dawn Primarolo Second Deputy Chairman of Ways and Means
Order. The Bill suggests a road map for ending fuel poverty; it is not an in-depth discussion of energy generation. I would therefore be grateful if the hon. Gentleman would return to the issues addressed in the Bill. I think Mr Speaker has already given a warning on this matter.
Stephen Barclay Conservative, North East Cambridgeshire
I am most grateful to you, Madam Deputy Speaker, as, with characteristic prescience, you anticipate my closing remarks.
The very cost that the PAC has looked at on a number of occasions is what is driving fuel poverty in the fens: the cost of production is adding an extra tariff that is particularly detrimental to my many elderly constituents. We have sought to help them through an initiative that would, perhaps, be welcomed in Madam Deputy Speaker’s constituency, too. The Golden Age Fair is run by Fenland district council and helps those living in fuel poverty to access the limited grants and other aids that are available. It does so by running a computer programme that helps to analyse people’s living costs.
I commend the hon. Member for Birmingham, Yardley on his Bill, and I support his aims. Like me, he seeks to address some very real concerns about child protection. However, although the existing structure clearly has flaws that we need to address, we cannot do that by having more experts commenting on experts. We address it by ensuring expert reports are accurate—not by having more complexity, which serves to create less accountability —and by having a simpler, clearer system that will better champion the interests of the children we seek to protect. By having such a system, I hope we will ensure that my constituent, a loving grandfather, will be able to get custody of his grandson—as he wants, and as I believe is in the best interests of the child.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party 11:37 am, 26th October 2012
I support the Bill. I will speak mainly about clause 1, but first let me say that clause 2’s provisions are based on the personal experience of my hon. Friend John Hemming, who campaigns tirelessly and fearlessly on behalf of his constituents and others. I know how angry he was when a constituent was threatened over even speaking to him. To say he feels passionately about injustice—especially when perpetrated against those least able to fight for themselves, such as children—is an understatement.
Madam Deputy Speaker, you missed a wonderful explanation of thermodynamics, which I am sure will be to your eternal loss. We do not need an explanation of thermodynamics, however, to understand that making energy-cost savings of £1.1 billion by 2020 is an extremely laudable aim.
We are living in strange times. The Savile scandal is not only still rumbling on, but there are now suggestions that more public figures will be exposed. The press is reporting that we are now trying to substitute transparency for trust, because people no longer trust our public institutions. It seems that trust is becoming an old-fashioned word. The foundations of trust are shaken to the core when the actions of well-loved figures are uncovered—unfortunately, discovered too late for many people—and that is why this Bill is so important. We cannot have trust without transparency, and that is very pertinent to elements of the Bill.
A particularly helpful aspect proposes family group conferences which would give the extended family a say in resolving problems in a consensual manner instead of decisions being made in what can appear to be a rather high-handed manner by people who are not specifically involved with the family. Section 1 of the Children Act 1989 enshrined the rule that the court must treat the welfare of the child as the paramount consideration. Under the care and supervision proceedings in the Act, the child concerned can be taken into care only if they are
“suffering, or…likely to suffer, significant harm; and…the harm, or likelihood of harm, is attributable to…the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or…the child’s being beyond parental control.
The Act goes on to state:
“Before proceeding with an application, the local authority should always obtain and consider legal advice on whether, in the circumstances of the case and in the light of the available evidence, the court is likely to be satisfied” that the conditions I quoted are met
“and that an order is in the best interests of the child and that making a care order would be better for the child than making no order at all.”
However, that is not always the case, because sometimes, as we have discussed, the expert evidence is based on opinion, which cannot be challenged. The purpose of my hon. Friend’s Bill is to ensure transparency so that the reasoning behind the opinion can be tested. He cited the example of an expert opinion in a case where a child was taken away from their mother because she took the view that the child—a baby—should be fed on demand. It is scandalous that someone could give that opinion without any kind of challenge.
The provisions on proceedings in the family court and the Court of Protection would clarify the role of the friend and/or the McKenzie friend. They would also ensure that grandparents and other members of the wider family may have a say and offer their own perspective. Grandparents have knowledge of the situation and an interest in a positive outcome. They feel strongly about family break-up, but as things stand, although they do not have any say in the family court, they are often literally left holding the baby. The McKenzie friend system assists parents in the family court, who are often in need of a legally trained friend of the family or someone who has a little more expertise and advice to give. Not every parent can afford to have a lawyer in the family court, and that is against the spirit of what it is supposed to provide. Such psychological support, whether it is practical or results merely from the person being there, can be extremely valuable.
Jim Cunningham Labour, Coventry South
The hon. Lady is making a very good case, and I totally agree with her. In many cases, the authorities can pay for their legal advice but the appellant cannot. She is therefore right to advocate the increasing use of McKenzie friends, if possible.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
I am grateful to the hon. Gentleman. We see examples of this in many walks for life. I have been involved with a group called the Association for Shared Parenting, which provides the McKenzie friend system for parents who have been separated from their children and are trying to regain access to them. In the spirit of the big society, we should allow that sort of thing to be permitted much more widely.
On clause 2(5), it is very important that children in whose best interests it is to be in care should be placed locally where there is good reason to do so. We saw tragic examples in Rochdale of what can go wrong. In that context, the contribution by Jim Dobbin was most welcome. If children are placed locally, they still have their local connections and are not so isolated and prey to the apparently flattering but ill-conceived intentions of people seeking to groom them for all kinds of nefarious activities which can ruin the rest of their lives. Under the current system of independent scrutiny of children in care, children can complain to the perpetrators. For example, if the body they complain to is the local authority, and the body responsible for the care that they are given is the local authority, I see no logical reason for opposing the possibility of separating out the two in the interests of fairness and transparency. Earlier I told my hon. Friend the Member for Birmingham, Yardley about the schoolchildren who complained about the molesting activities of Jimmy Savile and were actually punished for doing so. These children must be able to go to somebody independent to whom they can complain.
As we have heard, there can be prejudice against children in care and after they have been in care. It is absolutely scandalous that a child can be branded and disadvantaged for life through, usually, absolutely no fault of their own. They need the protection that my hon. Friend offers in clause 3, subsection (4) of which addresses the prejudice that he described. The protected characteristics to which he refers, which are defined in the Equality Act 2010, are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex and sexual orientation. It is sad that someone’s having been in care in their younger life should be added to that list, but unfortunately I can see why he thinks so. It is important that any child can make its way in the world without additional discrimination of that kind.
Part 3 contains measures on the cost of living to achieve lower fuel bills. It would require a strategy to be produced by the Secretary of State that would help to end the misery of cold homes for millions of people. I suggested earlier that my hon. Friend was seeking three bites of the cherry, but given the rarity of one’s name coming up in the ballot, we want to address all the burning issues—if you will pardon the pun, Madam Deputy Speaker—that we have been thinking about for a long time. We want it all, basically.
The Bill would provide that the Secretary of State must
“by 2020…require any replacement heating system”— that is, boilers. Apparently, 1.3 million boilers give up the ghost every year, and they are the ones we most need to replace with the best quality boilers that can be envisaged. I say “envisaged” because we are talking about 2020. We are making improvements in the quality and efficiency of boilers all the time, so I do not think—contrary to what Mr Ellwood said earlier—that a band 6 boiler is necessarily too big an aspiration.
Jim Cunningham Labour, Coventry South
The hon. Lady makes an important point, particularly now, as we are hitting the winter, with the change in climate, the bad weather and so forth. She is quite right, because whichever way we put the argument—and without wanting to get too political—one of the issues is that the price of fuel and heating continually goes up, but it never goes down. She is therefore making a valuable point. Most of the families concerned cannot always afford to get their boiler put right, so she has hit on a sensitive issue.
Lorely Burt Chair of the Liberal Democrat Parliamentary Party
The hon. Gentleman is absolutely right. I am sure he will welcome the fact that by that time we will be in a position to use green deal funding, so as not to be a burden on the taxpayer. Although some of the technologies are not quite ready yet, the fact that we can aspire to that is an important aspect of this Bill.
In conclusion, I do not understand the laws of thermodynamics, but I do see that the energy innovations of combined heat and power, and flue gas will make a major difference to household bills in the UK, and I commend all of this Bill to the House.
Phillip Lee Conservative, Bracknell 11:51 am, 26th October 2012
May I begin by congratulating John Hemming on bringing the Bill before us today?
It appears to be his magnum opus, in terms of size and breadth, and I wish him well with its progress. I am pleased to be following the contribution by my hon. Friend Stephen Barclay, which I thought was particularly thoughtful and provocative.
I will try to confine my remarks to parts 1 and 3 of the Bill. In broad terms, the Bill has merit. I am always instinctively concerned about over-regulation and creating more and more legislation. As a point of principle, I would very much like to spend time in this House discussing the removal of legislation, because I think we have way too much in this country. My particular bête noire is the tax code, which could do with simplifying some time soon. However, I understand that the central thrust of the proposals in the Bill is to do with family justice, particularly with regard to child protection.
In many ways, the Bill almost appears to have been structured so as to allow me to make a contribution to the debate. I am on the Select Committee on Energy and Climate Change. I am also a doctor who continues to practise in quite a socially deprived part of Slough, in Berkshire, and unfortunately on some occasions I encounter evidence of child abuse. I therefore feel informed enough to comment on child protection. Indeed, in my long—perhaps too long—university career of nine years, one of my theses was 10,000 words on the psychology of the child sex offender, which I wrote in 1992. In preparing that thesis, I encountered statistics about the prevalence of child physical, psychological and sexual abuse in this country, which was really quite sobering. I am therefore not, sadly, surprised at how the figures in the Savile case are growing day by day. Unfortunately, these problems have long blighted our society, so I suspect that the figures will increase and that the number of perpetrators in the public eye will also increase.
All I should say on that matter is this. Given that we have had this problem for a long time in our society and given that we have had many systems in place to try to prevent it from happening, I am reminded of T. S. Eliot’s prose:
“systems so perfect that no one will need to be good.”
He was right: we cannot design a system so perfect, however honourable the approach in trying to do so. All of us—everyone in this House; indeed, anybody who is in close contact with vulnerable people, be they children or adults—have a personal responsibility to point out when things might be slightly awry.
Stephen Barclay Conservative, North East Cambridgeshire
I fully concur with my hon. Friend about the limits of any system. No system can ever be a panacea against future risk. Does he agree, however, that the framework in which systems should be designed should be based on simplicity and clarity? One of the risks of the Bill—this was touched on in my exchanges with John Hemming—is that a complex system could diminish accountability.
Phillip Lee Conservative, Bracknell
I thank my hon. Friend for that intervention and I agree with him. In addition to being an enemy of over-regulation and over-legislation, I am also an enemy of complexity. Complexity always makes me suspicious. Most things in life are quite straightforward and simple; it is only when people want to hide things that they make them complex.
To follow on from what I was saying about systems, it is important that we point out when we are concerned about the actions of others whatever role we play, be it Member of Parliament, doctor or social worker. Indeed, one thing I have found rather frustrating in the recently evolving scandal is the number of people at the BBC who said that they had suspicions, but that Savile was too big and too powerful. I am sorry; I do not think that is a defence. Ultimately, we all have to be brave enough to point out concerns and follow them through to the end, and if that means putting our jobs and progression in our careers at risk, then so be it. We all make a choice to get into jobs where we have the responsibility to protect vulnerable people. If someone does not want to take that responsibility fully, they should get out of the job.
John Hemming Liberal Democrat, Birmingham, Yardley
Will the hon. Gentleman accept it from me that my objective in the Bill is actually to keep things relatively simple? Will he, as a doctor, say whether he thinks it would be useful to have a system to ensure that when a doctor feels that a child in care whom they are treating is encountering problems, they should have a mechanism for getting answers?
Phillip Lee Conservative, Bracknell
Yes, that warrants consideration and has merit. I shall relate two instances that I recall. One was when I saw a 10-year-old child who presented having been self-harming—let us think about the idea of a 10-year-old child constantly using a razor blade on his wrist—and the other was when I examined an eight-year-old child, as I recall, and had to keep noting down evidence of cigarette burns. Both children had been in the care of their biological parents, I recall. It is all very well looking at evidence in the literature, but when one actually meets the child—when one looks at the child’s face and into their eyes—and encounters such evidence first hand, it is a genuinely heart-rending and extremely difficult thing to deal with. Indeed, I had some difficulty containing my anger at some points.
Moving on, as I said, I want to talk about parts 1 and 3 of the Bill. I particularly want to discuss grandparents’ access to their grandchildren. I am sure that the House will be surprised to learn that I had a spare hour at the weekend, and that I chose to spend it watching an episode of “The Waltons”, the famous 1970s television series. Those who have had the pleasure of watching it will recall that the Walton family all lived under the same roof. The grandparents, the parents and the seven children all lived in the same home. Part of the programme’s charm comes from the sense that the family is taking care of the vulnerable—the very young and the very old.
I was listening to the “Today” programme this morning. It has been running a series of short reports on social care in different countries, and today’s contribution was from the United States of America. I was struck by a suggestion that there could be a return to a Waltons model, with grandparents living under the same roof as their children and grandchildren. I suspect that that will also happen in this country. Putting aside the debate over the need to be able to afford a big enough house to accommodate such an arrangement, I believe that that is the likely direction of travel, given the ageing of our society. That demographic and sociological change could lead to an increase in contact between grandchildren and their grandparents.
Lyn Brown Opposition Whip (Commons)
Does the hon. Gentleman see, as I do, any irony in his talking about the Waltons’ rather large family living in rather desperate circumstances, working hard and doing their best, given the current proposals to cut benefits for families that have more than two children? What effect would that have on the impact on children that the Bill is trying to mitigate?
Phillip Lee Conservative, Bracknell
I might be wrong, but I was not aware that any of the Walton family was receiving benefits. Indeed, I recall an episode in which Grandma was railing at an individual for coming into the village and suggesting that the state should take responsibility for the family. Grandma’s point was the family had that responsibility, not the state. I would encourage anyone who shares Grandma’s view of the world, because it is a more sustainable model for the future.
Returning to the Bill, I understand that grandparents do not at present have an automatic right to have contact with their grandchildren. The Library note informs me that they may apply to a court for leave to apply for a contact order, unless an exception to the requirement to obtain leave applies. Clause 2(4) of the Bill states:
“Grandparents shall be permitted to have reasonable direct and indirect contact with their grandchildren if the child so wishes without this contact being supervised unless it is not in the interest of the welfare of the child.”
That proposal has merit, and I support it. Grandparents up and down the country are experiencing difficulty in gaining access to their grandchildren—following the divorce of the grandchildren’s parents, for example—and that situation needs to be looked at. Grandparents have an important role to play in the upbringing of children—I believe that “The Waltons” provides evidence of that—and, in the increasingly atomised world in which we live, it is important that they should have that contact. The hon. Member for Birmingham, Yardley is to be supported in progressing that proposal.
I also want to mention Criminal Records Bureau checks, another bête noire of mine. CRB checks are an example of the knee-jerk reactions to awful circumstances that Governments seem to have, rather like the banning of handguns post-Dunblane. Banning them did not mean that they no longer existed. I can think of a whole series of examples in which the Government thought that they could intervene to stop bad people existing and to stop other things occurring.
Working as a doctor, I have had personal experience of CRB checks. I tried to start working at Feltham young offenders institution, but it took me six months to get clearance to work there. It was an absolute disgrace.
Stephen Barclay Conservative, North East Cambridgeshire
May I draw my hon. Friend’s attention to an ongoing issue relating to CRB checks? It involves unnecessary duplication. I represent a constituency on a county border with Norfolk and Lincolnshire, and with the Peterborough unitary authority. We frequently find members of staff, such as taxi drivers taking children to schools in Peterborough and elsewhere in Cambridgeshire, having to apply for multiple CRB checks, which have no value. They merely add cost and often delay the ability of those people to do their work while they wait for the checks to be carried out. Government guidance clearly states that the checks can be grandfathered, but Conservative-run local authorities, including my own, have been reluctant to do that. Does my hon. Friend agree that such cost, delay and unnecessary bureaucracy are not improving child protection?
Phillip Lee Conservative, Bracknell
Of course. They lead to the inefficiencies that my hon. Friend has so eloquently described, and they blight the lives of innocent people. A gentleman who came to my constituency surgery had had an allegation made against him by a young child, but the allegation had been thrown out. The child’s father had said that she had made it up, yet the allegation had been recorded on the gentleman’s CRB form. He had never been charged with anything, or convicted. The result was that he was no longer able to do his job, which involved working with children, and he lost his career.
I can understand why we went down the road of introducing CRB checks, but they are clearly not working. They are leading to incredible inefficiencies. I want to put it on record today that in 10 years’ time we will probably look back and see that further scandals involving children—paedophile rings and the like—have taken place, even though we have carried out CRB checks on numerous individuals, the great majority of whom want to do the right thing. The scout leaders, teachers and people visiting schools will have been delayed or prevented from doing their work by those checks.
Stephen Barclay Conservative, North East Cambridgeshire
Given that Jimmy Savile was given keys and his own room at a hospital, one suspects that he would have passed a CRB check. Indeed, he might well have done so.
Phillip Lee Conservative, Bracknell
I thank my hon. Friend for that intervention. As a junior doctor, I worked at Stoke Mandeville hospital, and as a Member of Parliament I represent Broadmoor hospital, which puts me in a unique position. I met Jimmy Savile in a hospital corridor at Stoke, and I have visited Broadmoor. It is beyond comprehension that he was given a set of keys enabling him to move around Broadmoor. The most remarkable decision was to give him responsibility to oversee the management of one of this country’s three high-security hospitals. I would like to know who made that decision at the Department of Health, which was at that time responsible for that hospital. I suspect that Jimmy Savile probably would have passed his CRB check, because he had not been convicted of anything, and that is my point. Why put in a system that will not prevent what it seeks to prevent?
Tobias Ellwood Conservative, Bournemouth East
This CRB issue is very important. The fact is that one local authority does not recognise a CRB accreditation from another local authority. For example, my sister taught at one school and yet she had to pass the CRB accreditation process to pick up her children from, and use a minibus at, another school. Would it not make sense to have a CRB system whereby accreditation is recognised nationally?
Phillip Lee Conservative, Bracknell
Thank you, Madam Deputy Speaker. In answer to my hon. Friend Mr Ellwood, I have had a CRB check on more than one occasion, which is remarkable. I agree that it would be nice if the checks were portable.
To bring the subject back to the Bill, my point is that we should be cautious about anything to do with CRB. The central thrust of the argument of the hon. Member for Birmingham, Yardley is to protect the child, and I am not convinced that CRB checks do that.
Part 3 mentions fuel poverty. As I have said, I serve on the Energy and Climate Change Committee and, on the day on which EDF has announced an 11% increase in fuel prices, the cost of fuel is of great importance to every family throughout the country. I think that that is why the definition of fuel poverty and, indeed, poverty need to be carefully drawn up. On poverty, most of us can only really talk about the experiences of people we know. My grandfather was born into what I would describe as poverty: he did not have running water or a toilet, he shared a tap with six other cottages, and there was no electricity. That was in the 1930s in this country. He also shared a three-bedroom home with eight siblings. I would describe that as poverty.
Today, I struggle with the definition of what poverty is, and I draw on professional experience in making such comments. I have made home visits to pretty socially deprived parts of Buckinghamshire and Berkshire, one of which was to somebody who had a fantastic plasma screen TV—I think it was bigger than the one that I am fortunate enough to possess—but no carpets. Ultimately, when we draw up a definition of poverty, we have to bear in mind that attitude and choice make a profound difference to how much money people then have left to spend on fuel.
There are some difficulties with the current definition of fuel poverty in the Warm Homes and Energy Conservation Act 2000. The Library briefing paper highlights how the definition relates to problems with fuel prices, household income and dwelling condition. The conditions of the dwelling are the responsibility of the dwellers to some extent. The individuals in the social housing flat that I visited had made a choice to spend money on equipment for a fantastic audio-visual system and Sky subscriptions, and not to spend it on carpets. Does the fact that they are no longer able to afford a properly insulated flat—which it is not if it does not have carpets—mean that they are in poverty or not? On the definition of fuel poverty, which is what the hon. Gentleman seeks to address, let us not shy away from the reality that there are people in this country who make perverse decisions on priorities for home expenditure. If we can deal with that, we may go some way to dealing with the problems of fuel poverty.
I cannot conceive of a situation whereby anybody in this country is as poor as my grandfather was. If they are as poor, that begs the question: where does the £3 billion-plus per week spent on the welfare state go? We spend a significant sum as a proportion of our gross domestic product on welfare payments, so if there are
families and individuals who are genuinely without enough finance to pay for food and heating, I suggest that the system is not fit for purpose.
Energy efficiency is mentioned in the Bill. I do not need any convincing that improving the efficiency of both residential and industrial properties is the lowest-hanging fruit in trying to reduce families’ energy bills, and indeed in reducing the cost of energy to the country, given that we import so much of it. I totally agree with the hon. Gentleman in that. I expect that there will be cross-party support for that principle. If the finances allowed the Government to subsidise and incentivise anything, I hope that it would be the proper, fuel-efficient insulation of properties. The Government’s green deal is a good start in that direction, and I hope that there will be more work in that area.
I am not 100% sure that microgeneration is the way forward. Combined air conditioning and water heating pumps are a good idea, and I visited a site in Norway where they were being made. I believe that work on that would be beneficial. Ultimately, we need to find a way of generating our electricity in the most cost-effective, efficient and low-carbon form possible. As I said in an intervention earlier, nuclear is the only option that ticks those boxes. I do not know the hon. Gentleman’s personal position, but I know that his party has some reluctance in the nuclear arena. They should revisit the matter, because as far as I am concerned, the science, engineering and everything else points to nuclear being the solution. If we could bring about the most cost-effective possible installation of nuclear power stations, energy prices would become more stable and affordable in the medium to longer term for families up and down the country. The fuel poverty that is mentioned in the Bill would therefore become less of a problem.
Stephen Barclay Conservative, North East Cambridgeshire
Is not the point that my hon. Friend is driving at about the consistency of policy across Departments? Our coalition partners rightly share our desire to address fuel poverty, which is addressed in the Bill, but their reluctance to embrace nuclear is leading to a funding model that will drive up the costs of energy and go against that shared desire. That inconsistency of aims among Departments goes to the heart of his comments.
Phillip Lee Conservative, Bracknell
I do not want to stray too far from the subject of the Bill, but if we spend huge amounts of money on our energy, whether via subsidy or not, that will lead to families struggling to meet their bills. We have to revisit how we are setting about securing sustainable and low-carbon energy generation that the country can afford in the medium to longer term. I suggest that there certainly needs to be more work on nuclear energy.
Tobias Ellwood Conservative, Bournemouth East
The fundamental questions in the argument about fuel poverty are about how we generate energy, the security of supply and the costs, including the knock-on costs to the general public. Does my hon. Friend agree that had the last Government taken some of the bigger decisions about nuclear energy, the cost of Britain’s overall energy package would be lower and fuel poverty would not be such a big problem today?
Phillip Lee Conservative, Bracknell
My hon. Friend is spot on. One has only to look at how many Energy Ministers there were under the last Administration to see that energy was never a priority until rather too late in the day. The problem with the majority of forms of energy, particularly the low-carbon ones and especially nuclear power, is that there has to be a decade-long perspective. The idea that we can press a button and then open a nuclear power station the following year is plainly nonsense. Remarkably, in 2003 an energy review by the then Government concluded that nuclear power did not have a role, although by 2007-08 they decided that it did—the policy was all over the place. We know that the current Government received a pretty ropey inheritance across the board from the previous Administration, but the situation regarding energy generation is truly challenging and something we must think about. Despite the fact that our inheritance from the previous Government was so bad, in future we will need cross-party agreement on nuclear power. There is a desperate need for a large number of nuclear reactors.
Jim Dobbin Labour, Heywood and Middleton
As an Opposition Member who has a 27-turbine wind farm in his constituency, I understand and accept the need for nuclear energy to fulfil the capacity that the nation will require in the future. I agree with the hon. Gentleman and let him know that some Opposition Members do support nuclear energy.
Phillip Lee Conservative, Bracknell
If I gave the impression that all Opposition Members are to blame, I apologise. When trying to address fuel poverty, energy generation is clearly significant. We are entertaining the idea of paying a significant strike price to EDF for nuclear power stations, and I encourage all Ministers engaged in those negotiations not to pay that but to step back, burn some gas and buy us some time, in order to get it right and so that families up and down the country can afford fuel to heat their homes.
Let me return to social housing and the drive towards energy efficiency, which I am sure the hon. Member for Birmingham, Yardley agrees with. I attended part of the Opposition day debate last Wednesday, and John Robertson, who sits with me on the Energy and Climate Change Committee, made a valid point about the quality of some social housing flats in his constituency, and how difficult it is to insulate them and introduce the energy-efficient measures that we would like to see in all homes up and down the country. We may have to reflect on such matters when considering how we build social housing in the future, as well as on the amount of social housing that needs to be built.
Our inheritance of housing stock from over the past 30, 40, 50 or 60 years—I am not blaming either side of the House for this—is not up to scratch. If we are to reduce our need for foreign energy imports, and reduce our carbon footprint in the medium to longer term, our housing stock and the quality of our buildings must be improved. That may require significant investment from the private and, I suspect, the public sectors, to arrive at a point where all in this country have energy-efficient homes.
In conclusion, I believe there is some merit in the measures included in this rather extensive Bill promoted by my hon. Friend the Member for Birmingham, Yardley.
I support him in that and believe in anything that supports families and keeps them together. Even where there has been divorce, families can still retain some cohesion. We see children from broken homes manifested up and down the country—how many times do we see such cases on our screens on the Jeremy Kyle show and so on?—and children are growing up in environments that have no male or senior family role models. Anything we can do to alleviate or improve that situation gets my support.
Finally, on energy and fuel poverty, I say again that we need to redefine what poverty is in this country. If we do not, how on earth can we set about eradicating any problems that may still exist in 21st-century Britain?
Tobias Ellwood Conservative, Bournemouth East 12:24 pm, 26th October 2012
It is a pleasure to follow my hon. Friend Dr Lee, who spoke with such passion and expertise about the various aspects of this wide-ranging Bill. He is perfectly placed to discuss these matters as he sits on the Energy and Climate Change Committee and is also a doctor.
I am grateful for the opportunity to participate in this debate, and I congratulate John Hemming on his success in the ballot. He has introduced a wide-ranging set of ideas—perhaps too many for one Bill, but I will come back to that point. Clearly, he has shown enormous dedication, expertise and effort in preparing this Bill and introducing it today. It reflects an understanding of, and a passion for, a subject that is important to him, and should be important to all hon. Members. Indeed, I am sorry that the Opposition have only managed to conjure up a single offering to the debate, other than a brief intervention from an Opposition Whip. Perhaps now that we are coming to the end of the debate, Opposition Members will rush in to try to make a final contribution. On the other hand, perhaps the lack will be made up for by the shadow Minister’s comments. We certainly look forward to them.
The issues of families in courts and the protection of children in that arena are ones that we all face. We see this through the work of our local authorities, which have to deal with it every day, and in dealing with the families, individuals and children in constituency cases when they are unfortunately forced to deal with the family justice system. I have two particular cases that are still not concluded. One is a divorced father who is seeking access to his child but has been denied the opportunity to develop that relationship. His relationship with his wife has fallen apart, but that should not mean that the child grows up without being aware of who his father is. It has taken far too long for the law courts to recognise his legal right to see his child. I am not in a position to say whether the decision is right or wrong, or how much time he should have with his child, but the process of making the decision must be expedited. We must be able to come to a judgment far faster, so that the stress caused is minimised.
The second issue that has come to my attention—I am sure other hon. Members have bumped into it too—is the time it takes for children to be adopted, once it is clear that they can be adopted. The length of time and bureaucracy involved causes increased stress
for the birth parents, for the parents who wish to adopt and, especially, for the child. Ultimately, it is the child we need to think of in this. In one particular case some years ago, I was involved in providing witness statements on the credibility of one of a couple wishing to adopt. It took more than two years to complete the process, and that is too long to spend making an assessment of whether people are of good standing and conduct and able to take on a child. I know that the Prime Minister has spoken with passion about this issue, and I hope that the Government will address it in the Bills that will deal with these issues in January.
My hon. Friend the Member for Bracknell, who is unfortunately no longer in his place—I understand that he is poorly—mentioned “The Waltons”. Much as it is amusing to remember that black and white series, it had some powerful messages that we can recognise today. It had three generations living under one roof and showed how they dealt with day-to-day problems. While my hon. Friend’s comment may have been a flippant attempt to illustrate some of the challenges that we face today, it reminded me of a discussion I had on Radio Solent this week about war veterans and national service veterans in which grandparents said they did not feel they had the respect of the younger generation. The discussion related specifically to their contribution during the war and after and to the place of grandparents in society, communities and families today. That role, it would be fair to say, has changed over the past three or four generations since the time of the Waltons.
The hon. Member for Birmingham, Yardley mentioned the influence of grandparents, access to them and their role in providing stability during unstable periods of life, whether during divorce, resettlement, adoption and so forth. The role of grandparents is fundamental to a more palatable answer to looking after children’s needs. Speaking on Radio Solent, these veterans raised concerns that today’s generation did not look up to them in the same way that perhaps my generation or my parent’s generation did. That shows that the role of the elderly—the seniors, if you like—has changed. Perhaps the distractions of growing up today—television, internet, mobile phones and so forth—and the fact that we live such diverse lifestyles and much further from families and grandparents has challenged the contribution that grandparents make. They simply do not have the same amount of access as they did in yesteryear.
That needs to be revisited. We, as a Parliament, a country and a society, need to underline those values and remind ourselves that we want citizens not only to pay taxes and obey the law but to be part of a community, whether a village society, a residents area or whatever. We need to underline the family bonds and connections that help in the good times and, most importantly, provide security and support in the bad times. That is why I endorse what the hon. Gentleman said about provision of access to grandparents. Children should not be denied access simply because one of the disputing parties decides to alienate one of the family names.
The justice system makes life-changing decisions affecting many thousands of children every year. Churchill spoke passionately about the welfare state and talked about a safety net for society catching those who fall from their place in life and require the support of the state. The trouble with that analogy, however, is that if somebody falls through the net, they will be on the wrong side and will find it difficult to get back. I prefer another analogy: those huddles of penguins in the cold, those communities of penguins sharing body heat, while others are on the outside and exposed, through no fault of their own. They are reliant on the whole community to see them through and to get them back into the centre. If we do not help them, those on the outside of our communities and society will be unable to weather the storm and move forward. That needs to be encouraged. I put my hand up: the Conservatives, in particular, need to emphasise that message more than those on any other side. I am glad to say that the Government are trying to do that.
As I said, the decisions are taking too long, because of unnecessary bureaucracy, which is leading to a lack of trust in the system, increased stress and—let us say it—a waste of taxpayers’ money, which needs to be spent wisely, particularly in these difficult times.
I certainly welcome the spirit of the Bill and what the hon. Member for Birmingham, Yardley is trying to achieve. I would, however, question the strategy and tactics that he has adopted. He acknowledged that the Bill was busy, and he covered an enormous amount of background, which was given licence but has now been cut down by Madam Deputy Speaker as we wandered away talking about anything from wind farms to child protection orders and all sorts of other aspects that are perhaps related to this enormous Bill. The hon. Gentleman seemed to say, “Fine, there is a lot there, but if needs be, we can drops things in Committee.” He also recognised, however, that the Government are doing a number of things in various areas.
Tobias Ellwood Conservative, Bournemouth East
The hon. Gentleman shakes his head. I will happily accept his interventions after I have finished my point. In my interventions on him, I alluded to a number of areas where the Government are taking initiatives forward. Most specifically—I hope the Minister will clarify the point when he concludes the debate—legislation is expected in January, which will cover many of the areas that the hon. Gentleman has raised.
John Hemming Liberal Democrat, Birmingham, Yardley
I did not check the draft legislation for the family justice review because I assumed it covered only the family justice review, with which I disagree. In fact, it does cover that and I have now reviewed it. First, I do not think it fixes the problems; and, secondly, I think it creates even worse problems in certain respects. It is obviously always possible to introduce a Bill and I realise that some elements could be introduced later. My argument is simply that on certain urgent issues, the Bill will allow us to start solving some problems rather than just kicking them down the track.
Tobias Ellwood Conservative, Bournemouth East
I am grateful for that intervention, and I think everyone would agree with his last comment, in that the Bill provides an important opportunity to debate these issues. Not all the private Members’ Bills that we debate on Fridays make it on to the legislative book, but they allow individual Back Benchers to share new ideas, test where the Government are in respect of them at the time and ensure that the public are made aware that we are debating the issues. Subsequently, the
public can enter into the debate and comment. In that, the hon. Gentleman has certainly succeeded. We await the Minister’s comments—we are all salivating for them—before we find out exactly where we are from a Government perspective.
Dare I say it, there must be some sort of agreement between us and Opposition Members. My hon. Friend the Member for Bracknell made the point well—that there should be cross-party agreement on the messages we are sending out and, indeed, to some extent, on the legislation itself. I congratulate the hon. Member for Birmingham, Yardley, and I do not want to detract from the mammoth amount of work he has done, which needs to be acknowledged. Today’s debate is a healthy step forward, but I would like to know more about where the Government sit on a number of the issues. It is important to clarify Government thinking.
In an earlier intervention, I specifically mentioned the family justice review. This is the big piece of work being done by the Government. The foreword is written by my right hon. and learned Friend Mr Clarke, and the Secretary of State for Education. The Government responded to 130 recommendations from the family justice review, which was published in November 2011. It sets out a number of reforms to public and private family law, as well as reforms to the structures and governance of the family justice system. The Government response, which I have in my hand, was produced in February 2012.
I shall not go through all 130 responses, but I would like to share my view of three of them, if I may. The first is on page 28. It states:
“Judges and magistrates should be enabled and encouraged to specialise in family matters.”
The Government’s response is:
“The Government agrees with the Review’s analysis that enabling and encouraging specialisation in family matters will improve judicial continuity and create a more experienced family judiciary. The President of the Family Division has said that he favours a more specialist bench and that consideration should be given to the merits of setting a minimum sitting requirement for family ticketed judiciary.”
That sets out a direction of travel in relation to the time taken by these processes.
The next recommendation states:
“A single family court, with a single point of entry, should replace the current three tiers of court. All levels of family judiciary (including magistrates) should sit in the family court and work should be allocated according to case complexity.”
The Government’s response is:
“The Government agrees with the Review on the benefits of clarifying and simplifying the family courts, and making their operation more transparent, by establishing a single Family Court for England and Wales.”
If I may test your patience, Madam Deputy Speaker, I shall give one more example. The recommendation states:
“There should be flexibility for legal advisers to conduct work to support judges across the family court.”
The Government’s response is:
“The Government agrees that there is scope for legal advisers, who currently work only in the magistrates’ courts, to take on some of the judiciary’s quasi-administrative functions across the whole of the Family Court once it is established.”
I have quoted just three of the 190 recommendations in the family justice review, but those who read the whole document will see that the Government accepted the majority of them. That is a very positive result, but it has yet to be turned into legislation, which is, of course, the next step.
Part 3 deals not with court procedures but with a related but separate subject, namely energy and fuel poverty. As I made clear in an intervention earlier, there is a connection between the amount of energy that we create, where we get that energy from, how we use it, and how much we charge the nation for that process. I agree with what my hon. Friends have said today. Until we make those big decisions about new nuclear build, it will be very difficult for us to ensure that there is security of supply, and without security of supply we shall not be able to control the costs of the power that we generate. We shall have to import more energy, in which event we shall be governed by prices that are fixed outside this country. The consequences of that will affect fuel poverty; indeed, they will affect us all. That is why the Prime Minister announced the week before last that the tariffs would be looked at. I am pleased to see a smile of approval on the face of Mr Slaughter.
The tariffs need to be set in a certain way. First, they must be made far simpler, so that all users can recognise the tariff that they are on if they want to switch. Secondly, people must be encouraged to be on the lowest tariff. The present system is very confusing. I believe that there are 124 tariffs across all the energy boards, and that is far too complicated.
Andrew Slaughter Shadow Minister (Justice)
We have gone from “will be” to “might be” to “could be” to “will be encouraged to be”, and now the tariffs are to be “looked at”. Does that represent another step back from the Prime Minister’s position of two weeks ago?
Tobias Ellwood Conservative, Bournemouth East
I can use the first words quoted by the hon. Gentleman: the words “will be”. The Government and the Prime Minister are absolutely firm about their intent. I can write the hon. Gentleman a letter and include those words so that the position is unequivocal.
It is clear that people are being obliged to pay far too much for their energy, and that the process is far too complicated and needs to be simplified. The hon. Gentleman quibbles about the words used by the Prime Minister, but, dare I say it, his Government had 13 years in which to gain control of energy policy and develop an energy strategy. They did very little about it, and we are now having to deal with the consequences. Unbelievably, a third of our coal requirements are met by Russia, which is a bizarre state of affairs in a nation that ought to be able to generate its own power. The important aspect is that we keep the cost of energy and its generation down, which will have a knock-on consequence for all users, including the most vulnerable.
The Bill deals with the building regulations for social housing. It desires a reduction in fuel use, which would mean that fuel bills would be lower. That would be a positive step forward, and the proposal makes sense. However, it ignores the fact that building regulations have changed and are changing. An awful lot of powers are bestowed on local authorities to make these very decisions, rather than to have them made nationally. There is a commitment to introduce a zero-carbon requirement for all new homes built after 2016. [Interruption.] I am glad that the hon. Member for
Birmingham, Yardley has come back into the Chamber, because he may wish to comment on this. The Bill would require that new dwellings comply with the level 6 standard—a very high standard. He may be aware that the Government’s standard is level 3. What is the difference between the two? Level three is deemed as providing the necessary insulation that will save on fuel costs, whereas levels 4, 5 and 6 take us into the bells and whistles. Those levels dramatically increase the cost of the build by about £30,000.
John Hemming Liberal Democrat, Birmingham, Yardley
It is an issue for Committee.
Tobias Ellwood Conservative, Bournemouth East
That is a wonderful line, but if this reaches Committee, perhaps its members would recognise that level 6 includes things such as rainwater harvesting. That is why I disagree with the provision. Rainwater harvesting may be something that an individual would like, and we would all aspire to use rainwater sensibly as it comes off the roof, but the scale of the social housing problem that we face in each of our constituencies—the shortage has been mentioned time and again in this House—means that promoting level 6 would make things unworkable. So the hon. Gentleman may be wise to amend his Bill in Committee. As I say, social housing is already obliged to comply with level 3, and local councils can demand, for example, where a new housing estate is being built, an increase to level 4, 5 or 6. Councils can impose that as part of the planning application process, but that is done in the town hall, not from here.
In conclusion, the family justice system continues to require reform to reduce delays, and to improve support for families and, specifically, for children. Every two months of delay represents 1% of a young child’s childhood, yet the average case now takes 55 weeks to complete. There is certainly still work to be done, but a lot of homework has been done on looking at these issues: the Munro review’s recommendations on child protection; Martin Narey’s work on adoption, legal aid and civil justice reforms; the family justice review, which I have referred to on a number of occasions; the Government’s response to that review; and now the ideas contained in this Bill. The coalition Government have done an awful lot of homework, but it is now time to legislate, and I look forward to hearing what the Minister has to say.
Andrew Slaughter Shadow Minister (Justice) 12:48 pm, 26th October 2012
We have had a wide-ranging debate on a wide-ranging Bill, and I hope that my comments live up to the expectations raised by Mr Ellwood on all these issues, on which I can show off my expertise.
I pay genuine tribute to John Hemming, who has been contentious sometimes and used colourful language on this issue—not today, because he has been on his best behaviour, in trying to get Government support. However, no one can doubt his passion or, indeed, his knowledge, as he has ably demonstrated on all the issues in this detailed and wide-ranging Bill.
As Philip Davies pointed out some hours ago, it is a heterogeneous Bill—it has many elements—and it shows off that detail, but the danger, as the hon. Member for Birmingham, Yardley has realised, is that although some parts of it might please some people, it is unlikely that all of it pleases everyone. I therefore note his plea to the Government in particular that they could fillet it if only they would let it go to Committee. I suspect that my response on behalf of the Opposition will be similar—we like some parts of the Bill very much; we are ambivalent about other parts; and we have doubts about some parts—but if it does get to Committee, we will certainly consider it constructively and seek to amend the parts that we do not like.
I will say a little, perhaps not so much as the hon. Gentleman did, about the Bill’s detail. It brings to the fore some of the overarching—one might say, eternal—themes in the justice system, the first of which is openness. The word “transparency” appears in the short title. Openness will be a contentious issue on the Floor of the House this autumn, when the Justice and Security Bill arrives and we will see what the Liberal Democrats do in relation to that matter.
Openness in the family courts is a difficult issue which requires a balance between what should always be the presupposition in English courts—that matters should be transparent, that the public should have admittance and that matters should be publicly available—and, obviously, the protection of children in particular and of sensitive and personal matters. I am not persuaded that some of the Bill’s provisions contain sufficient safeguards to prevent matters from becoming public which, perhaps, should not become public. I shall say a little more about that and talk about some of the individual clauses.
The second theme is equality of arms. There is an inference in everything that the hon. Gentleman has said about the Bill that there is an imbalance of power between the family on the one hand and the local authority on the other hand. To some extent, that is common sense. There is a difference in resources always. The local authority sometimes plays a dual role. Although it might be a party in proceedings, it has been judge, as well as a party, in its previous dealings with the family.
What concerns me particularly with the legal aid brief for the Opposition are the changes in the family law that are taking place as a consequence of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—the LASPO Act—and the fact that although legal aid is protected for public law, there are such swingeing cuts in legal aid for family law that the availability of family lawyers, representation and firms that have such expertise is threatened. That is a part of the de-professionalisation of the courts that the Government are overseeing in many different aspects. They say that that can be replaced with mediation in some instances. They say or at least imply that many cases can be conducted by litigants in person.
I do not know whether the hon. Gentleman had regard to those matters in proposing the Bill. His solution appears to be that untrained people—McKenzie friends—or some form of non-professional advocacy and support can in some ways replace the help and assistance that the legal profession can provide.
John Hemming Liberal Democrat, Birmingham, Yardley
The idea is to have someone there to provide people with psychological support. Everyone else is not associated with them. They may have solicitors there as well. For instance, the mother of a 17 or 18-year-old young mother could be there, or an embassy representative could be there for foreign citizens.
Andrew Slaughter Shadow Minister (Justice)
I see the hon. Gentleman’s point, and no one would disagree that it might be important to have someone to give emotional support to litigants in a time of great stress—most litigation is a time of great stress, but particularly family litigation. I understand the examples he gives, but he does not deal with the problem that occurs in many cases, namely the inequality and imbalance of arms in private family law, let alone in public family law. That problem is not addressed in the Bill.
The third theme is costs. I noticed with interest clause 8(3), on the risk of costs in judicial review proceedings. The hon. Gentleman will be aware that, as a consequence of part 2 of the 2012 Act, no win, no fee agreements will not be available in all cases—they will not be available in judicial review, and nor will qualified one-way cost-shifting. It is therefore very likely that judicial review will be restricted for persons who do not qualify for legal aid. I suggest he looks at draft regulations on the future provision of legal aid, which suggest that all other remedies will need to be exhausted before legal aid is available in public law proceedings in judicial review cases. The Minister is looking up and showing some interest—
Jeremy Wright The Parliamentary Under-Secretary of State for Justice
indicated dissent .
Andrew Slaughter Shadow Minister (Justice)
Perhaps it was just an involuntary reaction. The Minister might want to consider that point, because those regulations are likely to be debated in Committee within the next few weeks. If we are to have a wholesale restriction not only on those who do not qualify for legal aid, but on those who do, the availability of public law remedies will be severely curtailed. In that respect, the hon. Member for Birmingham, Yardley could have gone some way further on how litigants in family proceedings—we are talking about family proceedings, but it will apply to proceedings more widely—could ensure that they can get access to justice and some protection in costs, particularly when they are up against public authorities.
On the detail of the Bill, the points in part 1 are well made, but I somewhat doubt that the hon. Gentleman’s remedies, which in most cases are statutory requirements on the courts and the fettering of the discretion of the courts, are the right way to proceed. We probably disagree on the family justice review. David Norgrove’s review, which was commissioned under the previous Government but published by and responded to by this Government, is an impressive piece of work. On family group conferences, which is dealt with in clause 1, the review said that
“the benefits of family group conferences should be more widely recognised and their use should be considered before proceedings”.
Separately, the family justice review found that both children and adults are “confused” about the family justice system—a point the hon. Gentleman made well. He and I would agree that family group conferences have an important role, and perhaps a bigger role, to play, but whether there should be a requirement is another matter.
On clause 2, more was said about grandparents than about any other single issue. I suspect there will be very little dissent from any party from the point that the role
of grandparents in both contact and proceedings can be important. However, the family justice review and the Government’s response say that the leave requirement should remain, because it acts as an important safeguard for children and their families, and that that is consistent with the principle that the court’s paramount consideration must be the welfare of the child.
The Government said that they were
“committed to ensuring that children have meaningful relationships with family members who are important to them”, including grandparents. That really moves us on to the issue of sheer parenting, and the balance between the rights of family members and the rights of the child. The hon. Gentleman will be well aware of what the final report of the family justice review said on that:
“the core principle of the paramountcy of the welfare of the child is sufficient and…to insert any additional statements brings with it unnecessary risk for little gain.”
That is a point on which the Government disagreed, but with which we find ourselves broadly in sympathy.
Clause 2 raises the issue of academic research. All that I would say on that—this point was raised by other hon. Members—is that there is a will in the courts to move away from a proliferation of expert reports. The hon. Gentleman says that those will not necessarily be reports given in evidence; I am therefore not entirely sure what the role of additional experts will be, or, if the reports are not given in evidence, how the provenance and authority of experts’ opinions will be judged. I agree with the point made by, I think, Stephen Barclay, who said that we would be better employed in ensuring that a single expert gave good advice than in looking to second-guess or challenge that advice in a variety of perhaps only semi-formal ways.
John Hemming Liberal Democrat, Birmingham, Yardley
Will the hon. Gentleman say how we can ensure that an expert is giving good advice without having peer review at some stage?
Andrew Slaughter Shadow Minister (Justice)
That is a problem that the courts have to tackle in not just family proceedings but in all types of proceedings. One has to look at the qualifications, experience, expertise and record of experts who come before the courts. In my time in practice, there was a strong trend away from everybody coming along with their own expert—as soon as there are two experts, there are three opinions, if not four or five—and towards trying to focus on a single expert, either agreed by both sides or independent, depending on the nature of proceedings, on whom the court would rely. Moving away from that trend would produce a lot of additional costs and confusion.
The principle behind clause 3 is that for children in care, particularly when it comes to hearing their voices and their serious complaints—this, of course, is a matter of contemporary public concern—there must be an independent voice. The issue really is whether the independent reviewing officers are sufficient. That was considered back in 1989 when the Children Act was introduced. The hon. Member for Birmingham, Yardley doubts that they are sufficient. I note that the opinion of the family justice review is that, provided that independent reviewing officers are sufficiently independent, it is appropriate that they should be employed by the local authority. There is a danger of setting up entirely new parallel processes, public bodies and authorities, and quangos to oversee them. Given his criticism of many of the existing quangos and satellite bodies surrounding the courts, I urge caution in setting up additional ones.
On clause 4, the hon. Gentleman is absolutely right to say that good practice should be that where adoption without consent occurs, clear reasons are given. It is important that when traumatic decisions of that kind are taken, they are fully explained. The Court of Appeal has stressed that that should be done. Putting requirements on the courts to do the same thing in all cases, and fettering and removing judicial discretion, is a habit that the House gets into too often.
To sum up my view on part 1 of the Bill, it is spot-on in identifying issues, but it may, perhaps intentionally, be looking to apply slightly over-prescriptive remedies to achieve the hon. Gentleman’s aims. The hon. Gentleman will find me more sympathetic on part 2, where many of his proposals are sensible and identify matters long overdue for consideration. In clause 7 there is no definition of “wrongdoing”, which may be an omission. I am sure he will say that that is a point for Committee, but it is a rather broad term. In the light of every current event from Hillsborough to Savile, the principle of increasing the ability to and facility for whistleblowing and the ability of responsible authority, including Members of the House, to take those matters up is right.
On the subject of scandalising the court, the hon. Gentleman will not be surprised that in the light of what happened to my right hon. Friend Mr Hain, I think he is right about that, but I think I am right in saying that the Government have given undertakings that they will re-examine that during the passage of the Crime and Courts Bill through the House of Lords.
As I said, the hon. Gentleman does not go quite far enough in what he says about costs and judicial review. I am sympathetic to what he says in relation to clauses 9 and 11. Lawyers have a habit of relating anecdotes about their own practice, which is often not broad enough to be able to draw general conclusions from, but I dealt with many cases involving the Official Solicitor and the issue of capacity, and often came to the same conclusion as the hon. Gentleman—that there is insufficient scrutiny of those bodies. It is taken for granted that when a decision is made that the Official Solicitor should be involved or the matter of capacity needs to be dealt with, one moves on and deals with the situation as it is, without sometimes questioning whether those decisions have been properly made or whether those bodies are conducting themselves as well as they could.
I have sympathy also with what the hon. Gentleman says about obtaining transcripts, but his solution is not the correct one. The idea of people going into proceedings with their own recording devices, producing their own transcripts, no doubt in good faith, and those having to be subject to the same rules of confidentiality and presumably to the rules of reporting, is not practical. However, he presents a problem that needs to be looked at—the cost, the ease and the speed of obtaining transcripts of proceedings.
On part 3, I shall be brief. Unlike the prisons Minister, I am not an expert on passive flue gas technology, so I shall just make one or two general comments. The only time today that we got into a bit of party ruckus was on fuel poverty. For the record, it was an issue that the
Labour Government took extremely seriously from the time that they introduced winter fuel payments onwards, and on which a great deal was done. I agree with the hon. Member for Birmingham, Yardley and I disagree with what Dr Lee said. Fuel poverty is still a serious problem and it should not be a serious problem in the 21st century. Energy pricing and the role of energy companies are matters on which the Leader of the Opposition has taken the lead.
The Prime Minister may have been panicked into a response when he said that everybody was going to be on the lowest tariff, but I hope that when he refines his ideas, we will see some positive movement towards ending profiteering by the cartel of energy companies, and ensuring that, in particular, those on low incomes and those who are vulnerable by reason of age or disability have the funds to heat their properties and that those properties are as weather-tight as possible. In that broad sense, I welcome the fact that he managed somehow to slide those issues into the Bill.
Before concluding my remarks, I want to mention one or two of the other contributions we heard, because they were all interesting. My hon. Friend Jim Dobbin used his local knowledge and his expertise to talk about the terrible events in Rochdale, which perhaps were the most serious child welfare cases that have occurred recently.
Many hon. Members spoke from experience about cases in their constituencies. The hon. Member for North East Cambridgeshire and several others mentioned the important role of grandparents, which I think we all agree on, although I certainly agree with the comments about the paramountcy of the welfare of the child and the need to avoid the proliferation of experts.
The hon. Member for Birmingham, Yardley had more than ample support from his friend and neighbour Lorely Burt on most parts of the Bill, but did not perhaps enjoy the same level of support from the hon. Member for Bracknell, who treated us to an interesting televisual spectacle. I do not think that he was entirely frank with the House when he said the he had watched only one episode of “The Waltons” during a spare hour, because he went on to mention several other episodes and showed a rather prurient and extensive knowledge of the series, which I was a little worried about. However, it seems the only other programme he watches is “Jeremy Kyle”, so perhaps he should stick with “The Waltons”. Madam Deputy Speaker pulled him up at that point—when he started to wax lyrical about how we should ban benefits and unban handguns, it was felt that he was straying somewhat from the themes of the debate.
I am afraid that I do not recognise the pattern the hon. Member for Bracknell described of people on benefits living in luxury and poverty no longer existing in the way it had years ago, and I do not think other hon. Members, including those on the Conservative Benches, do either. If we have made significant improvements in relation to fuel poverty, it is thanks to previous Governments, including the previous Labour Government, and the consensus that existed in this country about the safety net and the welfare state.
However, it is incontrovertibly true that more needs to be done, and I am sure that the hon. Member for Birmingham, Yardley would agree, drawing on the experience from his own constituency, that it is shameful to see families relying on food banks and, as I encountered in the past couple of days, having to pawn their possession and sell their furniture simply to make ends meet. In particular, it is shameful that, because of the extraordinary rises in energy prices, elderly people still have to decide which of the basic things in life, including warmth, they are able to provide themselves with over the winter. For that reason, I am pleased that he mentioned fuel poverty along with the many justice and family law issues he raised today.
Mr Ellwood treated us to an account of his appearances on Radio Solent and the collectivist ideal of penguins. We were getting close to the time the Government had set for the debate to end, if I may put it that way—we always know when we are getting to the thin end of a debate. We of course then had still to hear from myself and the Minister. I will therefore take the hint and hand over to the Minister. I look forward to his comments with enthusiasm and to hearing which parts of the Bill the Government will take through because, whether or not they wish the Bill to proceed to Committee, I am sure that there are ideas and principles in it that should find their way on to the statute book. Whatever the Bill’s short-term future, the hon. Member for Birmingham, Yardley has raised a number of serious and important points.
Jeremy Wright The Parliamentary Under-Secretary of State for Justice 1:14 pm, 26th October 2012
It is a great pleasure to respond to what Mr Slaughter rightly described as a wide-ranging debate. Any debate that gets us from thermodynamics to Jeremy Kyle by way of “The Waltons” cannot really be described in any other way. I am very grateful, too, for the contributions made by hon. Members, including the hon. Gentleman, Jim Dobbin and my hon. Friends the Members for North East Cambridgeshire (Stephen Barclay), for Solihull (Lorely Burt), for Bracknell (Dr Lee) and for Bournemouth East (Mr Ellwood), all of whom spoke a good deal of common sense. They have had the opportunity to do so because of this Bill, presented by my hon. Friend John Hemming. I again agree with the hon. Member for Hammersmith that we should pay tribute to my hon. Friend, whose commitment and experience, certainly in the area of family justice, are hard to beat. He has long demonstrated a real interest in improving the lives of the most vulnerable children in this country. I hope all of us have addressed this debate in a manner in keeping with that.
I have to disappoint my hon. Friend the Member for Birmingham, Yardley, however, because I agree with my hon. Friend the Member for Bracknell that we should not create too much legislation, especially where there is no need to do so. If we were operating in a vacuum—with the Government taking no interest in the reform of the family justice system, putting forward no proposals, commissioning no research—my hon. Friend’s arguments would have more force, but that is not the case. As he knows, a substantial amount of effort has been put into reviewing the family justice system, and I am disappointed to learn that he is not a supporter of that. He knows that, with cross-party support, a review panel independently chaired by David Norgrove was set up in 2010 to look at all aspects of the family justice system, from court decisions on taking children into care through to disputes over children when parents divorce. The panel gathered evidence from hundreds of people and groups with a personal and professional interest, and conducted two public consultations. I do not know whether my hon. Friend contributed to that, but many people did. As my hon. Friend the Member for Bournemouth East pointed out to us, the final report of the family justice review was published in November 2011, with over 130 recommendations to improve the way public and private law disputes are dealt with and to reform the structures and governance of the family justice system.
The Government published their response in February 2012. The Government accepted that the family justice system was too often characterised by delay, expense, bureaucracy and lack of trust—many of the issues that my hon. Friend the Member for Birmingham, Yardley and others mentioned today. My hon. Friend is right, and those who have been involved in the review are right, that the public have the right to expect much more. The Government accepted the majority of the panel’s recommendations, including putting children at the heart of the process, creating a single family court to make the system more effective and easier to navigate, reducing unnecessary delays in care proceedings and providing for expert evidence to be commissioned only where necessary, and establishing a family justice board to drive improvements in the system and improve management information. I would hope that my hon. Friend would support those provisions.
A programme of reform addressing the findings is already under way, and it is of vital importance. I am pleased to say that, despite what my hon. Friend said, the reforms were welcomed by users and professionals alike, and there is now a sense that all the key stakeholders—possibly excluding my hon. Friend—from Government to the judiciary and from social workers to lawyers, are absolutely committed to working together to achieve the changes that the system so badly needs.
I know that my hon. Friend has not had an opportunity to consider fully the draft legislation that is now receiving pre-legislative review, but I hope very much that he will take the trouble to look at it carefully, because I imagine that he will see a great deal that he can agree with. Because that material is being presented for pre-legislative review, and also because the matter is being investigated by the Justice Committee, there will be opportunities for him and others to influence the way in which the Government’s thinking develops. If the Bill then comes before the House, as I hope it will early next year, there will be opportunities for my hon. Friend and others to influence things at that stage. It is in that environment that I hope my hon. Friend will take the view that, worth while though many of the contents of the Bill are, and valuable though many of his ideas are, he will be prepared to withdraw it and wait until that legislation comes forward, and improve it if he believes that is necessary.
The Association of Directors of Children’s Services has come in for some harsh words in the course of the debate, and people have wondered why it does not support my hon. Friend’s Bill. It has made it very clear that it does not support the Bill because it does support the way in which the Government are going about reforming the family justice system more broadly. Whereas I am sure that the Bill has elements that it would agree with, the association believes, as I do, that we should be doing this in a much more holistic way, by virtue of the family justice review and the legislation that we expect to follow it.
It is worth saying that the Government have already made good progress in delivering these reforms and have been working with the judiciary to create a more effective court system. As a first step, we have introduced legislation through the Crime and Courts Bill to create a single family court. Once implemented, this new court structure will allow for the more efficient and flexible deployment of judicial resources. It will also be easier to understand and to navigate for court users.
Something that has not been touched on in great detail but is worth mentioning is that a key element of the draft legislation on family justice is the proposal to introduce a 26-week time limit for care proceedings. That is supported by a number of other reforms, including those on experts, to which I will return. The expectation is that it will be possible to complete cases sooner than 26 weeks while retaining the flexibility to extend complex cases where that is necessary to conclude the case justly. That is against the background that at the moment, the average length of time it takes to complete such a case is over a year.
It is also right to focus on the quality of submissions made to courts by local authorities; that needs improvement. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. The Department for Education is working closely with the sector and the Association of Directors of Children’s Services on a new programme of work to strengthen court-related skills among social workers and to ensure that evidence submitted to the courts is robust and of high quality.
There has been substantial progress in setting up new governance structures for the family justice system. The Family Justice Board has now been established, and we have appointed David Norgrove, who chaired the family justice review, as its independent chair. The board has developed a system-wide action plan that sets out the contribution that it and its partners will make to the family justice reform agenda. This represents a big step in cementing the inter-agency co-operation that will be required to achieve our reforms. The Government are extremely encouraged by the progress that has been made in setting up local family justice boards, many of which are now up and running. That is testimony to the commitment and energy that exists to bring forward the improvements that we all agree the system so badly needs. The boards bring together individuals from agencies from across the system working together to provide locally tailored, system-wide solutions.
It is the Government’s view that a number of the proposals in the Bill are already addressed in the reform programme that I have outlined via legislation, guidance or best practice, while others are under consideration or in draft legislation as part of the wide-spread changes to the family justice system, or subject to consultation. I say again that the Government should not legislate on matters where legislation covering the issues already exists or non-legislative solutions are available to address the problems. We all agree that the child’s safety and welfare must come first, and we must encourage committed professionals to follow that line.
The Bill does share many of the high-level goals we are seeking to attain, but introducing them through this route, at this point in time, has the potential to confuse and complicate an already ambitious reform agenda that has been arrived at following extensive and intensive dialogue with the key stakeholders and users over the past two years. Adding complexity at this point not only risks our losing the broad consensus that has been established but could ultimately jeopardise successful implementation as resources become stretched in adopting a less coherent and focused reform agenda. Clearly, however well intentioned—I accept, of course, that my hon. Friend’s intentions are very good indeed—such a scenario would not be of benefit to children.
Let me turn to the contents of the Bill. I hope that I will be able to set out for my hon. Friend why the Government in part accept the intentions that he has set out, but in other parts do not accept that the methods he has chosen will be effective. Let me start at the beginning, with clause 1. My hon. Friend’s Bill seeks to make the use of family group conferences mandatory, subject to limited exceptions. The Government fully support the use of family group conferences where they are appropriate. Their use was strongly endorsed by the family justice review, and the Government have already funded the development and dissemination of a toolkit to ensure that family group conferences are used in the best possible way. In addition, the Government are currently funding the development of a framework of accreditation. The statutory guidance that accompanies the Children Act 1989 already highlights the importance of the use of family group conferences at key stages in the decision-making process for children, but they are a complement to, rather than a substitute for, other statutory meetings.
The Government’s support for family group conferences where they are appropriate could therefore not be clearer. However, we are of the view that making them compulsory would be a step too far. Family group conferences are not always suitable for all families in all circumstances. Families also have to agree to a family group conference in order for it to happen, not least to ensure a realistic prospect of a successful outcome. The toolkit to which I have referred sets out best practice in running the conferences. It also sets a clear expectation that the plans should be completed and agreed within six weeks, and that this will be agreed by the referrer as long as it addresses the issues of concern. That is what is called for in the Bill. Many of the proposals in clause 1 are therefore already covered by existing guidelines and good practice. However, although we want to encourage the use of family group conferences more widely when any decision needs to be made about a child’s future, we do not believe that legislation to make them compulsory is appropriate at this point.
My hon. Friend also raised the importance of parents having simple information to support them through the court process. Again, we agree, and various forms of guidance are currently available to assist parents involved with child protection services or entering the family justice system. In addition, a great deal of work is ongoing to improve the provision of information more generally for families before they enter the system. Parents will also continue to receive legal aid for public law cases, and work is under way to assist litigants in person in other cases. In the private law context, that includes the provision of an online hub, and telephone and face-to-face services for users, together with guidance for litigants in person and for practitioners, including the judiciary, on dealing with litigants in person.
The creation of a single family court is a key step in making the family courts easier for users to understand. Furthermore, a guiding principle of the 1989 Act is that local authorities must work in partnership with families when making any decisions about their children. The social worker has the primary responsibility to engage with family members to assess the overall capacity of the family to safeguard the child, as well as ascertaining the facts of the situation causing concern and the strengths in the family. Support is also available from other sources, such as the Family Rights Group, which receives funding from the Department for Education and produces advice sheets and free telephone and e-mail advice for parents and families involved with children’s social care about the care and protection of their children.
Clause 2 deals with proceedings in the family court. My hon. Friend’s support for the use of McKenzie friends to help parties put across their case is welcomed. The support for attendance by observers is also welcomed. Both McKenzie friends and observers are, of course, already a feature of the family courts, and courts take seriously the need of litigants to have such support. As my hon. Friend will know, McKenzie friends are already subject to rules of confidentiality regarding their work in court. The Government agree with my hon. Friend that there is a need to improve the quality of some expert reports in family proceedings, a question to which many other hon. Members have referred in this debate. We are working with the Family Justice Council to develop quality standards, on which we intend to consult later this year. Those standards will build on the existing framework of accountability set by the family procedure rules.
The family procedure rules make it clear that an expert’s overriding duty is to the court, regardless of who instructs or pays the experts. Experts are under a duty to provide an independent opinion that conforms to the best practice of their profession. In addition, experts are subject to the standards and codes set by their profession, and many are subject to statutory regulation. Imminent changes in secondary legislation and proposals for changes in primary legislation in the slightly longer term will reduce and focus the use of experts in family proceedings generally. Experts can, of course, play an important part in proceedings by providing an expert opinion about a question that is not within the skill and experience of the court. For example, an expert might be needed to determine whether the cause of an injury to a child is likely to be accidental, or to determine whether a parent is continuing to abuse illegal drugs.
Expert reports take up precious time, however. We agree with the family justice review’s conclusion that experts should be used only when they are necessary to determine a case justly, and that expert reports should not duplicate evidence available from other sources. We also agree that the court should ensure that such evidence is properly focused on the key questions that the court needs to have answered. Changes to the family procedure rules to bring that into effect are under consideration, and we hope to implement them early next year.
I understand that my hon. Friend is keen for researchers to have access to court records, including experts’ reports. Provisions are already in place in the family procedure rules—in practice direction 12G, should he wish to check—that enable any person lawfully in receipt of information relating to children proceedings to pass that information to researchers conducting an approved research project, including expert evidence.
However, as Members will be aware, the issue of how to open up the family courts further, and how to balance access with proper controls to prevent the disclosure of sensitive information that might be harmful to parties in the proceedings if released, remains a difficult and controversial issue which merits more serious consideration in the round. In this context, I draw my hon. Friend’s attention to the Family Justice Board, whose remit includes general improvements to the family justice system. It might well be profitable for him to have conversations with the board on how those matters could be taken forward.
Turning to the interests of grandparents and other members of a child’s family, let me start by reassuring my hon. Friend and others who have spoken today that the Government recognise that grandparents and other relatives can play an important role in children’s lives, and that those relationships are important. Grandparents and other relatives provide support for families in many different ways, including child care, support when things are difficult, and full-time care of the child.
The 1989 Act already requires local authorities to seek to place looked-after children with their wider family first if it is not possible for them to return to their birth family. The revised statutory guidance to the Act requires local authorities to demonstrate that they have considered family members and friends as potential carers at each stage of the decision-making process, before and during proceedings, and the family group conferences that we have already mentioned are an important way of involving family members.
The child and any person with parental responsibility for the child are party to proceedings. The court may at any time direct that any person be made a party to the proceedings, and that can include grandparents, family or friends. The local authority does not have a duty to assess informal family and friends care arrangements, unless it appears to the authority that services might be necessary to safeguard or promote the welfare of a child. In such circumstances, the framework for the assessment of children in need and their families provides a suitable model by which local authorities can satisfy themselves that the proposed carers have the capacity to meet the child’s needs.
Section 22C of the 1989 Act requires consideration to be given to the most appropriate placement that will safeguard and promote the child’s welfare. When return home to a birth parent is not possible, consideration must be given to placement with a relative or other connected person who is approved as a foster carer. When the arrangements involve private fostering arrangements, the carer is not approved as a local authority foster carer. However, the private fostering arrangement may be prohibited if assessed by the local authority as unsuitable.
For those family and friends carers involved when the child is looked after—and when a child is the subject of care proceedings—the regulatory framework sets out the required processes to be followed when the most appropriate placement for a looked-after child is with a connected person. When an immediate placement for a looked-after child with a relative or other connected person is required, and it is not possible to fulfil the requirements of the full approval process, the 2010 regulations set out the arrangements for the temporary approval of a connected person, to ensure that the child does not have to be placed with a stranger in the meantime.
The Department for Education’s consultation on a proposed redraft of the “Working Together” package, including new statutory guidance on serious case reviews and statutory guidance on undertaking assessments, concluded on 4 September. As part of the consultation, we sought views on replacing nationally prescribed timetables for assessment with local frameworks. The assessment process for individual children and families should be timely, transparent and proportionate to their needs. Social workers will determine what is timely and proportionate by using their knowledge, expertise and judgment. We are currently analysing the responses and the final guidance on assessment will be published by the end of the year.
On contact for grandparents, in cases where parents separate, no individual has an automatic right to any particular level or type of contact with the child. Such arrangements, if they cannot be resolved by the family members concerned, are referred to courts for a decision. Grandparents and other relatives may apply for contact through the courts, whose decision will take into account all the circumstances of each individual case, although in certain circumstances the permission of the court may be required. The Children Act is clear that the welfare of the child must be the court’s paramount consideration in such decisions. It will make a contact order if it decides that it is in the child’s best interests to have contact with the applicant. Any legislation that granted an automatic right to specific individuals to have contact with the child would, potentially, not be consistent with that principle.
As my hon. Friend knows, however, the Government are clear that the importance of children’s relationships with other family members should be taken into account during dispute resolution processes. Children’s relationships with family members who are important to them will, therefore, feature prominently in the creation of parenting agreements where appropriate and in the bespoke parenting programmes that will be available to support parents in reaching agreement out of court. If my hon. Friend looks again at the draft measures, which are currently subject to pre-legislative scrutiny, he will see that they propose a child arrangement order whereby many of the issues may most sensibly be addressed.
Clause 2(5) proposes to change the wording of section 22C(7)(c) of the Children Act, which requires the local authority, in determining the most appropriate placement for the child, to ensure that the placement is such that the child is provided with accommodation within the local authority’s area, unless that is not reasonably practicable. The amendment would remove the reasonable practicability test in favour of a best interests test, but section 22C(7) already places local authorities under an overarching duty to safeguard and promote the welfare of looked-after children. The section’s qualification of reasonable practicability ensures that, in a situation where the child should be placed within the local authority’s area but it is not possible to provide such accommodation—there might not, for example, be a suitable children’s home placement in the area—the child may be safely accommodated elsewhere. We cannot place an unqualified duty on local authorities in a situation where they may not be in a position to fulfil that duty.
On children in care, my hon. Friend’s concerns are reasonable and entirely understood. Putting children at the centre of the care planning process, whereby their wishes and feelings are always considered, is the underpinning principle of the Children Act.
Edward Leigh Chair, Public Accounts Commission
Will the Minister give my hon. Friend Mr Carswell a chance to get to his Bill?
Jeremy Wright The Parliamentary Under-Secretary of State for Justice
I am sure that my hon. Friend, who is an assiduous parliamentarian and familiar with how things work, will accept that, if a Bill is as wide-ranging as this one and if it has taken as long to debate as this one has, it deserves a proper response, which is what it will get from me.
As I was saying, the underpinning principle of the Children Act, which is in question here, is reflected throughout the regulations and guidance on care planning and reviews. Each child is allocated an independent reviewing officer and the regulations and guidance that came into force last year strengthen further the independence of that role by clarifying that they cannot be involved with the management or resource of that case. All local authorities with children’s services responsibilities must ensure that independent advocacy services are provided for children and young people making or intending to make a complaint through the complaints procedures and the processes that are already required to be in place. We are currently exploring what more the Government might be able to do to support those processes.
Under the Children Act, local authorities also have a duty to appoint a person to be a child’s independent visitor where it appears to them to be in the child’s best interests. Decisions about whether to appoint an independent visitor should be about the needs of the child, which are determined by examining a range of factors such as the distance from home of where they are placed and whether having an independent visitor will make a positive contribution to promoting their education and health. The independent visitor’s functions are to visit, advise and befriend the child.
In relation to my hon. Friend’s proposal that looked-after children should be treated the same as other children with regard to criminal records, I simply say to him that that should be the case now. Enforcing that does not require a change in the law, but if there are difficulties, we will of course work with him to address them.
I turn to the Bill’s suggested amendments to the Adoption and Children Act 2002. It may be helpful if I set out in a little more detail the effect that clause 4 would have. It would amend section 52 of the Act, which makes it clear that the court can only dispense with the need for parental consent where it is satisfied that the parents cannot be found or lack mental capacity, or that the child’s welfare requires it. As my hon. Friend will know, a placement order authorises a local authority to place the child for adoption by prospective adopters. The effect of an adoption order is that the parental responsibility of the birth parents is extinguished, and that only the child’s adopted parents have parental responsibility. Neither a placement order nor an adoption order has the effect of putting a child in the care of a local authority.
There would be two distinct effects of clause 4. First, it would require the court to give in its written judgment a full explanation of how it reached its conclusion on each aspect of the welfare checklist. Secondly, it would place a duty on the court to consider
“whether it is possible and in the interest of the welfare of the child to place the child with one of his relatives” before making an order placing a child in the care of a local authority. I understand my hon. Friend’s underlying concerns, but I do not think it is sensible to amend the law in that way.
The clause would place a statutory duty on the court to give a fully reasoned judgment for a decision to dispense with parental consent when the court makes a placement order or adoption order. The court is, however, already under a statutory duty to consider the welfare checklist, and that duty applies to any decision of the court relating to the adoption of a child, not just to a decision to dispense with parental consent. Furthermore, the 2002 Act requires the court to do more than just consider the welfare checklist when making an order. It must consider the child’s welfare and the whole range of powers available to it under that Act and the Children Act 1989. Current legislation already requires the family proceedings court to give its reasons for decisions. In addition, domestic law already makes it clear that the judge must go through, analyse and balance each factor in the welfare checklist in order to justify his conclusions.
The clause would also place a duty on the court to consider whether it is both possible and in the interests of the welfare of the child to place him with one of his relatives before making an order placing him in the care of a local authority. However, section 52 of the 2002 Act is not about placing children in the care of a local authority. It is about parental consent for the adoption of a child. I and the Government share my hon. Friend’s central concern for the welfare of children and the need to keep them in their families wherever possible. We understand his intention in setting out his proposals, but we simply do not think that they are the best way of achieving what he wants.
I would wish to cover a number of other matters in detail, but I am conscious of the other business to be discussed today, and I would not wish to deny my hon. Friends who are in their places the opportunity to discuss it. However, I need to say one or two things about other areas that my hon. Friend the Member for Birmingham, Yardley has covered in the Bill.
In relation to the duties of local authorities and other bodies, it is worth pointing out that, as I said earlier, when making any decision about a looked-after child a local authority must be satisfied that it is the most appropriate way to safeguard and promote the child’s welfare. Under the 2002 Act, when the court or an adoption agency makes a decision about the adoption of a child, the child’s welfare must be the paramount consideration. Existing legislation covers a great deal of the ground that my hon. Friend wishes his Bill to cover. The Government are currently considering whether to amend the law on contact for children in care, following their recent call for views on giving greater flexibility to local authorities when making contact arrangements.
I agree with the reservations held by the hon. Member for Hammersmith about the definitions in clause 7 and the right to report wrongdoing, and a great deal of work would be required on that. The hon. Gentleman was also right when he spoke about the proposal to abolish the offence of scandalising the court, and the Government are currently considering that matter. In response to a debate in the other place during Committee stage of the Crime and Courts Bill, my noble friend Lord McNally undertook to consider the matter further in consultation with the judiciary and the devolved Administrations and return to it on Report, and that is what we will do.
The proposal by my hon. Friend the Member for Birmingham, Yardley to publish contempt of court details would be difficult because of the impact it may have on innocent third parties. Were we to do so, the risk is that it would be possible to identify the child involved, which is obviously of concern. We must remember that cost liability in judicial reviews is an important deterrent to unmeritorious litigation. Legal aid remains available for judicial review, however, and legal aid clients have cost protection and are not usually required to pay the other side’s costs if they fail.
The law already contains provisions to deal with complaints about the Official Solicitor. I do not have time to go into those now, but I am sure that my hon. Friend can consider the matter at greater length if he wishes. On the recording of hearings, parties already receive transcripts of court hearings and, as other hon. Members have said, it is not sensible to set up a competing process. Other transcripts may be produced, and if they did not match a further layer of complexity would be required to resolve any conflict. I understand my hon. Friend’s concern, but he does not go about resolving it in the right way in the Bill.
The right to assert litigation capacity is also covered by existing law. Courts are required to investigate capacity when that issue is raised, carefully and on the available evidence, and even if there seems to be no dispute, medical evidence is invariably required as a minimum before holding that a party lacks capacity. A person interested in the protected party for whom the Official Solicitor has been appointed by the court as litigation friend, can apply to the court and seek to have the Official Solicitor discharged as litigation friend, and that person—or somebody else—appointed in their place.
I do not believe that my hon. Friend is being too radical and progressive for the Government on the ambit of reasonableness in capacity, but the measure he suggests is not necessary because it is already covered by the Mental Capacity Act 2005. Existing legislation already prioritises and protects capacity to the furthest extent that a person is able to exercise it, and without using the reasonableness of the person’s proposed decision as the criterion for capacity.
Finally let me turn in the last few minutes to energy and fuel justice. The majority of today’s debate has focused on the family justice parts of my hon. Friend’s Bill, and I hope he will forgive me if I deal with other areas in a little less time. Clause 13 introduces a strategy to achieve lower bills and a more efficient use of fuels, and my hon. Friend will be aware of what the Government are already doing in that area, led by the Department of Energy and Climate Change and the Department for Communities and Local Government. My colleagues in both Departments, and the Government as a whole, are supportive of the aims in that section of the Bill.
My hon. Friend’s proposal to ensure that all new homes comply with level 6 of the code for sustainable homes is admirable but, as my hon. Friend the Member for Bournemouth East said, potentially an expensive ambition. Building regulations already require high levels of energy efficiency in all new homes—socially or privately owned—and a home built to current building regulations, which were introduced only in 2010, is well insulated and much easier and cheaper to heat than a typical older house. The Government recently consulted on proposals to tighten further the carbon and energy performance of new homes in 2013, and they have committed to introducing a zero-carbon requirement for all new homes from 2016. Because of that, separate legislation to improve energy efficiency for new homes is not necessary.
Requiring level 6 of the code for all social homes would be disproportionate, and could add as much as £30,000 to the construction cost of each home. Alongside the regulations and the code, it is also worth noting that a national review of locally applicable standards for new housing is now under way to reduce the burden of red tape.
My right hon. Friend the Secretary of State for Energy and Climate Change is especially interested in the ideas in the Bill on heating. That is because we as a Government are interested in the question of how to drive the long-term changes to heating systems in millions of domestic homes. We will need to do that if we wish to reduce emissions on the scale needed to avoid damaging climate change. My hon. Friend makes an interesting suggestion about the use of building regulations, and he may know that the Department of Energy and Climate Change will publish a heat policy options paper next year. Use of regulation is one of the options that the Department’s officials are exploring, in consultation with others. The Government are, therefore, already considering policy options that will seek to increase take-up of low carbon and renewable energy in buildings.
Clause 13(2)(c) of the Bill makes specific reference to microgeneration measures having access to the green deal and financial incentives. That is something that we will look at and, in addition, we think that in a small number of cases consumers may be able to get green deal finance to help fund a part of the cost of installing renewable heating. We need to do more work over the coming months to ensure that this interaction is as smooth, as joined-up and as consumer friendly as possible. Ministers will say more about those proposals in coming months.
On fuel poverty, we have concerns, as my hon. Friend will know, about the way in which fuel poverty is being measured, and we are looking again at that measurement mechanism. He will be pleased to hear that we have already announced that next year we will publish a refreshed strategy for tackling fuel poverty—the first such strategy since 2001. So we are already undertaking the work needed to ensure that we have the right framework in place for measuring fuel poverty, which will in turn allow us to target our resources on those whom we need to help most.
My hon. Friend has put in front of us a very wide-ranging Bill, and the spirit of much of it is something that the Government entirely support. But I urge my hon. Friend to look again at the measures that are already in draft from the Government, which we believe address many of the problems that he has rightly identified. In that light, I ask him to withdraw his Bill and work with us to improve the legislation that the Government have put forward and give it his full support.
John Hemming Liberal Democrat, Birmingham, Yardley 1:52 pm, 26th October 2012
I have not been given confidence by what the Minister has said. I do not wish to withdraw the Bill, although I do not intend to put up tellers so that the later debate has more time. As far as I am concerned, the Government are being dangerously complacent about issues such as cover-ups, and my personal support for the Government will rest on a change of attitude by them to take such matters more seriously. I accept that there are other legislative vehicles to achieve these changes, but we need action now. I do not withdraw the Bill.
Question put, That the Bill be now read a Second time.
A Division was called, but no Members being appointed Tellers for the Ayes, the Deputy Speaker declared that the Noes had it.
Question accordingly negatived.
Barry Sheerman Chair, Children, Schools and Families Committee 
Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee 
Meg Munn Labour, Sheffield, Heeley 
Graham Stuart Conservative, Beverley and Holderness 
David Chaytor Labour, Bury North 
Tim Loughton Shadow Minister (Children) 
Fiona Mactaggart Labour, Slough 
Ann Coffey Labour, Stockport 
Alan Haselhurst Chairman of Ways and Means 
Derek Twigg Labour, Halton 
Bill Wiggin Opposition Whip (Commons) 
David Laws Shadow Secretary of State (Children, Schools and Families) 
Michael Lord Second Deputy Chairman of Ways and Means 
Paul Holmes Liberal Democrat, Chesterfield 
Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education) 
Diana R. Johnson Parliamentary Under-Secretary (Department for Children, Schools and Families) (Schools) 
Christopher Chope Conservative, Christchurch 
Stephen Twigg Shadow Minister (Justice) (Political and Constitutional Reform) 
Simon Hughes The Minister of State, Ministry of Justice 
David Davis Conservative, Haltemprice and Howden