CLAYTON VERSUS CLAYTON

[Alison J Stevens]

http://www.theyworkforyou.com/video/?from=debate&gid=debate/201...

23 Feb 2010

John Hemming

The hon. Member for North-West Norfolk (Mr. Bellingham) wants to speak for a minute just before 9 pm. I hope to finish in sufficient time for that.

Sadly, the Government have gone about this whole process in completely the wrong way, and as such they have created a monstrous mess. It is overly complex, reverses Clayton v. Clayton, makes secret documents of
court orders that are currently public and achieves very little. I should like
to cite an example that demonstrates the problems with secrecy in the system by
referring to two babies who were born in Spain last week to families that
emigrated rapidly from Suffolk because they faced the removal of their babies at
birth, with the police in the delivery suite and social workers in attendance to
take the children immediately into care. As everybody knows from the statistics,
the vast majority of babies who are taken into care at birth end up being
adopted.

One baby was born to Sam Hallimond and his fiancée Vanessa. They went through the family courts, and the press could in fact have named them because Clayton v. Clayton allows them to be identified. The Bill,
however, aims to gag Sam and Vanessa: it aims to stop the press reporting their
names. They are in Spain, the baby is all right, everyone is okay, the
authorities are quite happy with them and there is no difficulty.

The members of the other family are Dale and Lorraine Coote and their daughter Megan, who are constituents of Mr. Deputy Speaker, the hon. Member for Central Suffolk and North Ipswich (Sir Michael Lord), and very
pleased to have his support. They have not touched the family courts, so all the
documentation on and discussion of their case can be made public; there is
absolutely no difficulty whatever. The Bill will have no effect on them, because
their case has never been to the family courts.

On the merits of the argument, Spain, according to UNICEF's report card No. 3, has one of the best records in the world for protecting children from death from abuse and neglect. The authorities have been around,
seen the Cootes and said, "You're all right. Just stay in touch with us. We do
not have a problem with you looking after your own child." The authorities here
wanted to remove the child at birth, with a police officer in the delivery
room-straight into care, feed the adoption machine.

There is a key point about the accountability in and transparency of the process. With the Cootes' case, all the documentation is public and not constrained in any way whatever. The fact that they are abroad
means that, to a certain extent, they can do what they want anyway, because the
court order stops at the border. The Hallimond case is much harder, because the
press in this country cannot report the documentation. The press abroad can,
however, so there is no difficulty there.

In care proceedings, the family courts are in essence the quality control system for a complex judgment. In social work, decisions about when and when not to intervene are critical judgments, and one needs to maintain
an open mind and review the judgment. One can criticise the Department for
making the whole system worse, but, crucially, the role of the family courts is
to bring in that quality control.

Birmingham city council reviewed the practices of its own children's services department and identified that, in about 50 per cent. of cases, the judgment was poor: the practitioners were incapable of judging when a
child was and was not at risk. The quality control for that judgment is the
family courts, but the problem is that it often fails. It does not always fail,
because there are some very good judges, but other judges basically accept any
old rubbish that is put up by the local council, and the judgment goes through.
The Court of Appeal subsequently says, "Oh, that's all judicial discretion," so
it does not correct the judgment.

As a backstop for that process, we need transparency: we need to be able to look at what has happened. The Government's strategy has been to assume that a journalist will be sitting in the family courts all the time. A
national newspaper reporter might go to the court in London once or twice, but
they will not know in advance about a miscarriage of justice; they will know
only in arrears. The process fails because it does not look at the situation
from the point of view of the parties. It is the parties who know when a
miscarriage of justice has occurred, so it is the parties who should be able to
take that issue-yes, perhaps with certain constraints-and have a discussion
about the merits of the case.

I have a constituency case in which a mother was put in the Appledore centre and her parenting ability assessed, and it was decided that because she breastfed her baby on demand-she did not follow Gina Ford's
instructions, in other words-she failed her parenting assessment. One would
think that such an assessment, which I have in writing, would be rejected by the
family court, but sadly it was not. The problem that we have with the appeal in
that case is that the judge has not issued a written judgment, so the appeal
will go in on the basis of no judgment being provided. Those sorts of things
simply should not happen.

I should have declared right at the start-I think everybody knows-that I co-ordinate the Justice for Families campaign, which is why I am contacted by people from all over the country, including children in their late
teens who are forced into care unnecessarily by the family courts system. It is
those children, too, who are being gagged by the process. It would be a criminal
offence for a newspaper to report the name of a child who is 17 and is wrongly
subject to a care order. That would not have been the case prior to this Bill,
because under Clayton v. Clayton the parties following the judgment can
be reported.

There is only area where I would have some agreement with the proposed constraints on information. Obviously, it is at the judgment stage that information should be talked about, but the Government's big mistake is
that they are going about this in completely the wrong way. What is important
about the whole process is being able to look at the experts' reports, all the
evidence and the transcript of the hearing, and ask, "Is it reasonable for the
state to intervene in the way in which it is intervening in this situation?"
These are very traumatic processes. The two families who are in Spain at the
moment faced the real prospect of a police officer in the delivery room to take
the baby at birth under a police protection order. That is massively traumatic,
so it is not surprising that they, like several other families, have decided to
emigrate.

Looking at the telegraphing that is going on between the Minister and the Conservative spokesman, it is probably fair to say that they could do with a little bit more than the minute that they asked for, so I will
finish on this point. The Government have gone about this in completely the
wrong way. The April 2009 stuff was really quite good, although it needed to go
further in certain ways, but what needs to happen now is that we stop gagging
the parties who are subject to miscarriages of justice.

— from debate entitled “New Clause 2 — Independent review”

The three speeches/headings immediately before

1. 1 earlier: Edward Timpson

   In that case, what is the concern? Where is the guarantee in the Bill as drafted that those pilots will be completed before the independent review takes place? If the Minister is giving me that guarantee, I
   see no reason why it cannot be written into the Bill. We want the Bill to be
   transparent, just as we want the courts to be transparent, so we should
   practise what we preach.

   I am conscious that we are coming to the end of our time and that other Members wish to speak, so I shall conclude by saying that the Opposition want the family courts to gain public confidence by being more
   transparent and accountable, but we need to make sure that all the people who
   work in those courts, who have to go to those courts and who report those
   courts have confidence in the Bill, and that it will work. I am sad to say
   that in its current form, despite our best efforts to help the Government
   produce a workable Bill, it will not do what it is intended to do. Even those
   on the edges of the spectrum of interest in the Bill share that concern. I
   hope the Minister will continue to take those comments on board as the Bill
   continues its passage through the House.

2. 2 earlier: Bridget Prentice

   One of the reasons why I am hesitant about the Opposition's new clause 2 is that part of it is superfluous. The pilots will have been completed long before the review takes place, so that evidence will already be
   in the public domain. I do not know whether that helps the hon.
   Gentleman.

3. 3 earlier: Edward Timpson

   At the outset I must declare an interest, in that I have been a family law barrister for 12 years, although I have not practised for several years.

   It has taken me even longer than the Minister to speak on this part of the Bill, and I suspect that my experience is unusual, as I have had more influence by not saying anything than would have been the case if I
   had spoken. I appreciate and acknowledge what the Minister has done in trying
   to address some of our amendments, and we welcome the concessions that the
   Government have made. I am glad that our amendments have been taken seriously
   and given the attention and respect that they deserve. Nevertheless, it is
   clear even from this short debate that this part of the Bill is beginning to
   unravel even further from its initial presentation.

   I want to make it clear that Opposition Members are in exactly the same position as the Government-and I am sure other parties-when it comes to considering the family court system. The Justice Secretary said
   that his objective in going through this exercise was

   "to build a transparent, accountable family justice system which inspires the confidence of the people it serves, while continuing to protect the privacy of the parties and children involved."

   I do not think that any of us could argue against that as a starting position for thinking about how we can give the public more confidence in the family justice system, which is so important to so many
   people. From that starting premise, the Government have made a number of
   welcome moves over several years.

   However, I was not sure whether the Minister thought that the new rules introduced in April 2009 were a success or not, given that, after an initial burst of activity, no one from the media seems to have shown
   much interest in the family courts. What we do know is that the major reform
   in the Bill should be given proper and careful consideration, rather than
   being rushed through.

   I agree with the pithy but important contribution from the hon. Member for Yeovil (Mr. Laws), who speaks for the Liberal
   Democrats. He said that we could not discuss such a fundamental sea change to
   family justice in such a short debate, lasting just an hour and a half on the
   Floor of the House, and still be confident that it would play out on the
   ground and in the courts as we intend. As my hon. Friend the Member for North-West Norfolk (Mr.
   Bellingham) said at the beginning of his speech, it is perhaps even
   more illuminating that we have managed to find ourselves in an unenviable
   position today, with even those who advocate full transparency for family
   courts saying that the legislation could end up doing more harm than good.

   I am not here to defend the family courts. I recognise that many people who have been exposed to the system come away from it extremely disappointed and frustrated by what they have had to go through. However, when
   we think about opening up the family courts, we cannot and must not put the
   interests and welfare of children anywhere but at the top of the list.

   The Government's hope and expectation is that the interests and welfare of children who, through no fault of their own, find themselves in the family courts system will remain at the heart of this part of the Bill.
   However, voices from all sides are telling the Government that there is still
   great concern that the involvement of the media in their cases will make
   children less, rather than more, willing to disclose problems and talk to
   professionals. The danger is that judges will have to make decisions in cases
   without having the full facts and evidence before them. I am sure that that is
   not what the Minister, or anyone else in the House, would want to happen.

   Will the Minister spend a little more time considering our new clause 7? When the Government sent round the letter telling us what their amendments would be, they prayed in aid the fact that many of the amendments
   were being introduced because members of the judiciary and other bodies, and
   particularly the president of the family division, had expressed concerns
   about aspects of the Bill, and that the Minister had, rightly, listened
   carefully to what he had to say.

   We know from his oral evidence and his written evidence to the Public Bill Committee that Sir Mark Potter has grave concerns that unless there is a provision such as we set out in new clause 7, whereby the
   publication of any case through the media could not take place until the
   judgment, a case may be reported in a local or national newspaper in a way
   that gives a completely different version of events from what has been played
   out across the whole case from start to finish. The media could give a skewed
   account that did not reflect the facts of the case as they played out. I ask
   the Minister to look at that aspect again. She clearly believes that the views
   of the president of the family division are worth listening to.

   The Opposition have tried to be constructive. I am delighted that the Government have taken on board a number of the amendments that we tabled-for example, on how involvement in the relevant proceedings are
   defined in clause 41. In some instances the Government could have agreed to
   our amendments as drafted, but they felt it necessary to rewrite them in
   almost exactly the same way, with the same meaning. Perhaps I should take that
   as a compliment.

   Why can the Minister not accept new clause 2? In the debate this evening we learned far more about the Government's position and the thinking behind the independent review. It appears that all the elements
   that we included in new clause 2-the anonymised judgments and the assessment
   and evaluation of the new rules introduced in April 2009-are very much in her
   mind as well. I ask her to be brave, to listen-as she has done, to her
   enormous credit-to the information that we have been giving her about our
   concerns, and to think carefully about why we should wait any longer for new
   clause 2 to become part of her Bill, as well as of our
   Bill.

4. FAMILY COURTS