Free information index
Dear Mr Dave Mortimer
Thank you for your email dated 9 November addressed to Beverley Hughes about the Children and Adoption Bill. I have been asked to respond on behalf of the minister. Officials have noted your comments.
Correspondence case reference number 2005/0064048
The Bill: Background Briefing
The private law sections of the Children and Adoption Bill seem to have capsized in Parliament. It has emerged that the Government's strategy was built on an elementary legal error. Apparently the DfES assumed - without checking - that the Children Act 1989 (and / or case law) had a built-in 'presumption of reasonable contact'. No-one in the Department thought to inquire what the law actually was. Of course, it now turns out that there is no such presumption. So the Government spent two years, and launched two Green Papers, and embarked on a series of consultations, and announced a series of policies - built on air. The DfES only found out the true situation last week. This unexpected development puts the Government in a bit of a pickle:
(i) Parliamentary Discomfiture
The mistake originally came to light in Parliament in Grand Committee (see Hansard, in particular Lord Howe). The LibDems and the Tories (both of whom had taken the precaution of checking the law) delighted in tabling amendments which pointed out the Government's error. Since then, the Government have taken legal advice - which duly confirmed their family strategy is without foundation.
(ii) An 'Empty' Bill
The Bill's contact provisions are predicated on a misplaced belief that the central prerequisite (the cornerstone presumption of reasonable contact) is already in place. This means that their Bill, instead of installing this presumption, relies on its prior existence - and then introduces all sorts of machinery intended to give force to a presumption - which does not exist. In other words, the Bill achieves nothing. The Green Paper's Ministerial Foreward began by asserting "The current way in which the Courts intervene in contact disputes does not work well. This is the opinion of both Government and the senior judiciary". This was a prelude to promising 'major changes'. It now looks very much as though the only intact element of the Government's long-heralded innovations is a "It's nice to be nice" website - http://www.dca.gov.uk/family/divleaf.htm - which, again because of the basic legal error, is misleading.
(iii) Attacking their own Green Paper
A useless and misconceived Bill is only the start of the Government's problems. In the run-up to the Bill, the Government committed itself - hook, line and sinker - to support for what it wrongly believed the law to be: “After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society. And it is the current legal position” Ministerial Foreward, The Green Paper. So - the Government wholeheartedly supports the presumption of meaningful or reasonable contact: “We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, so long as it is safe and in their best interests for that to happen.” Lord Adonis, July 2005, Col 251. Of course, any family lawyer could have told the Government this was twaddle. Everyone who knows anything about private law cases knows that 'every case is different'. There cannot be any such presumption in case law. The upshot is that the Opposition Parties have now combined to table amendments to introduce the 'missing' presumption of reasonable contact - which the Government says it supports. But the Government has now discovered that this would change the law (albeit to way the Government says the law is and should be). So the Government is reduced to opposing the opposition amendments - which the Government is committed to supporting: 'The Government firmly believes that both parents should continue to have meaningful relationships with their children after separation so long as it is safe to do so' Para 1, Next Steps. Ministerial Foreword. So, we will shortly have the intriguing spectacle of New Labour opposing its own Green Paper.
(iv) The Parliamentary Canvas
The key amendment (the presumption of reasonable contact) may be introduced in the Lords this coming Monday - when the LibDems and the Tories may unite to vote in the presumption which the Government says it supports and which the Government now says it opposes. So deep is the Government's muddle that further somersaults are likely. No-one in the DfES had really heard of 'presumptions' until a couple of weeks ago. They didn't really understand this tricky concept: what presumptions mean, or how they work, or why they might matter, or whether they might effect case-outcomes. There's nothing yet to indicate DfES comprehension that legal systems are actually mechanisms - which have to be built - with the various components operating in cohesive fashion. Nor had the DfES grasped the idea that legal systems apply definable principles - or tests - in order to produce decisions - on the balance - of detriment and benefit. The DfES thought that legislation, and detailed legal reform, was simply matter of telling everyone they ought to be really nice, mouthing a few feel-good platitudes, setting up a website, and writing a blank cheque.
(v) The DCA
It now looks as though the DCA may hardly be better up-to-speed. Rumour has it that the DCA are so discombobulated that Baroness Ashton of the DCA has taken refuge in the weird notion (opposed by legal opinion across-the-board) that not only is the Children Act not based on the presumption of reasonable contact - the Act is not based on the presumption of any contact at all. On this basis - just as ill-informed as the aberrant notion that existing system is based on the presumption of reasonable contact - the Government will seek to argue that: - the ideal legal system starts from the position that children and parents should not be allowed to see each other at all. At the same time, poor old Lord Adonis (left to carry this unruly baby) will be obliged to assert that his 'contact-is-wrong' approach does not conflict with the Government’s position that:" The Government firmly believes both parents should continue to have a meaningful relationship with their child so long as it is safe." Such is the muddle there is even talk of the Bill being withdrawn. This might not look frightfully good coming on top of the Terrorism cliff-hanger. One can only sympathise with the DCA. Officials kissed goodbye to the Bill almost two years ago - when it was sent to the DfES for implementation. So DCA officials have only had the last week or so to come to terms with the strange mutant with which they have been saddled by their DfES colleagues - and cobble together some kind of exit strategy.
(vi) Future Parliamentary Events
The 'presumption of reasonable contact' either will, or will not, be installed in the Lords next week. The outcome depends on the amount of backwoods support the Government can muster in the next few days. If yes: the Government will face the task of throwing it out in the Commons. If no: the Opposition faces the task of installing the presumption in the Commons. Either way, the Government has manoeuvred itself into the incomprehensible position of arguing that, when opposing the presumption of reasonable contact, the Government supports the notion that: - children and parents can and should be stopped from having reasonable contact with one another - even if there is no reason why. Even if the Government gets away with this unappetising proposition (which contravenes the United Nations Convention) an awkward problem remains: trying to explain why they issued a Green Paper promising a series of measures based on the opposite premise.
(vii) The Making of a Debacle
An interesting side-issue is how all this happened. It is a further headache that the misadventure threatens a rack of DfES disclosures. The facts are that two years ago, the family court judiciary produced a fully-designed pilot project (called 'Early Interventions') based on the presumption of reasonable contact - which, of course, the Government says it supports. In October 2003 the EI project was submitted to, and accepted by, the DCA Minister Lord Filkin. He passed EI to the DfES for implementation with funding attached. There, a DfES civil servant called Bruce Clark decided to kill EI and replace it with "Family Resolutions". Mr Clark did not appreciate there was any difference between his idea for a pilot project and the original fully-defined EI project. (In fact, Family Resolutions was no more than an idea to think of an idea). So Clark told Ministers that the original EI project continued in development under a different name. The substitution was passed off as a mere name-change. So Ministers continued to issue assurances to the Press, public and the House that the EI project was still going forward. The Green Paper Parental Separation was built on the EI reforms, which were founded on the presumption of reasonable contact, which Ministers thought was still going forward. But in actuality, as far as anyone can tell (and the documented record is very clear) the EI papers were never read by the DfES. The EI documentation was 'mislaid' by the DfES before reaching the project Design Team. Meanwhile, Ministers - unaware that EI had been killed - announced all the policy changes and policy benefits which would have flowed from Early Interventions. This is what has come to light under Parliamentary scrutiny.
(viii) Sir David Normington
This represents a particular misfortune for the DfES Permanent Secretary Sir David Normington, who has just completed an internal inquiry into Mr Clark. The Normington Internal Inquiry (now endorsed by Ministers – which could become a further problem) exonerates Mr Clark from any wrongdoing. In particular, Sir David cleared Mr Clark of misleading Ministers - at the very moment that the Children and Adoption Bill is crashing in Parliament because Ministers were misled. The attachment, containing current correspondence with Sir David, may be of interest.
Summary of the Contact Provisions in the Bill
Clause 1 - Contact Activities
There aren't any contact activities "Contact activities" were meant to be the infrastructure rolled out under the EI project - which the Government were unaware had been killed by Mr Clark. His Family Resolutions project has, of course, disappeared without trace - hardly surprising, because Fam Res eventually took shape as a 'no-change' project to continue doing what was already being done.
Clause 11C - ditto
Clause 2 - monitoring contact = a rewording of the court's existing power (to make on application an order that CAFCASS consider and report on contact)
Clause 3 - warning notice = an amendment to the wording of a standard form
Clause 4 - enforcement
No new method of applying for these questionable punitive orders has been provided - in the context where the existing system makes no realistic provision for applying for the existing questionable punitive orders
As near as may be, the Bill is without a point.
Best regards Dave
Join us in campaigning for equality and justice.