From: dave.mortimer@tiscali.co.uk
Sent: 09 November 2005 21:02
To: dfes.ministers@dfes.gsi.gov.uk
Subject: Children and Adoption Bill - DfES Briefing
Dear
Beverley,
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
11E - ditto
Clause
11G - 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
Steve
Williams
Children's Act 1989 (Family Law) Team
x35836
