Tag: Mike Freer

The speech made by Mike Freer, the Parliamentary Under-Secretary of State for Justice, in the House of Commons on 9 December 2022.

I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for promoting this vital Bill. I look forward to supporting him as the Bill completes its journey and, I hope, makes its way on to the statute book.

My hon. Friend did an effective job of laying out the provisions of the Bill and its purpose. It is immediately clear both from his words and from the contributions of Conservative colleagues—I will turn in a few minutes to the question raised by the shadow Minister, the hon. Member for Stockton North (Alex Cunningham)—that we all recognise that a lasting power of attorney is a vital resource and how important it is to ensure that the process has sufficient safeguards, while remaining accessible and efficient.

It is a deed that gives peace of mind and assurance to individuals, should there be a time when they lose mental capacity to make decisions for themselves. It gives them peace of mind that there is a pre-selected loved one or professional there to help them, whether to provide support and make decisions about managing their financial affairs, or to make decisions relating to their healthcare. A lasting power of attorney ensures that a person’s wishes and preferences can be taken into account, and reduces the stress and burden on families when capacity is lost unexpectedly.

My hon. Friend rightly highlighted in his opening remarks that we are living in a society with an ageing population. One of the implications of this is that we are likely to see an increase in people who lack mental capacity due to age-related conditions. For example, as my hon. Friend the Member for Broadland (Jerome Mayhew) mentioned, the Alzheimer’s Society says that there are currently around 900,000 people with dementia in the UK. That figure is projected to rise to 1.6 million by 2040, meaning an increase in the number of families who will find themselves faced with the reality of needing to make critical decisions about their loved one’s finances or welfare.

I know that those can be difficult decisions, talking about and preparing for the worst-case scenarios, including preparing for loss of capacity. It can be harrowing for people, their friends and their family. However, preparing early is the key to ensuring that life can continue in the way the person wanted. Putting in place a lasting power of attorney gives family and friends an insight into a person’s wishes and preferences and who they would like to make decisions on their behalf when they are unable to do so. Given the importance and significance of the document, and the gravity of the power it confers, it is absolutely right that we look at how we can make the process for making and registering a lasting power of attorney safer, simpler and more accessible.

I am grateful to my hon. Friend the Member for South Basildon and East Thurrock for setting out so eloquently the problems that exist in the current system. Members of this House will be aware that the Ministry of Justice has consulted on potential solutions to some of those challenges, and I am delighted that the Bill promoted by my hon. Friend reflects and builds on the Government’s response to the consultation.

Turning to the question raised by the shadow Minister, in terms of the capacity issue, the Government remain committed to the principle of supporting decision making but believe that that is provided best by the Mental Capacity Act 2005. The proposals in the consultation were carefully considered by the Government, but we still have concerns that a formal framework may be unnecessarily legalistic and would overlap with other provisions, such as advocacy.

I want to give a commitment to the House that we are seeking to ensure that the system is as simple and easy to navigate as possible. My hon. Friend talked about the current backlog in the Office of the Public Guardian, which is leading to longer waiting times for LPA registrations. That has been exacerbated by the limitations arising from the current legislative framework and the operational practice it requires. My hon. Friend explained that all LPAs are currently made on paper, which creates a huge logistical burden on everyone involved. It is also not reflective of the needs of users in today’s society, but I take on board the point made by my hon. Friend the Member for Devizes (Danny Kruger) about ensuring that, as we embrace technology, we must also ensure that there are sufficient checks and balances for those who may be vulnerable to abuse.

Frankly, people expect Government services to be available online, while also having the option to do things on paper when they prefer to. I am pleased that the Bill will create a digital channel to make an LPA, while also improving the paper channel for those who need or choose to use paper. A digital route will make LPAs more efficient and realise many benefits. It will allow for a speedier process, reduce the administrative burdens on individuals and automate many checks that should reduce the risk of errors in the paperwork that often delay registration and therefore the ability to use the LPA.

The Bill goes further than simply the digital and paper channels. By facilitating a more flexible system, the ability to move between the channels to create a single LPA will provide a far more flexible service and far more benefits to a wider group of people. Even those who want to use paper will benefit from others using digital elements in the process. The challenges faced by the OPG cannot be solved without reform, which is why I am grateful for the improvements that the Bill seeks to facilitate. I am confident that by introducing a digital process and automated checks and reducing some of the burdens on the organisation, we will build resilience into the process, meaning that people will be able to register their LPAs more quickly. It should also significantly reduce the chances of backlogs forming.

I assure the House that the vast majority of LPAs—there are currently more than 6 million on the register—are used properly to provide the support they are intended for. However, we know that LPA fraud and abuse takes place, and steps must be taken to address it. In 2021-22, the OPG investigated 2,408 LPA cases in response to concerns received. Of those, the OPG took remedial action in 649 cases. Such action can include an application to the Court of Protection to remove an attorney or revoke an LPA, as well as working with the attorney to provide education and guidance on how they should carry out their role.

Although the matters I have outlined apply to a very small proportion of the LPAs registered by the OPG, the impact on the individuals who experience abuse can be significant, which is why I am pleased that the Bill includes provisions to make the process more secure, especially for the donor, and lays the groundwork for further changes to be made in regulations.

In line with the Government’s consultation response, the Bill introduces identity checks as a requirement of registration. This is an important safeguard that will assure the OPG that those who claim to be involved in the LPA are who they say they are and reduce the risk of fraud by false representation. Regulations will support the change by specifying who will be subject to checks—the donor and the certificate provider—as well as how those checks will be carried out and which documents will be acceptable. I am committed to providing a wide range of options as soon as possible, given that the average age of a donor is currently 74 and most are over 65.

Provisions are being made to streamline and improve the objections process so that it is easier to lodge a concern with the OPG. That is a vital safeguard that will include those with a legitimate concern—such as local authorities, care workers and even the police—who previously did not have a formal route through which to express their concern.

My hon. Friend the Member for South Basildon and East Thurrock pointed out that the Bill gives us the levers to make further changes in regulations that will improve other protections, including the role of certificate providers. By having the certificate provider take on the role of witness, we are strengthening safeguards. In addition to this increase in safeguarding, by combining the roles of certificate provider and witness we will also reduce the burden on the donor.

I am pleased that the Bill also addresses the role of chartered legal executives. It cannot be right that a chartered legal executive—a legally qualified Chartered Institute of Legal Executives lawyer—who legitimately participates in the creation of a power of attorney should be rendered unable to certify as genuine a copy of the same document that they were instrumental in creating. The Bill will address that anomaly.

In closing, I reiterate how vital the improvements in the Bill are to support individuals to make a lasting power of attorney and to certify copies of such important documents. The efficiency savings will ensure that donors and attorneys have a better system, with the savings made reinvested to increasingly improve the service, so it is an all-round benefit.

Finally, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock and thank my hon. Friends the Members for Devizes, for Darlington (Peter Gibson), for Scunthorpe (Holly Mumby-Croft) and for Broadland for their contributions.

The speech made by Mike Freer, the Parliamentary Under-Secretary of State for Justice, in the House of Commons on 16 November 2022.

As ever, it is a joy to serve with you in the Chair, Ms Nokes. I thank my hon. Friend the Member for Stroud (Siobhan Baillie) for securing a debate on this important topic. It is a topic on which I know she has campaigned for quite some time and with vigour. I tried to find the blog she wrote some years ago, but I suspect I may have to dig a bit deeper to find it. If she has a copy to hand, I would be very interested in reading it.

As parliamentarians, we are all aware of the power of language to influence, to make others reflect and to be a force for good. The focus of the family court must always be on acting in the best interests of the child, as well as on creating stability and reducing conflict for families. The language used by professionals, and in the systems, processes and guidance that make up the family court, can set the tone for how families and individuals interact with it and with each other, both in and out of court. Our choice of language makes it clear what we value the most, and it can act as a reminder that children are at the heart of the family justice system.

As my hon. Friend the Member for Stroud mentioned, the Family Solutions Group, which is a collection of multidisciplinary experts looking at how to improve the family justice system for children and families, noted in 2022 that the

“language for separating families has evolved out of an adversarial legal system: it is accusatory and divisive. It is also potentially harmful, increasing conflict through battle metaphors while parents compete for justice and control of their children.”

The Government have recognised that the language used in the family court needs to move away from pitting parents or couples against each other. Instead, the emphasis should be on clear and simply terminology that recognises children as children, not as cases, and that encourages individuals to reach joint agreements. We should be moving away from arguments about custody and residence, and towards what is the best outcome for the child, instead of perpetuating the idea that there are winners and losers in the family court. We should be encouraging resolutions and agreements.

Reducing conflict between separating parents is a priority for the Government. I will set out the actions we have taken to support them and their children before turning to some specific measures to improve the language used in the system. We are introducing measures to reduce the number of disputes that come to court in the first place so that we reduce the time that children are left to deal with uncertainty and minimise exposure to the court system for young people.

My hon. Friend mentioned the family mediation voucher scheme, which was launched in March and is designed to remove the barriers that parents face in accessing mediation. Family mediators are trained to support separating parents to move past their conflicts and resolve issues in a non-adversarial way. Mediation can often be a quicker means of reaching an agreement. We hope that by offering separating parents the opportunity to mediate, we can reduce the period of uncertainty and distress for children by avoiding more lengthy court proceedings.

More than 11,800 couples have now accessed the mediation voucher scheme and received £500 towards the cost of their mediation. A Family Mediation Council survey of the first 2,800 cases suggests that 65% of separated parents reached whole or partial agreements in their mediation, which means that they no longer needed to attend court. Clearly, an amicable agreement will always be in the best interests of the children.

Where court is unavoidable, we are working to ensure that disputes are resolved as quickly as possible, and that the processes are as understandable and stress-free as possible, especially for children. For instance, we have adopted a more investigative approach to proceedings. In February, we launched the first integrated domestic abuse courts pilot in Dorset and north Wales, delivering on a 2019 manifesto commitment. This new approach to child arrangement cases seeks to reduce conflict, protect victims and survivors and enhance the voice of the child by gathering more information during the early stages of the process, which allows courts to narrow down issues, and minimises the time spent pitting parties against each other in a courtroom setting. The new pilot also includes the option for children to meet judges or have direct access to a judge in their case who can give them direct feedback in simple, plain language on the recommendation decisions about their lives. Of course, that puts a human face to the process.

The Government introduced the Divorce, Dissolution and Separation Act 2020 to allow no-fault divorce and end the pointless blame game when a marriage or civil partnership has irretrievably broken down. Instead, it allows couples to focus on resolving more important priorities, such as how best to co-parent any children. The Act also aimed to help couples to reach amicable decisions by introducing joint applications for divorce, which was not previously possible. Joint applications replace the adversarial concept that divorce is something done by one party to the other. We have also made changes to the language of divorce to reduce language that automatically pits individuals against each other. We have removed terms such as “petitioner” from the process. Those are simple changes, but they set the tone for how individuals engage with each other in court.

My hon. Friend stressed the importance of language and terminology. The Government used the Children and Families Act 2014 to remove the concept of winners and losers from cases involving children. It removed terms such as “residence” and “contact”, and replaced them with more child-focused language such as “child arrangements”.

Technology also plays a significant role in how people access and understand the family justice system. The Government are creating a more modern and straight- forward justice system that is accessible to all. His Majesty’s Courts and Tribunals Service’s reform programme has been running since 2016, and aims to move court applications across all jurisdictions online. That commitment includes providing online systems and resources that are written in plain English. Although there are times that legal language is required, all HMCTS forms and gov.uk resources go through a plain English review to make sure they are clear and accurate. We are committed to making not only the family courts accessible but the wider justice system. So far, divorce, probate and public law proceedings have moved online, and private law cases also have an option for online applications. We are continuing to work on providing more resources for child arrangements, finance applications, adoption and certain protective orders.

Finally, I want to champion the work of the Family Justice Young People’s Board, and set out how it contributes to improving how the family justice system is using language and terminology. The young people’s board is a group of over 50 children and young people, aged between seven and 25 years old, with either direct experience of the family justice system or with an interest in children’s rights and the family courts. It works directly with the Ministry of Justice and other partners across the family justice system to share their experiences and unique viewpoints, helping to bring a vital perspective to our work. The board has been working to demystify the family justice system for children and young people, both in private and public law proceedings.

Working with the Children and Family Court Advisory and Support Service, the Family Justice Young People’s Board have produced several resources and guides for children that aim to break down family court terminology, as well as more complex procedural processes that children will experience in court. I encourage everyone to read their “Mind Your Language!” guide on the words for professionals to avoid using in proceedings, such as terminology that is too complex. I also recommend their first book, “In Our Shoes”, for the moving first-person testimonies it provides from children and young people going through the family justice system.

To conclude, the Government are committed to improving the experience of the family courts for children, and are taking action to make the family justice system a less adversarial experience for those who go through it. We are doing that by supporting parents to resolve their issues without the need to come to court, by improving the language and terminology used in the systems and that underpin family court, and by ensuring that at all levels the voices of children and young people who experience family justice are heard.

I reiterate the points that my hon. Friend the Member for Stroud made; family justice system reform remains a top priority for the Government, and I can reconfirm that it remains a priority for the Lord Chancellor. The projects on law reform and reducing court backlogs are a key priority for the whole Department. As my hon. Friend stressed, if we can get people out of the courtroom, it releases court time for more complex cases. The FSG remains a key partner of the Department, and the family division sits as an observer of the family justice board. The Department is entirely aligned with the objectives of my hon. Friend and the points she raised have firmly landed. I look forward to working with her in the future.