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12.47 pm
The Parliamentary Under-Secretary of State for Health (Mr. Simon Burns): It is two and a quarter years since I contributed to a debate. I am delighted that, having been in the enviable position over that time of delivering probably the most popular speech heard in the House--"That this House do now adjourn"--I have been able to forswear my Trappist vow of silence to take part in this debate.
I congratulate the hon. Member for Ilford, South (Mr. Gapes) on choosing this important subject, and on drawing attention to the problems faced by families, women and children in this sensitive and often heart-rending issue. I also suspect that it is appropriate to discuss the Children Act 1989, since this week is the fifth anniversary of its implementation.
The Children Act is recognised as a most comprehensive piece of legislation, incorporating public and private law relating to children. It enshrines five main principles. First, the child's welfare is paramount--that is crucial. Secondly, children are best cared for by both parents wherever possible. Thirdly, the state and courts should intervene only where improvements will be made for the child. The fourth principle is that delay is generally not in the best interests of the child, and the fifth is that laws and procedures regarding children should be unified.
Section 1 of the Children Act sets out the principles that guide a court making decisions under the Act. The child's welfare is the paramount consideration when a court determines any question involving his or her upbringing. I cannot emphasise that enough. Thus other considerations, such as the feelings of the parents, or any questions of "fault", must assume secondary importance, except as they affect the child's welfare.
Section 8 orders comprise a flexible package of orders which should cater for any question that may arise about the welfare of the child, and provide practical solutions. The intention is to encourage parents to maintain their involvement in the child's life, and to avoid driving unnecessary wedges between them.
Four types of order were created under section 8--contact orders, prohibited steps orders, residence orders and specific issue orders. In addition, under section 1(5), the court must consider whether making an order would be better for the child than making no order at all. I think that it will be helpful to the hon. Gentleman if I briefly define section 8 orders.
A contact order means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the contact order, or for that person and child to have contact with each other. Previous legislation on access orders was about having access to the child, whereas section 8 contact orders are designed to provide for the child to visit or stay with the person named in the order. In 1995, the number of contact orders made rose by 12 per cent. to just over 35,000.
A prohibited steps order means an order that no step that could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. Its purpose is to impose a specific restriction on the exercise of responsibility by the parents--covering, for example, taking a child abroad for an extended holiday. In 1995, the number of such orders was just under 6,000.
A residence order means an order settling the arrangements to be made as to the person with whom a child is to live. The residence order was a new concept introduced by the Children Act to replace the custody order. It is more flexible, and it may accommodate various shared care arrangements. A person in whose favour a residence order is made will automatically obtain parental responsibility for the child, if he does not already have it.
However, a residence order confers parental responsibility on a non-parent only for as long as the order is in force. The intention is that both parents should feel that they have a continuing role to play in relation to their children. In 1995, the number of such orders was about 26,000.
A specific issue order means an order giving directions for the purpose of determining a specific question that has arisen, or that may arise, in connection with any aspect of parental responsibility for a child. An example might be the need for permission in respect of a particular medical condition, or of the choice of a school for the child. Both prohibited steps orders and specific issue orders are concerned with "single issues", and are modelled on wardship jurisdiction.
In each case, the question of what is in the child's best interests must be decided on the particular facts of that case. There is no question of a fixed policy of discrimination against one parent in favour of the other, or against certain classes of people as parents.
The reforms contained in the Children Act emphasise that principle, but also the fact that both parents have a continuing responsibility for their child and, generally, should have continuing involvement in the child's upbringing, even after a separation or divorce. The legislation provides a flexible system of orders intended to settle particular matters in a way that neither parent may upset, rather than to remove parental power and authority from one parent to confer sole power and authority on the other.
In most cases where the court is required to decide what is in the best interests of the child, it will order residence in favour of one parent and contact for the other. I do not find it surprising that in many cases it will be in the best interests of the child to have a settled home with the mother.
As the hon. Member said, an emerging problem of the 1990s is the role of the father in a changing society. Structural and economic changes in society have brought especial stresses and strains to family life. The hon. Gentleman has already mentioned the fact that there is a great deal of concern about fathers with a history of violence seeking contact with their children after the marriage or relationship has broken down.
The Government are committed to helping families to stay together, where that is possible and realistic, but they cannot make marriages or relationships work. If breakdown or divorce occur, it is of prime importance that children are protected, and that both parents can also receive support. However, I repeat that the interests of the child must be paramount.
In such situations, parents need to be fully aware that they have both rights and responsibilities in relation to their children. It is a sad fact of life today that almost half the fathers whose marriages or relationships break down lose contact with their children within three years of the event.
I know that the hon. Gentleman will be aware of recent articles in the press drawing attention to the problem. They have mentioned, for example, the support that Bob Geldof has recently given to the organisation Families Need Fathers.
The hon. Gentleman has drawn the attention of the House to the recent case in which a mother has been imprisoned for contempt of court. I repeat the fact that the imprisonment was for precisely that--contempt of court. The woman concerned would have had the opportunity to oppose the making of the contact order and to put all the relevant information before the court. The court, having weighed all the facts, decided to make the order despite the mother's objections. By refusing to comply with it,
the woman put herself in contempt of court. It was the eighth time that that had happened, and the decision of the judge was upheld by the Court of Appeal.
We need to emphasise again and again that, as any parent should know, being a parent entails a long-term commitment. It is that continuity of parental responsibility that we emphasised in the Children Act. Relationship breakdown and divorce are traumatic events, for parents and children alike. The Exeter family study suggested that the health outcomes of children in reordered or single-parent families may be worse than for those in intact families. Continuing contact between a father and his children may have a positive effect on reducing some negative outcomes for children.
The hon. Gentleman referred to the findings of a study by Marianne Hester and Lorraine Radford entitled "Domestic Violence and Child Contact in England and Denmark", published earlier this year by the Joseph Rowntree Foundation. In the short time available, I shall draw attention to the conclusions of that important in-depth study.
The researchers concluded that contact should not be presumed to be in the best interests of the child if there had been domestic violence to the mother. More attention should be given to ensuring the safety of the mothers and to assessing the needs and wishes of the individual child. That is in line with the ideas being promoted by various women's organisations working with domestic violence, most notably the Women's Aid Federation.
Although the study is small in scale, it has produced some worrying evidence about the effect on women and children of contact arrangements in cases where there has
been domestic violence. It shows that professionals, especially legal professionals, need to become more aware of domestic violence and its impact on children.
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