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Beverley Hughes: My hon. and learned Friend will know better than I that the courts already have the power to vary the amount of contact, so the option that she sets out is available to them in principle as things stand. However, the courts must decide what is in the best interests of the child, without using that child as a reward for one parent and a punishment for the other. The risk is that compensatory contact could be seen to be used in that way, and that is something that I am sure that we would all want to avoid.
When a court, with the principle of the paramountcy of the child in mind, makes an order for contact, that order should be followed for the sake of the child. The court should be able to act if it is not. Much of the debate on the Bill in the other place centred on whether any
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change should be made to the paramountcy principle—whether we should be more specific and say that the child's welfare is normally best served through contact with both parents, or whether we should specify that contact should never be ordered until the court has first satisfied itself that it is safe.
The Government believe that both of those positions are well intentioned. They stem from concern that the right outcome for children is not always achieved, and that the law should be more specific about what the best outcome is. However, were we to accept either position, we would irrevocably compromise the clear statement in the Children Act 1989—that, in any case, the court must do whatever is best for the welfare of that individual child. It should not have to make an assumption, independently of the facts, about what is best for the child, and then be forced to row back if that assumption turns out to be wrong. The court should look at the circumstances of the case, think about the child, and make its decision.
Mr. Stewart Jackson: I agree with most of what the Minister has said, but I have read the Hansard report of the debate in the other place with great care. Neither my noble Friend Baroness Morris of Bolton nor the Liberal Democrat Baroness Sharp of Guildford made any concession in respect of the paramountcy principle, so perhaps the Minister should revise her views on the matter.
Beverley Hughes: The point of view that I set out certainly was expressed in the other place, and that may happen again when we discuss the Bill in Committee, although it is worth noting that the House of Lords as a whole did not vote to overturn the paramountcy principle and insert a presumption of contact.
In respect of a court making a decision on the basis of the principle that the welfare of the child is paramount, it should have as full a range of options as possible to deal with the case in a way that best serves the child. That is what part 1 of the Bill offers. Of course, in making its response, the court must be fully informed about the circumstances of a case. As has been noted already, the question of domestic violence is often raised in disputes about contact, and it has been argued that courts are not always sufficiently aware of it when making their decisions. We take that very seriously, and a great deal of work has been done across Government to try to address the damage that domestic violence can do to everyone whom it affects—including, in some instances, children.
There are some vital safeguards already in legislation, such as the requirement in the welfare checklist in the Children Act 1989 for the courts to have regard to any harm that the child has suffered or is at risk of suffering. However, we were persuaded in debate in the other place that something further was needed. What is now clause 7 of the Bill places a new and specific duty on CAFCASS to carry out a risk assessment and inform the court of the result whenever it is involved in private law Children Act 1989 proceedings and it has cause to suspect that the child concerned is at risk of harm, including harm as a result of witnessing harm to another.
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I have no doubt that we will return to the issue of domestic violence during our debate today and later, but I believe that the addition of clause 7 represents an important change.
Andrew Selous (South-West Bedfordshire) (Con): May I take the Minister back to clause 4? I am not clear in my own mind. Let us say that a parent with custody denies contact that has been ordered by a court, and an enforcement order is then imposed which the parent with custody fulfils. What happens if the parent with custody continues to deny contact? She may fulfil the unpaid community work requirement and continue to deny custody. What will happen then?
Beverley Hughes: Those cases would come back to court and it would be up to the court to decide what further action needed to be taken. Clearly, it would not be right for those circumstances to persist—for non-compliance with a contact order to have taken place, for an order to have been made to do community work, for the community work order to be complied with, but for non-compliance to continue on the contact. The court would have to decide what further action it wanted to take to ensure compliance with the contact order because that would be the primary objective in those circumstances. The community work option gives the courts another element of flexibility in their response, but the objective is to obtain compliance with the contact order.
Ms Keeble: Having had a look at clause 7, may I ask whether those considerations would also apply to breaches of contact orders? People often say that they have breached a contact order because they are concerned about what they have seen happening to the child and they have difficulty in using the process. Will the clause help them?
Beverley Hughes: I believe that it will, and for this reason specifically. I am aware that some women find it difficult to reveal at the start of proceedings that there has been harm to them through domestic violence. The gateway process now makes it more straightforward and prompts people to reveal that there has been domestic violence by means of a tick box. If they tick it they go straight to a CAFCASS member of staff. My hon. Friend should also bear in mind the option for CAFCASS to undertake a risk assessment not only if harm has been declared by a party to the proceedings, but if it suspects from its dealings with a family that there has been harm through domestic violence. CAFCASS can undertake that risk assessment at any point in the proceedings, including after enforcement order proceedings have started. There is no limit on when CAFCASS, if it has concerns, can undertake a risk assessment and make that and its judgment on the issue available to the court.
Vera Baird:
Of course, that would be the ordinary thing to do, but I do not think that the Bill requires that a risk assessment, initiated perhaps by CAFCASS, be reported to the court. Although it may sound an excessive requirement, is it not better to ensure that risk assessments, whether positive or negative, always find their way to the court by including in the Bill a duty for CAFCASS to report them?
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Is my right hon. Friend totally confident that CAFCASS can meet its obligations to do such risk assessments? I have read the thematic review prepared, I think, by the inspectorate of court administration last year, which said:
Beverley Hughes: My hon. and learned Friend distinguishes two points. There is a requirement that the risk assessment, if undertaken by CAFCASS, be brought to the attention of the court. She questions whether the court takes sufficient account of that. The court is bound to take account of all the information that is germane to the proceedings. I point my hon. and learned Friend to the important judgment at the end of November by Lord Justice Wall on a case in the Court of Appeal. He felt that the judge had failed to follow the guidelines in relation to that particular issue. He took the rather strong step of attaching the guidelines to his judgment. In so doing, he said:
"I append them to this judgement in the hope that this court will not again be presented with a case such as the present, which not only ill-serves the parties and the child, but does the system discredit, and helps to devalue the valuable and conscientious work which courts up and down the country are undertaking in an attempt to tackle the scourge of domestic violence and to minimise the effect it has on parties and children."
That sends a strong signal to judges and courts that they have to take the issue seriously and demonstrate that they do. I certainly believe that when CAFCASS presents a risk assessment to courts, the onus on the courts, underlined by that judgment, is to demonstrate that they have taken it into account seriously.
My hon. and learned Friend raises the capacity of CAFCASS. It is a developing issue. We have applied increased resources to CAFCASS and will do so next year. I am confident from that point of view, but also from that of its own desire to ensure that the issue of domestic violence comes squarely into the arena when it is appropriate. CAFCASS is charged as the organisation to make sure that that happens.
I will come now to part 2 of the Bill. It addresses a different, but no less vulnerable, group of children—those who are adopted across national borders by individuals in this country. This will often be in the most extreme of circumstances, as a last resort where the child has no chance of a happy or safe family life in their own country. Part 2 contains a number of important measures to help safeguard those children and to improve the procedures around inter-country adoption.
First, and critically, clauses 9 to 12 provide a statutory framework for the suspension of inter-country adoptions from a specified country where there are concerns about the adoption process in that country. Those would be serious concerns, such as child trafficking, and a rigorous assessment of evidence would always be undertaken before taking the step of suspending adoptions. There is a real need for this power. In 2004, my predecessor as Minister for Children suspended adoptions from Cambodia, as hon. Members will know, in response to evidence of problems with the adoption process. She did this using prerogative powers, but I hope that Members on all sides of the House will recognise the importance of a clear statutory process for us to respond to such circumstances in future.
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Clause 13 provides a power for the Secretary of State to charge to meet the costs of the administration of inter-country adoption casework. That proposal was the subject of some debate in another place, but it was acknowledged that this was a matter of prioritising. With limited funds available, it is vital that we target them at front-line services for vulnerable children in this country, and asking those who can afford it to meet a proportionately small charge is, in my view, reasonable in the context of wider priorities for public spending.
Finally, clause 14 makes further important provisions around the process of inter-country adoption. It amends section 83 of the Adoption and Children Act 2002 to make it harder to circumvent restrictions on bringing children into the UK. Section 83 currently states that where an external adoption order was effected less than six months before the child is brought into the UK, the adopter must meet certain conditions, such as being assessed and approved by an adoption agency. These restrictions are being circumvented, in some cases, by UK residents adopting the children and then leaving them in the care of a person in the other country until six months has passed so that they do not have to meet those conditions. The Bill will, rightly, make it harder for people to circumvent those restrictions by extending the time limit in such cases from six months to 12. Clause 14 also clarifies that certain children brought into the UK for adoption are not also privately fostered children. That will prevent an overlap of functions for local authorities.
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