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Mr. David Kidney (Stafford) (Lab):
New clause 18 stands in my name and in those of the hon. Members
for Mid-Dorset and North Poole (Annette Brooke) and for Ceredigion (Mark Williams). New clause 19 also stands in my name.
Debate on the Bill, in this House and outside, has largely been polarised around two issues and two groups of people. One group is keen to prevent an obstructive parent from stopping the other parent having contact with the child, while the other is worried about domestic violence and abuse being insufficiently recognised in court proceedings to make a parent allow contact between the child in their care and the parent who is not resident with the child. In new clause 18, I attempt to rise above those polarised points of view and say that there is merit in both arguments, but not in one to the exclusion of the other. I hit upon the idea that if the Bill were to have statutory objectives added to it, we might be able to reach an agreed solution. Sadly, it seems that I have fallen between the two stools, and neither have I attracted the support of the Minister. However, I will explain why I think that it is a good approach.
Statutory objectives are quite rare, but they have been seen to work in other areas of the law. A good example from a completely different area is that of the Financial Services and Markets Act 2000, which has four statutory objectives in regulating the Financial Services Authority. That authority has been able to adopt a risk-based approach to regulation that has been beneficial for this country’s financial services sector, which is probably the most successful in the world. I decided that in trying to resolve disputes about contact with children, the courts, CAFCASS officers and those in the Welsh service who deal with preparing court cases involving parents who are in dispute, and the legal representatives of those who want to go to court, should all have regard to four statutory objectives, namely:
“(a) the welfare of the child;
(b) reduction of the risk of harm;
(c) reasonable contact; and
(d) post separation parenting.”
As the hon. Member for East Worthing and Shoreham (Tim Loughton) said, the first—the welfare of the child—comes from the Children Act 1989, a successful measure that has stood the test of time. Its aims of putting children’s interests first have been successful. Section 1 states that
“the child’s welfare shall be the court’s paramount consideration.”
Nothing should interfere with that resounding statement that children’s interests come first.
The polarised arguments about preventing obstructive parents from getting in the way of contact in, for example, new clause 4, try to solve the problem by attacking the paramountcy of the child’s welfare. New clause 4 would force the court to presume that the child’s welfare includes so-called co-parenting. That is far too narrow. Section 1(3) of the Children Act contains a welfare checklist, which sets out all the issues that courts should take into account when deciding what is in the child’s best interests. They include all the relevant matters that the hon. Member for East Worthing and Shoreham set out for our consideration.
Mr. Stewart Jackson (Peterborough) (Con): I am following the hon. Gentleman’s argument closely, but does he believe that it is incumbent on him to define robustly the paramountcy principle, given that the Bill does not do that? It continues to be a panacea, which children’s charities, the Government and others use. Should it not be properly defined for us to go forward?
Mr. Kidney: With the greatest respect to the hon. Gentleman, for whom I have great respect, especially for his views about grandparents in the sort of proceedings that we are discussing, I believe that he is wrong. As I said, the Children Act has stood the test of time and thousands of courts have made decisions about contact in the light of that measure. The welfare of the child and its paramountcy is well understood and applied correctly by the courts.
The presumption of contact is well established. Those of us who served on the Committee often heard reference to a report by Her Majesty’s inspectorate of court administration, “Domestic Violence, Safety and Family Proceedings”, which said that in all the practice sessions that it had observed in the inspection, the presumption of contact was evident. Indeed, paragraph 3.9 of the report worryingly stated:
“and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases.”
The presumption of contact is therefore alive and well and the report alerts us to the fact that it applies to an inappropriate extent and that, in some cases, there might be danger for children and parents in allowing contact to proceed.
That brings us to the statutory objective that I propose—to reduce the risk of harm. The other great polarised debate is about whether there should be no contact if there is any risk at all of abuse to the child or the other parent. Again, I believe that it goes too far, but until the House of Lords included clause 7, the Bill contained no provision for the court even to ascertain whether any harm was being done.
The statement that preceded our proceedings was about schools checking whether staff employed there might pose a risk to children. What about courts? They order somebody to allow contact. Surely they should consider whether there is a risk of harm. Clause 7 provides that if there is suspicion of harm, CAFCASS will undertake a risk assessment, but the Bill includes nothing about what anyone does with it. Under clause 7, at least it will go to the court, and the court will have the power to make orders. My statutory objective about reducing the risk of harm would at least remind the courts that, when they receive a risk assessment report, something ought to be done with it.
The fourth of my statutory objectives deals with parenting relationships after a separation. This brings me to a report to which the hon. Member for East Worthing and Shoreham and I both referred with approval in Committee. It is an excellent report by the University of Oxford, “Family Policy Briefing 3”, produced in January 2004, which gives advice to policy makers such as ourselves. Its final section, “The way forward”, warns us to be cautious about making any legislative change at all. It states:
“Introducing a presumption of contact is...problematic”
“case for amending the Children Act may be stronger in relation to domestic violence”.
“Post-separation parenting is a very neglected area...There would be widespread support for a programme aimed at improving service provision”
to promote better relationships between parents after they separate. That is why my fourth statutory objective would be beneficial in the longer term. This is a longer-term issue.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I am listening carefully to the hon. Gentleman’s speech. Will he enlarge on who exactly would provide the support for the parents in those circumstances? It is patently clear that, in its present form, CAFCASS would be unable to take on any burden over and above what is being placed on it by the Bill.
Mr. Kidney: I mentioned earlier the problems associated with polarised debates. There are lots of reasons why contact does not proceed, including obstructive parents, delays in the investigations associated with court proceedings, and a lack of resources for those who are supposed to give the kind of support about which the hon. Gentleman is asking.
I note that CAFCASS is developing a change to its approach to court proceedings, so that it can make more active interventions at the beginning of a case. In that way, it could facilitate early agreements and make use of the provisions in the Bill for contact activities. It would therefore be easier to solve problems at the beginning. “Sort, not report” is the strap-line that it uses. Instead of writing a report that could take 12 weeks to deliver, it will try to act more quickly to solve the problem. So perhaps a change of approach from CAFCASS, with good leadership and reasonable resources, is the way to ensure that there is support during court proceedings, when judges look for support for the directions that they give.
I want to move on to new clause 19 in a moment, but for completeness I want to mention a charity in my constituency called Stafford PAIRS, which stands for “preventing abuse in relationships”. The charity is strongly supportive of risk assessments in cases of domestic violence or abuse. One of the partners to that charity, a worker with Women’s Aid in Stafford, told me that, of 18 clients with whom she had dealt since October 2004, three had expressed suicidal feelings because of the pressures of being compelled through court proceedings to allow the other parent contact with their child after domestic violence had caused the breakdown of the relationship. I want people to appreciate the other side of the argument.
New clause 19 is a procedural amendment that would allow grandparents the same opportunity to ask a court to allow contact that a parent has now. Parents are entitled to apply to a court for a contact order, but grandparents are not. The new clause proposes that grandparents should have the same right to join in proceedings to ask the court to consider whether a contact order should be granted in their favour. I leave it to the hon. Member for East Worthing and Shoreham to explain why relationships with grandparents are beneficial
to grandchildren. I merely say that grandparents should be given the opportunity to show that to the courts, and that court orders would then follow.
New clause 19 also proposes that other family carers—not parents or grandparents—who have cared for a child for at least a year ought to be at least in the same position as a foster carer who has cared for a child for a year, and should be able to apply to the court for a contact order. The new clause is a procedural device to put such people on the same level as those who already have similar rights under legislation.
As I seem to have little support from Members on either side of the House or from the Government Front Bench, I am not hopeful that my new clauses will make progress, but I believe that if the Bill is to prove a lasting success when enacted, we must do more both to ensure that children maintain contact with both parents, and to root out cases of domestic violence earlier.
Annette Brooke: I have great sympathy with most of what was said by the hon. Member for Stafford (Mr. Kidney). I sincerely believe that we need to find a solution. Our starting point is the United Nations convention on the rights of the child, which states that a child has the right to direct and regular contact with both parents unless that is contrary to the child’s best interests. It is strange that we are struggling—by “we”, I mean the majority of the House—to find a solution that will put something in the Bill without risking the safety of the child or undermining the child’s paramountcy.
It is generally acknowledged to be in the child's best interests to sustain a full relationship with both parents, but obviously it will not be if there is a risk of harm, or in relationships involving extreme conflict, which can be immensely damaging for a child caught in the middle. I do not think that we should be too prescriptive. I shall be explaining an unusual proposal when I have dealt with the others.
I genuinely believe that every case is different, but we need to have more in legislation than we have at present. Parents should be able to assume that contact should take place in most cases. I am sure all our surgeries have often been visited by grandparents in great distress. I should like the Bill to incorporate a provision applying in particular to grandparents and the extended family, and I hope that the Minister will be able to give us some comfort. A number of suggestions have been made today and we have rehearsed many of the arguments that were presented in Committee. What exactly is the problem?
One of the conclusions of the Constitutional Affairs Committee’s fourth report of the Session 2004-05, entitled “Family Justice: the operation of the family courts”, was
“We consider that a clear statutory statement of this principle would encourage resident parents to assume in most cases that contact should be taking place.”
Such a provision would set the scene, or the culture, to which we should move. The percentage of intractable cases is relatively small, but the outcome of some that are settled out of court is not ideal, and I would not wish to suggest otherwise.
The hon. Member for East Worthing and Shoreham (Tim Loughton) said that a birthday card was not enough. Every time he makes that point it tears at me somewhat. I only wish that we had evidence of how often that is the case, and in what circumstances. Certainly, we hear of such cases, but we usually get only one side of the story and not all the details.
New clause 4 contains the term “legal presumption”. I made it clear on Second Reading and in Committee that that is a problem for us. The Select Committee considered the arguments carefully and it is interesting that Resolution—the new name for the Solicitors Family Law Association—suggested in written evidence that there should be a second, lower order, presumption, although part of that suggestion was retracted in subsequent oral evidence.
Tim Loughton: I am saddened but not entirely surprised to hear that the hon. Lady has problems with the phrase “legal presumption”. Will she explain why 50 of her colleagues have signed early-day motion 128, which refers specifically to the need to have a “legal presumption of contact”? Are they misguided, or not on message? Will they surprise her with how they vote if the new clause is pressed to a Division?
Annette Brooke: I thank the hon. Gentleman for that intervention, which was not entirely surprising. All hon. Members are genuinely concerned about parents losing contact with their children. I am sure that every word of the early-day motion arouses sympathy, but any proposal that would put the phrase “legal presumption” on the face of the Bill requires a great deal of thought. Some very eminent people have said that conflict could arise if there are two legal presumptions. That deserves much serious consideration, given that five or six children’s organisations have said that they share that concern.
Tim Loughton: Will the hon. Lady give way?
Annette Brooke: I want to move on—[Hon. Members: “Give way.”] Very well, I give way to the hon. Gentleman.
Tim Loughton: I am grateful to the hon. Lady, who must find it painful to be in a minority in her party. She is right to say that we, as legislators, have a responsibility, and our first responsibility is to be consistent. Most members of her party are prepared, for cheap gratification, to assuage the concerns of those who are genuinely affected by the problem that we are discussing by agreeing to sign up to early-day motion 128, but will they support the new clause in the Division? That is what is important. I despair at the duplicity of the Liberal Democrats, who claim to support a proposal in principle but who utterly fail to do so when it really matters.
Annette Brooke:
Perhaps I should just pass on that intervention. We will support the Select Committee recommendation—which has been accepted by a number of people who gave evidence to the Committee and were involved in the discussions—that a statement should be inserted into the welfare checklist required under the Children Act. For my version of the provision, I have
chosen the wording recommended by the Select Committee—that the courts should have regard to
“the importance of sustaining a relationship between the child and a non-residential parent”.
It is important that we find wording that will not cause conflict between two legal presumptions. To pursue something that might lead to a dangerous outcome is far more damaging than feeling that one has signed one’s life away because one has signed an early-day motion. When people sign an early-day motion they do not expect every word of it to appear in legislation.
5.45 pm
Our proposal is important to us; there should be such a legislative statement. I was attracted to the new clause proposed by the hon. Member for Stafford (Mr. Kidney), as its ingredients included all the issues that we want to raise. We need provisions that will move us forward rather than saying, “No, no, we cannot put anything on the face of the Bill”, but we must give them due consideration.
It is interesting that the Government picked up the suggestion for an addition to the welfare checklist as an idea that they would investigate. It was supported by the scrutiny Committee for the draft Bill, but the Government said at one stage that it was not appropriate because it would be relevant only to private law and not to public law. I cannot follow that argument, because one would not need to take such a checklist into consideration in a public law case. I would have thought that there was a way round that point and that it need not be the problem that has been suggested.
All Liberal Democrat MPs are concerned that children and parents retain contact where it is safe to do so, but we need to find the right route. I look forward to the response of the Under-Secretary of State for Education and Skills, the hon. Member for Gloucester (Mr. Dhanda). New clause 4 is slightly different from the provision on which we voted in Committee, but if he can reassure me that it is perfectly safe, we could vote for it. However, on such an important issue, when we know that children die if wrong decisions are made—
Mr. Stewart Jackson: I am confused about the official Liberal Democrat policy on co-parenting and the early-day motion signed by about 85 per cent. of the parliamentary party. I am also confused by the fact that the hon. Lady says that she will look to the Minister to agree, or not, to the Conservative new clause. What does she think of our new clause and will she support it? Or is this a case of something that fits neatly into a “Focus” leaflet but is not followed through in a vote in the House?
Annette Brooke: That is the most demeaning point that could be made in a serious debate. Conservative Members may think that this is an issue to be put out in slogans and leaflets, but I think that children’s interests come first, first and first. That was a shocking intervention that reduced the level of discussion. Children’s lives and, at the other end of the scale, relationships with parents are at stake.
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