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Again, the obsession with the paramountcy principle is being used to block reasonable access by grandparents. I do not believe that that is right. I cannot believe that the Government have not made a more compelling argument against getting rid of the requirement to seek leave of a court to apply for a contact order. I read the
reports of the Standing Committee and the Second Reading debate and I could not find a coherent argument against that from the hon. Member for Liverpool, Garston. The Government seem to have decided that no amount of argument—even by people as eloquent as the hon. Member for Stafford—will prevent them from carrying on as they are now, which means continuing to be unfair to grandparents vis-Ã -vis non-family carers. When I say grandparents, I mean extended family carers as well. The irony is that primary legislation is not needed. The measure could have been enacted by secondary legislation two or three years ago. There is a consensus across the House. I would like the Minister to look at that point and to make the case for why the measure has not been enacted.
We face some key challenges on the question of grandparents, although I think that the argument is coming our way. People realise that it is wrong to discriminate financially. It is wrong that the 1989 Act has not been implemented properly in respect of the financial circumstances of grandparents and the presumption that grandparents and the extended family should be considered as carers before others. I am thus delighted to support new clause 19, which was tabled by the hon. Member for Stafford. I am proud to be associated with the campaign of the Grandparents Association and others. They have done an excellent job.
Let us work on a cross-party basis. I will be delighted if the Minister says that the power of my rhetoric and my eloquence and soaring oratory has convinced him of the right thing to do. We would need not a new Bill, but good sense and the political will to right a profound wrong. I hope that he will make my day and that of the hon. Member for Stafford by agreeing to do that— [ Interruption. ] I notice that the Minister for the Cabinet Office, the former Chief Whip, has not moved on to new pastures and is still heckling from the Front Bench. However, I conclude by repeating my support for the new clauses that I have mentioned.
Mr. Dhanda: I fear that the consensus that we have achieved so far today might be about to come to an end. The hon. Member for East Worthing and Shoreham (Tim Loughton) put some statistics on the record, so I thought that I would kick off by doing the same. He might not entirely agree with the figures, but they come from the Office for National Statistics. About three quarters of non-resident parents have some direct contact. Around three quarters of non-resident parents have either direct or indirect contact at least once a week, and less than 10 per cent. of non-resident parents have no contact with their children at all. It is also worth saying that less than 1 per cent. of applications for contact are refused by the courts. Those statistics give some of the context for the debate that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) wanted to put on record.
The new clauses and new schedule in the large and varied group are united by a desire to promote contact between children and both their parents, or other relatives, following parental separation. Some of the measures raise specific points to which I will turn in due course, but there are fundamental points of principle that run through all of them.
First, I make it absolutely clear that it is our view that children will nearly always benefit from a
continued and meaningful relationship with both parents following separation, so long as that is safe and in their best interest. I believe that we can all agree on that, and the debates in Committee made it clear that hon. Members on both sides of the House are united behind that position. Our view is that the legislative framework that we have in place, which is centred on the excellent Children Act 1989, is the right one. The paramountcy principle is clearly laid out in that Act, which says clearly and without qualification that when deciding any question affecting a child’s upbringing, the welfare of the child should be the court’s paramount consideration. I do not think that there is any disagreement about that either.
The worry that hon. Members on both sides of the House have expressed is about what is happening in practice. We all regularly hear sad stories from our constituents in our surgeries. Such cases are the motivation behind many of the measures in this group of new clauses. The vast majority of the measures would insert provisions into the Children Act to direct the courts to promote, or presume that there should be, contact with both parents, but that causes us much concern. We have examined the matter closely, but, quite simply, we cannot find a form of words that would send such a signal to the courts without moving the focus of legislation away from the fundamental principle that the welfare of the child is paramount. Any shift in favour of a presumption would be a move towards a legal model under which a court would have to start by assuming the specific position that as much contact as possible is in a child’s best interest. It would have to take that position independently of considering the facts of a particular case and move away from it only in exceptional circumstances. Such an approach would be very different from starting by considering an individual child and ordering what is best for that child, which is the legal position that we have at present. I believe that that position is right.
However, that is not to say that everything is perfect—that is something on which I agree with the hon. Member for East Worthing and Shoreham. We share the concern that there might be a need for a change in practice and a shift towards better support for families to help to ensure that both parents remain involved in parenting. Such an approach would require a shift that was more cultural than legislative.
I hope that I have explained not only our general concerns about the measures, but our sympathy for the intentions behind them. Some of the measures raise specific difficulties that I shall now address.
The aim of several of the measures is to try to avert cases from going to the courts by giving parents an idea in advance of what a court would be likely to order. The problem of trying to do that is illustrated graphically by new schedule 1, which new clause 25 would insert in the Bill, in which the hon. Member for Mid-Dorset and North Poole has made a valiant attempt to set out what default contact arrangements might look like. As hon. Members will have noted, new schedule 1 is extremely detailed. I am sure that the hon. Lady accepts that it is easy to imagine the objections that would come in from parents about why the arrangements would not be appropriate in their
individual case. Even more concerning is the fact that the new schedule would apply to people who had never been anywhere near a court, so it would represent a rather inappropriate intrusion by the state into the lives of private individuals who have not turned to the courts at all.
Although new clause 9 is essentially about a presumption of contact, it would have the very odd effect of changing the no order principle in the Children Act 1989. That principle, as it stands, says that a court should not make an order unless it is satisfied that doing so is better for the child than making no order at all. That is self-evidently a sensible position, but new clause 9 would drive a coach and horses through it by saying, in effect, that a court should make an order for “reasonable contact”, even in the absence of any evidence that doing so would be better for the child than making no order.
New clause 11 would require the Children and Family Court Advisory and Support Service and local authority officers to proceed on a presumption of reasonable contact when carrying out family assistance orders. Such a requirement would be odd in the context of orders that are intended to support children and families. The role of an officer carrying out such an order is to “advise, assist, and befriend”, usually in the context of directions given by a court, not to make assumptions about what may or may not be in those people’s best interests.
New clauses 12 and 17 would insert presumptions of contact into the welfare checklist. I am impressed by the innovation of the hon. Member for East Worthing and Shoreham because he seems to have come at the Bill from every angle to try to find a way of getting his point across. Such measures would be an especially inappropriate way of proceeding. As was explained in Committee, the welfare checklist is a list of things to which courts must have regard when making their decisions. It includes matters such as any harm that the child may have suffered, the ascertainable wishes and feelings of a child and the capacity of a child’s parents to look after the child. All those factors are relevant, but do not direct the court one way or another about what it should decide. There is thus a clear and stark difference between the approaches. A presumption of contact would be a very strange addition to the checklist in this context. A further problem would be that the welfare checklist applies in public law cases, such as care proceedings, although I do not believe that the hon. Gentleman would wish such cases to be covered by new clause 12.
New clauses 13, 4, and 24 express in different ways a simple presumption of contact. I have said already that we are concerned that all the new clauses would move away from the paramountcy principle as the centre of children’s law, which we would consider to be deeply undesirable.
6.30 pm
New clause 24 makes some attempts to explain what “reasonable contact” means, including the worthy sentence that it should facilitate
“a positive and fulfilling relationship”
We can all agree with that as a goal, but I do not believe that a statutory presumption is the best way forward.
New clause 16 extends the principle of a presumption to the extended family. I know that it reflects the concerns of grandparents in particular, to which I shall return in a moment. Grandparents are sometimes tragically excluded from their children’s lives as a result of a conflict between parents. That is unjust and it can have a terrible side effect, given the pain that individuals feel at the end of a relationship. It is, however, not something that can be solved by a presumption that would serve only to weaken the paramountcy principle.
New clause 18 comes at the problem from yet another perspective. I have discussed the clause—we had a discussion outside the Chamber—with my hon. Friend the Member for Stafford (Mr. Kidney), who was a little downhearted earlier on because he did not see me giving in on this issue. I know that my hon. Friend’s aim is to find a way through the difficulties that I have set out, namely avoiding conflict with the paramountcy principle. He does so by setting out, instead of a presumption, a set of objectives that the court should have in mind when making provision about contact with the child. These are worthy objectives, including reducing the risk of harm to the child and promoting contact between the child and the child’s parents and other family members.
Unfortunately, as I said to my hon. Friend when we met, the new clause does not avoid the danger of upsetting the paramountcy principle. It would effectively alter the starting point of the court, away from whatever is best for an individual child and towards making orders that would fit with the objectives set out in new clause 18.
Finally, there is new clause 19.
Mr. Kidney: My hon. Friend kindly refers to our discussions, so he knows that I do not agree with his conclusion. However, putting that on one side, he talks about a change in culture. Will he at least give the commitment today that there will be adequate resources for contact activities, risk assessments and the education that is necessary so that parents understand their responsibilities?
Mr. Dhanda: I give that commitment to my hon. Friend. If he is patient, I may give him other commitments as well. I know that when we spoke he was keen on the work that has been done, which has been agreed by Baroness Ashton. That involved a closer look at the breakdown of contact in the 99.2 per cent. of cases where contact is awarded. It would be good to see how that work progresses. I gather that we now have the academics in place who will undertake that work. I am sure that they could feed back into that work for future guidelines, which I am sure that CAFCASS and other organisations would wish to take on board.
New clause 19 focuses on the important issue of contact with grandparents, and the need for them to seek the leave of the court to apply for contact orders. The Government recognise the value of grandparents and the significant role that they and other relatives play in children’s lives. Where there is a requirement for the court’s permission to apply for contact, that exists to filter out applications that are unlikely to succeed,
and which may not be in the child’s best interests. It prevents children from becoming involved unnecessarily in court proceedings. The underpinning rationale for the three-year period is to ensure that a solid degree of commitment has been shown to the child.
Annette Brooke: I was concerned that the Minister might not refer to the wording in new clause 17, which I wish to put to a vote. Could there not be a caveat stating that that point on the checklist refers to private law only?
Mr. Dhanda: I think that I have made the point on new clause 17 already. I will be happy to provide further information to the hon. Lady in writing. It does not sound as if I have satisfied her with the conclusions that I have come to on that new clause.
On grandparents, the courts will consider whether to grant leave at the same time as the first hearing in contact proceedings. Thus, applicants are not required to pay two sets of fees and the requirement does not create delay. We have considered the issue with great care. On balance, I think that the requirement for leave and a three-year period is an important safeguard. However, having listened to the hon. Member for Peterborough (Mr. Jackson), and having had good discussions with my hon. Friend the Member for Stafford, I can undertake to review cases of grandparents who have to seek leave of the court. I am happy to do that and to engage in some further work in that area.
Tim Loughton: The Minister has just given an important undertaking. It is not a question of saving duplicate fees at the time of the initial application for contact, it is about grandparents being frozen out of a relationship, either at the beginning, but often later on, so that the whole court process may have to start again. Some of the most tragic cases of people losing contact with children, in my constituency and I am sure in many others, involve grandparents who are completely frozen out and for whom the courts do not appear to offer redress.
Mr. Dhanda: That is a fair point. All hon. Members receive correspondence about that. We want to test whether that is the case and whether there is an evidence base for that. I undertake to hold a review on exactly that.
This is a substantial group of new clauses and I hope that hon. Members will forgive me for having been brief in dealing with each of them. I have said that our fundamental concern is that all the new clauses, in one way or another, could risk moving courts away from the statutory focus on doing what is best for the child. Having listened to the debate, I hope that hon. Members will consider the points that I have made and not press the new clauses to a vote.
Tim Loughton:
We have certainly had another full and lengthy debate, but I fear that, yet again, it is without impact on the Government. I congratulate the new Minister on his appointment. He has certainly been thrown in at the deep end, but I fear that, in taking on this difficult mantle, he has adopted the same
mindset as the Minister for Children and Families—one of being completely closed to practical, sensible suggestions, based on the real-life experiences of our constituents throughout the country, in refusing yet again in any way to amend the Bill, which is why it will fail.
I want to make a few brief comments because we have had a lengthy debate. The hon. Member for Stafford (Mr. Kidney) put some perfectly reasonable cases in speaking to his two new clauses. New clause 18, on statutory objectives, would be a sensible way forward, and he drew a very good analogy with the Financial Services and Markets Act 2000, with which he and I were involved all those years ago. There is certainly a cut-across that could be applied in this case.
The procedure for allowing grandparents greater access that the hon. Gentleman sets out in new clause 19 is absolutely essential, and I am encouraged by the Minister’s last comments about agreeing to look into that issue. I hope that there will be a meaningful review of the problem. If the hon. Gentleman were minded to press either of his new clauses to a vote—I think that he probably will not, given his ambitions for his place on the Government Benches—he would find support among Opposition Members at the very least. I am sorry if he does not quite have the courage of those convictions to push those new clauses all the way.
We should not be surprised about the extraordinary new clauses and lack of consistency from the Liberal Democrats. I feel some sympathy with the hon. Member for Mid-Dorset and North Poole (Annette Brooke)—it is not easy being a Liberal Democrat Member of Parliament, signing up to one thing and doing another in the Lobby—but she said that new schedule 1 was easy to ridicule. Well, it is, which is why I want to have another go at it. Let us consider what would be required.
The hon. Lady admits that new schedule 1 may not be exactly flawless, but it says that
“any child who has attained the age of one year but is not yet in full-time education...shall...stay with the non-resident parent on alternative weekends from 10 a.m. on Saturday until 5 p.m. on Sunday”.
“In the case of any child in full-time education who has not yet attained the age of fourteen years, the child shall...stay with the non-resident parent on alternate weekends from after the child finishes school on Friday until 6 p.m. on Sunday”.
My son would be furious: he would miss “Time Team” on Sunday afternoons if that provision were to apply to a situation such as mine. He would then
“visit the non-resident parent from 4 p.m. until 6 p.m. every Wednesday”.
Well, that is cricket practice out of the way as well. That is absurd. It is the sort of prescriptive nonsense that we must avoid in the Bill.
Annette Brooke: I am sorry to interrupt the hon. Gentleman’s enjoyment. However, I hope that he listened to the words that accompanied the proposal. Does he not think it worthy to try to think of a solution for the intractable problem of when no agreement is made and a huge gap subsequently appears when no contact takes place?
Tim Loughton: A prescriptive solution is suggested that would victimise the child most of all—children might want to have a say; they might not want to stay at a certain time with parent A or parent B—and would not be in the interests of the parent or the child and could result in more frustration and more court action when the whole thing falls apart. That is not a solution. I really do get exasperated with the Liberal Democrats. If they fail to follow us into the Division Lobby in support of new clause 4 this evening, having signed up to early-day motion 128 and supposedly supporting that very same principle, let it be put on the record and known around the country that they are prepared to say one thing to their constituents and not to have the courage of those convictions when and where it matters.
Paul Rowen (Rochdale) (LD): Will the hon. Gentleman give way?
Tim Loughton: Perhaps the hon. Gentleman will tell us whether he is one of the signatories.
Paul Rowen: No, I was not. The hon. Gentleman will note that several hon. Members, including 115 members of the Labour party, have signed that early-day motion. It is very easy for him to make cheap comments, but that early-day motion does not tie any hon. Member to what is in his ridiculous new clause.
Tim Loughton: If the hon. Gentleman had been here earlier in the debate, he would have heard several hon. Members trot out all the figures for how many hon. Members on both sides of the House have signed that early-day motion, which has a direct cut-across to the wording in new clause 4, which is not ridiculous. Some 85 per cent. of his parliamentary colleagues thought that it was not ridiculous to sign the early-day motion and fob off their constituents by telling them that they had done so, but they are apparently not going to put their money where their mouths are and vote for the new clause.
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