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Amendment No. 19 would require CAFCASS, when conducting a risk assessment under clause 7, to supply the court with its assessment of the impact that the options available to the court might have on the child. It is sensible for CAFCASS to be asked to consider such issues, and I reassure the hon. Member for Mid-Dorset and North Poole (Annette Brooke) that it is already in a position to do that. Rather than being part of a risk assessment, it would be more appropriate for it to be done as part of a welfare report, which courts can already order under section 7 of the Children Act 1989. A risk assessment would be exactly that: an assessment of the risk of harm to the child that would inform the court’s judgment. In our view, it is appropriate that this should be a focused piece of work looking solely at risk,
separate from the wider welfare report that the court may also consider. Having said that, it would also be open to the CAFCASS officer to comment if he or she thought that the court should be informed that a course of action might increase or reduce the risk of harm.
I have no doubt that the new clause is well intentioned, and it has been moved well today. The proposals were also discussed in Committee. However, I hope that my comments will have allayed hon. Members’ fears and that the new clause will therefore be withdrawn.
Mrs. Maria Miller: I thank the Minister for his detailed and measured reply. He did not take part in our deliberations in Committee, but it is clear from his response that he has taken a great deal of time to go through what was said, and we very much appreciate that. He has made a few points that are worthy of comment. He said that two thirds of those who did not contest their divorce proceedings in court were content with the arrangements that they had. Perhaps that was because they were worried about the process that they might be exposed to if they were to go to court. Equally, however, that must mean that one third were not content.
One lesson that we can all take from the debate today is that an enormous number of people out there are not being well served by the existing legislation. They do not have the financial resources to go to court when their relationship breaks down, but they still want to do the best thing for their family. At the moment, however, precious little is being done to support them in that regard, and we should all be most concerned about that. We are all aware of such cases through our constituency work.
I agree that we should keep people out of the courts. Having been to a family court myself, as I mentioned earlier, I know that it is not a place that I would want anyone to visit if that could be avoided. I hope that, with that in mind, the Minister will be able to support the amendment on mediation, which we shall come to later. We would like to increase the role of mediation in the process. We do not want to make it mandatory, but we would like it to be part of the process. At the moment, too many people are not offered mediation as an option.
I hope that the Minister will also acknowledge the importance of minimising delay in the process. We should not allow risk assessments to form a logjam in the divorce or separation process. Equally, they should not divert CAFCASS’s scarce resources, which will become even scarcer, given the additional provisions in the Bill. Its resources should be used correctly.
The Minister said that we might be setting the bar too high in regard to risk assessments. I would like him to consider that, if we set the bar too low, the people who decide whether a risk assessment should be made might feel compelled to undertake them even when the evidence was not as strong as it might be. This can work both ways; we need to be aware that it is a two-way street. We are putting extra burdens on the people involved in making decisions on risk assessments by making the threshold lower than it ought to be.
I note that the Minister did not respond to my point about non-resident parents losing contact, or to my request for more reassurance on the figures involved. That point was reiterated by my hon. Friend the Member for Peterborough (Mr. Jackson). If we had a better perspective on how many people were involved in losing contact with their children, we would all be better placed to assess whether new clauses such as this were needed. I urge the Minister to consider that point carefully.
Mr. Dhanda: Perhaps the research that Baroness Ashton has agreed to carry out will be of help to hon. Members on both sides of the House in this regard.
Mrs. Miller: I thank the Minister for that implicit acknowledgement that there is a need to review these issues. I hope that, in continuing our discussions on this matter today, I have been able to embed it in the Minister’s mind, and that he will go away from this place mindful of the fact that we need to learn more about it. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘After section 11P of the Children Act 1989 insert—
“11Q Recompense of those penalised by non-compliance with a contact order
(a) in circumstances where a contact order has been made in regard to a child, and
(b) where the actions of an individual bound by a contact order have resulted in another individual—
(i) bound by the same contact order,
(ii) falling under subsection (5), or
(iii) applying under subsection (3),
being deprived of the contact time specified in the contact order.
(2) A court may, pursuant to subsection (1), make an order granting additional contact time between the individual parent whose contact order has been breached and in respect of the child of whom the contact order was made.
(3) An order under subsection (2) may be made only on an application by the individual claiming to have been deprived of contact time.
(4) In determining an application made under subsection (3), the burden of proof shall rest on the individual claiming to have been deprived of contact time.
(5) The additional time awarded by the court shall be either—
the amount of time that the individual applying under subsection (3) has been deprived of.
(6) This section applies to a person if he is—
(a) the person whose contact with the child concerned is provided for under the contact order, or
(b) an individual subject to a condition imposed by the contact order.
(7) The court may not make an order under subsection (2) if it is of the opinion that the individual in breach had a reasonable excuse for failing to comply with the contact order.
(8) In exercising its powers under this section, a court shall have primary regard to the welfare of the child concerned.”'.— [Tim Loughton.]
Brought up, and read the First time.
Tim Loughton: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 21, in clause 4, page 7, line 22, at end insert—
‘(3A) In deciding whether a person had reasonable excuse for failing to comply with a contact order, the court shall consider—
(a) the wishes and feelings of the child;
(b) any concerns about the safety of the child; and
(c) any concerns about the safety of any member of the child's family.'.
No. 11, in page 7, line 25, at end insert—
‘(4A) When considering whether to make an enforcement order, the Court shall have regard to the principle that, subject to the welfare of the child, the court acts on the presumption that a child's welfare is best served through reasonable contact with both his parents unless good reason to the contrary is shown.'.
No. 18, in page 7, line 25, at end insert—
‘( ) When considering whether the person has a reasonable excuse the welfare of the child is to be the court's paramount consideration.'.
No. 16, in page 9, line 15, at end insert—
‘(5A) A court that proposes to make an enforcement order must order for the separate representation of the child, unless it is satisfied that it is not necessary to do so in order to safeguard his interests.'.
No. 10, in line 26, clause 5, page 10, leave out subsections (7) and (8).
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Tim Loughton: New clause 21 deals with compensatory contact, a subject that we raised in Committee. It deals with what I would call serial breaches of contact orders, and with how enforcement should be made against them. We have all acknowledged the lack of research on the failure of contact orders to work in too many cases. We know that about 70,000 contact orders are granted each year, and we know how many result in a revisit to the court because one of the two parties involved has not adhered to the order.
Several hon. Members referred to the Oxford university research paper today. It underlines what it calls the “situational power” of the resident parent, the cost of returning to court—often against a legally aided partner—and the slowness of the legal system. It also highlights the fact that a parent can fall out of touch with a child if he or she is denied the opportunity to see them over an extended period because of pending court action. The father or, less usually, the mother would subsequently become unfamiliar to the child. The child, particularly if young and impressionable, might then be less willing to see the non-resident parent. Those examples are cited by Oxford university as reasons why a parent with residency is in a much stronger position. If such a parent were minded to play the system, he or she could use it to restrict the opportunities of the non-resident parent to maintain meaningful contact with the children.
The problem is that the only real penalty that the courts have against someone who breaches a contact order is to levy a charge of contempt of court, and that is rarely done. The courts are reluctant to take that course of action because it could result in charges being brought against the parent, and that is regarded as the nuclear option.
We do not know the extent of the problem. I recently tabled a parliamentary question to the Minister of State, Department for Constitutional Affairs, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), asking how many people had breached child contact orders in the past few years. She replied that
“it is not possible to identify the number of cases in which failure to comply with a contact order leads to the matter being dealt with as a contempt of court...This information is not held centrally”.—[ Official Report, 15 May 2006; Vol. 446, c. 731W.]
So we do not know how often the sanction of contempt of court is used, but we hear anecdotally from the courts that it is rarely brought to bear.
Effectively, therefore, a lot of articulate people in the know are able to play the system to frustrate contact by a former partner on the basis that there is a strong chance that no penalty will be brought to bear against them. A judge can say, “Don’t breach the contact order, or I’ll haul you back before the court and tell you not to breach the contact order again.” That is as punchy as it gets. Such a judge would have all the force of an unarmed, one-legged policeman shouting “Stop, or I’ll shout ‘stop’ again” at a fleeing criminal. I am afraid that that is just not good enough. It has given rise to many complaints, and to a perception that the system does not work in favour of a non-resident parent who happens to be at loggerheads with the parent who has custody and who is determined to use, in extreme cases, the children as pawns to fight battles with his or her partner rather than acting in the best interest of the children. As has been said today, in most cases what is in their best interest is maximum contact with both parents.
Let me give the Government their due. They recognise the problem, which is why the Bill exists and why they have added the enforcement orders provisions in clause 4. The clause requires breachers of contact orders to undertake unpaid work if no good reason for the breach is given, and to instigate compensation for financial loss. That may involve travel costs, or a holiday booked by a non-resident parent which becomes impossible when the parent with custody decides to take the children to the other end of the country.
The provision is good as far as it goes, but it lacks real teeth. Conservative Members are pleased that the Government dropped some of the more draconian measures, such as the tagging of errant parents with custody, which would not have been a fitting penalty in such sensitive cases. However, if—say—a mother with custody is fined, the fine will often be paid from the maintenance paid by her ex-husband. The money will be recycled, and those who lose out most will be the children who can no longer enjoy the benefit of funds intended for their upkeep.
Those who are determined to flout contact orders will ask “What is the worst that can happen to me?” At present, the answer is “Not a lot.” We tabled new clause 21 because we think that what is needed is a proper, recognisable, easily understood sliding scale of penalties, the award of custody against the resident parent being the ultimate sanction against the serial breacher of contact orders who simply will not come into line with what the court has decided.
If a non-resident parent is deemed fit to share in the upbringing of his or her child, he or she should have the opportunity to do a better job than the parent who has frustrated contact orders, which surely cannot be in the child’s best interest if the court has deemed that the child should have contact with both parents. We consider that the compensatory contact time proposed in new clause 21 represents an appropriate and proportionate middle way. It would make the parent at fault think twice. If he or she genuinely thinks that it is harmful for the child to spend more time with the non-resident parent, surely he or she will not risk the award of additional compensatory contact time with the non-resident parent.
Other countries impose a range of penalties. The Government of the Netherlands have power to suspend child support payments temporarily when a parent has frustrated contact arrangements. In the United States, an occupational driving or sports licence can be suspended. In the state of Arizona, an independent court official is appointed as a go-between to supervise the way in which contact works. Much of the power to frustrate orders is removed from parents. In Germany, non-complying parents can lose their right to manage contact arrangements, which then pass to a court-appointed contact guardian. That is similar to the system in Arizona.
Surely the middle way suggested in new clause 21 is a more balanced, relevant and proportionate response to the problem with which we are dealing. It would still be subject to checks and balances connected with possible risks to the welfare of the child, which are important features of other parts of the Bill. The burden of proof, however, must fall on the person who has not complied with a court order. It must be for that person to prove that he or she had good cause not to do so.
We consider the new clause to be sensible, practical, proportionate and workable. It should be seen not as a reward for an aggrieved parent, but as an effective disincentive to the breacher of a contact order who has ignored the judgment of the court.
Amendment No. 11 would make the enforcement order subject to the principle that the child’s best interests are served through reasonable contact with both parents, in the absence of safety considerations. I shall not rehearse the arguments that have already been presented about reasonable contact. Amendment No. 10 deals with the provisions requiring children making applications to obtain the leave of the court. My hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) may touch on that later.
I am sure that the hon. Member for Luton, South (Margaret Moran) will shortly speak on her amendment No. 21, which states that decisions on whether there was a reasonable excuse for failing to comply with an order must take account of the wishes and safety of the child. We believe that that will be implicit in the thinking anyway. As I have been at pains to stress, the paramountcy of the child’s welfare and of considerations about the child’s safety must be taken into account in all our proposals.
The hon. Lady also tabled amendment No. 16, which concerns the separate representation of a child in court. The amendment has an interesting distinction:
until yesterday, one of the signatories was a Minister. I note that she has removed her name; it would have been rather interesting if the Government had declined to accept it. Amendment No. 18, tabled by the Liberal Democrats, states that the child’s welfare must be paramount when the court considers whether a person has a reasonable excuse.
We shall hear what others have to say about the amendments that they have tabled, but we think that our new clause would beef up the Bill and give it real, workable teeth. In its current form, it is a good try, but we do not think that it will work. We believe that new clause 21 will make what the Government want to achieve practicable.
Margaret Moran (Luton, South) (Lab): My purpose is to ensure that the paramountcy of the child’s interests, which we have discussed repeatedly in Committee and today, is made clear in the Bill. I believe that some of the proposals advanced by, in particular, Opposition Members undermine that paramountcy principle. Amendment No. 21 would introduce important safeguards to enforcement proceedings. I believe that while not constituting a bar to the effective enforcement sought by the hon. Member for East Worthing and Shoreham (Tim Loughton), it would require courts to consider first the ascertainable views of the child and, secondly—and most important—any risk of harm to the child or any member of the family when deciding whether a party had a reasonable excuse for breaching an order. The Government have limited the extent of provisions relating to children in clause 4, arguing that breach of contact orders, and their enforcement, are about parents. With my amendment, I am arguing that they should be about children and their welfare.
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As I understand it, the Government argument is that concerns about the child are dealt with when the original contact order is decided by the court. As a result, the principle of the paramountcy of the child’s welfare appears, in effect, to have been removed from the clause, as has the standard child’s welfare checklist that the Children Act 1989 requires the court to use in all other proceedings. In other words, the clause contains less emphasis on the importance and paramountcy of the child’s welfare than any other in the Bill.
However, children frequently say that the enforcement stage is the most frightening period. The available research shows that the points of contact and enforcement are the most dangerous ones for separating partners, especially women, and for children. Evidence from children’s charities suggests that children find the stage of the process when they are in effect being torn between two parents frightening, and that anxiety and other welfare repercussions ensue.
Research by the Department for Constitutional Affairs into children’s wishes and feelings about contact found that children
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