Children and Adoption Bill [Lords]

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The Parliamentary Under-Secretary of State for Education and Skills (Maria Eagle): I am not the first, but may I be the latest to welcome you to the Chair this afternoon, Mr. Hancock?

Amendments Nos. 46 and 2 seek to amend the provisions in respect of contact activities. Amendment No. 46 seeks to focus the purpose of contact activities rather more narrowly–certainly so that they are chiefly concerned with promoting and lengthening contact. Amendment No. 2, as has become clear from hon. Members’ remarks, is more concerned with the practicalities of ensuring that contact activities take place on a reasonable time scale and begin as early as possible in the process. Perhaps I could say a little about each amendment.

As I understand it, amendment No. 46 would make two significant changes to the current function of contact activity directions and conditions as envisaged in the Bill. It would require in subsection (3) that contact activities should be designed to promote reasonable contact by addressing specific shortcomings that the court has identified in findings of fact or that have been separately stated by the court to impede the ordering of a greater amount of contact.

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First and foremost, and I suspect that we will come back to this on a number of occasions, the word “reasonable” is one that every lawyer on the Committee will say is well known in the law. Any reference to “reasonable contact” that amendments to this Bill would place in the Children Act 1989 is unnecessary, because the court will always order what it considers to be reasonable contact in the circumstances of the case, based on its overwhelming priority that it must be in the best interests of the child. That is already what the courts do.

We can continue to have discussions about how that works out in individual cases, but I hope that the hon. Member for East Worthing and Shoreham (Tim Loughton) will accept that the court’s role is to order a reasonable level of contact, on the basis of the paramount consideration that it must give to the best interests and welfare of the child. It is well set in common law and case law that courts consider that, where possible and in the best interests of the child, reasonable contact or contact between both parents and children of divorced or separated couples will be the best outcome. I know that not everyone would agree with that, but certainly in any case the court will always do what it believes to be reasonable. There has to be a question about the extent to which adding the phrase adds anything that would help to direct the court. It already orders reasonable contact or acts in a reasonable way in each case that it considers.

Tim Loughton: I have just two straightforward questions. If reasonableness is assumed, what is the downside from adding the word “reasonable” before the mention of contact in the Bill? Secondly, what case law can she cite to support her assertion that reasonableness is always a fundamental presumption of the court in its contact directions?

Maria Eagle: The court always acts reasonably in carrying out its functions. The hon. Gentleman asks why if the word does not add anything there is anything wrong with putting it in. We could put a lot of words into the Bill that do not add anything to it, but we would have a lot of them in there and they would just obfuscate the real meaning of the legislation. Where a word is implied—the court deals with these issues on a daily basis and does so in a reasonable manner—it would be otiose to add “reasonable”.

Tim Loughton: As I set out this morning, the reason why we are discussing the Bill is that in the eyes of a great many people who have gone through the court system the judgments handed down have been far from reasonable. We contend that although reasonableness may be the intention and the sentiment behind those involved in the courts, it is not manifesting itself in practice in reasonable judgments. Therefore the amendment is not otiose and the insertion of the word “reasonable” does not obfuscate, whereas the addition of a load of other words that the Minister or I may come up with could be described as such. The word “reasonable” is fundamental to our case. The Minister has not given a good case for why there would be damage by inserting “reasonable” in the clause.

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Maria Eagle: I know that I have not convinced the hon. Gentleman, but we can all put our arguments and those who read Hansard and fellow Committee members will have to make their judgments. I am not saying that, when asked afterwards about the order that they received, every party to every case that comes before a court will say that it was reasonable. I am saying that the court behaves reasonably, therefore placing the word “reasonable” in the Bill would not add or assist the court in doing its job.

Jeremy Wright: I want to ask the Minister about reasonableness and about what she has said about the need to include it in legislation, particularly with reference to enforcement orders.

Maria Eagle: It is in the clause.

Jeremy Wright: Precisely, but the enforcement order clause says:

    “the court may not make an enforcement order if it is satisfied that the person”


    “a reasonable excuse”.

Surely, “reasonable” is included in that clause to qualify the word “excuse” and ensure that not just any excuse will do but only a reasonable one. Is not the same true of contact? Our argument is, simply, that not every contact is reasonable. We would argue—I am sure that the Government would agree—that, in order to have proper contact, it must be reasonable and the word should be in the Bill.

The Chairman: Order. Before we proceed, can I point out to Committee members that if they want to pursue reasonableness, there will be another more specific opportunity to do so later on? It might be more appropriate to deal with it then, rather than to continue to-ing and fro-ing on reasonableness at this stage.

Maria Eagle: I hear what you say, Mr. Hancock, and I shall not challenge your ruling. No doubt, we will return to that word. I suspect that we will do so at every opportunity that Opposition Members find. However, there is a difference between reasonableness in respect of an excuse and the reasonable behaviour of a court carrying out its functions generally. I will not be drawn any further down that road.

I do not want the hon. Member for East Worthing and Shoreham to think that I am not responding to his question. He asked whether I had a list of case law that suggested that children normally benefit from a meaningful relationship with both parents after separation, so long as it is safe and in their best interests, and I do have one. I will not go into all the facts, but if I refer to a number of cases, he can look them up in the law reports—although he probably already has copies in his files. They include: re T (A Minor); re O; Court of Appeal case re B; and re O, contact: withdrawal of application. There are others. Whether the facts of those cases show what I have suggested is a lawyer’s argument and not one with which we want to detain the Committee.

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I was trying to make some progress on amendment No. 46; I did not get past the phrase “reasonable contact”. The amendment makes a number of suggestions about the purpose for which contact orders ought to be made. The amendment would introduce an unwelcome assumption that the main purpose of contact activities was just to increase the contact time between the child and whichever of his or her parents is subject to a contact activity direction or condition. That may well be so in many individual circumstances, and the contact activity might be designed to do just that in many individual circumstances, but it may not always be in the child’s best interests—paramountcy is supposed to mean that the court will first and foremost do what is in the best interests of the child—simply for the duration of contact to be extended. The contact activity may be designed to improve the quality of the contact time ordered by the court.

4.45 pm

The amendment assumes a narrow definition of “contact activity”. If contact activities were only about addressing issues resulting from finding-of-fact hearings, or were just a means of increasing the contact that the court orders, that would fail to take into account current intent, which is to allow more flexibility. As the Bill stands, “contact activity” can be used to assist a person in establishing, maintaining or improving contact with a child. We do not want to narrow the activity down to just a question of whether the length of contact should be greater.

Annette Brooke: I hope that the Minister is feeling a little better than she did this morning. I say “a little” because she certainly does not look quite on form yet, and I am sorry that she has to work all afternoon. That is my being nice for the day.

I absolutely agree about quality of time but, to backtrack to quantity of time, is there any evidence on cases in which contact is limited to just a Christmas card per year—on how widespread they are, and why they occur? It is easy to make sweeping statements that such cases exist, but there may be a few such cases or there may be many. I wonder whether the Minister has any idea of the scale.

Maria Eagle: I had not realised that I looked quite as bad as the hon. Lady suggests. None the less, I am grateful to her for wishing me well.

The hon. Lady may be aware that we have committed ourselves to commissioning the research that she asks for, and to investigating how courts approach contact cases, so that we can get a fuller picture and can consider whether any further change is necessary, in the law or elsewhere. That research has been commissioned, and we expect the body to report. When it does, we will, no doubt, publish it so that people can see the implications.

I was trying to argue that amendment No. 46 would make the definition of “contact activity” rather too narrow. I listened to what the hon. Member for East Worthing and Shoreham said about the shortcomings of particular parties, and I have some concerns about it. I understand that he is trying to promote contact
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orders that are relevant and pertinent; one hopes that a sensible court and judge would not order contact activities that were neither. I hope that they would use their common sense to make sure that contact activities assisted in sorting out the problem, and were not irrelevant to it.

Aside from the potential delay caused by holding finding-of-fact hearings, I wonder whether the hon. Gentleman is really convinced that identifying specific shortcomings in one party would assist in the resolution of what, after all, are very complex contact cases, where relationship breakdown has led to a lack of understanding between the adults involved. Having the court point fingers about significant shortcomings in one of the adults is hardly more likely to lead to an easy resolution than the wider wording currently in the Bill. Although I understand where the hon. Gentleman is coming from, I do not believe that his amendment would assist.

I really appreciate the intention behind amendment No. 2, which is to ensure that the court does not order activities that may take a long time to set up or that may require the party’s involvement for extended periods. I reassure Committee members that those concerns are dealt with in the Bill, and by existing provisions of the Children Act. For example, proposed new section 11E(2) requires the activity that a court proposes to be appropriate to the circumstances of the case. I hope that that will also go some way toward dealing with relevancy and pertinence, which the hon. Gentleman raised in respect of amendment No. 46. It means that if the contact activity provider were unable to provide the activity for some time, or the activity required attendance for a long period, the court would have to consider whether the resulting delay to the outcome of the case would outweigh the benefit to the parties attending the activity. The Children Act requires the court to ensure that delay in proceedings is minimised—the hon. Gentleman knows that very well. Obviously, the court will apply its mind to that when making contact activity directions.

New section 11E also stipulates that the activity provider must be suitable to provide the activity, which would go to the question of the availability of the activity concerned, and that the activity should be provided in a place that the person undertaking it can reasonably travel to. Those provisions mean that the court would have to be convinced that an activity was particularly necessary before making an order that would cause delay in the way that the amendment envisages.

It is important to bear it in mind that the court will order contact activity conditions at the same time that it makes an order for contact. Therefore, it will often be the case that contact activities and contact take place in parallel, so any delay caused by going on the course or the contact activity will not necessarily prevent ongoing contact in suitable cases with the child or children.

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As part of the process of referring parties to contact activities, the court will take account of available local provision and will make an assessment of who is best placed to provide which courses. In that respect, the Bill also provides that the court may ask a Children and Family Court Advisory and Support Service officer or a Welsh family proceedings officer to provide such information as it requires on such matters. I hope that that will give some reassurance in respect of amendment No. 2.

The hon. Member for East Worthing and Shoreham and the hon. Member for Mid-Dorset and North Poole (Annette Brooke) referred to resources, which of course are important. The predecessor of my right hon. Friend the Minister for Children and Families made it clear that we would not commence the Bill unless we were convinced that the available resources were such that it could be properly commenced.

The hon. Gentleman referred to £7.5 million that was recently made available for contact centres and suggested that it was intended for doing them up. The money is intended not for doing up child contact centres but to support child contact services, including those provided in child contact centres.

Ms Sally Keeble (Northampton, North) (Lab): My hon. Friend is quite right in saying that the money is meant to support child contact work. Is she aware of the low take-up of funds for outreach work in Northamptonshire and perhaps other areas? Could she comment on the steps that are being taken to determine why there is low take-up or to find other ways of doing effective outreach work?

Maria Eagle: I hear what my hon. Friend says. I would be more than happy to take that issue back to my officials and try to find out what is going on in Northamptonshire. It is certainly not the intention that people should be unable to undertake the kind of activity that the Bill envisages being available to assist parties in such disputes.

It is not the case that there is only the £7.5 million to which the hon. Member for East Worthing and Shoreham referred. In appropriate cases and subject to their means, parties to cases will be expected to pay or contribute towards the cost of the child contact activities. It is not an issue of not enough money from central Government; the £7.5 million that he referred to is the latest in an ongoing increased commitment to providing this kind of activity.

I hope that on the basis of what I have said the hon. Gentleman might consider withdrawing the amendment. Of course, if I have not convinced him, he will not do so. We wait to hear what he has to say.

Tim Loughton: May I place on the record the fact that the Minister is looking lovely after her torrid time with physical challenges, contrary to the entirely unreasonable assertion by the hon. Member for Mid-Dorset and North Poole?

The Minister made a good attempt at making a fist of her response to my amendment. I am disappointed, however, because the response was quite complacent. She says that the point made by my hon. Friend the
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Member for Rugby and Kenilworth about enforcement orders, for which the use of the word “reasonable” is an integral and assumed part, is not appropriate for the clause because “courts always act reasonably”. I wish that were the case—but if it were, we would not be here today.

If the courts do not fail to act reasonably, the people to whom the courts hand down judgments fail to act reasonably in response to them, or the support services attached to the courts and part of the contacts direction handed down by them cannot offer reasonable access to services that are deemed to be part of the problem. That is the issue. To make the broad-brush statement that courts always act reasonably is breathtakingly complacent, however well intentioned the great majority of judges and other court officials are. It is not the case in practice; that is why the Bill is being discussed and why we feel it necessary for our amendments to be added.

The Minister also relied on sensible judges using their common sense. Again, there is so much more to this issue than a decent judge making a decent judgment. Such a judgment is often thrown completely back in the court’s face; there is often little comeback on those who flout a court’s activity directive. We shall discuss that in more detail when we come to enforcement orders and the penalties that go with them.

I also lack confidence in the Minister’s statement that the previous Minister for Children and Families stated categorically that the Government would not commence the undertakings in the Bill unless and until they were convinced that the services could be provided. Our discussions with CAFCASS, other workers in the court system, family groups with in-depth experience of the courts and lawyers who specialise in family law have revealed that services to provide the level of treatment that would make the elements of the Bill under discussion effective are not universally available.

As my hon. Friend the Member for Peterborough pointed out, there is a postcode lottery: some services may be up to scratch, but others will be woefully inadequate for a host of reasons. I mentioned that the £7.5 million available had to be stretched to provide a whole range of services because Lord Adonis said so in another place, although I do not have the quote to hand. He said that that £7.5 million is the major pot of money to provide the additional services—it supposedly provides the staff, staff training and facilities to make this element of the clause a reality but, in addition to that, all the contact centres and promotion of contact in supervised environments in them are beholden to that budget as well.

I perfectly appreciate that additional outside moneys come in, but the £7.5 million is the core funding. CAFCASS is facing a spending freeze, which will mean an effective shortfall of about £4 million. Anybody speaking to CAFCASS cannot but be troubled by its concerns; it wants to be able to deal with the problems it has already, let alone all the additional responsibilities that will be placed on it by the Bill. I shall come to that during discussion of
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clauses 5, 6 and 7. The Minister’s response to the amendments smacks of wishful thinking, and that is regrettable.

To give another example, I was looking through a survey carried out by the National Youth Advocacy Service, which has a great deal of experience in the issues that we are discussing and provides advocacy services to children in family proceedings. It has been doing so for some while, has a good reputation and has built up quite a track record. The survey revealed that 44 per cent. of the children surveyed had been involved in court proceedings for between one and three years, 38 per cent. had been involved for between three and six years, and 16 per cent. had been involved for between seven and 10 years. More than half—54 per cent.—of the children in the survey had been involved in court proceedings for at least three years and as much as 10 years. That is alarming. It cannot be in the interest of any children to spend the majority of their childhood being dragged in and out courts, if not physically, certainly in name, with their parents going through protracted and acrimonious legal disputes about the future of those children. The figures are alarming and can have nothing other than a significantly detrimental effect on children’s welfare.

That is why the amendments are crucial, particularly amendment No. 2, which would ensure that cases are speeded up and that the paraphernalia we are talking about and are supposed to contribute to the solution do not turn out to be time-wasting, delaying measures to draw out cases to the length revealed by the survey.

5 pm

The Minister has not convinced me and I do not think that I would be any more convinced if she were on top physical form. There is a degree of unanimity among the Opposition parties and there have been supportive words from the Labour Benches so, with your leave, Mr. Hancock, I will withdraw the main amendment, but press amendment No. 2 to a vote in due course to test the will of the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Kidney: I beg to move amendment No. 58, in clause 1, page 2, line 10, at end insert—

    ‘(5A)   In cases of domestic violence, the court shall refer the individual to a domestic violence perpetrator programme as defined by a Code of Practice issued by the Secretary of State.’.

The Chairman: With this it will be convenient to take the following: Amendment No. 31, in clause 1, page 4, line 31, at end insert—

      ‘(c)   any experience of domestic violence that would place the child or individual at risk.’.’

New clause 5—Sanctions against false allegations of violence or significant harm—

    ‘After section 10 of the Children Act 1989 (c. 41) insert—

    “10A   Sanctions against false allegations of violence or significant harm

    (1)   The Secretary of State may make regulations to require the court to act in accordance with subsection (2).

    (2)   Where during the course of contact proceedings—

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      (a)   a person makes an allegation of violence or significant harm against another person, and

      (b)   the allegation is found by the court upon investigation to have been fabricated,

    the court must have regard to this finding when considering any representations by either person about contact arrangements with a child and may treat it as an aggravating factor when considering whether to make an order under sections 11J to 11N.”’.

Mr. Kidney: I welcome you to the Chair, Mr. Hancock. I am sure that we can rely on your judgment and common sense throughout.

Like the hon. Member for East Worthing and Shoreham, I feel sadness and regret that my hon. and learned Friend the Member for Redcar (Vera Baird) is not here to move the amendment and to speak with the same lucidity and passion that she demonstrated on Second Reading, but in her place, Mr. Hancock, you have me.

On Second Reading there were two strong themes relating to contact. One was about the safety of children, especially, but also of all the parties involved in contact situations. The second was the need for good and meaningful contact. It is not necessary to choose between them and to favour safety but not meaningful contact, or vice versa. They are complementary, and the more we can provide assurance that contact will be safe, the more we will be entitled to insist on good and meaningful contact in the remaining cases.

By moving the amendment, I am not suggesting that the fact that a case involves domestic violence, as has been mentioned, means that there will be no contact. On the contrary; the problem should be identified early and the necessary steps should be taken to remove that obstacle to contact, so that even in such cases meaningful contact would eventually take place. The point of the amendment is that once the domestic violence issue is identified, proper domestic violence perpetrator courses should be available for those who are identified as possibly presenting a risk during contact.

The reason the amendment specifically mentions such courses is to ensure that a quality and standard can be established for the kind of intervention that they would bring about. They are crucial to guarantee children’s safety and to help abusers to deal with the attitudes and beliefs that underlie their violent and abusive behaviour, so that contact can proceed.

The amendment refers to, but does not provide for, a code of practice. I hope that we will be able to debate a suggested wording for the establishment of a code of practice to set standards when we discuss clause 21. I move amendment No. 58 as a probing amendment and not, as I said, to steal the thunder of my hon. and learned Friend.

Annette Brooke: I am broadly supportive of amendment No. 58, and certainly of its principles. We will perhaps mention more than once the fact that we want domestic violence perpetrator courses to be effective. Clearly, there is a need for standards for those courses.

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Amendment No. 31 would add new paragraph (c) to proposed new section 11E(6) of the Children Act 1989. The subsection would thus provide:

    “Information about the likely effect of the direction . . . may, in particular, include information as to—

      (a)   any conflict with the individual’s religious beliefs;

      (b)   any interference with the times (if any) at which he normally works or attends an educational establishment”—

and, with the amendment—

      “(c)   any experience of domestic violence that would place the child or individual at risk.”

That, I think, is important. There is concern that there is nothing in the Bill that explicitly requires the courts to consider the safety of the child when they direct parties to contact activities. The amendment is intended to ensure that courts would consider any experience of domestic violence that could put the child at risk before such directions were given.

The purpose of the amendment is to fulfil the recommendation made by the Joint Committee that scrutinised the draft Bill, which concluded:

    “Prior to ordering a contact activity, the Bill should require the court to consider the safety implications of making such a decision”.

If contact activities are to be safe, the Bill should clearly specify that. I am fairly heartened by the Government’s response to the Scrutiny Committee, in which they said:

    “It was always our intention that courts should take into account any concerns about safety when deciding whether to make use of the new provisions in the Bill.”

I am looking for a little more than words outside the Bill; I want words that will be incorporated in the Bill.

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