Children and Adoption Bill [Lords]

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Mr. Kidney: I quoted from the Government’s response to the Joint Committee report, which stated that they believe that concern about the safety of a child could be a reasonable excuse and that they

    “acknowledge that a more explicit signal of this is needed.”

Is my right hon. Friend’s speech the additional signal or will there be something else?

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Beverley Hughes: I apologise to my hon. Friend; perhaps my response to his question should have been clearer. We have considered the matter carefully and, as I said, we feel that the provision for CAFCASS to undertake a risk assessment at any time is satisfactory. The Bill is clear that if issues of domestic violence were to arise at that stage they can be a reasonable excuse. I am happy to state that in Committee and I hope that it is sufficient for my hon. Friend.

Margaret Moran: I thank the Minister for her comprehensive reply, especially her response in respect of domestic violence. However, I am rather disappointed that she does not think that there is a need for further clarification in clauses 4 and 5 that the risk to the child should be of great importance to the court. Although the inclusion of clause 7 in the other place and the reference to the court’s need to take into account the risk to the child was important, we want to strengthen the intention so that that risk should be taken into account at all stages of the proceedings.

The hon. Member for Mid-Dorset and North Poole said that it is possible that, although a risk assessment has been carried out at the outset, at that stage for a variety of reasons issues of domestic violence have not been brought into the proceedings or domestic violence has not occurred. Domestic violence may well occur during the long period between the initial risk assessment and the point at which contact is enforced. As has been described, the problems in the separation process may come to a head during the contact proceedings. Domestic violence may occur at that point and pose a risk to the child.

It seems strange and somewhat perverse that we are not reinforcing the message that at the point of most danger to the parent and child, according to all the research, the courts should seek to carry out a further risk assessment. As has been said, the processes that we are discussing can take a long time. After the initial point at which the court hears the risk assessment, it can be a very long time before contact is enforced. It is therefore possible that the risk to the child will become greater during that period. It would be helpful for the courts to carry out a further review of the risk to the child at the point of enforcement.

However, I accept the assurances given by the Minister. We hope that, in the course of the research that we have been told will be carried out in the Department, this issue particularly is reviewed, so that we can, if necessary, assure ourselves that the procedures in the Bill will ensure the safety of the child throughout the contact proceedings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 49, 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.’.

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The Chairman: With this it will be convenient to discuss the following: New clause 8—Presumption in favour of co-parenting—

    ‘After section 1(1) of the Children Act 1989 (c. 41) insert—

    “(1A)   In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child’s welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”’.

New clause 11—Reasonable contact—

    ‘In section 8(1) of the Children Act 1989 (c. 41), for the definition of “a contact order”, substitute—

      ““a contact order” means an order requiring the person with whom a child lives, or is to live, to have reasonable contact with the person named in the order in the absence of good reason to the contrary and subject to section 1(1A) of this Act.”’.

New clause 12—Reasonable contact: no order principle—

    ‘After section 1(5) of the Children Act 1989 (c. 41) insert—

    “(6)   The “no order” principle in section 1(5) shall be construed subject to section 1(1A) of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”’.

New clause 18—Provision as to family assistance orders—

    ‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child’s interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

New clause 19—Presumption of reasonable contact—

    ‘After section 1(1) of the Children Act 1989 (c. 41) insert—

    “(1A)   In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child’s interest are best served through reasonable contact with both his parents in the absence of good reason to the contrary.”’.

New clause 20—Reasonable contact: welfare checklist—

    ‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

      “(h)   the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.”’.

Tim Loughton: I am tempted to call “Bingo”, given the number of different amendments and new clauses that we are lumping together at this point. They are on a general theme. As I suggested in our proceedings on Tuesday, this group deals with many of the principles at the heart of the Bill with which we argue.

The initial point about clause 4, which relates to enforcement orders, is that it is slightly bizarre that, rather than seeking to make the system for contact work, because as we know it does not in too many cases, the Government are seeking to introduce punitive sanctions for its not working.

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Annette Brooke: The hon. Gentleman mentioned that there has been too many cases. It has been bothering me throughout that although we are in the process of reconsidering the law and coming to the point at which we have the new law, we do not have
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facts; we are still waiting for the research. Does he know that there are vast numbers of cases in which there have been problems?

Tim Loughton: I shall cite the figures for the number of contact applications and how that has mushroomed. In 1992, there were 17,470 contact applications; in 2004, that figure went up to 70,169. That is an enormous increase in the number of contact applications, reflecting an increase not in the population or in the number of people getting married and having children but in disputes in families splitting up over what happens to their children. Almost a quarter of those cases were repeat applications, one third of which were the result of enforcement issues. The figures show that people are having to come back to court several times because contact arrangements are not working. Many people are going to court in the first place because they cannot agree.

We are often told that only 10 per cent. of cases go to court, and that the other 90 per cent. of separating families are therefore quite happy and their arrangements are working perfectly well. That is not the case. Many arrangements do not work very well, but a lot of parents are frightened off going through the court system because of the nightmares, horror stories and long, drawn-out processes. In many cases they therefore have to take a less equitable settlement than they would have been minded to, and as a result see their children less. I do not buy the argument that the system fails to work in only 10 per cent. of cases. It has a lot of problems that warn people off going for what they see as an equitable settlement in the best interests of their children’s welfare.

The amendment and new clauses apply to different parts of the Bill, and some of them would amend the Children Act 1989, but they share the common theme that, as we have said all along and as all members of the Committee agree, the child’s welfare should be paramount. Most of them would insert the word “reasonable,” as we tried to do in even more instances. Through your wisdom and innovative way of selecting amendments, Mr. Hancock, we were not permitted to do so. Several of these comprehensive new clauses contain the phrase “reasonable contact”, because reasonableness is at the heart of the problem. Nobody can deny that contact takes place, but whether that contact is reasonable and meaningful is a major bone of contention.

We recognise in the amendment and new clauses that wherever it is possible without compromising a child’s safety, his welfare is best served by maximising contact with both the resident and non-resident parent, and through

    “both of them being as fully and equally involved in his parenting as possible.”

That is laid out explicitly in new clause 8. In new clause 19 we seek to pre-empt the welfare checklist in section 1 of the Children Act 1989.

Other new clauses deal with compensatory contact. New clause 6 could have been considered in this group or under clause 5, which deals with financial
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compensation, but will instead be taken at the end of our considerations. I hope that we can reach those new clauses, particularly new clause 6. It is absolutely pertinent to our discussions on this group and on the next clause, so I hope that some time will be left for the Committee to consider our new clauses.

The Under-Secretary of State for Education and Skills, the hon. Member for Liverpool, Garston (Maria Eagle), who is confined to her bed, made the extraordinary statement last week that courts are always reasonable. That could be argued if courts always gave out reasonable judgments.

Ann Coffey: There would be poor lawyers.

Tim Loughton: Quite right, there would be very poor lawyers indeed, and we would not want that, would we?

If courts always made reasonable judgments, we would not need the present Bill and there would not be an awful lot of disaffected non-resident parents for whom the system is clearly not working. That is why enforcement measures are needed. Although we think that we can address the system rather better, we agree that, if we cannot fix the system, enforcement measures must work better.

I have just set out the figures and the scale of the problem. What also goes to the heart of the matter, which many people find devastating, is that one does not need to have done anything wrong or to be a bad parent to be denied reasonable contact. It is enough to be a non-resident parent who happens to have fallen foul of a ruling at the instigation of a parent with custody who is seeking to carve the non-resident parent out of the family arrangement. Many people are perplexed, to put it mildly, about contact arrangements that are ended almost at the drop of a hat—however good a parent the non-resident parent is desperately trying to be, and however good their record of keeping meaningful, quality contact with their children.

All the research says that it is not just the amount of contact that is important, but the quality of it, and whether the non-resident is engaging in a proper, loving, meaningful relationship with the child during the limited contact time that has been granted. The best relationship is one in which the two parents play an active role, preferably both in a residential setting, and otherwise where one has custody and one does not. These matters are rarely, if ever, the fault of the child of a family breakdown, and the child must not be penalised if things have happened that are out of his control.

The principle behind the new clauses has been endorsed by the Government. In the first deliberations on the Bill in another place, Lord Adonis said

    ”We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, so long as it is safe”.—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 251.]

Likewise, the Green Paper said:

    ”After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society.”

I wholeheartedly endorse that.

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As I mentioned on Second Reading, all the studies show how a child can benefit from greater integration with a non-resident father—in the vast majority of cases it is the father who is the non-resident parent. Fathers’ roles have changed quite dramatically over the past 20 years or so. Men spend eight times more time with their children than 30 years ago and fathers now carry out one third of parental care in families where women work.

Research has highlighted that children whose fathers had been actively involved in their lives achieved more academically, had more satisfying relationships in their own adult lives, and were less likely to get into trouble with the police. If fathers are involved, children are less likely to have a criminal record by the age of 21. Pre-school children who spend more time playing with their dads are often more sociable when they enter nursery school. Fathers who are involved with their children early and comprehensively usually stay involved, which promotes the health of the infant. Children’s health and behaviour is connected to the involvement of the father in the family. Fathers’ involvement promotes involvement by mothers and involved fathers are likely to support their children financially. Children who are close to their fathers are more likely to have resilience. On all those measures and on any research, it must be in the interests of the children that we do everything we can to maintain meaningful, reasonable contact with both parents. That is what we are trying to put in the Bill.

As I said on Second Reading, our suggestion is neither rocket science nor unique to this country. It is certainly the way that the law operates in some states in the US and in Australia. It is also the way that the new Canadian Government are seeking to make their law work. Most recently, the laws passed in Italy make the joint custody of children the norm when families split up. This is the way that the tide is going. Moreover it is nothing terribly new for this country.

The previous Conservative Government were considering amending the law along those lines in the Family Law Act 1996. Section 11(4) of that Act states:

      “(c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—

      (i) his having regular contact with those who have parental responsibility for him and with other members of his family; and

      (ii) the maintenance of as good a continuing relationship with his parents as is possible”.

That is what we are saying here; it is nothing new. The Government have had 10 years to mull this over but have come up with something that singularly fails to address the problem of achieving reasonable contact, which needs to be set out in the Bill.

Mr. Kidney: Just for clarification, will the hon. Gentleman confirm that the provision that he just cited was never commenced and still is not in law today?

Tim Loughton: That is right. It was set out in 1996, and we know how events then overtook us. The Bill never became law and was not picked up by the Labour Government after that. We are trying to do
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something that should have happened 10 years ago, if not before. There was certainly a good head of steam behind making the changes at that time—had the Government been able to carry on what they had set out to do in that proposed new law.

In attempting to make contact work and in the context of enforcement orders, the clause deals with the symptoms rather than the underlying problem—we will come on to discuss what forms of penalties can be imposed for those parents who continue to breach contact orders—yet our fear is that the measures are completely toothless. They are not criminal measures. In too many cases, if the resident parent is not in a position to pay financial compensation, it will not be paid. Worse still, it will be to the detriment of the children with the resident parent if the money is diverted away from their care. Maintenance money from the non-resident parent that is aimed at the children will simply be recycled as fines, having taken up an awful lot of commission for court fees and various other things along the way. That cannot be satisfactory. As hon. Members have said, the only penalty under the law as it stands is contempt of court, which courts are reluctant to use.

What we have is a system where contact need not mean reasonable contact. It can amount to a birthday card and a Christmas card, or an afternoon snatched on a wet Saturday in a windy coastal resort. In extreme examples it can be in contact centres if it is deemed that the contact needs to be supervised, and they are not the most family friendly or uplifting places, as we know. That is why we think that placing in the Bill the need for reasonable contact would not just amend but improve and enhance the welfare checklist, recognising that decisions should be made on the basis that a child’s welfare, development and well-being are best served by maximising contact with both parents—hence the wording of new clause 8 to have the parents involved

    “as fully and equally in the parenting as possible.”

10 am

We are looking to turn the law on its head. In too many cases, a non-resident parent has almost to argue for his or her right—and I do not like talking about parents’ rights—to contact with the child. It should be the other way around: the child should automatically have a right of maximum reasonable contact with each of his parents, unless the case can be argued against it. It is incumbent on the parent who has custody to put his or her case and to have it properly scrutinised and tested. If the case is made, it should reflect the amount of contact, if any. If the case is not made, we should return to the default position whereby the child has the maximum reasonable contact with both parents.

We are always told by the Government, and by some of the jobbing lawyers who populate the Labour Back Benches in Committee—

Mr. Kidney: Who’s that then?

Tim Loughton: I attach no term of indignation to that at all; I purely comment that there are an awful lot of lawyers on the Labour Back Benches. They seem to suggest that it is the norm for courts both to assume
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that it is in the interests of the child to have contact with both parents and to issue directions for reasonable contact. If that is the case, which I doubt, what is the problem with putting “reasonable contact” in the Bill, so that reasonable contact—rather than a vague reference to contact, which can be interpreted in a range of ways—becomes the default?

We are not asking for an artificial 50:50 split of time, with a stopwatch running, so that the minute little Johnny leaves the house with mum, the stopwatch for the father starts ticking, and vice versa. It would be wholly impractical and a completely artificial reflection of what happens in households where parents are still together. Much to my regret, the amount of time that I am able to spend with my children is rather less than the amount that my wife can spend with them, simply because of our lifestyles. I am sure that that is true of most, if not all hon. Members. It is highly regrettable, but it is a fact of life.

In what I hope are the unlikely circumstances of my wife and I parting, although with the pressures of this job one never knows, it would be crazy and completely artificial to try to impose a 50:50 split that was never reflected in our married life. My colleagues and I are not trying to do that. We are using “reasonable contact” to make matters as flexible as possible, so that people would not have to argue to obtain contact with their children, but to respond to arguments against their having such contact. That is the way it should be. One is innocent until proven guilty. One is a good parent entitled to have maximum contact with one’s child until and unless it is proven not to be the case.

Mr. Kidney: So that I may reassure the hon. Gentleman that he is opposed not simply by jobbing lawyers on the Government Back Benches, will he confirm that the university of Oxford briefing, from which he quoted the Family Law Act 1996, concludes by arguing against introducing to the Bill the presumption in favour of contact, saying that we would be better off concentrating our efforts on post-separation parenting?

Tim Loughton: Yes; it is actually a very good briefing, which raises some good points and is a perfectly well argued paper. I disagree with its conclusions, but that does not detract from some of the points that it raises, which reinforce our case. The pre-legislative scrutiny Committee, of which the hon. Member for Stockport was a member, made a recommendation about amending the welfare checklist. On page 31 of its report it said:

    “We endorse the recommendation of the Constitutional Affairs Committee”—

which had also taken this subject on board—

    “that an amendment should be made to the welfare checklist in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and the non-resident parent.”

That is absolutely right and reflects what our amendments would do.

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To return to statistics, a CAFCASS study advised that only 0.8 per cent. of fathers were prevented from seeing their children by way of a court order, although that is still quite a significant figure given the hundreds of thousands of people who go through the court system. Is not the implication that there is no reason why the other 99.2 per cent. of fathers should not have reasonable contact with their children? That should be the default position. The 0.8 per cent. of fathers whom the court deemed a problem are those who must be argued against, but it should be assumed that all other fathers are reasonable fathers who should be allowed reasonable contact with their children. That is in the children’s best interest.

It can also be argued that a better, equitable division of contact that is based on reasonable contact is much better for the custody parent, and the mother in particular. It takes the pressure off them, because they do not have to go back constantly to argue the toss in court. If the non-resident father is happy that the situation is equitable, that is less stressful for him, less stressful for the children and must, therefore, be less stressful for the custodial mother.

Through this long string of amendments, we are trying to achieve something that is fundamental to our view of the Bill and to the divisions between us and the Government. The Government claim, and often pronounce, that they seek to achieve what we seek to achieve, but they lack the commitment to include the wording and key measures in the Bill that are fundamental to achieving those aims.

Our aims would clearly set out for a separating mother and father what the norm will be, what will be expected of them and what will happen to them if they do not respect the judgments made. It is as simple as the principle that one is innocent until proven guilty: someone is a good parent until it is proven reasonably that they are not. In the absence of that, we would establish the principle that it is the norm that reasonable contact should be assumed after a split by adding it to the welfare checklist, thus improving it. It should be the norm because it is in the best interests of the child to maximise their contact with parents who have split. Surely, therefore, the Committee should take our amendments on board.

The Chairman: To give hon. Members a gentle reminder, we can only get to the clauses further on that the hon. Gentleman alluded to with the co-operation of the Committee. At this rate, I do not think that we will get there.

Annette Brooke: I start by reiterating my concern that five years after the start of the consultation we do not have the Government’s research. Being able to debate with the facts—how many contact orders involved only a birthday card, and why—would have been very helpful. I really would like those facts, but in their absence, and as a non-lawyer, I will proceed. As an economist I am interested in prevention, in investing money and in saving the enormous costs that distress places on the state and on families. The hon. Member for Stafford referred to post-separation
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parenting, which should be part of family support and relationship education at an early age in order to change the culture.

As I said, I am not a lawyer, and I want to pick up on the word “reasonable”. I cannot believe that a court knowingly makes an unreasonable decision. That seems logical to me, so if we are saying, “But the court always makes reasonable decisions”, we are unfortunately in the realms of value judgments, with people coming at the matter from different perspectives. I therefore understand why the Minister keeps saying that there is no point in including the word “reasonable” because it means different things to different people.

I agree with the hon. Member for East Worthing and Shoreham (Tim Loughton) about article 9 of the United Nations convention on the rights of the child, which clearly states that in most circumstances the child should have contact with both parents. I am very committed to that principle and I want it to be stated in the Bill. I do not know how we will get the hang of what is reasonable unless it is there. However, there is a “but”—the interests of the child should be paramount.

I struggled through the Hansard report of the Bill’s proceedings in the other place, where first order and second order presumptions were discussed at great length, and read the evidence given at various stages to the Select Committee on Constitutional Affairs, when much was said about whether there could be first and second order presumptions, and the conclusion seemed to be that there is a real danger that however “presumption” is expressed in certain parts of the Bill, there will be a tendency to weigh up those references up equally. That point was made very clearly on Second Reading by the hon. and learned Member for Redcar (Vera Baird), who, as ever, made a powerful speech, which I found very convincing.

As I have mentioned many times, I was struck by the fact that, in written evidence submitted well before the final report of the Constitutional Affairs Committee, Resolution, which was then the Solicitors Family Law Association, stated that there could be a first order and second order presumption. However, subsequent oral evidence given by a member of the association changed that view. That is highly significant. As a non-lawyer who does not want risks to be taken with children, all I can do is rely on the evidence, which seems compelling. I want some provision in the Bill, but I want it to be framed in such a way that there is no risk to the child, which means putting something in the welfare checklist. That is the answer.

There are clearly first order and second order presumptions; it is rather like yesterday’s debate on the admissions code in the Education and Inspections Bill. The Government began by proposing that there be “regard to” the admissions code, and that was stiffened to “in accord”. We need “regard to” in this Bill, and if the best place to put that phrase is in the welfare checklist, I would wholeheartedly support it.

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I am sure that the amendment was selected carefully so that we can all have another go at the issue later. As I would like to speak on new clauses that I tabled in an attempt to make some amendments to the welfare checklist, I shall not go into too much detail now.

The amendments are family-oriented. I know that the shape of the family will change over time. To that end, I am committed to putting in as much support as possible for people throughout their lifetime. It comes back to changing the culture and understanding what is reasonable, rather than risking the safety of the child. Somehow we must change the culture.

10.15 am

I support the idea of amending the checklist. There is a problem with the wording, and I do not think that we will necessarily get it right now. I shall listen carefully to the Minister. We cannot risk having two presumptions, which most of the amendments seem to have. The risk is just too high.

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