Children and Adoption Bill [Lords]

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Ms Sally Keeble (Northampton, North) (Lab): The hon. Gentleman is misrepresenting my right hon. Friend’s position. Does he not accept that what people do in their own homes is down to them? If they continue to agree, it is down to them. What my right hon. Friend has said is that where they disagree and the matter comes to court, the parents have put it in the public domain and there then has to be a test that takes into account the best interests of the child. Such cases account for a small percentage of cases, as he said, but they might be the ones in which there is a risk to the children, and that has to be assessed. But it is the parents who put it in the domain of the court. It is not right for the state to trawl through people’s houses.

Tim Loughton: What parents do with their children in the privacy of their own home is indeed their own business until those children are abused. Why should what that single parent might do with that child in the privacy of his or her own home change after they get divorced? Why must it follow that when the parent is divorced there is a bigger threat of that parent becoming abusive towards that child? The figures do not warrant such an assertion—there is no evidence to back up the case that I think the hon. Lady is making.

Ms Keeble: Will the hon. Gentleman give way?

Tim Loughton: I will in a minute. We know that the vast majority of the children in this country who die at the hands of their carers or parents do so when those parents or carers are together. Fewer than 3 per cent. of children who die, which is 3 per cent. too many—the figure is 29 against 800—die at the hands of carers in contact situations. That is too many, but let us put it into perspective.

Ms Keeble: The hon. Gentleman is misrepresenting the position. It is wrong to draw the analogy with child abuse. Clearly, those cases are tragedies. Where the state has information that a child is being abused it rightly intervenes, but the state should not intervene in people’s homes. However, if the parents do not agree and they put the matter into the courts, the courts are obliged to carry out an assessment in the same way as when there are serious concerns about the child’s welfare in its own home. It is quite wrong for the hon. Gentleman to present the case as he has. It gives the wrong information to the outside world and it completely misrepresents the position that my right hon. Friend the Minister set out.

Tim Loughton: That is the other line: when we start to challenge the dodgy figures that are presented to us and the absurd assumptions that we are in some way trying to compromise the welfare of children, we are said to be misrepresenting the case. I have made the point to the hon. Lady entirely clearly that I believe the state has no place sticking its nose into people’s homes unless or until there is a child abuse problem. We would all agree with that. Why should it be any
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different when a parent who becomes non-resident has to set up home and seeks to entertain his or her children through contact orders?

In the vast majority of cases there should be no difference in the way in which we treat parents’ capacity and suitability to continue to be a loving parent. However, as the legislation is framed, there will be an automatic assumption that the minute a separation takes place, one’s authority to be a decent parent must be questioned. That is why we want a presumption of reasonable contact, which stems from a presumption that most parents want to do the best thing for their children and are capable of continuing to do so, both while they are together with the other parent and afterwards. That is paramount.

Beverley Hughes: I intervene to help to clarify the matter, as I am sure that other members of the Committee is getting confused by the hon. Gentleman’s increasingly circular arguments. He asked in an intervention on me whether the same factors should apply to his role as a parent, and mine, and that of any other person. I gave the same reply that my hon. Friend the Member for Northampton, North (Ms Keeble) just gave. The welfare checklist applies in cases that come to court through the public law system in which parents have been not treating their children well or abusing them. The principle of paramountcy applies equally in public law and in private law cases.

Tim Loughton: New clause 20 neatly addresses the point made by the hon. Member for Stockport (Ann Coffey) when she came out with the usual mantra of, “This will undermine paramountcy.” All that we need to do is put into the welfare checklist the desirability of reasonable contact—desirable to promote the welfare of the child, not desirable to accommodate parents. That is what we seek to do in new clause 20. If that were added, the court need not be bound if it thinks that there is a contradiction with the welfare checklist.

As the Minister has rightly been at pains to point out, it is up to judges and courts to interpret the law and apply judgments as they see fit in individual circumstances, guided by the paramountcy principle, the welfare checklist and everything else. Our suggestions are intended not to give greater powers to parents but to protect and enhance the welfare of the child even more by avoiding the messy disputes between parents that arise because of the way in which courts operate. People cannot trust the judgments that are made in some cases, because they do not think that they are reasonable. The amendments address the criticisms that Labour Members are making.

We need a higher-scale response. The amendments are not based on the convenience of lawyers—I am not concerned about accommodating lawyers in the family court system. We are here not for the convenience of lawyers but to promote the welfare of the children whom they are there to safeguard. However anybody who proposes such perfectly sound amendments is faced with the retort that we will undermine children’s welfare—that argument was made on Second Reading and in another place and it is being made in Committee. We will not; the welfare of children is
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absolutely paramount. We put that in the Children’s Act 1989, which is a flagship Act that remains as relevant today as it was when the Conservatives came up with it. As we have been at pains constantly to point out, nothing that we have said on the Bill seeks to do anything that would undermine the principle of the paramountcy of the welfare of the child. If we thought that it would, we would not do it, so the underlying argument must be thrown out straight away.

Then we hear the misrepresentation argument, which is advanced when we challenge the premise on which Labour Members oppose our perfectly reasonable views. The Minister completed the trilogy by saying that we were being confusing. Well, I am not confused and neither are many family groups outside this place. They know that what is needed in the courts is greater clarity of recognition that at least 99.2 per cent. of parents, if we want to quote a figure, are just as capable of continuing as reasonable parents to offer loving care and support to their children after they are divorced or separated as they were when they were in a relationship with the other parent of their children.

The addition of “reasonable” before “contact”, which underlies the amendments, would enhance the law and prevent so many cases having to return to court because of breaches of contact orders. If it is clear what reasonable contact means, if it is clear that the court system recognises that a mother and a father have an equal entitlement to share in the upbringing of that child unless it can be proved to the contrary, and if it is clear to everybody and clear in the law that the child benefits most and his welfare is advantaged most of all by maximising contact with both parents, many acrimonious, long drawn-out legal proceedings that are in the interests of nobody except the lawyers themselves will be stopped.

The duty of the House is to make laws that give a clear steer to the judiciary. It is then up to the judiciary to interpret those laws as they apply to individual cases. We have a duty to make those laws clear and to ensure that they are clearly explained to people who will use the legal system to settle their disputes. The law is not clear at present, and there has been an enormous increase in contact disputes leading to long, drawn-out legal action. That cannot be right; it is not in anyone’s interests. The amendments are perfectly reasonable; they set out a much clearer course of action so that parents can avoid going to court, know what they are likely to be able to enjoy as the result of a court direction, and know fundamentally what their children are entitled to.

I fear that we will not agree on the amendment. I wish that was because of the weight of the arguments to counter mine, because I see no downside in the amendments becoming law. I do not understand how they will so harm the system that the Government can dismiss them out of hand without any offer to compromise or to redraft them in a fashion that might prove acceptable and would be beneficial. Conservative Members are therefore determined to divide the Committee on the amendments.

Question put: That the amendment be made:—

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The Committee divided: Ayes 4, Noes 10.

[Division No. 3]


Jackson, Mr. Stewart
Loughton, Tim
Miller, Mrs. Maria
Wright, Jeremy


Brooke, Annette
Cawsey, Mr. Ian
Grogan, Mr. John
Hughes, rh Beverley
Johnson, Ms Diana R.
Keeble, Ms Sally
Kidney, Mr. David
Moran, Margaret
Russell, Christine
Williams, Mark

Question accordingly negatived.

1.45 pm

Jeremy Wright: I beg to move amendment No. 64, in clause 4, page 7, leave out line 34.

The Chairman: With this it will be convenient to discuss the following amendments: No. 65, in clause 4, page 7, line 35, leave out subsections (6) and (7).

No. 51, in clause 5, page 10, line 26, leave out subsections (7) and (8).

Jeremy Wright: The amendments relate to the same thing in clauses 4 and 5, which list a number of categories of people who are permitted under the Bill to make application to the court for either an enforcement order in relation to a contact order or an order for financial compensation arising from breach of the contact order.

These are probing amendments, and I hope that the Government will consider them; we shall listen with care to their response. They relate to the inclusion of the child concerned in the case in the list of permitted persons. There are subsequent paragraphs in each of the clauses that qualify the right of the child to participate in proceedings, but the substance of our objection is the inclusion of the child concerned in the permitted persons list. In passing, I should say that our probing amendments should have probed a little further, because they should also have included the proposed section 11O(6)(d), which likewise relates to “the child concerned”.

Our objection to the current wording is that including “the child concerned” seems to create some difficulties within the context of the debate. The Committee has agreed throughout that the paramountcy principle—that the welfare of the child is all-important—should be sustained in each aspect of the Bill. If we proceed on the basis that children should be encouraged, by their inclusion in the list of permitted persons, to participate in the process and act in connection with either financial compensation for breach of contact orders or enforcement orders for breach of contact, we shall be involving them in proceedings in an undesirable way that is not in their best interests and not in accordance with their welfare.

I invite the Government to reflect on including “the child concerned”, and consider whether it is in their interests. If we look at the other categories of persons
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who can participate in the process and bring a claim for financial compensation for breach of contact or for an enforcement order, it is clear that there are few cases in which those categories of persons, not including the child concerned, could not make an application and the court could not make a decision. So why involve the child? That question is at the root of the amendments. I would welcome the Government’s response

Beverley Hughes: I am grateful to the hon. Gentleman for clarifying that there was an unintentional flaw in one of the amendments. As they stand, their intentions appear to be contradictory for no discernable reason, but I shall reply to him on the basis that he has tabled the correct amendments and try to explain why in both clauses we have included the ability of children themselves, through the courts, to apply for either one of the orders.

One of the main arguments is that our approach is consistent with the whole of the 1989 Act and the legislation that frames the arrangements. That Act allows children, with the leave of the court, to bring all section 8 proceedings, including contact applications. That being the case—nobody has argued that it should be repealed, and it would be a fundamental thing to row back from—we believe that children should also have the ability, again with the leave of the court, which is an important safeguard, to apply for an enforcement of the order that they have sought or for the financial compensation in the circumstances outlined in clause 5.

Mr. Jackson: I wonder how the right hon. Lady’s advocacy of this part of the clause sits with the failure to put into practice section 122 of the Adoption and Children Act 2002. The matter came up on Second Reading and was a slight flashpoint between the hon. and learned Member for Redcar (Vera Baird) and me, but remained unresolved when Ministers summed up.

Beverley Hughes: I do not think that the hon. Gentleman was here this morning. [Hon. Members: “Yes, he was.”] I beg his pardon. I explained that section 122 remained a commitment, but we need to see the results of the review of rule 9.5 in relation to separate representation of children before we can finalise the process of deciding what the rule-making power under section 122 should produce.

The hon. Member for Rugby and Kenilworth recalled the welfare principle. It is right that the central tenet of the 1989 Act is the paramountcy of children’s welfare. Contact is to be child centred and contact activities are designed to improve parenting skills so that the child’s experience of contact is the best it can be. Enforcement orders are designed to ensure that that contact is complied with in the best interests of the child. I do not expect that there will be many cases of children making an application for an enforcement order, for reasons that will be obvious to the Committee. As the principle that children can apply for contact orders is already enshrined in law, they should have the right to follow through on the Bill’s powers on enforcement and financial compensation if orders are not complied with.

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I have made inquiries as to how exceptional it is for children to apply for contact orders. It is not very frequent, but there are a number of cases in which, for example, siblings apply to a court for contact with each other if they are in different situations—for example, if one is in care and one with a parent, or if they are with separate parents. Cases have not been regular, but they have been frequent enough for us to be clear there it is an important right for children to have.

Many judges and practitioners think that the children’s rights argument is important, albeit that it is used only in special circumstances, such as the one that I outlined. That is a reason for such rights to be in statute, along with rights on the enforcement orders and financial compensation that are directly linked to the contact order that they might have applied for in the first place. The safeguard of seeking leave to apply to the court is important and will ensure that in appropriate circumstances a court will hear a case.

I hope that that explanation, which links back to the children themselves, means that the hon. Gentleman is prepared to withdraw his amendment.

Jeremy Wright: I am grateful to the Minister for her reassurance. I accept what she says about the qualifications in succeeding subsections, following the inclusion of a child on the list. That is why I made no argument that we might see cases of children suing their parents over any little thing. I entirely follow what she says about that.

My concerns have been somewhat assuaged, but remain to an extent. I suggest to the Minister that the involvement of a child in the making of a contact order is different to his involvement in potentially acrimonious proceedings over whether contact is being followed through in the way in which the court intended. We have been concerned to ensure that children do not find themselves an integral part of such proceedings when they do not need to be. However, I made clear at the outset that these are probing amendments. With the reassurance that the Minister has given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Annette Brooke (Mid-Dorset and North Poole) (LD): I beg to move amendment No. 26, in clause 4, page 8, line 15, at end insert—

    ‘(14)   In considering whether to make an enforcement of a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

The Chairman: With this it will be convenient to discuss the following: Amendment No. 29, in clause 4, page 8, line 46, at end insert—

    ‘(1A)   In considering whether to make an enforcement order the court shall take into account the need for separate representation of the child and his interests.’.

Amendment No. 39, in clause 4, page 9, leave out lines 18 to 20 and insert—

    ‘(7)   In making an enforcement order in relation to a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 40, in clause 5, page 10, leave out lines 43 to 44 and insert—

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    ‘(14)   In exercising its powers under this section, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 30, in clause 7, page 12, line 17, at end insert—

    ‘(2A)   Upon receiving a risk assessment the court shall consider the need for separate representation of the child and his interests within proceedings.’.

New clause 14—Welfare of the child: contact with parents—

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

      “(h)   the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”’.

New clause 16—UN Convention on the Rights of the Child—

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

      “(h)   Article 9 of the UN Convention on the Rights of the Child.”’.

Annette Brooke: We rehearsed some of the arguments on the amendments this morning, so I will endeavour to be brief. I hope that others will follow my good example.

Amendment No. 26 and amendments Nos. 39 and 40, tabled by the hon. Member for Luton, South, address the same issue. I want to touch upon it again without going through all of the arguments. There is a genuine concern that the paramountcy principle of the child should be part of the Bill. There is also concern that clauses 4 and 5 do not even involve consideration of the standard welfare checklist. We made the point that circumstances can change. We can probably accept that the amendment that we discussed this morning would have put quite a burden on every case, but ensuring that the paramountcy principle is in the Bill would mean that if a contact order had been given and the circumstances then changed, the situation would need to be re-evaluated with the child at the centre. That is so important. Having listened this morning, I can see that the amendment we discussed then went a little too far, but this amendment reiterates what we are told is fundamental and runs through everything in the 1989 Act.

Amendments Nos. 29 and 30 address something very dear to my heart: the fact that we should do our utmost in all circumstances to ascertain the wishes and feelings of children. My hon. Friend the Member for Ceredigion (Mark Williams) will address that in detail, but the reason for continually asking for that is because it not only recognises the importance of the children, but, as the evidence shows, recognises that the separate representation of children and their interests in proceedings often helps to resolve the most intractable cases of parents disputing contact. That is important. If allowing children to make their views known helps to heal relationships, it must be a positive move.

2 pm

I openly confess that I have plagiarised in new clause 14 and I hope that everyone recognises where the words come from—

Mr. Ian Cawsey (Brigg and Goole) (Lab): “The Da Vinci Code”.

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Annette Brooke: I have not made any money out of that.

I plagiarised because it is difficult to write an amendment without falling into some awful trap by using the wrong word. Throughout Second Reading and previous debates in Committee, I desperately wanted, as a family-based person, to change the culture of the courts to ensure that in the majority of cases children have good contact with both parents. As that is clearly stated in article 9 of the United Nations convention on the rights of the child, it should be our starting point. I have already been through my arguments for believing that any change is probably safer in the welfare checklist and I suppose that the one flaw that the Minister will come up with is that it is not normal to refer to that convention in legislation.

I shall explain briefly why I specifically included article 9 in new clause 16. I have studied carefully what the Government said at each step of the way and I shall quote from their response to the scrutiny Committee. They said:

    “The question, then, is about whether we should codify that case law in primary legislation. We are considering this carefully, and can see that, while it is not strictly necessary, there may be some merit in sending a positive signal to the courts.”

That statement cannot have been made that long ago, so the Government have recognised that there ought to be a positive signal, even though they may not agree that the welfare checklist is the correct place for such a provision, not least because of the checklist’s wider application to public law cases. That was the reasoning behind putting a reference to the whole of article 9 in the welfare checklist, because it covers both public and private law.

I fear that the Minister will say that the convention on the rights of the child cannot be mentioned in the Bill, but it would not be impossible to find some wording to cover private and public law and to put that in the Bill, in a place where it is safe to do so, so that we do not have this argument between the two presumptions and to send a message that there is a need to change something. What is happening out there is not right. Something needs to give and the Government have said that they can see some merit in the argument.

If the amendment is rejected, my challenge to the Minister is to put forward an amendment to cover exactly what the Government said in their reply to the scrutiny Committee. With that I rest my case, leaving the other amendments to be addressed by my hon. Friend.

Margaret Moran: I will follow the hon. Lady’s lead and be extremely brief.

Most of the arguments in the debate were rehearsed in our previous discussion and it remains to me to reinforce our concern that the paramountcy principle is not strong enough in clauses 4 and 5; indeed, it does not appear in them. I will ask leave to withdraw the amendment but in doing so I endorse the hon. Lady’s comments and add that I hope that the Minister will view the amendments sympathetically and consider
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whether there are further ways in which the paramountcy principle can be strengthened, perhaps via the welfare checklist.

Mrs. Miller: Following the example set by other members of the Committee, I will be brief.

Amendments Nos. 26 and 39 represent an enormous missed opportunity. At the risk of repeating the excellent arguments advanced by my hon. Friend the Member for East Worthing and Shoreham, I add that we need to remember that as legislators it is our role to guide the court and not to let the court guide us. It is fundamental that we do that and I am therefore disappointed at the Government’s attitude to the matter. I understand why the amendments were tabled, as there is some inconsistency in the language used, and I hope that the Minister will explain why that inconsistency exists.

Amendment No. 40 addresses the same inconsistency in relation to compensation for financial loss, but it reminds me, and causes me great concern, that the penalty would have very few teeth as a result of needing to ensure that whenever penalties are imposed the welfare of the child must be paramount. That is why we tabled new clause 6, which I hope we will be able to discuss in the compensatory time.

Amendments Nos. 29 and 30 refer to separate representation. In the vast majority of cases it is not felt appropriate to have separate representation for children, and as we discussed, rule 9.5 describes when children should have separate representation. In April 2005 the president of the family division went further and issued directions on when separate representation is appropriate; it is mostly when the parents are adversarial and hostile and in entrenched and protracted cases.

I was interested to read some research undertaken by the National Youth Advocacy Service on separate representation and when that is most likely to take place. It is during intractable and difficult cases that go on for many years and involve long-standing and continuing hostility between the various parties. It is important to have access to separate representation—I entirely agree with the hon. Member for Mid-Dorset and North Poole in that respect—but only in a very small number of cases. The hon. Lady said that perhaps we should consider separate representation in all sorts of circumstances, although I may have misunderstood her. It is important that when separate representation would be appropriate should be tightly defined and it is entirely right that the person who considers that should be the judge, who will have the best interests of the child in mind.

I apologise to the Minister for being out of the room when she mentioned the Adoption and Children Act 2002 and the fact that the statutory right to separate representation, which was due to be implemented in December 2005, has not been implemented. I will read the Hansard report of the Minister’s comments, because it was unclear why that implementation had been indefinitely delayed.

I was quite surprised when the hon. Member for Mid-Dorset and North Poole and her hon. Friend the Member for Ceredigion decided to vote against the
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amendment that I had tabled concerning the importance of both parents being involved in bringing up their child. It appears to me that new clause 14 is entirely consistent with the arguments put forward by my hon. Friend the Member for East Worthing and Shoreham. I would be interested to hear from the hon. Member for Mid-Dorset and North Poole why she feels that there is any difference between what my hon. Friend talked about and what she believes that she would gain from the new clause.

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