Children and Adoption Bill [Lords]

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Annette Brooke: My teaching background comes in when I say that I am not convinced that the hon. Lady was listening when I spoke earlier. If one uses few words, it is good when they are listened to. I explained very clearly that my party is not prepared to vote for anything that puts the child’s safety at risk. We had a pretty clear discussion to the effect that many Members regard putting two presumptions in the Bill as taking us down that route. We will not go down that route.

The Chairman: Order. The hon. Lady will have another opportunity to speak at the end of the debate should she so wish.

Mrs. Miller: I assure the hon. Lady that we are as one with her in not wanting to put any child at risk, but we shall just have to draw a line under things and agree to differ.

Ann Coffey (Stockport) (Lab): I wonder whether the Minister, in responding, will clarify whether I have correctly understood what we are talking about. When the court makes a contact order, or any variation in a contact order, the paramountcy principle is its main consideration. If, eventually, a court makes an enforcement order, it is basically punishing a parent for failure to comply with a contact order. Because the welfare of the child is a material consideration, the courts are unwilling to send parents to jail, so into enforcement orders came another range of powers for the court, including directing parents to do unpaid work or community service. Effectively, however, those are punishments for breaking a contact order which the resident parent is undermining.

If we again include a provision that the court has to consider the child’s welfare as paramount, and consider representations by the child, no enforcement order could ever be made. It is never in the interests of a child that they are separated from their caring parent. Parents who have offended in some way come before the court every day—if they have committed burglary or assaulted people, or been drunk and disorderly. If the paramountcy principle were applied in those situations, we would never punish a parent in this country for anything, because the child’s welfare would be affected.

Part of the problem is that the words are somewhat misleading, because however we dress it up, an enforcement order is a penalty. The courts can apply that penalty to somebody who is breaking a court instruction after every stage, taking regard of the interests of the child and doing a risk assessment. That is how I understand the situation.

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On Second Reading, the hon. Member for Mid-Dorset and North Poole alluded to an interesting point. She said that some parents might regard contact activities as punishments. Parents are being asked to abide by a range or spectrum of contact activities and enforcement orders, with the object, at the end of the day, of getting them to be reasonable about contact with their children.

2.15 pm

The Joint Committee suggested the introduction of a time and place order which in fact falls along that spectrum. A time and place order could direct a parent to stay in the house while the non-resident parent had contact with their child somewhere else, to prevent the resident parent from undermining that contact. That would give the courts a spectrum of contact activities that they could order a parent to do in order to get the message home that they have to abide by the court’s decision.

My problem with putting the paramountcy principle into the enforcement order is that there must come a time when parents must accept that they must decide whether to obey the court’s decision—or not and thus putting the welfare of their child on the line. There comes a time when that line must be drawn. The fact that someone’s behaviour affects their family cannot be taken into account just by the court—it is their responsibility.

Mark Williams (Ceredigion) (LD): May I say, as a new-comer to the realms of Standing Committees, how pleased I am to be serving under your chairmanship, Mr. Hancock? I look forward to your charitable treatment of new Members—or perhaps those who have come to these proceedings a little late in the day. Perhaps the Minister will bear that in mind as well.

Having worked with young children for the past 12 years, I am unashamedly child-centred in my enthusiasm for amendments Nos. 29 and 30, in the name of my hon. Friend the Member for Mid-Dorset and North Poole, which explicitly direct the courts to consider “where appropriate”. That addresses some of the concerns raised by the hon. Member for Stockport—the need for separate representation of children in proceedings where an enforcement order is under consideration, in clause 4, and following a risk assessment by a CAFCASS adviser, in clause 7.

We contend that when an enforcement order is being considered, separate representation of the child’s wishes and feelings provides valuable information. Indeed that may be fundamental in helping the courts decide what is in the best interests of the child’s safety. That was noted by CAFCASS in its last annual report, which stated that separate representation proved

    “an effective measure in resolving . . . some of our most complex private law cases.”

That is supported by the National Society for the Prevention of Cruelty to Children, which sees the measure as a means of avoiding the distressing
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involvement of children in what it described as the “revolving door” of continual, perhaps long-running, proceedings.

We have talked a lot about research and reviews, and I know that the Minister will refer to section 122 of the Adoption and Children Act. Research undertaken by the National Youth Advocacy Service has revealed that some 52 per cent. of cases have been before the courts for more than three years, and some 16 per cent. for between seven and 10 years. I shall reiterate the words of my hon. Friend the Member for Mid-Dorset and North Poole: conceivably, children can have a central role in acting as a meaningful catalyst for the resolution of long-standing disputes in a way that could prove effective for the families and children concerned. Furthermore, although I am slightly reticent about using the argument, it is a cost-effective means of ending court proceedings. NYAS also cited that in 86 per cent. of cases, future contact arrangements were made, and in 95 per cent., representation of the child’s wishes and feelings had a significant impact on decision making.

I appreciate that much of the debate about section 122 of the 2002 Act took place this morning, but I make the point again that that section was due to be implemented some time ago. That implementation seems constantly to be delayed, and I reiterate the concern among Liberal Democrat Members and our healthy impatience to see action on that in the Bill. I appreciate the rather grudging support that the hon. Member for Basingstoke (Mrs. Miller) has given the amendments and I hope that the Minister will respond positively to what we have said.

Beverley Hughes: We have here a complex group of amendments that deal with issues that we have already rehearsed to some extent, as the hon. Member for Mid-Dorset and North Poole indicated. The group deals with issues in three categories: the paramountcy principle, the separate representation of children, and provisions in the UN convention on the rights of the child. Without taking overly long, as we have raised some of the issues before, I shall try to address them.

Amendments Nos. 26, 39 and 40 would make the welfare of the child the court’s paramount consideration in deciding whether to make an enforcement order or an order for financial compensation. As I said earlier, we believe that in enforcement matters the welfare of a child should be a material consideration rather than the paramount consideration, for the reasons outlined so ably by my hon. Friend the Member for Stockport. As I said this morning, the welfare of the child is a paramount consideration when the original contact order is considered and decided on. That is right, because it is then that the best interests of the child and the place that contact will have in that are considered by the court.

Mr. David Kidney (Stafford) (Lab): Perhaps I should not have kept quiet when my right hon. Friend said that this morning. I think that that is fine when we are
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talking about dividing a house or a CD collection, but the relationship between two parents and a child will develop and change long after the court order has been made. Surely there should be some flexibility to change circumstances later.

Beverley Hughes: There is that flexibility. We have included specific considerations that the court can take into account in enforcement proceedings, one of which is the welfare of the child. It is not the paramount consideration, but it is a material consideration that the court is required to consider. Through that route, the court can take into account any claimed change in the circumstances of the child or the adult and the contribution that a parent can make to the welfare of a child.

As my hon. Friend the Member for Stockport pointed out, one of our concerns was that, were we to make welfare paramount, it would place a very high hurdle for the courts to overcome before the new powers in the Bill could ensure compliance with the very contact orders that the court had made. We and the courts want those powers in place, because those currently available to them are hardly ever mobilised for reasons that we all understand. As a result of amendments such as those before us, the courts might find it even more difficult to use the new powers than they do the existing powers of contempt. I say to the hon. Member for Mid-Dorset and North Poole that I have sympathy with the sentiments behind her amendments, but the right place for a child’s welfare to be paramount is in the consideration of contact orders, as it currently is. When considering non-compliance with those orders and enforcement, the welfare of the child, while important, should not be the paramount consideration.

Amendments Nos. 29 and 30 would require the court to consider separate representation of a child when considering whether to make an enforcement order and whenever it receives a risk assessment conducted by CAFCASS under clause 7. Rule 9.5 of the Family Proceedings Rules 1991 allows the court to appoint a guardian for the child if that appears to be in the child’s best interests, and for him or her to be made a party to the proceedings. If the court considers the child to be of sufficient age and understanding, he or she can be made a party to the case under rule 4.7, and can instruct their own solicitor directly.

There are difficulties with the amendments, because they would require the court to consider representation in certain circumstances, but it already has the power to do so. In April 2004, the president of the family division issued a practice direction outlining the circumstances in which the court should consider making the child a party to the proceedings under rule 9.5, such as during intractable disputes. Since then, the use of rule 9.5 appointments has doubled. By their very nature, cases in which enforcement orders are sought often fall into that category. I hope that that reassures the hon. Lady that the situation that she seeks to cover with her amendment is already being dealt with.

The rule-making power in section 122 of the 2002 Act has been mentioned. The hon. Member for Basingstoke said that I said that its implementation
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was indefinitely delayed. It is not indefinitely delayed. When the report that reviews the rule 9.5 arrangements to which I have just referred has been considered, we will be able to bring forward the rules that the section 122 powers enable us to make.

New clauses 14 and 16 would add new factors to the welfare checklist in the Children Act. The new clauses express a principle that both sides of the House would support, but—we rehearsed some of the arguments this morning—their inclusion in the welfare checklist would be inappropriate.

On the proposed UN convention insertion, factors in the welfare checklist are expressed not in the form of the child’s rights, but as a list of issues to which the court must have regard, such as the child’s physical, emotional and educational needs, and what the child needs for their welfare and well-being to be protected and maximised. By their nature, such considerations must be weighed, sometimes against each other, and taken into account. In contrast, new clause 14 is phrased to state that a child has a right to contact. If that amendment were made, it would be equivalent to a presumption about contact. For all the reasons that I have outlined today, that would have the unintended—I think—consequence of challenging and compromising the paramountcy principle.

Opposition Members commented that legislation needs to be framed so as to guide judges in their decisions. I return to a point that I made this morning: there is an assumption that the real problem is that judges are not including sufficient contact in contact orders. No evidence to that effect was produced, but that is the basis of many of the amendments proposed by Opposition Members.

If Members consider judgments and the pronouncements of judges who are leading judicial opinion in this area, they should be assured that judges are convinced of the need for contact, and that that is in the best interests of many children. In 1993, in the now well-known case, re T, the court said:

    “It is the general proposition, underpinned undoubtedly by the Children Act 1989 that it is in the best interests of a child to retain contact with the parent with whom the child does not reside. The courts generally set their face against depriving a child of such contact and urge reluctant caretaking parents to make contact work, however difficult it may be for that parent who very often does not understand the importance of that continuing contact.”

In a more recent case in 2004, Mr. Justice Wall, as he then was, said:

    “The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court’s task, imposed by Parliament in section 1 of the Children Act 1989, in every case, is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of the child to the best of its ability.”

2.30 pm

Sitting suspended for a Division in the House.

2.45 pm

On resuming—

Beverley Hughes: Mr. Justice Wall went on to say:

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    “Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative.”

While it may be the case that legislation should give a guiding light to judges, those comments underline the fact that they need no convincing of the importance of non-resident parents, particularly fathers, to the well-being of their children, and they will have those thoughts uppermost in their minds when contact orders are made.

Annette Brooke: On that very point, bearing in mind that the Government considered putting something in the Bill, and in the light of their comments and the judges’ statements, surely there is something, somewhere that could be included and would be perfectly safe. My second point relates to the welfare checklist, which I understand is a secondary consideration. Does the Minister concur that something within the welfare checklist would not conflict with the overall paramountcy?

Beverley Hughes: I was coming to that. The Government said that we would examine the merit of sending an explicit signal to the courts. We considered what changes could and should be made. My noble Friend Baroness Ashton said in the other place that we had considered it and could find no phrasing that we felt would not compromise the paramountcy principle. I am afraid that that is our conclusion.

I cannot give the hon. Lady any comfort on that, but I hope that I have been able to explain, in the context of the amendments, the difficulties that they pose and to offer some reassurance about how we envisage the Bill working in practice.

In regard to the welfare of the child in relation to enforcement orders, it is true that it is not paramount, for the reasons I have outlined, but it is not true to say, as she just did, that it is secondary. The welfare of the child is one of the factors that the court must consider when it is making an enforcement order; it is a material but not a paramount consideration. I hope with those reassurances that she will feel able to withdraw her amendment.

Annette Brooke: At this stage, I will seek to withdraw the amendment, but I should like to revisit the matter. On the paramountcy principle, when we considered an amendment that related to clause 4(1)(3), we discussed the concept of a reasonable excuse for failing to comply with a contact order. The paramountcy principle should be restated on that. It would allow for changed circumstances. The point about the paramountcy principle being applied at the application of the contact order has been made clearly by the Minister. I understand it entirely. In a small number of cases, contact may be been withheld because of a fear of domestic violence. I accept that the wording would have to be careful so as to not cause the problems that the hon. Member for Stockport mentioned, which I listened to carefully, but the paramountcy principle would need to apply in a small
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number of cases  that need re-evaluation because of changed circumstances. However, it is a case of considering the amendment again.

As far as taking on board wishes, feelings and representations regarding children’s views, I draw the Minister’s attention to the fact that the amendments were written fairly carefully. Amendment No. 29 says:

    “the court shall take into account the need”,

and amendment No. 30 says:

    “the court shall consider the need for separate representation”.

Perhaps we need to consider that wording a little more carefully. I feel that the Minister has conceded that there are certain instances where it is important to seek the views of children. We should be exploring that further. If it is accepted along the grounds that she has explained and has been applied in particular cases, something could be included in the Bill. However, I am prepared to accept that the wording might not be quite right.

I was tempted to push one of the new clauses to a vote, but it is a matter of reflecting on the wording. The welfare checklist is the most likely place where we could safely include something. I am sad that the Government have concluded that that is impossible. It is not true to say that everything is perfect at the moment; it is not. However, perhaps the package of measures will improve things. As a cultural change is needed, the need to explore some wording along those lines should be a live concern.

I hope that in the run-up to Report, all hon. Members, Labour Members included, can work on what is desirable. It would not be a bad thing to scrutinise carefully what we are advancing each time, to ensure that we have not undermined the paramountcy principle, while reflecting on and still working towards an end that most people in this country want. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jeremy Wright: I beg to move amendment No. 3, in clause 4, page 8, line 30, leave out ‘18’ and insert ‘16’.

The Chairman: With this it will be convenient to discuss amendment No. 4, in clause 5, page 11, line 17, leave out ‘18’ and insert ‘16’.

Jeremy Wright: The amendments deal with the same point in relation to clauses 4 and 5 and would change the position in relation to the current state of the Bill, indicating that in respect of a breach of an enforcement order or an order requiring an individual to pay compensation as a result of a failure to comply with a contact order, the court is currently prohibited from considering any act leading to a breach that has been committed before the individual concerned was 18.

Our amendments would change that age limit to 16. In other words, breaches by 16 and 17-year-olds could also be considered by the courts. We must consider the background. Parents are increasingly getting younger and younger. The Government recognise that. It is possible not only to make a contact order for a 16 and
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17-year-old parent, but a contact activity direction or contact activity condition. However, the Bill does not permit the court to pass any form of enforcement measure should those contact orders be breached. That seems incongruous and should be remedied.

A contact order can be made in respect of a 16 or 17-year-old. Indeed, the Bill specifically refers to the possibility that a contact activity direction or condition can be made in respect of someone who is a child—someone who is younger than 16. Again, the position seems anomalous as no form of enforcement procedure can be taken against anyone who is under the age of 18, or at least such procedures cannot be taken for acts committed by the person involved when they were under the age of 18. If those who have a contact order made in respect of them commit a breach of that order when they are 16 or 17, it cannot be right that they can do so without fear of any penalty.

Ms Keeble: How would the hon. Gentleman realistically deal with such an enforcement action against someone who, under other legislation, is still vulnerable as a child? It does not sit properly with children’s policy and the proper way to deal with extremely vulnerable people.

Jeremy Wright: I do not agree, for two reasons. First, an enforcement order under the provisions of the Bill would allow the court to impose a requirement of unpaid work on the parent who breached the contact order. That is similar to, for example, a community punishment order, which can be imposed on a 16 or 17-year-old. There is no material difference.

Secondly, as far as an order for financial compensation is concerned, 16 or 17-year-olds earn money. As we know, they pay tax. They are in a position in some cases to pay financial compensation. There is no logical reason why a 16 or 17-year-old should be in a different position to an 18-year-old in either clause, against the background of the perfectly proper conditions in each that prevent the court from making either of the two orders in inappropriate circumstances.

The anomaly in the Bill should be remedied. There is no material difference between the position of a 16 or 17-year-old, with the right safeguards, and that of an 18-year-old. That is why we invite the Government to consider the amendments and put the anomaly right.

Annette Brooke: I think that this will form the basis of an interesting debate. I could think my way into almost following that line of argument, but my instincts are that a 16-year-old mother or father is a vulnerable person. I am not sure that any punishment is the right course to follow. In other circumstances, we already punish 16-year-olds, lock them up and do terrible things to them. We are talking about another group of vulnerable teenagers. Although I can follow the line of argument—I often argue for an age of 16 majority—the vulnerability of the child and the importance of their having a meaningful relationship with their parents are what concern me.

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I hope that the Minister will reassure us. In particular, I hope that she will reassure us that the contact activities, if anything, will be an appropriate form of enforcement. Maybe they would need to be quite extensive.

Jeremy Wright: My reading of the Bill, although I may be wrong, is that were a contact order condition to be breached it would constitute a breach of the contact order. My point was that there would be no consequences for someone who is 16 or 17 were they to breach that order.

Annette Brooke: We will look to the Minister to answer that. I am concerned that the amendment introduces a punishment rather than the support mechanisms that we are discussing.

3 pm

Beverley Hughes: The hon. Member for Rugby and Kenilworth started by saying that there are more and more younger parents now than ever before. I must correct him on that point. In recent figures, as a result of the Government’s efforts, rightly, to reduce the incidence of teenage pregnancy—I know that the hon. Gentleman will support those efforts, because it is a serious matter—we have seen the under-16 rate come down by more than 15 per cent since 1998 and the under-18 rate by 11.2 per cent.

Tim Loughton: And the under-14 rate?

Beverley Hughes: The hon. Gentleman makes a sedentary intervention, selectively doing what the Daily Mail did by picking out one small group. The overall figures are coming down significantly and are the lowest for decades. We have had a significant problem, compared to other European countries, and not recently, but going back 40 years or more. The Government take the issue very seriously.

Tim Loughton rose—

The Chairman: Order. We must bear it in mind that the age of teenage pregnancies is not part of the Bill.

Tim Loughton: Quite so, Mr. Hancock. I am not going down that route because we will have a debate on that subject, but my hon. Friend the Member for Rugby and Kenilworth made the point that parents had become younger. In response to the Minister’s statistics, may I say that the number of teenage pregnancies among younger girls, under 14, is going up, and alarmingly so, and the Government have failed dismally in that area?

Beverley Hughes: They are not going up. The rate is going down. None the less, there is a serious problem, and the Government, unlike the previous one, are trying to do something about. As the hon. Member for Mid-Dorset and North Poole said, young parents were, by and large, the most multiply-deprived and disadvantaged children and come from disadvantaged communities. They suffer a multiplicity of problems, often dropping out of education and coming from low
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socio-economic groups. That serial disadvantage results, in part, in their becoming pregnant and fathering and mothering children at a young age.

Our thinking behind the choice of age limit is as it is for two reasons. First, in a point my hon. Friend the Member for Northampton, North touched on, the Bill adds to the Children Act, which, along with family proceedings in general, defines a child as being a person under 18. We felt it right, therefore, that the enforcement of financial provisions should fit with the principles set out in that Act.

Secondly, there are the reasons to which I just alluded. The young people involved are likely to be very disadvantaged, and, because of that and their youth, they are likely to be less equipped as parents than older people are. We feel that our priority, where young people have parented children early, is not to subject them to unpaid work but to keep them, as far as we can, in education, training or employment. The danger, particularly for young girls, who are generally the parent looking after a child, is that having a child at that age means that they drop out of all possibilities for themselves, as they have the baby and do not get back into education, training or work for many years.

Our policy has therefore been, by holding them to account as well as giving them support, to try to make sure that they can stay in training or education or get a job. That will improve not just their prospects but, crucially, the prospects for their babies. Those babies born in such circumstances largely also do not fare well for reasons that will be obvious.

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