Children and Adoption Bill [Lords]


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Tim Loughton: I do not disagree, but does the Minister acknowledge that the chances of a young man who becomes a father before the age of 17 retaining contact with his child within nine months of the birth is put at 2 per cent.? That is not down entirely to young men scarpering.

Beverley Hughes: I do not think that we understand enough about why that is the case. I agree that it is a matter of concern, and I want to see how the Government can enable young men to accept their fathering responsibilities when they parent a child at a young age. I do not think that that the answer is to force the mother to undertake unpaid work through an enforcement order, but I agree that we must examine such issues.

As the hon. Member for Mid-Dorset and North Poole said, we must look to the courts to use the Bill’s contact activity provisions Bill to address the issues that will prevail in many such circumstances, notwithstanding contact. I am talking about parenting and the fact that we must ensure, through contact activity orders, that the young mother will be able, through the order of the court, to undertake activities that will promote contact and her understanding of the need for continued contact with the father and, more generally, to improve the parenting ability that she is otherwise likely to have.

Jeremy Wright: Will the Minister deal with the point that I drew to the attention of the hon. Member for Mid-Dorset and North Poole? Let us consider contact activity conditions under the Bill. Perhaps the right
 
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hon. Lady can tell me whether I am right on this, but I understand that a person who breaches a contact activity condition breaches a contact order. The court would not make a contact activity condition unless it believed it necessary to assist in the provision of contact. If the people on whom the order is made know that there is no effective sanction when they breach the contact activity condition, what is the worth of the condition?

Beverley Hughes: The contact activity order would be considered by the court only when the case had come to court because the other parent was seeking contact. When considering breaches of orders, the court must consider the feasibility of someone undertaking the contact activity and the proportionality of that. If a young man was seeking contact with his child and was being met with some resistance from the mother, the court would want to try out contact activity orders. It might think about a family assistance order, on which CAFCASS would work with the young parents, especially the young woman, to make the contact activity order work and move them both towards contact.

With such young people, more than in other circumstances, it would be a case of trying to work with them, so that they understood that it would be important to facilitate contact, not to resist it. I cannot honestly see the value of the enforcement order in such circumstances when other public policy imperatives around the need to reduce the cycle of disadvantage, which occur in many cases when young women have babies prematurely, seem the right way to go. We must understand that in such circumstances the young woman would be a child herself under the law. Obviously, the baby would be a child, and the young father may also be a child under the law. The court will want to work in a careful direction in such circumstances, using all its resources to require and facilitate compliance, but also to support the young people and bring them to the point of understanding and to facilitate contact.

The hon. Member for Rugby and Kenilworth has presented some cogent arguments from the point of view of parallel measures in parts of the criminal justice system. I understand his comparison and analogy. He argued that there really was no difference and asked why we do not reduce to 16 the age at which enforcement can be required through orders. The difference is that a baby is being parented by a very young child.

Jeremy Wright: To clarify, I said that in terms of the expectation on the 16-year-old, there is no difference between an enforcement order expecting unpaid work and, for example, a community punishment order. That was the only comparison I sought to draw.

Beverley Hughes: I understand the logic of that comparison, but the other ingredient is a baby born to a very young person. The constellation of factors and the vulnerability of both the baby and the parents, because of their status as children themselves, and, by
 
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and large, as disadvantaged children themselves, mean that we would seek objectives other than requiring the parents to spend their time doing unpaid work. We would rather see them in education, training or employment, because in the long run, that will improve not only their life chances, but the baby’s. Although I understand the logic of the hon. Gentleman’s argument, I hope that I have convinced him on such special and difficult circumstances.

Ms Keeble: There is an air of unreality about this issue. If one parent is under 16, the police might be interested in the other parent for quite a different reason, because of the legal restriction on sexual activity. After that, we are talking about somebody wanting contact, there being a disagreement about it, their going to court, their getting a contact order, its not being complied with, and then an enforcement order being made. How would we get through that in the space of just two years, which is what the Bill asks for? It is unreal to expect an enforcement order on a 16-year-old.

Beverley Hughes: My hon. Friend makes her points very well, and I think that she concurs with what I am saying. I am not sure that I have convinced the hon. Member for Rugby and Kenilworth. There are two ways of considering the issue. I understand his argument and comparison, but on balance, because of the complex situation and the vulnerability of all parties concerned, we would not want young people to do unpaid work. We would rather they were in circumstances that would help their life chances and those of their child. I hope that he has been convinced and will agree to withdraw the amendment.

Jeremy Wright: I am grateful to the Minister for her efforts to persuade me. She has not quite answered the point I put to her about contact activity conditions, but with the reservation that we shall perhaps return to the issue on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 4 ordered to stand part of the Bill.

Schedule 1

Enforcement orders

Question proposed, That this schedule be the First schedule to the Bill.

3.15 pm

Mr. Jackson: Mr. Hancock, I hope that there was no link, given that just before I rose to speak, you were gently admonishing us to be consensual and not to
 
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create any conflict. I shall proceed with alacrity, not least because I have my own child care responsibilities this afternoon with my daughter’s nursery. That is why I am looking at the clock. We are not moving an amendment, so I shall talk briefly about observations rather than any criticisms per se.

The schedule seems to be a bit of a push-me, pull-you creature, because it is an unfortunate mix of inertia and rigidity. I understand the situation that the Government are in because they have had to row back from the consensus in the Joint Committee that electronic tagging was gratuitously unfair, perhaps even unenforceable, and not the appropriate remedy. Therefore, they have sought to move on, and it is a difficult area. As we funnel down through the number of cases mentioned by my hon. Friend the Member for East Worthing and Shoreham, we find that it is a relatively small number but nevertheless problematic.

It is in the best interest of children that the issues are settled quickly and there are some aspects to the schedule where that is militated against. I refer in particular to paragraph 8(3)(c), which deals with the responsible officer’s warning in respect of a breach of the order. Twelve months is a long time; there is a lack of urgency on that matter and I am concerned that things would drag on. I am also uncomfortable with the issue of a second order that would add to or substitute for the first order. A disputatious situation could get a lot worse if it were to drag on for 12 months.

I return to the points made earlier about paragraph 9(3) and the word “reasonable”. We can compare and contrast that with the comments of Lord Adonis, who used the word “meaningful”, but the Minister and others have set their faces against the word “reasonable”. I wonder whether there is that much of a logical jump between what is meaningful and what is reasonable. What is reasonable in this schedule is deemed to be anathema elsewhere in the Bill. What is reasonable in this case is defined even more loosely, and I defer to experts across the room who are lawyers, but we are talking about the balance of probabilities.

We can consider the balance of probabilities with regard to reasonableness, but we cannot do that on the presumption of co-parenting, because it would be seen to be completely at odds with the paramountcy principle. If you will indulge me, Mr. Hancock, while I go slightly off the subject, I believe that co-parenting is complementary to the paramountcy principle, not anathema to it. We are also looking at a very loose definition of “reasonable excuse” and the balance of probabilities.

I am concerned about paragraph 9(10)(b). Much has been made by the Minister and Labour Members of not seeking to fetter the discretion of the court. We have come to the end of the process dealing with enforcement orders, but there is an argument to be made about paragraph 9(10)(b), which says:

    “is no more than is proportionate to the seriousness of his failures to comply with the contact order and the first order”.


 
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That fetters the discretion of the court in a way that no other part of the Bill does. It is unduly prescriptive, particularly as Ministers have been hostile to the presumption of co-parenting.

My final point about the schedule concerns the section 111 notice and the non-receipt of a breach of enforcement. I am mindful of our debate about pressures on CAFCASS, its work load and the resources and funding issues. However, I would not want it to be used as an excuse for prevarication and further delay to the judicial process in the family court.

Beverley Hughes: I do not recognise the hon. Gentleman’s description of schedule 1, which merely uses the framework of the Criminal Justice Act 2003 to make the necessary links between the Bill and that legislation. We are already drawing on that Act to make the provisions work in respect of enforcement orders. For example, the Bill makes provision for CAFCASS officers to communicate mostly with probation officers about the case, the work and the problems involved which have to be accommodated when a person undertakes unpaid work. It provides for the arrangements on breaches of enforcement orders to be consistent, as they are for breaches of probation orders, and it makes the changes that we want, such as reducing the maximum time specified in an order from 300 hours in the Criminal Justice Act to 200 for an enforcement order.

The hon. Gentleman mentioned paragraph 8(3)(c) and what he perceived in the wording to be a potential lack of urgency in acting on a breach. To clarify the matter, the reference to “within the next 12 months” does not mean that nothing would happen for 12 months but that the maximum period during which the unpaid work—for however many hours the order required—can be undertaken is a maximum of 12 months, and any further breach within that period would be acted on. Serious breaches can be referred straight back to court and we would expect that to happen.

The hon. Gentleman probably appreciates that it is not the case that there is a breach of a contact order, an enforcement order and then no further expectations in respect of compliance while that order is fulfilled. One clearly expects an enforcement order to be put in place. Because the proposal is about making contact work, we would expect compliance with the contact order to be concurrent with the unpaid work prescribed by the order.

I cannot recall the hon. Gentleman’s last point, but if he wants to intervene and remind me I will try to respond to him. The reply I have does not reflect my recollection of what he said.

Mr. Jackson: I am delighted to help the Minister. I am delighted, too, that my speech was so scintillating that she has forgotten the last part of it. I was referring to the section 111 notice in respect of the breach of an enforcement order. I hope that that gently jogs her memory.

Beverley Hughes: That was a slightly more helpful intervention than some I experienced earlier. There cannot be a disproportionate response because to
 
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allow that would risk conflict with human rights and other legislation. The claim that I think the hon. Gentleman is making, that proportionality is unduly prescriptive, must be read in that context.

This is a technical schedule. It makes the necessary links between the Bill and existing legislation, and makes the changes that we want in respect of the parameters of enforcement orders. I hope that that will satisfy the hon. Gentleman.

Question put and agreed to.

Schedule 1 ordered to stand part of the Bill.

Clause 5

Compensation for financial loss

Mr. Jackson: I beg to move amendment No. 50, in page 10, line 7, after ‘suffered’, insert ‘significant’.

The Chairman: With this it will be convenient to discuss amendment No. 8, in page 10, line 8, at end insert

    ‘including the costs incurred by initiating court action if subsequently upheld,’.

Mr. Jackson: These amendments are important because of the use of the word “significant”. Before I go on to the detail, I should once again like to make the point about the paramountcy principle not being explicit. It bears repetition because that is not clear in clauses 4 and 5.

We must keep the issue in perspective. Inserting the word significant here might not seem very important in the context of the whole Bill, but we should not exacerbate a difficult situation. As the Bill stands, it has the potential to make matters a lot worse for families who are at war with each other, and going to court over compensation for loss. It is not our job to legislate to encourage such situations to become even more protracted and vexatious than they already are. The word “significant” is important because we do not want families to quarrel about how much money was spent at McDonald’s, how much each party spends on petrol, and so on. That is why we need to set the correct context, and that is why we are proposing the amendment. It is a sensible and helpful amendment, which will save a lot of angst, time and public money although, possibly, it will not be all that popular with our friends the lawyers.

The Government have missed an opportunity in respect of the concept of compensatory contact. Why should we be fixated on financial compensation? That is not an issue on which most parents who have separated or divorced focus, although it is important. What people focus on is the quality of parenting that they can give their children, and that is not taken into account in the Bill. That offends against the general consensus that we have established on the paramountcy principle. It is all about the financial arrangements between the parents and the court, and not about the children. That should be borne in mind.


 
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As the Bill stands, it has the potential to allow for obfuscation and for delay in the resolution of situations. That is why we think that the amendment has merit and should be considered carefully by the Minister.

Beverley Hughes: I appreciate the intention to be helpful that lies behind the amendments, although I shall seek to convince the hon. Gentleman that they are not necessary.

3.30 pm

Amendment No. 50 may not be practicable, because the insertion of “significant” would cause several difficulties. First, and technically, it would contradict the model normally used in civil cases, where no lower limit is set. We would therefore be relying on the applicant to guess what might be considered significant by the court. Some applicants who might have been awarded compensation could be deterred from making an application if they had to second-guess what the threshold of significant might be and how it would be interpreted by the court.

Secondly, what is significant to one person may be insignificant to another. It would be difficult to set an absolute figure that would help members of the public guess what the threshold might be. I certainly agree with the spirit of the amendment, which is that frivolous claims should not be made, but most people will think seriously about whether to instigate legal proceedings and will not take such decisions lightly. Courts can deal with claims that are frivolous or vexatious.

I agree with the spirit of the suggestion that an application for an amount of compensation should be significant to the applicant. However, we cannot determine in advance what will be significant because people’s financial circumstances vary, particularly after a divorce or separation, when a lot of other factors have to be considered in addition to the amount of money to which someone might have access when determining their disposable income.

I do not agree with the hon. Gentleman on the question of compensatory contact, because I do not agree with the concept enshrined in it—that the child is a commodity, whose time can be used to punish one parent and reward the other. Where there has been financial loss, the compensation sought should be financial and directly in relation to that loss. The child should not be used in that way.

I know that amendment No. 8 was drafted on the basis of common sense. If someone has to apply for a compensation order because the actions of another have cost them money, it certainly seems appropriate that a court should be able to consider whether the party in breach should be asked to meet the costs of the application. However, the amendment is unnecessary, because the courts already have the power in all proceedings to award costs to one of the parties. When financial compensation orders are available, and if the courts have decided to award financial compensation, they will consider more frequently, in relation to these specific matters, whether they should also consider awarding costs.


 
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Tim Loughton: I agree with the Minister, but does she acknowledge that each time the victim of a breach of contract has to initiate action, he or she is usually subject to court costs of £175, which in many cases are not awarded in that person’s favour? It can be an expensive business having to come back to court each time for repeated breaches of contact that are not the fault of the person who is suffering from it.

Beverley Hughes: I agree that that is a problem. However, I was saying that the court has the power to award the costs and that it might well consider doing so specifically in relation to this measure, which is about awarding financial compensation. The court may want to consider adding financial compensation for those who have had to pay court costs. The real point is that the court already has the power. I therefore hope that the hon. Gentleman will withdraw the amendment.

Mr. Jackson: As my grandfather used to say, warm words butter no parsnips. Those words from the Minister were warm indeed, but I would make two points, if I may be so bold. The concept of compensatory contact was slightly oversimplified by the Minister and merits further debate on another occasion. I also think there is a larger issue about the onus on an individual to seek justice in family courts rather than it being the responsibility of public authorities as it is, for example, in France. No doubt we will discuss that.

On the basis of a break-out of consensus and with perhaps nine minutes to go, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jeremy Wright: I beg to move amendment No. 63, in clause 5, page 10, line 15, after ‘excuse’, insert

    ‘and the standard of proof is the balance of probabilities’.

The amendment covers a simple point, which it will not take me long to explain. It deals with the provisions relating to reasonable excuse and the decision that the court must make as to whether someone has a reasonable excuse for not paying compensation for financial loss.

The provisions relating to reasonable excuse are similar to those in clause 4 relating to enforcement orders. The difference is that clause 4 makes it clear that the burden of proof in proving reasonable excuse lies on the individual claiming it and that the standard of proof is the balance of probabilities. In clause 5, the standard of proof—the balance of probabilities—is missing. I suspect that that is an error, but I do not know. I hope that the Minister’s response will be
 
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favourable because it seems self-evident to me that the standard of proof, as well as the burden of proof, should be clear in the Bill. If it is right in clause 4, it should also be right in clause 5.

Beverley Hughes: I understand exactly why the hon. Gentleman has raised this matter because it does look like an omission. However, it is not one. As he may be aware, the balance of probabilities is the standard of proof normally used in family proceedings and is, therefore, the default position. We have expressly inserted it in clause 4 because we are making it clear that the standard of proof for breaches of enforcement is beyond reasonable doubt because of the penalties that may ensue. It was felt advisable to avoid any misinterpretation by stating that despite that higher standard of proof for breaches, the standard of proof for excuses would still be the default position of the balance of probabilities. It was simply to prevent any misinterpretation in clause 4 and for clarification rather than an omission in clause 5.

Throughout the Children Act 2004 and other family law, the standard of proof has been declared to be the balance of probabilities. That is what applies in clause 5, but it is not necessary to state that in the Bill. We have done so in clause 4 to avoid any misunderstanding about the standard of proof on excuses, which remains the norm, but we are going for a higher standard of proof for breaches. I hope that that satisfies the hon. Gentleman.

Jeremy Wright: I am grateful for that explanation, but I am not sure that it would not be simpler to make it clear in relation to clause 5 as well as clause 4. I was going to say that I understand what the Minister said and that I was prepared to withdraw the amendment, but if she wants to persuade me otherwise, she may.

Beverley Hughes: I simply want to make the position absolutely clear. If we were to do that in clause 5, we would have to do it in every clause in the Children Act 2004 and in legislation on family proceedings. The default position is the balance of probabilities, and that is why it does not normally have to appear.

Jeremy Wright: I am even more grateful for that further clarification. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Cawsey.]

Adjourned accordingly at twenty minutes to Four o’clock till Tuesday 21 March at half-past Ten o’clock.

                                                                                           
 
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