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Earl Russell: My Lords, I do not know why the Minister supposes that I was in my bath; I was in my study at my desk. Not everything this Government know is in fact the case and we have at last managed to get that point demonstrated. I would like a reply from the Minister before we leave the issue. Does the Minister understand that there can be a situation between two

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parents in which neither of them can appropriately be classified as an absent parent? I take the point he made about the remaining 220 nights of the year. I told him that I was not going to argue over figures. However, I want to know—I shall give way if he can answer me—whether the Government can imagine a situation in which neither parent is properly classified as absent. That is what this amendment was put down to find out.

5.45 p.m.

Lord Mackay of Ardbrecknish: My Lords, I shall respond to that. We accept that there are situations where the care is more shared than it is in many of the cases. Frankly, I think they will constitute a small number of cases. There is a mechanism for taking that into account when the liability is shared between the two so that if the absent parent looks after the child for more than the 104 nights in the year, that is the benchmark and some consideration is given to the fact. I suppose that that does not go as far as accepting that neither one is the parent with care and neither one is absent, but we always have to start from the position of having a parent with care and an absent parent even if we move towards—I suspect this happens in very few cases—a 50:50 division of the parents looking after the child. The situation will be catered for.

Earl Russell: My Lords, the Minister seems to be telling me that all fathers are absent but some are more absent than others. I think it is a colossal a priori to assume—I think I have the Minister's words right—that we must always start from an absent parent. That shows the depth of a priori thinking behind the Bill.

Lord Mackay of Ardbrecknish: My Lords, I understand the debating point the noble Earl is making but, equally, I could say that we must always start with the parent with care. I suggest that in the case of every child, that can be fairly readily determined by the simple question of who receives the child benefit.

Earl Russell: My Lords, that itself is a question on which I must come back to the Minister, as I did with his predecessor, the noble Viscount, Lord Astor. The Minister has chosen a bad example for his purpose. The rules for dividing child benefit between separated parents who share care are urgently in need of revision. It is causing widespread dissatisfaction and I have a large postbag about it. Therefore I think that the Minister was a little unwise to pick that example. He said that in the case I was envisaging the woman would be getting nothing. However, there still are courts and, if the Child Support Act ceased to have effect, they could have effect. They could deal with a situation where, because it would be unusual, discretion was needed.

The noble Lord, Lord Carter, suggested a parent might evade his responsibilities by having care of his child for 141 nights a year. That is a curious way of evading one's responsibilities because I should have thought one might be taking on as many responsibilities as one was evading, and one would not necessarily be the financial gainer by that either.

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Lord Carter: My Lords, if the absent parent wishes to try to evade his responsibilities all he has to do is to ensure that he beats the limit by one night.

Earl Russell: My Lords, that is, of course, equally true of the 104 nights provision which we have at present. It has been said that that is an incentive to parents with care to deny access. If there is to be any limit at all, the point must apply. If we are not going to have a limit, we shall have to go back to thinking in terms of the Children Act and shared residence. I think I have opened up a can of worms but I am quite content to leave them to wriggle. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 12:

Before Clause 18, insert the following new clause:

("Applications by those receiving benefit—failure to comply: repeal of section 46 of 1991 Act.")

. Section 46 of the 1991 Act shall cease to have effect.

The noble Earl said: My Lords, this is one of the big ones and it deals with the benefit penalty; that is, the reduced benefit direction which falls on a woman who refuses to give information to collaborate with the agency. Most usually she refuses to name the father of the child. She is at present subject to a benefit penalty of 20 per cent. for the first year and 10 per cent. for a further six months. That is a draconian penalty. It risks bringing her below subsistence level and what is more it must risk physical hardship to the children. It is a great deal too severe.

The Minister says—I am sure that he is just about to say it again—that it is designed to induce her to think carefully before she decides whether to collaborate with the agency. It has done that. It has made many women collaborate with the agency who have already been victims of domestic violence and who are at risk of being so again. Indeed, in a number of cases which have come to me from CAB sources, they have been. The Minister will also say that if there were not a benefit penalty, women would have no incentive to co-operate with the agency. I can practically compose his speech for him. I am sure that it is already on tape. What the Minister says is, of course, true. Had the issue of the maintenance disregard not already been resolved, I should have thought that that was the practical way to do it. However, if it means that women have a voluntary choice as regards whether to co-operate with the agency, I would not regard that as nearly as terrible a consequence as the Minister would.

There has to be consent somewhere in the system or it will not operate. One can impose on some of the people all of the time or on all of the people some of the time, but one cannot impose on all of the people all of the time. Therefore, to make the system work there has to be free and willing consent to the working of the system from one parent or the other. We are not getting it from many of the absent parents. If the parent with care does not consent to the system either, it will not work.

I am giving the Minister every opportunity to preserve the Act if he can. He does not show a great eagerness to take it. If we did move to dealing only with parents

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with care who genuinely want the services of the agency I believe that it would manage a great deal better than it does at present. That would also avoid a considerable amount of cruelty. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, the noble Earl moved the amendment in Committee. I have already this afternoon, as I did previously in Committee and on Report, gone into some detail about the safeguards that I believe are built in to ensure that a parent with care is not put at risk. The reduced benefit direction only comes into play if the parent with care has refused to co-operate in the pursuit of maintenance without good cause. The noble Earl has heard my speech on a number of occasions and I have heard his, so we are going round the same bush. Nothing surprises me, and he tells your Lordships that he will not be surprised by what I am about to say. That is because my view is totally consistent and correct, as the noble Earl believes is his.

The purpose of the reduced benefit direction is to make a parent with care think very carefully about her decision not to co-operate in seeking maintenance. We believe that it is right as a matter of principle that parents with care should co-operate unless there is good reason why they should not do so. We addressed that issue earlier at some length. The amendment would mean that parents with care could wilfully refuse to co-operate without sanction. For the reasons I have already given, we believe that the sanction should be retained.

The noble Earl suggested that accepting the amendment would help me to preserve the Act. I cannot understand how making co-operation entirely voluntary would help me to preserve the Act. He has not in any way convinced me in that regard. I am afraid that, as on the previous occasions when we have discussed the matter, I cannot possibly accept the amendment. I hope that the noble Earl will be able to withdraw it.

Earl Russell: My Lords, I thank the Minister for that reply. I agree that we all think that our opinions are correct, but the effect of the amendment would not be to make my opinion or the Minister's opinion, or anyone else's, to be taken as correct, it would be to make the woman's opinion to be taken as correct.

The Minister talks about good cause. How much do we really know about what goes on in the privacy of other people's marriages? How much do we really know about whether the woman has good cause? Most women have a built-in sixth sense which gives them a sense of danger when they are in the company of a particular man. If a woman has that sense of danger about a partner she has left she may be unable to give a rational account of it to any official in the country. Yet she may be quite right. Even if she is wrong, if she has that built-in sense of danger she ought to be able to avoid being forced back into contact with that man.

Once again the Minister is setting up the bureaucracy as the ultimate judge of right and wrong. That is something which, in this Bill, we on these Benches have always found profoundly offensive.

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The Minister also says that he does not understand how it could make the Act more secure if people were voluntarily able to refuse to co-operate with it. The Minister knows about volunteering. He knows about consent. He knows that you can take a horse to water but you cannot make it drink. He knows—at least he ought to know—that the agency cannot get through its work because it is snowed under dealing with people who are refusing to co-operate. As Miss Chant said last week, even women refuse to co-operate.

If the Minister chooses to use all his powder on forcing in to the system people who will not consent and never will consent, then the Act will come to an end rather sooner than it would have done otherwise. That is the Minister's choice. If that is what he wants, let him have it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 and 14 not moved.]

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