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Earl Russell: My Lords, it may or may not be true that the second family is usually better off than the first. It is certainly not true that the second family is always better off than the first. But, however badly off the family is, there is not a carer's allowance for the second family.

What the Minister has just announced is a very deliberate intention of setting up a formula to discriminate against second families which were entered into in good faith before this Act was under way. Once people have children—they did not ask to be born—the responsibilities to them need attention also.

There are quite a number of voters who belong to second families. I hope that the Minister will tell them too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Lord Simon of Glaisdale moved Amendment No. 17:

Before Clause 18, insert the following new clause:

("Welfare of child a primary consideration.")

. In any transaction or decision under the 1991 Act or this Act, the welfare of any child affected shall be a primary consideration.

The noble and learned Lord said: My Lords, the amendment relates to the statutory reference to the welfare of the child or children. We debated this at length at Report stage. It is an extraordinarily difficult problem. I do not think that any of us was satisfied that we had found the right solution, except perhaps the Minister, who is as incurably optimistic as he is able and courteous, which is saying a great deal.

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At Report stage, the noble Earl, Lord Russell, proposed that the welfare of the child should be paramount or, to put it another way, that those concerned with decision making under the 1991 Act and this Bill should have paramount regard to the welfare of the child.

I do not believe that the noble Lord, Lord Carter, was entirely happy. The Minister gave reasons for disagreeing with that approach. However, he proposed instead that the matter was taken care of by the formula in Schedule 1 to the 1991 Act. That is doubly misconceived. First, it is perfectly absurd to suppose that a matter that requires such fine tuning as the welfare of a child, and giving regard to the welfare of a child, can be the subject of a formulaic approach.

Secondly, our experience of the way in which the formula has worked so capriciously and frequently so unjustly gives us no confidence that it is a proper measure for the welfare of the child. In consequence of that debate, I wrote as soon as possible to the Minister. With all the hurry and stress of the litigation he has had no opportunity of replying by letter. I suggested that the test should be that those concerned should have primary regard to the welfare of the child or, to put it another way, that the welfare of the child should be the primary consideration. It was in every way desirable that those who put their name to this amendment—that is the noble Earl, and the noble Lord, Lord Carter—and the Minister, his advisers, his legal advisers and the draftsman should have been able to discuss this important matter between Report stage and Third Reading. For the reasons which your Lordships now know, abundantly, that was not possible.

Perhaps I may say why I believe that the test I propose is preferable, standing intermediately with what the noble Earl proposed and the Minister's counter proposal. I take it as axiomatic that the formula solution is utterly unsuitable. Therefore, one needs to find something less unsuitable. If one says that the primary consideration shall be the welfare of the child, it involves a double approach. At any rate, that is how I would interpret the words. The duty of any decision-maker under the 1991 Act or this Bill is to look first to see how the welfare of the child is affected. Secondly, the primary consideration of the welfare of the child should prevail unless there is some other consideration which is substantially more weighty.

I need to make only one other point. I referred to the welfare of any child affected being a paramount consideration because there may be more than one child. That was one of the fundamental failures in 1991, not to appreciate that there might be many children whose welfare should be considered. I hope that what I suggest will enable all the children to be considered. Let their welfare be the first and ultimate thing to be considered, unless there is some other over-weighing consideration, which may be the welfare of another child. I beg to move.

6.15 p.m.

Lord Carter: My Lords, I wish to congratulate the noble and learned Lord, Lord Simon, on the ingenuity of the phrasing of his amendment to which I was pleased

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to add my name. The noble and learned Lord, the noble Earl, Lord Russell, and I are founder members of the "Welfare of the Child" club because we discussed it at every stage of the 1991 Act and now at every stage of this Bill. As everyone knows, we have made numerous attempts to try to strengthen the proposition to see whether we can find a form of words which the Government could accept and which would cover the point we are trying to make.

As the Minister knows, we went right through the 1991 Act and in the end, through an amendment in the other place to a Lords amendment, the Government produced Clause 2 of the 1991 Act. It states that where any discretionary power is involved, the child support officer,

    "shall have regard to the welfare of any child".

We believe that in practice that is not working and we have anecdotal evidence to that effect. It is not being given the consideration that it should receive. If the Minister accepts the principle that some improvement needs to be made and that this wording is not exactly right, the only way to deal with the matter is for the Government to accept the amendment and amend the Bill in another place.

I believe that the words which the noble and learned Lord, Lord Simon, devised, "a primary consideration", meet the case. I looked up the word "primary" in the Concise Oxford Dictionary and the definition is:

    "of the first rank in a series".

That definition seems to me exactly to fit the circumstances which we are discussing that the welfare of the child is first, but in a series of considerations. Therefore, it is the primary consideration.

I expect that the Minister will put legal arguments against the exact use of the word. However, he should say whether it is only in the phraseology or whether it is the principle that is at stake. I believe that the noble and learned Lord used a good description and definition. If the Minister attempts to say, as he did at previous stages, that his approach to the problem is to deal with it through guidance wording in the code of practice which I believe is being drafted, could he say exactly how it will be done? What wording will be used in the guidance and code of practice if there are arguments for not putting the provision on the face of the Bill? I believe it is a good argument. The words are right, they meet all the points that we made at the previous stage of the Bill and I hope that the Government will be able to accept the amendment.

Earl Russell: My Lords, I too wish to congratulate the noble and learned Lord on devising the wording of the amendment. It is probably as good as we can get and it is needed. The Children's Society study, Losing Support, to which I referred earlier today, devotes a whole chapter to the effect of the implementation of the Act on the children. The study is not particularly encouraging. It reports what it calls,

    "deterioration in the quality of contact".

The method of the survey is based on a case study of a series of individuals and it gives the direct speech, usually of the parent with care speaking, but in one case the child. One says:

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    "They [children] can't understand what the Child Support Agency is ... They just know that he didn't pay for the Christmas presents, that he didn't contribute to the birthday presents".

Another says, talking of her son going out with the father for the day:

    "He always used to go to MacDonalds, but the last time he took him out for a Saturday he took him into [town]. It was bitterly cold ... They'd been walking round town all day, sat in the car to eat sandwiches. When he came back he'd gone that purply-blue colour ... He's saying he can't afford to take him to MacDonalds ... I think he's cutting down".

Another said that her son,

    "would come back to the house, rush upstairs, slam the door and refuse to speak to me—once he accused me of all kinds of things his father had told him which were real distortions of facts".

In another case, the son said:

    "Why are they doing it? ... I thought they were supposed to be for the children and not upset us like this".

There are many more examples like that. The study could not find a single case in which the relations of the child with the parents had benefited as a result of the Act.

When we find something causing this much unhappiness and distress, opening up old sores, creating new conflicts, there ought to be some give in it. It ought to be possible to retreat a little from the formula if implementing it causes so much unhappiness.

Perhaps I may remind the House that I speak as a child of divorced parents. I know just how much argument these matters can generate. I am truly thankful that my parents did not have the CSA to contend with. I do not know how much mischief it could have caused. There must be a machinery to allow a retreat when the Act causes real psychological and physical harm, as, given the cases I quoted, it may well be doing. I am glad that this amendment is on the Marshalled List. I am happy to support it.

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