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Earl Russell: My Lords, in general, I have the deepest sympathy with the feelings of the noble Lord, Lord Campbell of Alloway, about nannying the courts. However, we have between us quoted a number of cases in which the court was behaving as if it were in need of a nanny.

Lord Campbell of Alloway: My Lords, I do not want to indulge in a philosophical argument, because I would be bound to lose it, but it seems to me that there is no reason for having an overriding nannying provision because the court makes a mistake here and there. Courts, even with an overriding nannying provision, are known to make perverse judgments, but that is why we have an appellate system.

I am sorry—it is perhaps a defect of my life and upbringing—but I really cannot take Amendment No. 102A. However, if Amendment No. 102B were put to a Division, I would be bound to support it.

Baroness Noakes: My Lords, noble Lords have made a powerful case for changing the statute law to improve protection for children where contact is considered. We certainly support the thrust of these amendments. Children must be protected from risky contact arrangements. I do not believe that there is any disagreement about the welfare of the child being paramount in contact cases, but there is profound disagreement about whether the law as currently

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practised achieves that standard. I say to my noble friend Lord Campbell that if the courts need nannying to avoid making errors, I for one would support nannying the courts.

I have no first, second or even third-hand experience of the impact of domestic violence on contact cases to share with noble Lords. However, I have been impressed by the strength of feeling expressed by many working at the sharp end with abused families, in particular the NSPCC and the Women's Aid Federation. Those organisations strongly believe that the current position is unsatisfactory.

I appreciated the briefing meeting organised by the Minister a few weeks ago, when she expressed the view that the legal framework was—I believe I quote her correctly—"as good as it gets". The noble Baroness outlined the many practical steps that have been taken to improve current procedure. However, many of the initiatives that she explained to us have been in train for some considerable period of time; indeed, for more than 10 years. In Grand Committee, I recall that the Minister said that the guidelines,

    "seem to be seeping their way through the system".—[Official Report, 15/7/02; col. CWH 340.]

It is perhaps this lack of urgency that is most worrying.

I have just a few questions for the Minister. First, will the noble Baroness say whether the Lord Chancellor's Department is currently satisfied with the way that the guidelines are operating, or whether there are any concerns in that respect? If there are concerns, will she say what the Government intend to do about them, and when? Secondly, will the noble Baroness say what information the Lord Chancellor's Department collects about contact cases? For example, do these show whether initial contact decisions have, in practice, caused problems involving child safety? If such data are not collected, will the noble Baroness say why not and how she can be sure that the system is operating as desired? Thirdly, can the Minister point to any specific improvements that will be made within a relatively short time-scale—say, by 2004? Can she say what practical changes we will be able to identify?

I know that the Minister will make the case powerfully that the existing legal framework is fine, and that many actions are underway. However, if she does not come forward with some positive, tangible, and timetabled actions to allay the concerns of those at the coalface, it will be difficult to resist the conclusion that changes in the law, such as those proposed by these amendments, will indeed be required.

Lord Campbell of Alloway: My Lords, before my noble friend sits down, perhaps I may clear the hurdle of nannying for a moment. If my noble friend will be good enough to look at Amendment No. 102B, she will see that it provides a totally new, much needed, and highly satisfactory procedure. There is no question of

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nannying: it provides something that is missing. However, Amendment No. 102A is just pure nannying.

Baroness Howe of Idlicote: My Lords, I do not wish to become too caught up in this battle about nannying. However, given the ambiguity of some of the recent court cases, which have led to quite considerable problems—and speaking with many years' experience as a juvenile court chairman—I believe that there might well be some advantages in having, as it were, a checklist upon which to concentrates one's mind.

I support both amendments, though I suspect that they will be amalgamated in some way in the long term. We have heard some horrendous stories. It is quite clear from the briefings that we have all attended that there is considerable unease and concern among practitioners about the continuing harm that is being caused to children as a result of these access or residential visits that have been authorised by the court.

It is only fair to mention the really worrying anecdotal evidence of a number of children's violent deaths, which have recently occurred during such visits. It is rumoured that the number is around 15. One of the other concerns is that it is almost impossible to obtain figures in this respect from the relevant authorities. In answer to the questions posed by the noble Baroness, Lady Noakes, I hope that we may begin to receive some answers from the Minister. One survey carried out in 1999 of 130 parents showed that 76 per cent of children were abused during contact visits; that is, 10 per cent sexually, 15 per cent physically, and 62 per cent emotionally.

Clearly, the Government's decision to define the concept of "harm" to include witnessing violence to others—a child being subjected to emotional as well as physical and sexual harm—will help. But, frankly, I doubt whether it will settle the vital question of whose best interests are paramount: the child's or the parent's. It is the very strength in this Bill's premise, which states that the child's best interests have to be paramount in all these matters, that seems to me to indicate that it is vital to include the amendments being discussed on the face of the Bill. Of course, one understands the Government's reluctance to act before the consultation process is complete, but, apparently, it has already taken a long time. Surely one child harmed while this ambiguity is allowed to continue is one too many.

I have one final point to make. As I understand it, the Bill provides for the wishes of the child or children involved to be conveyed to the court, by, one hopes—in view of previous discussions—an advocate, who, where necessary, is independent of all parties. But, again, surely there should be a specific right on the face of the Bill for young people of an appropriate age to express their wishes directly to the court concerned, if they so wish. As I see it, that would be provided by way

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of new Section 8A(g) in Amendment No. 102A. I hope that the Minister will give us some satisfactory pointers to something more urgent being done.

Lord Northbourne: My Lords, I most strongly support the thrust of these two amendments. Noble Lords have given some horrendous examples of such cases; and, indeed, I could give some further examples. Far too many children are being sent back to parents, who are causing them profound damage. However, I cannot support the amendments. It seems to me that they are not closely worded, and that they do not create the right framework within which to address these problems.

I have a particular objection to the use of the word "abuse", which is not defined in the Bill. I do not know whether it is properly defined elsewhere. It is an emotive word. Any discussion on this subject should include a much more precise definition of what we are talking about. Some noble Lords may respond by saying that we all know what we mean by the word "abuse"; but, no, we do not. There is a great range of opinion as to what abuse is—everything from slapping a child right through to the most terrible sexual and physical abuse. I support the noble Baronesses, Lady Gould and Lady Noakes, in their argument that something must urgently be done, but I do not believe that these amendments are the right vehicle to achieve that aim.

Baroness Scotland of Asthal: My Lords, I shall start by thanking all noble Lords who have made quite passionate contributions to this debate. I should especially like to commend the efforts made by two of my noble friends; namely, my noble friend Lady Gould, who moved the first amendment in this group, and my noble friend Lady Thornton.

The most impressive part of the debates in relation to this Bill is the level of commitment and the unanimity of view as to the nature of the problems. The only disagreement is perhaps the way in which we should seek to address them. Here, again, I entirely understand the spirit behind these two amendments. We all want to see a situation in which children are safe, both in their homes and in the relationship that they have with their parents if the latter separate. I am not able to accept these amendments, but that does not mean that I do not believe that things need to change. A number of noble Lords have given quite graphic examples of cases where such relationships have clearly gone wrong.

The Women's Aid Federation (England) (WAFE), the NSPCC and others are right to ask that we learn from the tragedies of the past, that we question inconsistencies of practice and that we take all possible practical steps to protect children from harm. I have no disagreement whatever on this point with either of my noble friends or, indeed, with anyone who has spoken. We are at one on this issue.

The Children Act 1989 makes the welfare of the child the court's paramount consideration. I hear everything that has been said about how case law may

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have adversely affected that or, by interpretation, undermined it. However, it is our belief that the import of the Act has not been undermined and that the paramountcy of the welfare principle remains untarnished. In Re H and R, which I believe the noble Earl, Lord Russell, mentioned, reiterated what the position has always been in relation to the balance of probability; namely, the more serious the allegation, the greater the weight, on the balance of probability, that the court can be satisfied that something is proven. Obviously, it is important that if an allegation of some severity is made, there must be some evidence to substantiate the fact that it has actually occurred.

5 p.m.

Earl Russell: My Lords, does the Minister agree that the trouble with saying that the principle of the welfare of the child remains paramount is that this principle does not bite on those people who do not like to think that such things happen and who are, and always have been, extremely numerous?

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