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Baroness Barker: Perhaps the noble Baroness will clarify something for me in relation to Amendment No. 60, which, in her introduction, she said addressed issues raised by these Benches in Amendments No. 54 and 59. The amendment refers to the conditions contained in proposed new Sections 11D and 11E
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these points are directly addressed in our Amendments Nos. 54 and 59but, as the proposed new sections stand, even given the effect of the government amendment, there would be no reference to people being suitably qualified. Although the noble Baroness has tried to answer our question, I feel that she has done so only partially. Perhaps she might care to have another look at the issue and come back to it.
Baroness Crawley: Thank you. Perhaps I may go into the slightly longer version to help clarify matters. The amendments we are discussing provide simplification through removal. In particular we have removed reference to contact activity directions ceasing to have effect when the court proceedings come to an end. We have removed the list of scenarios in which contact activity conditions may not be made and also the link between the end of the date of enforcement orders to the end date of a contact order.
Our objective in removing those provisions is to avoid being overly prescriptive in primary legislation about the types of situation that might occur. For instance, it seems on the face of it appropriate that an enforcement order should automatically cease to have effect when the contact order to which it refers comes to an end. However, it is possible to imagine a case where a contact order lapsed on reaching a time limit specified in the order, only to be replaced by a new order intended for the same purpose. In that situation, we would not really want the enforcement order to be ended and another identical one to be put in its place, perhaps a week later. So we propose to remove those specific provisions because we want to avoid the trap of inadvertently limiting the power of the court to bring about the obvious, reasonable and right decision because of timing. I hope that that clears that up.
The noble Baroness, Lady Barker, asked me about new Section 11F under Amendment No. 60. That amendment replaces the regulation-making power at new Section 11F of the Children Act 1989 regarding the provision of financial assistance for those who need it to meet the cost of contact activities. In the interests of clarity, the amendment sets out more detail about how regulations made under this part may operate. This detail includes making clear that the ordinary residence of the child will determine whether it should be the regulations of the Secretary of State or the National Assembly for Wales that apply. The revised Section 11F will also provide for the regulations to include a means test, including a sliding scale of assistance according to financial
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circumstances. Further, it will provide for appropriate safeguards when public money is being spent, including allowing payments to be made direct to activity providers and for a limit to be imposed on how much assistance can be provided with any given activity.
In addition, the amendment will allow regulations to state that payments may be made only in respect of an activity offered by a provider approved by, as the case may be, the Secretary of State or the National Assembly for Wales. Are we getting there?
Baroness Crawley: This provision addresses the point raised by the noble Baroness through Amendments Nos. 54 and 59. They propose that providers of activities should be appropriately qualified. In revising this regulation-making power, we have made clear that the Secretary of State or the National Assembly for Wales may determine which providers can receive public funds for administering contact activities. This must be right where public money is being used and where parents and children are depending on the quality of the contact activities at a very difficult time in their lives.
"( ) Subject to subsection (8), in considering whether to make a contact activity direction, the court shall have regard to the obligations and responsibilities owed to the child by each of his birth parents."
The noble Lord said: My Amendments Nos. 31 and 35, which are grouped, are probing amendments on the subject of parental responsibility. The law on parental responsibility in this country today is complex and uncertain. Parental responsibility is definedor perhaps I should say not definedin the Children Act 1989, subject to amendment. It is imposed on the mother of the child in all cases but on the father only if he is married to the mother at the time of birth or, since 1 December 2003, if he signs the birth register for the child, although, as noble Lords know, he may apply to the courts for parental responsibility.
This strange arrangement has the effect of making it entirely optional for an unmarried father to take responsibility for his child. The only exception is in the unlikely event that the Child Support Agency catches up with him, in which case he might become liable to pay maintenance to the mother, although, as I understand it, it would give him no ongoing obligations to the child. It is only when we look at what
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parental responsibility means in the 1989 Act that it becomes possible to see how this situation has arisen. In fact, the definition is not one of responsibilities but, to a very significant extent, one of rights. I have some examples of those rights from Family Law. The father can withhold consent to adoption; he can appoint a guardian; he can give legal authorisation for medical treatment, and so on. Clearly, if what we really mean by parental responsibility is parental rights, then there is a strong case for restricting those rights to those fathers who have made a strong and public commitment to their child.
So what does the law say about fathers who have not made such a commitment and do not have parental responsibility? The answer is not much. The Child Support Agency legislation sends a message, but one that is not being clearly heard by fathers, who resent it and think that it is unfair, rather like the poll tax. We do not have any clear message or picture, in legislation or anywhere else, of what our society believes to be the responsibilities of an unmarried father who does not have parental responsibility. Therefore, it is extremely important that we should be quite clear at all points in the Bill whether we are talking about fathers who have parental responsibilities or whether the word "parent" is inclusive of those who do not. I shall come to that point in a moment.
In my view, the law should make a distinction between parental rights in relation to the child and his property on the one hand, and the basic duties of all parents towards their child imposed by natural law or by the general consensus of society. In case anyone were to ask what society has to do with it, the answer is that society has a major stake in this issue. It is society that has to pick up the tag when things go wrong and it is society's future that suffers when children do not get the nurture, education, care and love that they need. I ask the Minister what is the Government's attitude to developing new legislation? There was a wild moment when I thought of tabling an amendment to the Bill to ask that, but your Lordships will doubtless be delighted that I saw the light and did not do so. What is the Government's attitude to developing new legislation to make the law in this area more in tune with the real world we live in today?
However, accepting that the law is as it is at the moment, I turn to my amendments. Amendment No. 35 asks for a clear definition of whether subsection (2) means all birth fathers, or only those with parental responsibility. The second edition of Family Law suggests that there may be as many as 1 million fathers who carry out a parental role without having parental responsibility. Of course, subjection (2) refers only to underage fathers; does the Minister have a figure for the approximate number of minors who would be covered by this subsection?
I turn to Amendment No. 31, which raises a rather more complex matter. The Bill rightly confirms that when the courts consider issues of contact or contact activities, the welfare of the child should be paramount. That is of course a very sound basic principle to which we all subscribe. But in many cases it will be possible to have regard to that paramountcy
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within the framework of two or more different practical arrangements for contact. In that context, if for no other, due regard should be given to the wishes of parents and, in my view more importantly, to the duties and obligations of each parent towards the child. Here, I emphasise "duties and obligations", particularly in the context of the father who does not have parental responsibilities. I should like a response from the Government on whether they consider that such a father has any responsibilities, duties or obligations to his child.
Except in cases where the court has justifiable fears for the safety or well-being of the child, I believe that it should not unreasonably frustrate parents' efforts to do their best for their child. When I tabled the amendment, I had in mind a father's responsibilities which might have been frustrated by inadequate or inappropriate access, but subsequently it occurred to me that there might be other occasions when such a clause might be protective of the mother's obligations and interests.
Finally, if the amendment is not strictly necessary in law, there is an argument for including it. I believe that it would be valuable in directing more attention to the duties which all parents have to their children. It would encourage parents to see their role and responsibilities in securing the well-being of their child as being important and recognised by society. I beg to move.
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