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The noble Baroness said: We must keep reminding ourselves that this Bill is about children, even though elements of it are about the mechanics of procedure that affect adults. We must therefore keep in mind that the court should be informed of the child's wishes and feelings at every stage in contact proceedings, including the enforcement of contact where that becomes necessary. That is particularly so when contact arrangements are monitored, reports prepared and courts considering whether or not to enforce contact.
That is vital in cases involving domestic violence or child abuse where one parent sometimes refuses to comply with contact arrangements specifically because their child is terrified at having to spend time with a violent, non-resident parent. The child's wishes and feelings are an important source of information in trying to establish the cause of non-compliance.
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The amendment is intended to enshrine in the Bill the need to consider the child's wishes and feelings at every appropriate point. That is necessary because very few children in private law family proceedings have separate representation, and there is still no date for the implementation of Section 122 of the Adoption and Children Act 2002, which would require the court to consider whether the child needs separate representation. Perhaps, in replying, the Minister could tell us when these important provisions will be implemented.
In 2003, a survey of 178 refuge organisations in England and Wales found that only 6 per cent of them thought that children were listened to and taken seriously if they said that they did not want contact with a violent parent. Perhaps we all think that we know better than the child. My contention is that we do not. We should listen to the child.
Likewise, the recent joint chief inspectors' report on safeguarding children mentioned that, within CAFCASS, children had little or no say in formal arrangements of matters such as contact. The report again found evidence that children wished to be more involved. They had very strong views about everything to do with contact and we should listen to them. We will, of course, be debating this matter at greater length tomorrow in the important debate of the noble Earl, Lord Listowel, about the joint chief inspectors' report.
It is time that the voice of the child was put into the Bill in every possible place. We felt, in looking at the Bill, that there were some places where it should, but does not, appear. That is why we have put down this group of four amendments. I beg to move.
Earl Howe : I always listen with great attention to the noble Baroness, Lady Walmsley, and I found a great deal of what she said very powerful. However, I am sorry to sound a slightly dissenting note in respect of some of what she said. I think that there are several difficulties with Amendments Nos. 67 and 88.
Listening to the wishes and feelings of the child is nowadays accepted as a given in situations involving adoption, care proceedings or child protection. I have no difficulty with that in most circumstancesindeed, I have argued for it in the pastbut in circumstances where two parents have separated the position is not so straightforward. To ask a child how he feels about his situation and about each of his parents is not a process that is likely to elicit an objective statement. A child who has been separated from one or other parent is subject to influences that are as numerous as they are subtlesometimes the influences are not so subtleand it is very difficult to expect a child to come up with answers and comments that do not in some way require interpretation by reference to a whole range of extraneous matters.
It is the same if you ask the average child whether he wants to go to school. The child may well say that he does not, but that is not an answer which has much practical value. Just because a child says that he does
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not want to go to school there is no reason to say that going to school is the wrong thing for the child to be doing. You need to look behind the answers to see what has prompted them, and you need to look carefully at the child's circumstances. So if you have a child who says that he does not want to stay the night with his father, that statement needs to be interpreted in the light of all kinds of prevailing factors; it is not a statement that should be accepted at face value. Therefore, in practice, asking the child how he feels about this or that is a recipe for delayand that gets you very little further forward, at least not without a great deal of extra work.
I have another problem with this. To say that the views of the child should be sought in all circumstancesno matter what the circumstances are and no matter how old the child isis an ethically questionable proposition. I have a great deal of sympathy with the suggestion put forward by the noble Earl, Lord Listowel, that we need more research in this areaI agree with him on thatbut I am instinctively uncomfortable with the thought of involving children in legal proceedings unless the circumstances are such as to make this absolutely essential. There are situations where it is necessary to question a child on matters of factfor example, where violent behaviour has been alleged. I fully accept that, but when the level of contact is being determined or, indeed, when an enforcement order is being applied for, to require a child to express an opinion to the court about one or other of his parents, which is effectively what Amendments Nos. 67 and 88 propose, seems to me to be a morally repugnant idea. I have put that in very strong terms, but I do not believe that a child should be put in that position unless there is a very good reason indeed.
Baroness Pitkeathley: Without necessarily expressing an opinion as to the efficacy of these amendments, it seems to me that the two contributions we have heard from the noble Earl and the noble Baroness indicate the difficulty that we face in this area. We have to remember that with skilled workers and skilled operators it is never a simple question of saying to a child, "Do you want this parent or that parent?". It is a question of dealing with the history of the situation, with not asking direct questions and with getting inside what is going on in the emotions and relationships in that family.
Although I am the very first to admit that CAFCASS has not yet done enough work on this topic, we now have the appointment of a children's rights director and we have carried out some very effective work with hearing children's voices. We should concentrate on that and not on the issue of asking a child to make a decision or express an opinion. We should find waysthrough training, development and through more research, as the noble Earl suggestsof enabling children to express their views without direct confrontation.
Baroness Walmsley: I am most grateful to the noble Baroness, Lady Pitkeathley, who has not managed to get back here yet, for intervening earlier. I was about to rise and explain, in response to the comments of the noble Earl, Lord Howe, that in tabling these amendments, I have made some perfectly reasonable assumptions. I assumed that the children would have their wishes and feelings ascertained by a properly trained professional in a sensitive and age-appropriate manner, probably in their own home, and that it would be done in such a way, as the noble Baroness, Lady Pitkeathley, described, as to make it as stress-free as possible for the child.
The amendments do not say that the wishes and feelings of the child have to be absolutely paramount and that what has to be done must be exactly in line with them. However, we must know what those wishes and feelings are so that proper judgments can be made. The noble Earl referred to asking a child whether he wanted to go to school. Of course, the sensible decision is that while he may not want to go to school, he has to. One should look at the reason why the child did not want to go to school.
When a properly trained professional asks these questions in a sensitive and age-appropriate way, even if the answer is, "I don't want to choose between my parents"we probably all know children who have said thatthe professional will be able to probe a little to find out what is behind what the child is saying, and it must be taken into account. But if we do not know what those wishes and feelings are, we cannot take them into account. That is why it is essential to consider these amendments seriously. I look forward to the Minister's response.
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