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Baroness Barker: I add the weight of this side of the Committee to most of what the noble Earl has just said so eloquently. Having reflected on yesterday's proceedings in Committee, I shall explain why we
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believe that this is important. In moving Amendment No. 11 yesterday, my noble friend Lady Walmsley set out why we differ in some respects from the position that has been taken by the Conservatives. We wish to be far less prescriptive about some of the definitions of reasonableness. But we do not disagree with the fundamental principles that the noble Earl outlined.
We should focus for a moment on why time is important. Time is important to parents because it is the commodity that enables them to be involved in the lives of their children and in other matters, such as decision-taking about aspects of their children's lives. Time is important because it enables them to have a quality of relationship that indirect contact does not permit. It is why the case law that the Minister spoke about yesterday is inadequate. The noble Earl, Lord Howe, has eloquently said that a presumption of contact is not a presumption of reasonable contact. It can be a minimal and indirect form of contact. I was struck yesterday by the accusation by the Minister that Members on this side of the Committee had quoted extremes, such as parents being allowed only annual written contact with their children. He said that he did not believe that a court would ever make a direction of that kind. I wondered then, and I wonder now, how does he know? How can he be so certain when we know that there are very many non-resident parents who have spent every penny they have trying to attain reasonable contact?
Secondly, in yesterday's proceedings I was struck by the factI think I raised it briefly toward the end of our deliberationsthat every time Members of the Committee raised the question of reasonable contact, noble Lords on the other side raised the issue of safety. There is no disagreement. All Members of the Committee agree that safety is a paramount issue. If noble Lords care to go back and look at the amendments that we have tabled, they will see that they contain provisions that make it clear that issues of safety have to be dealt with. We are not talking about cases in which there are reasonable grounds to question safety.
In addressing these matters, I wish to take noble Lords back again to the House of Commons Constitutional Affairs Committee report on family justice. I urge noble Lords to read the section on contact, and in particular paragraphs 46 and 47. Having listened to a great deal of evidence on the matter, the committee stated:
"The United Nations Convention on the Rights of the Child declares the right of a child to have direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. We note that the present law already regards it to be in a child's best interests to sustain a full relationship with both parents, unless there are good reasons to the contrary. We consider that a clear statutory statement of this principle would encourage resident parents to assume in most cases that contact should be taking place.
"We understand the problems which would be caused by conflicting legal presumptions. The compromise proposed by the judges, to have a strong guideline that the court should have regard to the importance of a relationship between the children and a non-residential parent, has a great deal to recommend it. The simplest way of achieving this would be to amend the 'welfare checklist' in the Children Act 1989. We recommend the insertion
That is exactly what we are trying to do. We are trying to do it because case law is deficient and the more the Minister protested its strength yesterday, the less convincing his argument looked. The importance of having this principle stated in the welfare checklist is to address the valid point made yesterday by the noble Baroness, Lady Howarth of Breckland, that what matters most is practice. That is what we are seeking to influence. Later in the proceedings, we will go on to look at what happens in court with regard to matters such as parenting time plans. We believe that it is important to have this principle in statute to make significant changes to practice that will be of benefit to children.
We believe that the current situation is not satisfactory. The Minister protested greatly yesterday that the powers already exist and that the Children Act 1989 does not need to be changed. Quite clearly it does, because it is not working. It is not working in a way that is harmful to children. That is why we are seeking to do what we wish to do. We are not seeking to fetter or constrain the courts in any way at all in deciding what is right for a child in individual cases, but we think that the principle needs to be there for the practice to change. This is the fundamental issue that noble Lords must consider and the one that we believe covers the rest of the Bill.
Lord Northbourne: I strongly support the view that has been expressed by both speakers. The current situation is not satisfactory, which is why we are spending hour after hour here, hammering away at this part of the Bill. Like the noble Earl, I view Clause 1 as not addressing the real problem. It addresses a small aspect of the problem, but not the real problem, which is to get more parents to agree, preferably between themselves, the way that they are going to work together to parent their child when they are living apart. I would rather not talk about contact; I would rather talk about parenting while living apart. Not all parents will be able to agree, and when they do not agree, it may be that some aspects of Clause 1 will have value, but they do not address the fundamental problem.
The first objective of the Bill should be to get more parents to recognise their joint responsibility early, before they start squabbling too much, and to realise their joint wish to do their best for the child in nearly every case. Then we have to look at the process that might achieve that objective. I believe that that includes very early intervention, the early education of parents about the nature and problems of separate parenting, and early encouragement to reach agreement because it will be much worse if they go to court. At the moment, people feel that if they go to court they can probably get a better deal. The presumption of shared parenting being ordered by the court if they fail to agree can be a powerful motivation.
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Unless we improve the quality and quantity of shared parentingnot just access, but shared parentingthis part of the Bill will have failed.
Baroness Howarth of Breckland: I do not have a prepared speech, but I obviously have to say something. I have thought very carefully overnight about what is "reasonable" and the word "meaningful", the two words which the noble Earl, Lord Howe, used yesterday. He said that when we are talking about "reasonable" we might talk about "meaningful".
We are really going over ground we covered yesterday. I have thought about it extraordinarily carefully, and I have not changed my position for this reason: we all have a common cause, as we said yesterday. That common cause, which has just been most eloquently outlined, is that both parents have as much contact with their children as possible, where appropriate.
I have not been talking about difficult or vulnerable parents throughout. We know from research that they make up the highest number who decide not to make decisions outside court. What one might call "ordinary families" end up in court, however, in extraordinarily fractious situations. At that point, the people making the decisions on behalf of those children cannot be fettered by anything, whether it is reasonable or meaningful, that might impede the paramountcy of the needs of the childthis is where not being a lawyer may colour my view. I see the noble Lord, Lord Northbourne, shake his head. That, however, is the view that I have come to after careful thought. I still believe that we should be looking at the paramountcy of the needs of the child.
I am reminded of the case, which many of the Committee must know about, of the judge who, after careful thought about a tremendous dispute between parents, decided that he had to allocate care to a particular parent. He said that was not just, but was in the best interests of the child. The friction between parents was so great that any meaningful contact would have involved damage to the child's emotional and psychological development.
That, however, does not mean that we should not be looking at improving contact. Like many noble Lords here, I have been contacted by and read the case files of people, and have had personal friends, who have had extraordinary difficulties in implementing contact orders. I thought that we were going to tackle that in Clause 2; that we were going to look at it and say that if contact is broken when it should not be, then we have a number of constraints and powers to ensure that the resident parent must comply.
Personally, I also wishand I said this in the Select Committeethat the Government had looked at the responsibilities of the non-resident parent. The noble Baroness, Lady Walmsley, alluded to that. In many of the cases I am involved in, the breakdown is because of the difficulty in getting a consistent pattern of contact by the non-resident parent. We have to look at the whole.
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I am concerned that we must improve the practice, and increase capacity, of involving parents in understanding the needs of their childrenseeing their children at allin their dispute. Our work is about enabling parents to focus on their children as well as their dispute. We know, from all the work that we do, that that enables them to make better decisions.
In Part 1, we have been discussing enabling the workers in this field to have a better chance to do that. I read the comments of the noble Earl, Lord Howe, that reasonableness is a word that is well understood by lawyersmaybe that is the flaw from which I am suffering. It makes me extremely concerned if it does anything to impede the paramountcy of the welfare of the child.
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