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The Earl of Listowel: Clause 1, as far as I understand it, is a very helpful and instructive contribution to this area of law. I have listened to what my noble friend Lord Northbourne said and agreed with him absolutely. I hate to disagree with the noble Earl, Lord Howe, but the question for me is whether the provisions will be properly implemented and, to my mind, it seems to be in the interests of children that the clause is in the Bill.

Lord Adonis: We have gone over a lot of the ground that we covered yesterday, which I sense that we shall go over at Report. To some extent, we are starting to rehearse arguments that will be heard then.

The essential point that I should like to make is that the noble Earl, Lord Howe, and I are at one in one key aspect, which is that the Bill does not change the presumption about the allocation of time in decisions by courts on contact arrangements between parents after separation. It does not do that; it sticks with the 1989 Act and its requirements that the interests of the child should be paramount. It does not seek to do so—and we in no way seek to shirk from that fact. It is a point of complete agreement between us.

The issue is whether a change of the kind proposed by the noble Earl would make a significant difference in resolving disputes, and whether that would be the right and appropriate thing to do when reconciling his proposal with the paramount interests of the child. We believe that it would not be in the paramount interests of the child to set a fixed proportion of time, which would be a statutory presumption, and we do not believe that having such a statutory presumption would facilitate of itself the making of effective contact arrangements. That would be our contention.

After the Committee stage, I shall happily elaborate more on the case law, which will I hope enable a dialogue to take place between the noble Baroness, Lady Barker, and ourselves on this issue. I was not quite clear what position she was adopting, and I believe that dialogue would help to elucidate that too.
 
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The noble Earl said very clearly—and I shall study his words carefully in the Official Report—that a simple change in the law would bring about the objectives that he was declaring. He went on to say that that simple change was a statutory presumption of one-third contact. Is that not what he was saying?

Earl Howe: I gave as an illustration the 70-30 split, but it was merely an illustration. It was not intended that that should be a fixed proportion of time in every case.

Lord Adonis: Could the noble Earl tell us what the simple change in the law is, then?

Earl Howe: To insert one word—"reasonable".

Lord Adonis: In that case the key issue, which we can debate fully on Report but can discuss before, is what the noble Earl believes constitutes "reasonable". That is going to be the absolutely central issue. And I detected a difference between Members of the Committee on that issue. Among the amendments that the noble Earl and the noble Baroness, Lady Walmsley, moved yesterday, which had terms such as "co-parenting" and had implications of going to a 50-50 split, the noble Earl moved an amendment yesterday saying that the statutory presumption should be one-third. We cannot have this both ways—we have to define what reasonable is. The noble Earl has made a good attempt to define what he believes that reasonable should be.

This is an incredibly important area, because if we are going to start changing the law in a way that fundamentally affects the interests of hundreds of thousands of children, we shall have to explore the issue of what we shall tell the courts is reasonable. I did not detect that the noble Baronesses on the Liberal Democrat side thought that one-third as a statutory presumption, which would need to be taken account of before courts found countervailing reasons why it should not be the case, was reasonable. I did not detect that they thought that that was reasonable.

Baroness Walmsley: We do not.

Lord Adonis: In that case, a key issue before this proposal even gets past first base will be some agreement on what constitutes reasonable. Even in listening to this debate, with the noble Baroness, Lady Walmsley, agreeing with me that one-third would not be reasonable, makes it clear that at the moment there is no basis for agreement on what it should be.

I have visited the Inner London Family Proceedings Court and I have spoken to Judge Nicholas Crichton. I do not have as much experience as many Members of the Committee but I have seen only too much of these circumstances in the past. Of course feelings of deep unhappiness and deep bitterness abound in this area, and these lead to very emotional responses. The courts do not always get it right. One has only to look at some
 
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of the cases and the judgments that have been made to realise that in some cases the courts have had to revisit their own decisions.

The issue we will have to face at Report stage is whether having a new statutory presumption which significantly changes the status quo is of itself likely to lead to better contact arrangements and faster facilitation of contact decisions. Before we can discuss that, we need to know that what is being proposed is "reasonable" and intended to bring about a significant change in the status quo. It is quite clear that the noble Earl and the noble Baroness, Lady Morris, intend that and they have been very open about what it should be. From the best judicial advice we have had and the best advice we have had from those who deal with these cases day in, day out—such as the noble Baroness, Lady Howarth—it would seem that that would be a potentially dangerous, and certainly problematic, thing to do. Once we see the proposal on the table I hope the debate will, to some extent, focus on that rather than on a feeling that somehow there needs to be some change—undefined—and that simply inserting the word "reasonable" will bring about a transformation. Of course, in parenthesis, none of the judges that I have spoken to believe that their decisions in these areas are unreasonable; they all believe they are reasonable. So we shall return to that debate on Report, when we will have a clearer proposition before us as to what is "reasonable" or some agreement as to what the word on the face of an amendment seeks to achieve.

The noble Earl is right to say that the provisions in Clause 1 of the Bill do not change the presumption. However, we believe there are a series of provisions in it that will be deeply beneficial to the courts and to the parties involved before the courts in making these arrangements. These provisions have been asked for by the courts themselves over a long period of time; the judiciary has made repeated calls for them. I read before Second Reading, and again before the Committee stage, the report of Lord Justice Wall on making contact work, which led to many of the provisions in Clause 1 being available to the courts and so on. In this respect, the noble Earl, Lord Listowel, made the very powerful point that the provisions in Clause 1 would be helpful.

That is the case irrespective of the view that one takes about the issue of changing the statutory presumption on the allocation of contact time between parents. The judiciary has long argued that it should have powers to refer parents who are involved in contact disputes to activities such as parenting classes and information sessions, and that there should be much wider use of mediation. The Bill and Clause 1 will make certain that by ensuring that information is much more directly made available to the parties before the court in respect of mediation and that this would help them recognise the importance of contact for their children and help them make arrangements for contact to take place.
 
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The report of Lord Justice Wall states very clearly in paragraph 3.4:

that is the view of the Lord Chancellor's Advisory Board on Family Law, which included many leading practitioners in this area—

It is precisely in response to those calls by the judiciary that the arrangements set out in Clause 1 have been made.

They are not exclusive of other changes that need to be made. A whole range of other improvements, including in-court conciliation, parenting plans, help lines and accreditation, have been put in place following the parental separation Green Paper. Issues to do with the operation of the courts themselves are very important in making improvements on the ground, as the noble Earl, Lord Listowel, has said.

We believe that the measures set out in Clause 1 will be beneficial and have been called for by the judiciary. To respond to one of the points made by the noble Earl, they are not exclusive of the making of contact orders. The clause specifically makes possible the running of contact activities alongside contact orders. Of course, if the contact activities are worthwhile—as we expect they will be—they may well facilitate the observation of the contact orders in a much more effective way than has often been the case in the past. That meets the points raised earlier by the noble Baroness, Lady Walmsley. But we believe that the arrangements set out in Clause 1 will add significantly to the armoury of the courts in promoting agreement between parents and effective arrangements for children. We believe that to be the case irrespective of whether further changes should be made under the statutory presumption of the kind we have talked about. At present, we are not faced with a proposition for a change to the statutory presumption that it appears to us to be in the best interests of children to make. For all those reasons, I hope that Clause 1 will stand part of the Bill.

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