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The Deputy Chairman: The noble Lord, Lord McKenzie of Luton, is now on his feet in the House. The Grand Committee therefore stands adjourned until five minutes after the conclusion of the Statement on preparations for an influenza pandemic.
"( ) the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
( ) the person whose contact with the child concerned is provided for in the contact order;"
The noble Baroness said: When we discussed the content of this amendment with the Minister in a meeting that he was kind enough to give us, for which we are grateful, he pointed out that we did not need it because the welfare of the child was paramount in the Bill. However, we tabled the amendment anyway because we would like the Government to explain to us how they are going to ensure that any enforcement order does not simply enforce the contact but does it in a way that is not contrary to the welfare of the child. We have in mind situations in which the child will be deprived of contact with its parent because of obligations placed on the parent by the childor the family's income will be adversely affected, or something of that nature. I am sure that the Government have thought of that, but I hope that the Minister will take this opportunity to explain to the Committee how they will ensure that no enforcement is carried out that adversely affects the child and its contact and relationship with the parent. I beg to move.
Earl Howe: I very much support the sentiments behind the amendment. It is not my desire to pour cold water on the provisions of Clause 4, because I believe that in certain circumstances enforcement orders will have some utility, and I am well aware that members of the judiciary believe that. The possibility of an enforcement order may have some deterrent value. But what I equally think is that enforcement orders will not be the salvation that many fathers' groups, for example, have imagined that they will be.
New Clause 11J(2) says that the court has to be satisfied beyond reasonable doubt that there was a breach of the contact order in the first place. We should be clear that that is a very high hurdle to surmount. With many domestic events there is no evidence. It is true that if a breach occurs on a Saturday, it is still clear on the following Monday what happened; but if, as the aggrieved parent, you apply to the court to have an enforcement order determined, you will probably have to wait four to six weeks for a hearing. Usually an order is not determined at that
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juncture. The court will often order that there should be another hearing in another six weeks' time, when the application will be heard. So you end up presenting your complaint to the court some three months after the event itself took placebut it can be longer than that. At that point, the original breach is many weeks, if not months, in the past, and the truth of what happened on a Saturday three months ago has been obscured by lies and fibs. It is one person's word against another's. No one has any proof of what actually happened and such first-hand evidence as there is is contradicted by the defending party. It is very difficult to resolve that sort of impasse. The defending party may be lying their head off but you cannot prove it. You cannot product photographic evidence that someone failed to show up at a rendezvous when they were supposed to have done, yet the resident parent can often brazenly maintain, "I was there waiting, where were you?"
Reasonable doubt is difficult to establish in those circumstances. As a generality, the family courts are not really geared up to determining issues of fact. If these orders are to work at all, the courts will need to adjust their procedures in some way, because at the moment, issues of fact tend to become the subject of a separate hearing, which is very cumbersome.
The matter does not end with one disagreement. If we imagine a court hearing three months down the track from a breach of a contact order, the original breach may by that time have been overlaid by numerous subsequent breaches. Emboldened by the first breach, the resident parent is able to dream up all manner of ways to evade the strict terms of the order, whether by telling lies or by genuine excuses. You will hear things such as, "I never got the message", "I thought the arrangements had been changed" or "The car broke down". Not infrequently, when the non-resident parent gets to court, he will be contemplating a whole series of missed meetings and a lengthy period of non-contact. It is difficult for him to counter the excuses and the reasons put forward. And what does the resident parent do? She arguesI am assuming it is the motherto the judge that there have been one or two missed appointments which she could not help because of this or that, but Johnny has been so much better in himself recently, ever since his life has not been disrupted by visits to his father. In that way, it is established in the mind of the court that there is a new status quo, one which the court cannot ignore. In those circumstances, a judge may well find that the excuses have been proven on the balance of probabilities, as the Bill says, which is not a high hurdle. Furthermore, in the interests of the child, an order confirming the original level of contact looks quite difficult to justify.
Under the current system, time and again, a resident parent will argue to the court that contact should be reduced for the benefit of the child. Very often this is precisely what the court orders. I see nothing in the Bill to prevent such a pattern being perpetuated. That raises all sorts of questions. Has any provision been made to ensure that hearings about alleged breaches of contact orders are expedited more speedily than they are at present? If so, what has been done? Since the
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original proposals for enforcement orders were made, whom have the Government consulted about the practical implications of what is contained in the clause? What do lawyers think about the practical consequences of the provisions? Those to whom I have spoken have said that this is an inbuilt incentive to litigate and a recipe for clogging up the courts. If the Minister does not think that that is likely to happen, perhaps he can tell us why.
This may not be the reassurance that the noble Baroness wanted, but in my judgment it is in part precisely because the paramountcy of the child has not been affected in any way by Clause 4 that it will be all too easy for a parent to argue their way out of having an enforcement order imposed upon them. Assisting the parent towards that end will be the inbuilt delays in the legal process and the two thresholds of proof specified in subsections (2) and (4).
I am informed that new Clause 11J(2) sets a "beyond reasonable doubt" test because it must comply with Article 6 of the European Convention on Human Rights, which is the right to a fair trial. The penalties provided in this clause for breaches of enforcement orders are of a criminal typethat is, the unpaid work requirementsand a criminal standard of proof is therefore required. It would not be in accordance with the convention if we did not provide for a reasonable doubt test.
On the further measures that will enable the courts to cut through the evasion of judicial jurisdiction and the kind of defiance the noble Earl was describing, the capacity of the courts to offer "salvation", as he put it, is always limited, as salvation is not to be sought by any judicial remedy and probably not by any other remedy either. However, the monitoring arrangements that we discussed last week in Grand Committee are much more extensive than those provided before. They include the power for CAFCASS to bring cases back to court, the power for the court to extend monitoring arrangements for longer than a year if it regards that as a useful or, in some cases, essential tool in order to police the enforcement or oversight of contact orders. We believe that that regime will improve the capacity of the courts to judge what is going on and to react more swiftly than has been the case in the past when dealing with the observation of contact orders.
I cannot give the noble Earl a direct response now on what we are doing to ensure that hearings of fact are expedited more speedily or on who we have consulted on these practical issues. I will do so after the Grand Committee.
The noble Baroness, Lady Walmsley, raised the wider issue underpinning this clause; that is, whether the interests of the child should be a material consideration or paramount. This is a difficult and
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complex issue that my noble friend Lady Ashton and I have spent a good deal of time grappling with. On the face of it, the case made by the noble Baroness and others is compelling. If the interests of the child are paramount when a contact order is made and any issue to do with the child should correspond to that principle, then, on the face of it, it should be right and reasonable that the same principle should apply when deciding any issues to do with enforcement orders and we should not have a lesser principle. However, we have given this significant consideration and we believe that the position as set out in the Bill is right: that the court should have regard to the welfare of the child, rather than it being of paramount importance in the specific case of enforcement orders.
The first point is clear: an enforcement order may be made only if a contact order has previously been made and breached. Therefore, the courts will already have been through the process of evaluating the paramount interests of the child when deciding whether to make an initial contact order. Later, when faced with a case where a contact order has been breached, the primary question before the court is whether, and what, action should be taken against the adult in breach of the order if the contact order is to be made to work. At this second enforcement stage, the child's welfare remains a central consideration, but the strong judicial advice given to us and to the Joint Select Committee that looked at the Bill in draft was that we should separate the paramount interests of the child, which govern the contact regime as a whole, from the specific short-term effects of enforcing compliance with an enforcement order that may involve some difficulty or disruption for the child, but only to a degree that the court judges to be acceptable and proportionate to re-establish the overall contact regime which is still judged by the court to be in the child's paramount interest.
In evidence to the Joint Committee on the draft Bill, Anthony Kirk QC, deputy chairman of the Family Law Bar Association, when asked if there was a clash between the Bill's provisions for enforcement orders and the paramountcy principle, said:
"I do not think there is. Of course, you take into account the child's welfare, but, at the end of the day, if you have made a contact order which is not being obeyed . . . if that contact is going to be frustrated, it has to be sorted out and put right".
Indeed, I thought from what the noble Earl was saying that he thought that, in some respects, these provisions were not strong enough. But the judiciary is certainly saying that it needs to have the powers necessary to ensure compliance with the orders of court.
"there is a public policy element. Once an order has been made, then the court has a public interest in seeing that that order is enforced. Obviously, you do take into account the welfare of the child, but not to be paramount, and there are many occasions, many other applications in which welfare is not the paramount consideration".
Those views reflect the position established by case law in the Court of Appeal judgment in the case of A v N in 1997, which related to contempt of court proceedings leading to imprisonment for flagrant and repeated breaches of a contact order by a mother, denying the child the right to see his father. In that case, Lord Justice Ward said:
"when considering whether to commit a mother to prison for flagrant breach of court orders requiring a child to have contact with the father, the welfare of the child was a material consideration but not the paramount consideration".
The reasoning behind that is clear and, we believe, justifiable. While there might be a short-term negative impact on the child's welfare associated with their mother being imprisoned for contempt, this could reasonably be judged by a court to be outweighed by the impact of the breach of the contact order on the child's paramount interests in maintaining a close relationship with both parents, which the court had already established in making the original order.
Members of the Committee would say immediately that imprisonment would be used only in the most extreme and exceptional cases anyway. We entirely agree, which is why the Bill, in Clause 4, in response to the concerns of the judiciary, makes available a far wider range of enforcement powers short of imprisonment. An enforcement order requiring unpaid work, as in the Bill, is much less likely to impact adversely on a child's welfare than committal to prison for contempt, which is why we are proposing it as an alternative set of enforcement measures.
However, even in the case of requiring unpaid work, taking one of the parents out of the home for a period could still impact adversely on the immediate position of the child. The courts will need to make case-by-case judgments about how this is best handled and how the welfare of the child is to be safeguardedhence the distinction between the paramount interests in Section 7 of the Children Act 1989 and the requirements that take account of the interests of the child in this clause.
It cannot be stressed too much that the courts will of course need to think carefully, as they do in contempt proceedings, about the effect of an enforcement order on the child, and the two judges who I have quoted have recognised that fact. This will also be an issue for CAFCASS and the other agencies associated with a court in their dealings with the families concerned. Furthermore, the court does not have the power simply to enforce or not enforce in such cases. The court can exercise its power to vary a contact order if it believes that that is the best way forward in respect of the children. In this case, in any consideration of varying a contact order, the paramount interests of the child once again become the test to be taken into account, not simply the welfare of the child.
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I hope that I have been able to explain clearly our reasoning in this difficult area. I make no secret that this was a finely balanced decision by Ministers. There was much consideration over whether we should have the same test in both cases. It was on the strong advice of the judiciary about what would ensure a proper regime to secure compliance with contact orders that we reached our judgments.
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