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Lord Adonis: Perhaps I may deal with each of my noble friend's amendments in turn. I believe that I can offer her complete satisfaction on one amendment. It gets worse thereafter, but at least I shall start well.
Amendment No. 88A, which refers to the financial well-being of parents in breach of orders, would require the court, in making an enforcement order, to obtain information about the effect of any loss of income on the person concerned and any children living with them. We agree that it should do so. We believe that the Bill already provides for that fully in new Section 11L(3) and (4), which require explicitly that the court must obtain information about the times when the person concerned normally works before making a contact order. The aim of this is to give the courts the information that will enable them to avoid orders being made that would conflict with the person's work and so lose them much needed income, unless they regard this as a simply unavoidable requirement in order to ensure an adequate penalty.
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I hope I have reassured my noble friend on that point and that she is now content that we will meet our 2010 targets.
As to Amendment No. 87AI am afraid it gets worse from here onthis would require the courts, before making an enforcement order for unpaid work, to be satisfied that the order is to the benefit of the child about whom the contact order has been made. Our view is that the enforcement should, of course, ultimately benefit the child, as I described earlier. The court will have already decided, through the contact order, what will most benefit the child's welfarethat is, contact with the person named in the orderbut when considering an enforcement order the court is faced with a situation where the order has been breached and, because of that, the child is not getting the contact which the court determined he or she needed in the first place.
However, there is a need for proportionality, which is why the Bill requires that the order must be proportionate and no more than is required to ensure compliance with the contact order. This latter point is particularly important as it prevents the court making an enforcement order that is not essential if the needs of the child identified in the contact order are to be met.
Amendments Nos. 88B and 111A would require courts, in making enforcement orders or financial compensation orders, to have regard not only to the welfare of the child concerned but also to the welfare of any other children living with the person affected by the order. We well understand the concerns raised by my noble friend. After all, the impact of sanctions for breaching a contact order will be felt by other children, not only the child with whom the contact order is concerned.
However, we believe it important to keep the Bill itself focused, in line with the rest of the Children Act, including the paramountcy principle in Section 1, on the child who is the subject of court proceedings. The court is being asked to make an order as regards the best interests of particular children, or a particular child, and must therefore operate on that basis. But, of course, the effect on any other children is relevant, and we fully expect that the courts will in practice take into consideration that factor as part of obtaining information about the person concerned before making an order, which they are required to do under the Bill. However, we do not feel it right to put into primary legislation the requirement to take account of the interests of other children, because we feel that that would deflect from the central purpose of the Bill in respect of the children who are the subject of the orders. I hope that I have been able to give my noble friend some satisfaction.
Baroness Thornton: I thank the Minister for that answer. There is a small amount of satisfaction involved here, but I have heard before the wordsthat in practice the courts will take other children into considerationand my heart rather sinks when I hear them, because we know that they mean that there will be a patchy response by the courts. Some will take
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them into account and some will not; so we know that, unless the provision is in the Bill, it may or may not happen. However, I beg leave to withdraw the amendment.
The noble Lord said: In moving Amendment No. 89, I shall speak also to Amendments Nos. 90, 92, 93, 98 and 99. These are straightforward government amendments to facilitate the flow of information to and from the relevant CAFCASS officer and the officer with day-to-day responsibility for allocating work to, and supervising, an individual subject to an enforcement order.
The system envisaged would be that, when an enforcement order is made, the court must ask CAFCASS, or a Welsh family proceedings officer in Wales, to monitor, or arrange the monitoring of, compliance with the order, and to report to the court on that compliance and any other matters specified. The CAFCASS officer may in turn request the "responsible officer"being the officer of the National Probation Service running the unpaid workto report on whether the person undertakes the work. If a person then breaches an order, they would normally be given a warning by the responsible officer, although the breach could be reported to the CAFCASS officer, and hence to the court, straightaway if the responsible officer judged that to be appropriate, which he might if the breach were particularly serious. On a subsequent breach, under the amendments, the CAFCASS officer will be informed that the person has breached the order, and has been given a warning for a previous breach. The CAFCASS officer will then report that to the family court, which might choose to re-list the case for a directions hearing. If a person entitled to do so applied to the court for action to be taken in relation to the breach of the enforcement order, the court would have the power, in certain circumstances, to make the enforcement order more onerous, or to impose a second enforcement order. Alternatively, the court may see fit to exercise its powers in relation to the contempt of court that would have been committed via the breaching of the enforcement order.
The Bill as introduced does not quite provide for this system, and the amendments have been introduced to ensure that it does provide as we intend for a proper system of monitoring and enforcement. I beg to move.
The big question is whether it will make a real difference to the number of resident parents who defy contact orders with impunity. Undoubtedly enforcement orders will have their place, but I have already explained why I believe that they will not be the panacea that many aggrieved parents suppose they will be.
For a non-resident parent, the hurdle of proving that there has been a breach of a contact order is a high one: it is the hurdle of "beyond reasonable doubt". If it is proved, the hurdle for the resident parent of proving that his or her excuse is reasonable is a low one. It is low because, in particular, these kinds of situations will be characterised by a lack of hard evidence and the difficulty of deciding between one person's word and another's on the balance of probabilities.
Even in a case where someone does not succeed in demonstrating to a judge that his or her excuse was reasonable, there are all kinds of get-outs. In the main, these are contained in new Section 11L. One is that the court must consider what effect an enforcement order is likely to have on the person on whom it is imposed. But more importantly perhaps, the effect of the enforcement order on the person must be proportionate to the seriousness of the breach of the contact order. The whole feel of this clause is of a cumbersome process, with plenty of opportunity for the defending parent to argue his or her way out of having to endure anything too draconian.
I cannot resist pointing out to the Minister the irony in some of the wording. The other day, he chided me for not having proposed a definition of the word "reasonable" and he resisted the incorporation of that word into the definition of "contact order". Yet here we have the word "reasonable" in new Section 11J(3) qualifying the word "excuse" without any further explanation. I have no problem with the term "reasonable excuse" sitting there by itself but, after all that the Minister has said, I am surprised that the Government do not.
The other day, I asked the Minister why the Bill did not reflect the requirement for proportionality contained in the EU convention on contact. If the Bill goes through amended, it will contain no requirement for proportionality whenever an order is made divesting a child of almost all contact with a parent. But when we come to consider applying penalties for breaching contact orders, suddenly there is a requirement for the penalty to be proportional. Again, I am perfectly happy with the idea of proportionality when sentencing any kind of offender, and I have no problem with it here. But it would seem that the Government are resisting the idea of it when a contact
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order is being decided in the first instance. At the risk of repeating myself too often, they are effectively saying that, because in a private law dispute a father has sent toys back dirty in a bag or has cooked cheese sauce for a child when the child does not like it, it is apparently all right to take the child away from him. We are back to where we were the other day when I stressed the fact that, under current law, all material contact can be brought to an end for no material reason.
I ask what good enforcement orders will do in many cases. I wonder whether they will not ultimately prove to be a self-defeating mechanism. To require mothers to undertake unpaid work will do nothing to help fathersapart from engendering a sense of Schadenfreudeand it will serve only to alienate mothers. The net result will be more heat, less light and more polarisation. More polarisation is decidedly not what we want to bring about. Warring parents are polarised enough already without it being made worse. I think back somewhat wistfully to the Government's Green Paper, which spoke on page 2 about,
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