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The Earl of Listowel: I rise briefly to make, if I may, a little corrective. I know that the noble Earl, Lord Howe, has been very careful in discussing the difference between non-resident and resident parents, and I am aware that he made clear to us that he is generalising when he describes resident parents as mothers for the most part. By making that corrective, I simply reiterate that the resident parent can be the father, and I am sure that that is what the noble Earl meant. I need hardly say that, perhaps, but I feel it might be useful.
My second point relates to the difficulties to which the noble Earl, Lord Howe, referredthe cheese sauce and so on. He also referred to a number of other instances earlier in the Grand Committee. There has not been much reference so far to the problems caused when a non-resident parent does not turn up to collect the child on a weekend or when he arrives and there is a smell of alcohol on his breath. It hardly needs to be said, but I remind the Grand Committee that we need always to keep a balanced picture. I hope that is helpful.
Baroness Howarth of Breckland: I agree with the noble Earl, Lord Howe, in some respects in that there will be real difficulties with litigation in court in this area. I believe this was discussed in the Scrutiny Committee. I know that much of this is framed for legal reasons. Lawyers will know better than I why "reasonable" is used here and not in the other placeI am learning about why this isbut it causes problems, as it does in relation to paramountcy It is all bound up with the same argument about what happens in a particular court at a particular time.
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I hope that all noble Lords will press for early intervention. This may be at a primary, secondary or even tertiary stage and we should be trying at this stagewhich is almost a tertiary stageto ensure that there is
Baroness Howarth of Breckland: The core of the matter is that this is an extremely difficult part of the Bill and it will be difficult when it reaches the courts. The officers will find it complex to get the reports rightbut that is nothing new for CAFCASS officers. They have to operate at the present time and make reports in such contentious situations. The noble Baroness, Lady Pitkeathley, and I, in our positions in CAFCASS, have been lobbied by the judiciary which needs extra powers in those most difficult circumstances.
We are talking about only a few cases, not huge numbers, when the judges have struggled to ensure that a parent has proper access to a child, when they have been frustrated and when there are only two alternatives: one is to change the residenceand that has happened occasionally, when justices have decided to offer the residence to the other parentor to send the parent to prison. That is pretty radical. At least here we have some attempt to give a range of options before that fundamental position is reached. That is whydespite recognising the difficulties and all the debate that there will be in terms of there being a much more legalistic position, due to the criminal aspect of the findingsI support the clause.
Baroness Thornton: Will my noble friend address the issue of equity that I raised and which has been raised in the debate? If sauce for the goose should be sauce for the gander and if contact arrangements are not complied with by either party, action should be taken against either party.
Lord Adonis: Perhaps I can deal with that last point first and give fulsome apologies to my noble friend. I did not reply to her Amendment No. 106A, which aims to ensure that financial compensation orders can impact not only on resident parents who breach contact orders, but also on non-resident parents who fail to follow arrangements set out in those orders.
In response to that amendment, I want to make it clear that the Bill allows financial compensation orders to be applied to both resident and non-resident parents. The only condition is that they must have breached the contact order, which requires the court to name both parties in its orders. The court is entirely free to do so, and if it does, they can be enforced on both sides. But it is for the court to decide who it
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addresses orders to. There is nothing in the Bill that prevents them being enforced in respect of both parties.
On the issues raised in Clause 4, the noble Earl ranged very widely to sum up all our debates on the Bill, including issues to do with presumptions on contact, arrangements for the allocation of time in contact proceedings, and the efficacy or otherwise of the contact activities proposed in Clause 1. I am still feeling my way through this Committee and I am not sure how far I should repeat all the arguments I have given many times before in responding. If the noble Earl will forgive me, I shall simply say that I think we have the right provisions in respect of presumptions and contact time. I know he disagrees with this, but we believe that the contact activities set out in Clause 1 will be of benefit.
In parenthesis, I should say that as we get further through the Bill, I find that a lot of our differences are not as great as they might seem from the presentation of them. The noble Earl says, if I may paraphrase him, that the contact activities in Clause 1 do not amount to a row of beans but, as I understand it, one of the main contact activities that he is keen that we should prosecute more is mediation. We are entirely at one with him on this. There has been a significant increase in mediation and the contact activity, which will provide information about the mediation, will, we confidently expect, lead to a significant increase in the use of mediation in family disputes of this kind. I think that in these areas we may be closer together than it might seem, although I am sure that the noble Earl will wish to dispute that in a moment.
In so far as the issues to do with enforcement in Clause 4 are concerned, one can debate how beneficial these provisions will be. The noble Earl thinks that they may not be as beneficial as all that. But we are responding to a clear and strong call from the judiciary for these powers for precisely the reason that the noble Baroness, Lady Howarth, gave. They provide alternatives to the courts in enforcing these orders in very difficult caseswe hope that there will be a small number of them. They provide alternatives to imprisonment as the only recourse that the courts have to ensure that children have access to their parents as the courts determined in the first instance.
"fines and committal are not only crude methods of enforcement; they are wholly inadequate as a means of addressing the problem of contact orders which have not been implemented. The result is that the current system is seriously deficient in the means available to it to enforce its orders, and, in our judgment, the system needs swift and radical change . . . The most obvious change required, in our view, is for the courts to be given much wider powers to ensure that its orders are obeyed, or otherwise to facilitate their implementation. This means in turn that there must be legislation widening the powers of the courts to enable them, in addition to imposing fines or ordering imprisonment, to make a whole range of orders designed to meet the circumstances of the individual case".
"A fine is a waste of time because virtually nobody has any money. The second alternative is prisonand that must be a last resort, because it is not a good idea to put the carer of the child inside if you can avoid it . . . We are stymied at the moment, so we are enormously enthusiastic about the two stages of the Bill".
I am glad to say that a senior member of the judiciary is enormously enthusiastic about these provisions, and I hope that her enormous enthusiasm will in practice lead to some change in the way that these cases are dealt with to promote more and better contact between children and their parents.
Earl Howe: This has been a useful short debate, and I thank everyone who has contributed to it. The noble Earl, Lord Listowel, picked me up, quite rightly, on a couple of things I said, and I stand corrected. Indeed, I have been briefed by one non-resident parent, a mother, who has had to go back to court 34 times to try and gain contact with her children. The noble Earl is quite right that it is not only fathers. He is also right that non-resident parents can behave irresponsibly and fail to turn up to pre-arranged appointments. The emphasis that I was seeking to place was much more on those aggrieved parents who show up and seek to adhere to the contact order, only to be ignored or otherwise insulted by their former partner when that former partner does not adhere to the court order.
The noble Baroness, Lady Howarth, made some very useful points and gave us an insight, as she so often does, into the workings of CAFCASS. I agree that this is a difficult area for CAFCASS. It will no doubt rise to the challenge, but there is some work to be done in preparation for rolling out the provisions.
I always look for ways in which we can agree with the Government. The Minister is right about mediation. We are enthusiastic about it; the main difference between us is that we believe that when parents cannot agree, the initial part of the mediation process should be compulsory. You cannot force people to agree, but you can force them to think about some of the key issues that they would have to face if they proceeded to go to court. We are keen on mediation as a concept.
I also recognise what the Minister said about the judiciary, which has expressed enthusiasm for enforcement orders. I have spoken to Lord Justice Wall, and the Minister does not misrepresent him. He is very keen that there should be another string to the judiciary's bow, and who am I to dissent from that? I merely think that this may be more difficult in practice than some people envisage. I do not necessarily think that the judiciary is being na-veI am sure it is notbut maybe some of us are. With that, I think it is time to move on.
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