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Baroness Walmsley: I rise to speak to Amendment No. 124A, which should be read with Amendments Nos. 11, 12 and 13, which we tabled earlier, as they are a sort of package. I remind the Committee that those amendments sought to insert a presumption of reasonable contact, which was rebuttable unless there was a good reason why not. Our proposals would amend the Children Act 1989, which some might consider heresy; but, of course, it would not be the first time that that had been done, as it was done by the Children and Adoption Act. If there are good reasons, why not amend itand I believe that there are good reasons.
In responding to our Amendments Nos. 11, 12 and 13, the Minister asked us what was "reasonable" and said that we could not have "reasonable" in the Children Act 1989 if we did not define it. Well, I do not believe that that is really the case, because currently there is no definition of "contact"and that is what the law says at the moment. So if it is not necessary to define the law as it stands at the momentthat is, simply in terms of contactwhy should it be necessary to define "reasonable"? It is actually for the courts to do that, in the circumstances of the particular case; and
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of course we all know that all cases are different. However, given that our proposal is not strictly necessary, is it helpful? I believe that it is, which is why we have tabled this amendment, which bears some similarities to that moved by the noble Baroness, Lady Morris of Bolton.
We feel that it is helpful to lay down the process by which the Secretary of State will devise a normative framework, within which the sort of contact orders that it is considering will be devised. From that framework, the courts in their discretion can move in one or another direction, according to the circumstances of the family in question, but always under the primacy of the welfare and best interests of the child. That applies to our amendment, as it does to many other amendments tabled before the Committee.
Our amendment relates to the process of devising that normative framework and guidance for the courtswhich, as we all know, operates informally anyway. We have said that this is guidance for the courts, and undoubtedly it would be communicated to the parents by anyone working with them at the time, such as CAFCASS officers or even the court itself. Where we differ from the noble Baroness, Lady Morris, is that we believe that when the Secretary of State has consulted all the appropriate people, as mentioned in subsection (3) of our amendmentthe child development experts, the family courts, and any other person who appears to the Secretary of State to have an interest or expertise in the issueand when the guidelines have been put before Parliament for discussion, they are not necessarily set in tablets of stone. The Secretary of State can amend them later, if necessary, subject to the same consultations as he undertook when he devised the guidelines in the first place.
Our proposals would lower the emotional temperature of the discussions between the parents, because when they went into courtif they insisted on going to court and could not mediate or work things out for themselves, which we all know is far preferablethey would know what the court was likely to say to them at the end of the process, given the age, level of understanding of the child, circumstances with regard to geographical separation of the family, and all the other factors that the court rightly takes into account.
We want to set up the process in statute and it will be for the courts to operate it thereafter, as has been the case in every other Bill with which I have been involved. The process we are proposing today is not unusual; we come across it in many Bills that come before the House which involve criminal offences, the penalties for criminal offences and the setting up of guidelines within which the court must abide when coming to its conclusions.
It has at its heart the primacy of the welfare of the child. I find support for that in the Family Law Act 1996, which I have just cited to the Grand Committee,
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a statute which already exists. It states that it is to the benefit of the child to have proper contact with both its parents for the maintenance of as good a continuing relationship with its parents as possible. I hope the Minister will consider both amendmentsin particular that of the Liberal Democratsvery seriously and see this as a whole package, together with the amendments that we discussed last week about the rebuttal presumption of reasonable contact.
Lord Adonis: I will of course treat very seriously what the noble Baronesses have said, as they would rightly expect me to, as everything they have proposed is, in their view, geared to making outcomes better. So I shall give very serious consideration to what has been said.
Let me say at the outset that the issue is not whether it is proper to put a requirement such as this into the Billit would be perfectly proper to insert the word "reasonable" and the requirements referred tobut whether it would lead to better outcomes. It is because we are not convinced that it would lead to better outcomes that we do not support it.
"in the absence of evidence to the contrary, the welfare of the child will be best served by . . . his having regular contact with those who have parental responsibility for him and with other members of his family; and . . . the maintenance of as good a continuing relationship with his parents as is possible".
I should make it clear that that part and that section have never been commenced because the Government do not agree with them and do not believe that it would be right to bring them into being. Indeed, we considered repealing them in this Bill so that we would not have what appears to be a countervailing set of presumptions to the paramount interest of the child as set out in the 1989 Act. But we were advised that to repeal the whole of Part 2 of that Act in this Bill would be too wide to be within the scope of the Bill. So we do not regard that as a valid precedent because that piece of legislation has not commenced and we have no intention of commencing it.
As to the issues in regard to the guidance, both the noble Baronesses, Lady Morris and Lady Walmsley, are seeking to introducein a different way to the earlier amendments on Clause 1a duty to issue statutory guidance setting out specific arrangements which the courts are likely to observe when deciding on contact disputes. The points I would make are
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essentially the same as the ones I made last week. I know a weekend is a long time in politics but the Committee will be glad to hear that we have not changed our mind in this short period of time. As I said, we will reflect on the points that have been made in the debate today.
I shall boil down the arguments why we do not believe that it would improve the status quo to three. First, we believe that the statutory position as set out in Section 1 of the Children Act 1989 is the right one, requiring that decisions on the allocation of time should be taken according to the paramount interests of the child. We remain concerned that any qualification of that principle will subordinate the interests of the child to the preferences of their parents. That would be wrong, and could possibly be dangerous, as the noble Baroness, Lady Howarth, said in our debates last week.
Secondly, we believe that the courts seek to apply the principle of the Children Act 1989 conscientiously across the huge variety of different specific cases with which they have to deal. They have established a position in case law that appears to us to be rightthat children normally benefit from a meaningful relationship with both parents following separation, provided that it is safe and in their best interests to do so. No evidence was offered to the Committee last week, or today, that the courts are not making reasonable contact arrangements in accordance with case law developed under the Children Act 1989. On the contrary, we note that all but 1 per cent of requests for contact lead to the making of contact orders, and we would need evidence that the current system is not achieving what Parliament intended to justify a change in the law.
Thirdly, the judiciary is not calling for the change proposed, even though those who work in family law courts regard the promotion of the best possible contact arrangements consistent with the safety and wellbeing of the child as their main concern. On the contrary, the judges are specifically warning us against it. What the judiciary is calling for are two crucial changes that are made in the Bill: namely, the new contact activities and the better means to enforce contact orders so that the contact decided by the court happens.
So the question is how statutory guidance as proposed in the amendments would make things better. We look forward to any further views and evidence that the noble Baronesses, Lady Morris and Lady Walmsley, can provide us with. We see this as a dialogue that we are prepared to continue before we come to Report. But every time we look at this issue, we still come up against the same two basic points.
First, if the intention behind this amendmentinserting guidance in the preparation of parenting plans as to the likely decision the court would make in certain circumstances in the allocation of time between parentsis simply to tell the courts to do what they are doing now in how they approach decisions on allocation of time, what is to be gained? It is simply a reinforcement of the status quo with the huge
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difficultyif not impossibility, given the very large range of circumstances that we are dealing withof clarifying what are described in the amendment before us as,
Secondly, if the intention is to change the presumptionas was clearly the drift of the comments made by the noble Baroness, Lady Morris, and the noble Earl, Lord Howe, last week, when we considered amendments proposing a minimum contact period of one-third as being the norm, and some implied that that should be higher stillhow are we to square that with the safety of the child and with his best interests, which is the paramount consideration set out in Clause 1 of the 1989 Act?
We are not attracted to this new approach, but we are always keen to be constructive. If the noble Baronesses, Lady Morris and Lady Walmsley, want to give us more evidence of the respects in which they regard the current system as unsatisfactory and which are likely to be met in a way that does not compromise the paramount interests of the child, we will consider it further.
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