| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Earl of Listowel: My Lords, I thank the noble Earl, Lord Howe, for putting the case so eloquently for his amendment. As Anthony Douglas, the chief executive of the Child and Family Court Advisory Support Service, has said to me, 30 to 50 per cent of these cases are fairly straightforward, and the rest are complex cases verging on public law. As I said before, there is a balance to be struck between the hell of a child not having reasonable contact, so he cannot be read a bedtime story by his father, and the other hell of him or her being caught in a continual conflict between warring parents. It is a difficult balance to get right.
Several of your Lordships have referred to the HMICA report. In chapter 3, regarding domestic violence, it says:
"Practitioners and managers told Inspectors that, whilst they may not always agree with it, private law practice is driven by what is known as 'the presumption of contact' . . . Inspectors were told by practitioners that 'the presumption of contact is so strong. It makes it difficult to challenge and we don't give adequate attention to the continuing impact of the abuse on the child'".
This is a report on domestic violence, but its findings are relevant to a wider group of families in these proceedings. My assessment of the report is that it underlines that CAFCASS, as the noble Earl has said, is faulty and struggling in several ways. I was glad that the chief executive, Anthony Douglas, acknowledged the strength of the report in this chapter, and that there is a lot of work to be done at CAFCASS.
There is such a strong presumption of contact that not only the safety of children but also their welfare is being put to one side, in a drive to get contact between parents as far as possible. There is a balance to be struck but the report suggests that the balance is not being struck and that it is going too much in one direction. I am concerned that the amendment, with its laudable aims, would push the balance too far in the wrong direction at the current time and in the current context. I look forward to the Minister's response to the amendment.
Baroness Ashton of Upholland: My Lords, I shall not repeat what I said in our previous discussions on presumption. I firmly believe that the paramountcy principle must be crystal clear within the Children Act. In moving their amendments I know that noble Lords do not seek to dilute that, but it is quite clear that that would happen. So it is very difficult for the Government to say anything other than that they cannot accept the move in that direction. It is absolutely clear to us that a child's interests must come first.
Noble Lords have focused heavily, for very good reasons, on issues of violence, and will probably know that the NSPCC has indicated its strong opposition to the presumption of reasonable contact. The noble Baroness, Lady Walmsley, is an ambassador for the NSPCC. It believes that the problems identified in the
14 Nov 2005 : Column 861
report, to which the noble Earl referred, would deepen if shared contact were observed to be prioritised over the risk of domestic violence. The NSPCC has made a statement, of which I shall ensure noble Lords have sight, to explain its reasons for doing that.
We shall consider the important issue of domestic violence and the role of CAFCASS and we welcome the amendments that will be tabled—I do not want to say too much. We start from the principle that the child's interests must come first. I would be as appalled as the noble Earl if, because a dad lost a sock or fed the children a Chinese takeaway or whatever, the courts did anything other than dismiss any claim.
Earl Howe: My Lords, those are real examples.
Baroness Ashton of Upholland: My Lords, I thought the noble Earl would say that, but we do not know what else was going on at the same time. It is absolutely right and proper that we ensure that the courts act in the best interests of the child. The noble Earl says that those are real examples, but we do not know what else was happening. I have indicated all along that we need evidence to ensure that we are correct. I believe that the time has come for us to look very carefully at repudiating some of the anecdotal evidence or to consider carefully what has happened in the courts. To understand more about the process we shall research what happens when the courts start with a desire for contact and see what the final orders are. Noble Lords will know that we are also considering transparency in the family courts, a matter for which I am responsible.
Baroness Walmsley: My Lords, can the Minister give the House a timescale for that research?
Baroness Ashton of Upholland: My Lords, the noble Baroness will not be surprised that I cannot do that. I have only just decided to do that in the past two or three days. It resulted from the conversations I have had with noble Lords through the passage of this Bill. To a degree, we are faced with an anecdotal base for some of this work. I recognise that the courts do a fantastic job—I believe that noble Lords would agree with that. None the less, we need to understand anecdotal stories that abound about what happens. I put it no higher than that. I shall write to the noble Baroness and to the noble Earl to explain what we may be able to do and I shall invite their comments. I stand by what I said, that I do not believe that it is right and proper for a child to be denied access because a dad lost a sock. If I worked on that basis my children would never see me at all.
Turning to the "reasonable" amendment, I hope the noble Earl will not mind me saying that it is slightly paradoxical. In making decisions, the courts consider that what they have done is reasonable. So if we say to the courts that what they currently do is not reasonable and, therefore, we want them to do something that is reasonable—but they believe they are being reasonable, as they are trying to make reasonable decisions—I am not sure where that would get us.
14 Nov 2005 : Column 862
More importantly, I think what the noble Earl's amendment says is that it is for the resident parent to allow reasonable contact. Therefore, the courts would order the resident parent to give reasonable contact. The effect of the amendment is that the resident parent would determine what is reasonable. I do not think that is at all what the noble Earl intended. However, I believe that would be the effect of his amendment. I hope, therefore, that the noble Earl will think very carefully about it. Indeed, it would not achieve at all what the noble Earl seeks, rather it would do something entirely different. That is certainly my interpretation of the amendment.
The survey to which the noble Baroness, Lady Howarth, referred looked specifically at cases at the hardest end. It is important to understand that. I pay tribute to CAFCASS which discovered that before court proceedings 36 per cent of fathers in the sample had no contact, but that by the end of the court process, thanks to the work of CAFCASS officers, that figure dropped to 8 per cent. That survey indicates strongly the tremendous work that CAFCASS staff do all the time. As we have already indicated, of all the contact applications in 2004, less than 1 per cent resulted in a court order for no contact.
I turn to the amendments of the noble Lord, Lord Northbourne. I sympathise entirely with what the noble Lord seeks to do. I had the benefit of having a previous conversation on the matter with the noble Lord. I cannot accept the amendments because I cannot accept the amendments that they seek to amend due to the difficulties which we have with the presumption. However, I understand entirely what the noble Lord seeks to do, which is to state that the purpose of contact is ultimately to benefit the child. Ultimately, that is what it is for. Good contact with both parents, where that works well and there are no safety issues, is critically important.
The noble Baroness, Lady Walmsley, was keen to have further discussion with the noble Earl on Amendment No. 6. The difficulty is that the "no order" principle is designed in part to deal with the situation where parents agree. Where parents are clearly about to agree, or an agreement has been reached, the court will not make an order, partly because orders can in some ways drive up a conflict rather than resolve it. It would be a pity to move away from that. It is not a "no order" principle in the sense of not making a decision; it is designed specifically for the situation where parents reach an agreement. The court then has the ability to say, "In that case we shall not make an order". I do not think that the purpose of the amendment is to upset that opportunity. If an agreement had been reached, it would be very odd to try to impose a condition on it, but that, sadly, would be the effect of the amendment. The amendment has a further problem in that it contains no reference to a parent, so it would enable anyone to apply for contact. I do not think that is what is intended. I hope that noble Lords will understand that we consider that the amendment would increase rather than reduce conflict. I do not think that is what the noble Earl or the noble Baroness sought to do.
14 Nov 2005 : Column 863
This is an important group of amendments. As with the earlier group of amendments, we believe that it is critically important that the paramountcy principle is crystal clear to the courts. We believe—and we consider that this belief is shared—that for the vast majority of children it is obviously in their best interests to see both parents and to have a loving strong relationship with them. Therefore, there should be no conflict in the courts between the desire of parents and the desire to see the children get the best possible deal except where safety issues arise. Of course it needs to be recognised that children have their needs as well. We have talked about the different needs of children at different ages. This matter is trapped in a big conflict between two adults who have ended up in court and who will be seeking different outcomes, and who frankly may not get everything that they want in terms of contact. It is also true that the resident parent may not get everything that he or she wants either, which may lead to anger. Taking the child's interests into account is precisely what we should be doing.
I have said that I am keen to look carefully at what is happening around the court system in order to deal in a proper way with some of the anecdotal issues that come to light. I shall write and set out how I propose to do that. On the basis of the unintended consequences of how the amendments are framed, I hope that the noble Earl will feel that he does not want to achieve what the amendments would achieve, if I may put it that way, and accept that the noble Lord, Lord Northbourne, is seeking to do something that would be more acceptable to me. But, even by amending them, we would still run into the problem that the question of presumption runs against the paramountcy principle in a way that would not work. On that basis, I hope that the noble Earl will withdraw his amendment.
5.15 pm
| Next Section | Back to Table of Contents | Lords Hansard Home Page |