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Lord Northbourne: My Lords, it defeats me to understand how I can press an amendment to an amendment that does not exist.

I welcome the support of the noble Baroness, Lady Pitkeathley, on the importance of child-centredness, and that of the noble Baroness. I shall not press the amendment this afternoon, but if the noble Earl succeeds in his amendment, or perhaps redrafts it, I may come at it again to attempt to amend whatever he may have done at that time. In the mean time, I beg leave to withdraw the amendment.

Amendment No. 3, as an amendment to Amendment No. 2, by leave, withdrawn.

Earl Howe: My Lords, this has been an interesting debate and I am grateful to all who have spoken. The noble Lord, Lord Northbourne, asked me what adding the word "reasonable" would achieve. It would act as a signpost to anyone wishing to dispute a contact arrangement. The signpost would say that to challenge a contact arrangement, one would need to do so on the
 
14 Nov 2005 : Column 864
 
ground of reasonableness. The court, and in certain instances the Court of Appeal, would rule on what constituted a good reason and the circumstances in which the guidelines would apply.

The Government appear to believe that they can arrive at the same end point without that change. But they have omitted to see that unless we change the law in the kind of way that I propose, and have court-backed guidelines with a presumption of reasonable contact, there will be no incentive for a resident parent to reach an agreement out of court. Why? Because the resident parent knows, or will soon realise, that in the eyes of the court every case is different, and that all material contact can be brought to an end for no material reason. We have to move away from that.

The noble Baroness, Lady Howarth, challenged that interpretation. She said that in her experience non-resident parents do not have to argue for contact, but they feel as if they do. They feel it because they know that case law gives them a presumption of contact, and that is all. Many non-resident parents go back to court time after time to argue for the tiniest quantum of extra contact.

Baroness Howarth of Breckland: My Lords, I agree that many people find contact issue difficult. I believe that that is because we do not have the right kind of remedies to ensure that contact can be enforced. That is not the same as the initial contact orders being made with the paramountcy of the child in view. That is the difference.

Earl Howe: My Lords, as I made clear, I am not arguing against the paramountcy principle. In many cases there is no question of violence or risk to the child. but the non-resident parent cannot get the court to agree to extra contact. The reasons adduced are not what most people would regard as substantive.

The noble Baroness, Lady Ashton, resisted the idea that we could have a countervailing presumption to the paramountcy principle. If Ministers are really saying that, why on earth has the noble Lord, Lord Adonis, devoted considerable effort to setting out, in Grand Committee and in correspondence, the case law that clearly shows that there is already a presumption countervailing the paramountcy principle? It is a presumption of contact—not "reasonable contact", however. That presumption appears to exist perfectly happily side by side with the paramountcy principle. The courts have no difficulty operating on that basis, and the legal advice that I have received is that they should have no difficulty operating with a presumption of reasonable contact provided, as I propose, that that presumption is treated as subordinate to the paramountcy principle. Apparently, according to the Government, we can have a presumption in case law, but not in statute. I frankly find that incomprehensible.

It was said by a number of noble Lords, including the noble Earl, Lord Listowel, that they were worried that a presumption of the kind that I am proposing would increase the risk of harm to a child. That is not the experience in Florida, and nor would it have been
 
14 Nov 2005 : Column 865
 
with the original early interventions project, which would nip in the bud any genuine risk of violence by having an early hearing on that issue. I was pleased that the noble Baroness, Lady Howarth, agreed with me on that point. The Government really cannot dismiss out of hand the success secured by other countries that have adopted early intervention principles; the track record over more than 10 years is proven. I have read the critical passage of the HMICA report, and I have read a great deal of the rest of the report.

One reaches the conclusion that it is not the presumption of contact that is wrong but the lack—if I may say this without sounding too critical—of proper procedures to evaluate allegations of violence. I am afraid that reading that report did not put me off my stride. The Minister does not accept that the courts act unreasonably; indeed, what she said carried the implication that everything that the courts did was inherently reasonable because they had to act in the child's best interest, and that every order is in the child's best interests irrespective of what it is. That is an extraordinarily Panglossian view of the world, which really does not bear close scrutiny. The Minister admits that we lack detailed statistics of what the courts actually do in contact cases, but those statistics that we do have are apparently dismissed as of no account. I emphatically cannot go along with that.

Baroness Ashton of Upholland: My Lords, I was talking not so much about statistics as about looking at what happens in the process. The noble Earl would accept that neither of us should change the law on the basis of anecdotal evidence.

Earl Howe: My Lords, we should not change the law on the basis of anecdotal evidence, strong as that is, but the point is that the Napo survey provides us with our first, revealing glimpse of the decisions being taken by courts. If the statistic that I quoted were substantially less than the figure that I gave I might not be so worried, but I was very shocked.

We need to draw this to a conclusion. The Government say that they believe in the value of a meaningful relationship between the child and both his parents, and they say that the way that the courts intervene currently does not work well, but they do not take the obvious next step, which is to change the way that the court system works. They said in the Green Paper that they would do so but instead they are tinkering at the edges of the existing system, they resist any notion of court-backed guidelines and they repeat the argument that every case is different. It is completely baffling to me why they should be arguing against themselves. There is no doubt in my mind that technical defects or not—and those can be put right—this is an issue on which it is appropriate for me to seek the opinion of the House.
 
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5.25 pm

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 93; Not-Contents, 151.

Division No. 2

CONTENTS
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Biffen, L.
Blaker, L.
Bowness, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Carnegy of Lour, B.
Chester, Bp.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
De Mauley, L.
Dixon-Smith, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Feldman, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Gardner of Parkes, B.
Gilmour of Craigmillar, L.
Glentoran, L.
Goodlad, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hanham, B.
Hayhoe, L.
Henley, L.
Holme of Cheltenham, L.
Home, E.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Laing of Dunphail, L.
Lane of Horsell, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacLaurin of Knebworth, L.
Mar, C.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Newton of Braintree, L.
Noakes, B.
Northbourne, L.
Northesk, E.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Peel, E.
Reay, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Swinfen, L.
Thatcher, B.
Trenchard, V.
Trumpington, B.
Tugendhat, L.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.

NOT-CONTENTS
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Amos, B. [Lord President of the Council.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Blood, B.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Chorley, L.
Christopher, L.
Clark of Calton, B.
Clark of Windermere, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Judd, L.
Kilclooney, L.
Kinnock, L.
Kirkhill, L.
Laird, L.
Lea of Crondall, L.
Leicester, Bp.
Leitch, L.
Lipsey, L.
Listowel, E.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Newcastle, Bp.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Paul, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Sainsbury of Turville, L.
St. Edmundsbury and Ipswich, Bp.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Stratford, L.
Sutherland of Houndwood, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.


Resolved in the negative, and amendment disagreed to accordingly.

 
14 Nov 2005 : Column 867
 

5.35 pm

[Amendments Nos. 4 to 8 not moved.]

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