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"COMPENSATORY CONTACT
After section 11P of the Children Act 1989 (inserted by section 5 of this Act) insert—
"11Q COMPENSATORY CONTACT
(1) This section applies if a contact order with respect to a child has been made.
(2) If the court is satisfied that—
(a) an individual has failed to comply with the contact order; and
(b) a person falling within subsection (6) has been deprived of contact time by reason of the breach,
it may make an order granting additional contact time between the person and the child concerned with a view to mitigating the effect of the breach.
(3) But the court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the contact order.
(4) The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.
 
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(5) An order under subsection (2) may be made only on an application by the person who claims to have been deprived of contact time.
(6) A person falls within this subsection if he is—
(a) the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b) the person whose contact with the child concerned is provided for in the contact order;
(c) an individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d) the child concerned.
(7) Where the person proposing to apply for an order under subsection (2) is the child concerned, the child must obtain the leave of the court before making such an application.
(8) The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(9) Subsection (2) has effect subject to the restrictions in section 11S.
(10) Proceedings in which any question of making an order under subsection (2) arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(11) In exercising its powers under this section, a court must treat as paramount the interests of the child concerned.
11S ORDERS UNDER SECTION 11R(2): FURTHER PROVISION
(1) A court may not make an order under section 11R(2) granting additional contact time between a person and the child concerned following the failure by an individual to comply with a contact order unless it is satisfied that before the failure occurred the individual had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—
(a) in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order preceding the failure in question; and
(b) in any other case, a notice under section 11I relating to the contact order.
(2) A court may not make an order under section 11R(2) in pursuance of a failure by an individual to comply with a contact order where the failure occurred before the individual attained the age of 18.
(3) A court may not make an order under section 11R(2) in respect of a failure by an individual to comply with a contact order that is an excepted order (within the meaning given by section 11B(4)).""

The noble Earl said: My Lords, perhaps I may begin with an apology. For some reason, of which I am not fully aware, the text of the amendment was printed with errors that make it incoherent. The second part of the amendment refers to Section 11R when it should refer to Section 11Q. Similarly references to Section 11S should properly read Section 11R. I am sorry about the confusion.

The purpose of the amendment is, I hope, clear. It proposes that where a contact order has been breached and a non-resident parent has thereby been deprived of
 
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contact time, it should be open to the court to consider whether the non-resident parent should have that lost contact time made up to him. The Minister may say to me that the courts can do that anyway. The problem is that they do not. I believe that only a specific provision in the Bill will act as a signpost to the courts to put right a wrong that has been done. It is not only an issue of natural justice, it would also be a deterrent; and, above all, it is potentially in the interests of the child. Each case, however, would be judged on its own merits.

I hope the Minister will take on board the thrust of the amendment at the very least and that she will have some words of encouragement for me. I beg to move.

Baroness Howarth of Breckland: My Lords, I think that it would be very difficult to put the provision into operation, except to say that the child's needs must be paramount again. It is the old argument. I do not see how you compensate in difficult situations between two adults without causing problems for the child.

The other point that I should like to make—I had wanted to get it in for the whole of the Bill, and I only wish that I had tabled an amendment—is that if we are to have this kind of measure, we really should find a way of ensuring that men and women, but mainly fathers, I fear, who fail to keep their side of the contact bargain when they are the non-resident partner are encouraged to do so by similar amendments. I am sorry that I have not done that. However, I would like to place on record my view that, in considering these matters, we should ensure that non-resident parents who make and break promises are as much at fault as any resident parent trying to care for children who also breaches those promises.

Baroness Ashton of Upholland: My Lords, I think that we would all agree with the sentiments expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Howarth. It is important that promises made to children are kept. Distress can be caused by a parent not showing up for a contact arrangement, to which a child may have looked forward, and, equally, by one parent refusing to allow a child to see the other parent. I accept the sentiment behind these amendments.

As the noble Earl quite rightly predicted, I do say that the courts are able to do this already. They can use their discretion; they can decide what form a new order should take; and, if it is thought that it should embody some form of compensatory contact for the child's sake, that indeed is what they will order. We know that in his evidence to the Constitutional Affairs Select Committee, in answer to a question from Dr Whitehead regarding whether consideration had been given to the idea of financial compensatory contact, Lord Justice Wall said:

"As a matter of practice, it happens. That is a regular order that would be made. If a contract is frustrated on a particular occasion, the court will almost invariably seek to make it up in some way or another".

Therefore, although I understand the noble Earl's sentiment, the evidence from Lord Justice Wall is that that would be the case.
 
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Underlying that, what really matters is the speed with which it is done. One of the issues raised by fathers' groups is that they are denied contact because Mum is not at home with the child when they visit or because something else has happened, and it takes quite a long time for them to return to court to deal with the issue. That is why we are extending the monitoring role of CAFCASS. Under Clause 2 of the Bill, the court can ask the CAFCASS officer to arrange for the monitoring of contact in any case. The purpose of that is to be able to say, "Did contact happen?" and, if it did not, to enable the CAFCASS officer to apply to the court to have the parent brought back before it very quickly. In that event, one would not end up with the situation, about which some fathers have spoken to me, that a new status quo evolves in which the parent does not see the child very much and feels that the courts are reluctant to undermine that when that is what the child has been used to. The court has the power to bring back before it quickly any offending parent. There is some evidence from the judges that that happens, and they certainly feel very strongly about it. I therefore hope that we can resolve this important issue and that parents will be able to feel that if they do not get contact they will be given compensatory time and that it will be dealt with swiftly. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Howe: My Lords, I am grateful to both noble Baronesses. I suspected that the noble Baroness, Lady Howarth, might criticise the amendment for being too parent-centred, which is why I included in it a specific reference to the paramountcy principle. However, I do not see what is wrong with saying that the court has this option at its disposal while all the time being required to have regard to the paramountcy principle.

Of course, the statement by Lord Justice Wall is very welcome, but those who have made representations to me have said that although some judges may have this point at the forefront of their minds, others do not. That is perhaps not something that we can settle today, beyond my telling the Minister that I welcome her recognition of this issue and that the courts, in appropriate circumstances, should be encouraged to look at it as an option in the menu. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25A not moved.]

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