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My second point is that the proposal may be helpful for lawyers in the relatively rare cases where a divorced non-resident parent is being irresponsible, although, in my experience, those fathers who need to pay most do so because they are coming out of marriages in which they have bonded with and become attached to their children. They know how much it costs to bring them up and so they will pay. It is the group that does not come within the ambit of lawyers that presents the problems. Therefore, my concern is that this proposal seems to suggest that those who work to ensure the flow of maintenance—the CSA and then CMEC staff—are being asked to become social workers. We have been careful at every stage of these Bills—in 1991, 2000 and today—to separate the question of child maintenance from contact and all the other issues that can arise. A number of fathers’ organisations would like to see it attached, but I do not think it is reasonable to expect CSA or CMEC staff to take on the responsibility of trying to act as social workers between warring parents. Their job is to ensure the flow of money.

Although I sympathise with the objectives and do not disagree with them, I really do not believe that such wording is appropriate in this legislation, as it is in other Bills such as the Human Fertilisation and Embryology Bill, where we have also been arguing whether a similar form of words should be included.

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No doubt the same applies to other Bills related to children. There is a place for such words, but not in a Bill to establish an appropriate mechanism to deliver adequate child maintenance.

Lord Skelmersdale: Earlier, I signalled that I was in general agreement with this set of amendments. I most certainly shall not renege on that. However, unlike the noble Baroness, Lady Hollis, with all her experience of these matters, I feel that it is important to include something similar to these amendments in the Bill. The noble Baroness made an objection, saying that, although the noble and learned Baroness, Lady Butler-Sloss, felt that it would be helpful for the courts, the mediation service, solicitors and, I suspect, the judges to be able to point to words such as these, it would be equally helpful, for example, to Ventura or to a member of the staff of the commission when seeking to persuade someone that, notwithstanding the extra enforcement powers mentioned by the Minister, this is a duty on both parents. When I spoke earlier about a wider interpretation of “maintenance”, I meant exactly that. The noble Lord and the noble Baroness have been talking about how to define that wider interpretation of “maintenance”, which is not just money.

I have no doubt that, like the noble Baroness, Lady Hollis, the Minister will object to these amendments by arguing that the CMEC cannot perform all roles and therefore stretch its resources. I can allow the Minister to anticipate my argument against this. It is that the encouragement of a relationship between the absent parent and their child is not just a case of emotional welfare. If the non-resident parent develops a relationship with their child, they will mostly develop a feeling of responsibility towards him and therefore be more inclined to support him financially. In fact, it promises to be a better enforcement of duty than any commission, court or sanction. I certainly support the idea behind these amendments.

Lord Kirkwood of Kirkhope: I am reluctant to get involved in this legal argument that is raging over my head. Australians have found a way to fix some of these problems and Professor Patrick Parkinson came over here. Andrew Selous and Paul Rowen in the Public Bill Committee identified some important policy moves and developments along these lines. The Australian model is simple. It has a system of family relationship centres in shopping malls. They are a mile away from benefit offices, Jobcentre Plus offices or HMRC offices: they are where people need to find them.

Professor Parkinson said that the success of these centres is that fathers come into them. I am accustomed to mothers beating a path to one’s door and looking for help. Perhaps it is the function of Australia, but it is having a lot of success in keeping fathers attached to their children simply by the development of these ideas but through a system that is different and separate from a commission. The commission will not have time on its hands. I was certainly persuaded by the plea of the noble Baroness, Lady Hollis, on that. The commission will have enough to do and, if it does what it is asked to do, it will be a good trick and it will be extremely lucky.



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At the same time, this sentiment is a powerful part of getting an effective service to families. In an ideal world, you would not need to put it in the Bill. The case being powerfully made is that it may have to be in the Bill so that something gets done, even if it is just the commission saying to the Ministry of Justice or the Department for Children, Schools and Families, “We’ve got to get together and replicate the kind of thing that is done in Australia”. I am not saying that it is perfect there and I do not know that much about it, but it is done on the basis of serving one in 300,000 individuals. That scheme is in its early days of rollout and implementation, but it seems to be working and is doing the kind of things that these important amendments refer to. There is something there that is important to the future success of this policy. If I were pressed, I would have to say that I would support the amendments, but with an important proviso that you are asking a lot of people in the commission who are not looking for extra things to do.

I have put my name to three amendments in this group. Amendment No. 28, which I do not want to spend a lot of time on, talks about maintenance from both parents based on the right of each child, and I exhausted that argument earlier. Amendment No. 33 is what I like to think of as my “granny amendment”, because when in a previous incarnation I was a solicitor doing consistorial work dealing with broken families in a part of the world that is slightly more matriarchal, it was always the granny who fixed the problem. This was a long time ago when extended families were more extant. Responsible grandparents, or parties like them, can play a role, particularly in relation to Clause 6, where the wife, mother or parent with care is frightened to refer under the new system. Someone needs to be able to shoulder the blame for that and deal with the non-resident parent’s anger and distress when that happens. There is a powerful role for grannies. My granny was certainly a powerful figure in my life. There is a case for looking at third-party involvement in this.

On Amendment No. 34, I made the point in passing that children aged 12 can make full applications in their own right to the organisation in Scotland. It has never been clear to me why that is restricted to Scotland; but no doubt family lawyers will tell me that it is to do with the age of majority or minority or something. Children aged 12 are perfectly capable of being asked sensible questions about effective parenting, about what they want done, about how they see the relationship with their father being continued somehow, but we do not ask any questions of 12 year-olds or anyone of a minority age. We should think about that in relation to some of the more general arguments that I have been making.

In so far as they go, these amendments have added a lot to our debates and I would support holding on to these thoughts when considering the rest of the amendments. I hope that the noble Lord will get some satisfaction that, however they are delivered, he will get where he wants to be, whether it is by putting these requirements in the Bill or not.

Lord McKenzie of Luton: As the noble Lord, Lord Kirkwood, said, this has been a heavyweight discussion.

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I start by speaking to Amendments Nos. 24, 25, 30 and 35. They seek significantly to extend the remit of the commission beyond child maintenance to include the promotion and encouragement of parents’ responsibility to provide welfare and support for their children and the encouragement of absent parents’ relationships with their children.

Of course I have some sympathy with the noble Lord’s intentions, which fit well with overall government policy towards children and their parents. However, I agree with my noble friend Lady Hollis that we must ensure that the primary focus of this Bill is to maximise the number of effective maintenance arrangements in place. That is what the Bill is about.

7.15 pm

Noble Lords will recognise the enormous challenges facing the commission. At present, for example, there are no large-scale services providing information on child maintenance options and no support to put in place suitable maintenance arrangements. With the removal of compulsion, it is therefore essential that the commission concentrates on putting in place effective and easily accessible services to ensure that, when compulsion is removed, parents have access to support that will help them move into appropriate and effective maintenance arrangements.

As we touched on earlier, the Department for Children, Schools and Families has lead responsibility across government for family policy. Supporting parents in supporting their children is a strong theme throughout its recently published Children’s Plan. The commitments in the Children’s Plan have a number of synergies with the work of the commission. In particular, it outlines the DCSF’s commitment to,

In the light of that, we are already working with officials in the DCSF who have responsibility for the commitments in the Children’s Plan to ensure that the commission feeds into the development of policies in this area and that information and support are seen as part of the overall provision of services for separating parents. This is because we want to ensure that lessons learnt from the commission are utilised across government. We also want to ensure that parents can be effectively linked to appropriate support at whatever point they access government-funded services. We are keen to ensure that, where possible, government-funded services are effectively joined up to prevent parents becoming confused by the system or failing to engage with services. The Children’s Plan sets out a vision for more co-location of services to support this joining up. The Government also recognise that services will be more effective if the people using them are involved in the design and delivery planning of the service, and the Children’s Plan sets out proposals for parents to be involved in this at a local and national level.

The noble Lord, Lord Northbourne, referred to the debate on the Children and Young Persons Bill.

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Noble Lords may be aware that, because of this debate, my noble friend Lord Adonis has agreed to consider whether there is a case for amending the Children Act 1989 to include a more substantive definition of “parental responsibility”. However, he has made it clear that at this stage the Government are not committed to such a change. If that were to come about, I suggest that that Act would be a more appropriate place for such a definition.

In any event, as I understand it, the amendments are not seeking to define parental responsibility in a broad way; rather, I believe that they focus on promoting responsibility. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in this area, said that it would be helpful to the courts, to the extent that they are involved, to have something that they could point to when encouraging arrangements to be put in place. I am not sure that the amendment provides the required definition but, in any event, if you wanted something to point to, is there not already a definition in the 1989 Act? It may be inadequate but there is a definition there which makes reference to parental responsibility, as expanded by case law. If you want something to point to so as to help and encourage engagement in maintenance arrangements, I question whether there is not already something there for the courts to use.

Under Clause 4, there is a requirement to promote child maintenance. The commission must take such steps as it thinks appropriate for the purpose of raising awareness among parents of the importance of taking responsibility for the maintenance of their children and making appropriate arrangements for the maintenance of children who live apart from them. That is the proper role of the commission set in the context of the wider policy in which the Department for Children, Schools and Families is engaged.

I believe that we have a shared agenda here. The question is how best we can move it forward, but I honestly do not think that this Bill provides the right mechanism.

I hope that I have provided noble Lords with the reassurance that we are part of a wider government agenda for focusing on parents and their needs. However, I cannot accept these amendments because they significantly extend the remit and responsibility of the commission beyond the central objective on which we need it to focus.

Amendment No. 28, tabled by the noble Lord, Lord Kirkwood, links back to our earlier discussion on the proposal for a new approach to child maintenance legislation. The amendment would make it an objective of the commission to prepare a scheme of child maintenance based on this new approach. Our earlier discussions set out our position on these changes. The Bill focuses on solving the immediate problems facing the child maintenance system. Furthermore, the noble Lord’s proposals would require fundamental changes and, while the commission would almost certainly have a role, central government is best placed to lead on such changes, especially in view of the work of DCSF.



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Amendment No. 33 would enable third parties to make a statutory maintenance claim on behalf of a child when a voluntary arrangement can be shown to be harmful to the child’s long-term interests. This would negate one of the key things we are trying achieve with the repeal of Section 6 by reintroducing a form of compulsion and state intervention for some cases. It would therefore undermine our aim of encouraging parents to make their own decisions about maintenance for their children and raise again the potential for a state-imposed solution regardless of their wishes.

The commission will introduce a high-quality information and support service to enable parents to make informed choices about the maintenance arrangements that suit them and their children best. This may be a voluntary arrangement, a court consent order or a statutory maintenance arrangement. The amendment will allow anyone to make an application regardless of their relationship to the child, and there is no indication of what tests would be applied to determine whether a voluntary arrangement by the parents would be harmful to the child’s long-term interests, or, indeed, who would be responsible for applying that test.

Amendment No. 34 seeks to extend to children aged 12 and over in England and Wales the right to make an application for a maintenance calculation. As has been noted, this provision already exists in respect of such children in Scotland. As the Committee will be aware, in Scotland children have different rights to children in England and Wales and different legal systems exist. Under Scots law it is presumed that children aged 12 and over have the capacity to make informed decisions about legal proceedings which affect them and the ability to instruct a solicitor to raise court proceedings, which could, for example, include suing a parent for aliment, the obligation on a parent to maintain a child. When we replaced a court-based system for child maintenance with the CSA scheme, we wanted to ensure that provision was included that enabled Scottish children of 12 and over to retain the ability to apply for maintenance.

In England and Wales there is no such tradition of children being allowed to seek maintenance from the courts on their own behalf. This has always been done by their parent or guardian. We believe there is no case for changing the laws of England and Wales to match those of Scotland in this respect. In any event, we understand that this right is rarely utilised in Scotland. We do not believe that extending it to children in England and Wales would meet a real need. We would not want to disrupt the structures of family law simply to take account of the different legal framework in Scotland.

In view of what I have said, I urge the noble Lord to withdraw the amendment.

Baroness Butler-Sloss: In the light of Clause 4, which I have not given sufficient attention to—I apologise—the concerns of the noble Baroness, Lady Hollis, the noble Lord, Lord Kirkwood, and the Minister seem to me to be rather less, because the

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commission must take the steps it considers appropriate for the purpose of raising awareness. Once you have got to raise awareness of the need for taking responsibility for maintenance, it is a very short step for an employee of the commission to get to the stage that the noble Lord, Lord Northbourne, and I require. It is already in the Bill that the commission has got to do counselling. I ask the Minister why this would not slot in very neatly under Clause 4, not under Clause 2.

Lord Skelmersdale: Before the Minister answers that point, surely the problem is that the word “maintenance” is interpreted throughout the system, by the noble Lord and by the Acts we have had up to now, as financial maintenance—and the buck stops there. What the noble Baroness and the noble Lord, Lord Northbourne, are after is to have a very much wider definition of maintenance, and I remain convinced that they are right.

Lord McKenzie of Luton: I certainly do not disagree that there should be definitions of responsibility, the engagement of parents and the welfare of their children, all of which goes beyond a definition of maintenance whether it is focused just in terms of money or on a more general provision of facilities. But I come back to the point that Clause 4 is about taking responsibility for maintenance, not the wider issue, important though it is. It may well be that in some circumstances it is quite a small step, but I am sure that with her great experience, the noble and learned Baroness would acknowledge that there can be other circumstances where it is quite a big step. That is why we believe that the balance struck here to promote maintenance is right. The broader issue is something for part of a broader government agenda.

Lord Northbourne: I am grateful to all noble Lords who have spoken. Obviously it is an extremely complex issue and we have heard some interesting contributions. I do not think I can respond usefully now, so I shall take away what the Minister has said. However, one point did strike me. The noble Lord said that all this stuff is not really for us because our job is just to process the claims that come in. We are already inundated with claims that we cannot handle, so we certainly cannot do anything else. But if you are in a boat which is filling with water and you cannot bail it out fast enough, what about trying to mend the hole so that less water can get in? This is what I am suggesting and the reason I think it is important in this context is because it is only by reducing the demand that the agency will ultimately solve its problems.

Lord McKenzie of Luton: Perhaps I may make it clear that I do not assert that the commission has no role in the broader agenda. For example, part of the information and support service will no doubt be that of cross-referring individuals to give them access to mediation and a whole range of other services. I do not assert that the commission will simply put blinkers on and only drive cash transfers; of course it

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is wider than that. But this agenda should not be its specific role, and that is where we part company on this.

Lord Skelmersdale: In that case, will the noble Lord inject strength into the arm of his noble friend and colleague Lord Adonis in his investigation of this matter in the Children and Young Persons Bill?

Lord McKenzie of Luton: Would the noble Lord mind repeating the question?

Lord Skelmersdale: I asked the Minister whether he would add to the consideration, because surely there will be intercourse—I suppose that is the word—between the department of the noble Lord, Lord Adonis, and the Minister’s own department on exactly this subject. Given what the Minister has just said, would he consider adding strength to the arm of the noble Lord, Lord Adonis, in his consideration with Ministers and the Secretary of State in his department of this matter? I say that because I remain of the opinion, even after listening to the counter-arguments produced on the other side of the Committee, that somewhere in the system CMEC needs a phrase in legislation to point to.



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Lord McKenzie of Luton: I will certainly liaise with my noble friend Lord Adonis and talk to him about this exchange in Committee, as I am sure will the officials. We need to make sure that we are joined-up in all this. The Children’s Plan sets out a clear path of where we should be working together, so let us put it into practice on this issue.

Lord Northbourne: I am most grateful; I think that the Committee has probably had enough of that one. I am very happy to withdraw the amendment, on the understanding that I shall probably bring the matter back at a later stage.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Lord McKenzie of Luton: This may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): The Committee stands adjourned until Thursday 31 January at 2 pm.


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