The other perception issue is very clearly, as one or two noble Lords have intimated, what is in the press—and that is that the father, it is usually the father, will be able to gain shared parenting. What they mean by shared parenting is half and half. We know how damaging that would be to a child, as the noble Baroness, Lady Tyler, said, when seen through the child’s eyes. If you talk to children and young people who are before the court, they want their parents to stay together—you have to work through all that—and then they want their lives disrupted as little as possible. They want to remain in the same school; they want to be able to see their friends at the weekend; they do not want to take a suitcase somewhere else every two weeks—although, I have to say, some children quite enjoy it. I have talked to kids who really enjoy having two places and adjust to it. However, many do not, and therefore it is important that the child’s wishes and feelings are taken firmly into consideration. I

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think the perception will be that fathers, in particular, can get a different agreement from the court, rather than the paramountcy of the welfare of the child being the main issue.

Several noble Lords have alluded to the Australian experience but we should take it extremely seriously. If this has been tried elsewhere and has gone seriously wrong, why should we do it here and create the same situation? We should remind ourselves that they had this legislation and that the research evidence showed that the number of cases where children’s time was divided increased substantially. The whole thing became dysfunctional to the point that in 2011 the Australian Government were forced to legislate again to prioritise the safety of children over the wishes of adults. I am quite sure that this Government, particularly the noble Lord, Lord McNally, would not wish to find that we were not prioritising children and had to change the legislation after damage had been done. So let us deal with the perceptions and base our legislation on fact.

Baroness Hamwee: My Lords, the noble and learned Baroness says that the judges would cope with Section 1 of the 1989 Act being amended by this but I do not think we want to wait for a judicial review as to exactly what would be meant if the new words were inserted in Section 1. If they were inserted in the form that we have in Clause 11, we would have Section 1(1) saying that welfare shall be the court’s paramount consideration—if that is not a presumption, I am even more concerned about it; then Section 1(2) saying that in dealing with delay the court shall have regard to that general principle; and then proposed new subsection 2A referring to presumption unless the contrary is shown.

I have never practised in this area so maybe it does not matter, but I am very unclear as to how weighty the contrary needs to be. To put it in different terms, are we talking about the contrary shown on a balance of probabilities or beyond reasonable doubt? The noble and learned Baroness has those words in her amendment, to which I and my noble friend Lady Walmsley, who is not in her place, have added our names. I do not think they would have the same difficulty when tied to having particular regard as they would to a presumption. I become more and more confused as to what Clause 11 means by a presumption unless the contrary is shown. A presumption is a presumption.

Baroness Meacher (CB): My Lords, I rise with some trepidation to speak very briefly to Amendments 54 and 55. I welcome the comments of the noble Baroness, Lady Hughes, and the noble Earl, Lord Listowel, who both recognise that there are times when fathers are locked out of contact with their children. I applaud the Government for recognising that the involvement of both parents in a child’s life, all things being equal, will further the child’s welfare. No one would question that the child’s welfare has been and must continue to be of paramount importance. There is no question about that, but there have been times when that has been lost and the feeling has been that as long as a child has a mother, perhaps that is okay. That is my

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concern. I fully recognise what my noble and learned friend Lady Butler-Sloss said about the research. I am not suggesting here that there have been wholesale miscarriages of justice but every single miscarriage of justice in terms of parenting one’s own children is a personal tragedy and we therefore need to take these things extremely seriously.

This is being made worse in the modern world because fathers are often intimately involved in their child’s upbringing from birth. In my day it did not happen. Father was a long way away for quite a long time so the big bonding went on with mother, not with father. Often parents are genuinely sharing the parental role. At times a father will be the primary carer—I cannot remember fathers being primary carers in my day—or maybe a better parent than the mother. On occasions a mother may be neglectful, selfish and unloving. They may even emotionally abuse their child. Of course, all these things can apply to fathers, except that fathers, instead of emotionally abusing their child, will tend to hit out. That has been one of the big problems in decision-making on parenting, separation and childcare. As a former social worker, I can say that we found it quite easy to see a bump on someone’s head but found it very difficult to identify and to codify emotional abuse of children.

7.15 pm

One of the things I want to put on record is that I agree that it has been a difficult area and will probably continue to be so, but it does not make it any more okay for the father to lose out. I am aware of cases where it has taken inordinate amounts of time for the system to record that it was the mother who was the abusive and disruptive parent. There was an enormous amount of upset and disruption to the children in that long process. In the end they get there—I am sure the research shows that they get there—but I am not sure that the research has looked at the costs of the whole process and at the difficulty for people of getting to grips with emotional abuse and trying to avoid the much simpler assumption that perhaps the child can be with the mother and that will be all right. It is a little worrying.

I humbly suggest that we need a small cultural shift to reflect the revolution, as I see it, that has come about in family dynamics in our country. Fathers in many families are playing a much greater role and bonding with their children at a very early age, which is relatively modern. Having said that, I realise that there are many traditional families and many bad fathers—there is no question about that—and it is incredibly difficult for the people with the exceptionally tough job of deciding what to do in such situations. I do not pretend that this is straightforward.

I want to put on record that I would regret any watering down of Clause 11. However, I would not have the audacity to challenge my noble and learned friend Lady Butler-Sloss, or indeed her eminent co-signatories. I merely urge that the Minister and those who have put their names to Amendment 54 find a way to preserve undiluted the objective of Clause 11 while enabling judges to do their job. Of course, this will need to reinforce the presumption that

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the welfare of the child is pre-eminent. I feel that Clause 11 does that, but then again I am a lay person. That is my excuse.

My only concern with Amendment 55 is the reference to indirect involvement. I hope that there is no intention to make it easier to relegate fathers to an indirect role in their children’s lives.

Lord Mackay of Clashfern (Con): My Lords, I would like to say a word or two about this problem because I had the responsibility, rather a long time ago now, of formulating the provisions which are here being subject to amendment. The most important principle was then laid down, and acknowledged as being an important principle, that the case has to be decided in the light of the best interests of the particular child in the particular circumstances in which that child finds himself or herself.

It is very difficult to lay down anything that looks like rules about how you decide that because, as has been said already, the variation in family situations across the board is very large indeed. In some cases, it would be quite wrong for the father to have contact with the children for reasons that are sad and serious. On the other hand, there are sometimes occasions when it is thought to oust the father for no good reason at all. That also is serious. However, they are very different situations and anything that impinges on the importance of the paramountcy of the welfare of the individual child has a danger. Amendment 55, which would relegate this consideration to being one of the factors that has to be taken into account, strikes me as a reasonable way of handling the situation. Not many family judges or lay magistrates do not believe in the importance of the relationship between the parents in both cases, if possible.

7.20 pm

Sitting suspended for a Division in the House.

7.30 pm

Lord Mackay of Clashfern: I was simply making the fundamental point that adherence to the paramountcy of the welfare of the child is the principle that should rule in all cases without exception.

I understand the problem to which this clause is directed, and I shall not repeat what has been said about where it came from and so on. There is a possibility that Members of Parliament get a slightly distorted picture of what goes on in the courts, because the people they see at their surgeries are generally not those who have won. People do not normally come along to say how well they have got on. I have never been a Member of Parliament myself, so noble Lords will understand that I am only speculating, but that is a possibility.

I believe that all judges—family judges, magistrates and so on—recognise the importance of trying to preserve the relationship between a child and both parents. I entirely agree that that should be affirmed but what I find very dangerous—and they appear in more than one amendment—are the words “unless the contrary is shown”. One can see immediately what

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might happen. Let us say that the wife decides that she wants to have the child. She concentrates on proving that the father is not fit or that he has done something, unless the contrary is proved. That puts a focus on what are often the most difficult issues.

I suggest that the important factor is the relationship between both parents, as expressed in the clause, and that should be one of the factors that have to be taken into account in considering the welfare of the child. It is obviously important that the relationship with both parents should be preserved if possible. A factor in the checklist that includes that would obviate a great deal of the difficulty that this kind of clause could produce in putting a focus on one party trying to show that the other party is not suitable for some reason or other. It would be much better for the judge or magistrates, in approaching the matter, to take account of the fact that it is very much in the interests of the child and of the paramountcy of the child’s welfare that both parents take an interest and be involved. Precisely how that is done can be looked at as part of the general picture, but it strikes me that focusing on this as a separate matter is very likely to make matters worse rather than better.

It is some time since I had experience of the working of the courts but I used to, and much of what I learnt then remains with me and was part of what I had in mind when the Children Act 1989 was formulated. It is also fair to say that the criteria set out in that Act have proved to be a considerable international instrument in developing justice for children. Therefore, I have a very strong affiliation to what was in that Act and I am not keen to see it much changed. So long as the change is an improvement, I welcome it, but one has to be careful that one does not distort the principle while making improvements.

Baroness Meacher: The noble and learned Lord referred to the clause possibly generating parental attempts to downgrade the other parent. Does he agree that that is absolutely the norm at present? That is what parents do and women are particularly good at it. They really go for the father and try to discredit him. I suggest that we already have that in spades.

Lord Mackay of Clashfern: It is the job of the judge to do his or her best to lower that. As I say, it is some time since I had experience of dealing with this issue but I have had that experience. However, it is counterproductive to do the opposite and to make important, and put up as a presumption which may be rebutted, something which is absolutely at the heart of the difficulty between the parents. As the noble Baroness says, this situation often arises. I feel that a judge would be better able to keep the situation under control if he or she did not have to focus on whether or not the contrary was proved. The judge would just have to take account of the nature of the relationships and make sure that they were properly taken into account when addressing the major question of principle.

Lord Northbourne: I seek guidance on one small issue. It is probably very stupid of me not to know about this but I am sure legal colleagues will be able

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to help me. Can the arrangement be changed? For instance, a little boy of two would be better placed with his mother but, by the time he is 12, his father may well become a much more important part of his life.

Lord Mackay of Clashfern: If that is addressed to me, the answer is certainly yes. I have a distinct recollection of a case in which the mother left the family at a very early stage and the father and his mother had to look after the child. After a while, the child’s mother decided to come back. She had had a relationship which soured after a year or two and she thought that she would come back. You have to take account of the existing situation and the paramountcy of the welfare of the child, which may alter over time and need to be reviewed from time to time. There is plenty of machinery to do that, although, as my noble and learned friend Lady Butler-Sloss said, one’s time may be consumed by other things. However, so long as you can get a review, that can be dealt with.

Lord McNally: My Lords, this has been an extremely important and high-quality debate. I am not a lawyer but I have spent three and a half years at the MoJ. Therefore, when the noble and learned Baroness, Lady Butler-Sloss, said that she had the greatest possible respect for my opinion, I am aware that the term “greatest possible respect” is reserved for the most insulting comment that a lawyer is about to deliver to an opponent.

I was interested in the joust between the noble Baroness, Lady Meacher, and the noble and learned Lord, Lord Mackay. When I was first given this ministerial responsibility, I had speaking engagements in Birmingham and Putney that arose within a few days of each other. I experienced some of the doubts that have been expressed in today’s debate about the road we were going down. What interested me was that at both meetings two social workers in the audience said quite unprompted exactly the same thing to me. They said, “Don’t underestimate the willingness of women to use their children in these battles”. The noble Baroness, Lady Meacher, pointed out that in the 25 years since the original legislation was passed there has been a change in what she described as family dynamics. We are trying to deal with the situation and get the wording right.

Even in this debate there are things that take us down cul-de-sacs. We are not following the Australian model; in fact we have learnt from it. Our proposal does not require the court to balance these two factors—I will come back to this. There is no idea of 50/50 parenting. One of the problems when this was debated down at the other end was that the press coverage was very much in terms of this being a major step change. I welcome the approach of the noble Baroness, Lady Hughes, in her opening remarks. The paramountcy of the welfare of the child is still there in this legislation.

The noble and learned Baroness, Lady Butler-Sloss, from her vast experience, claims that the way it is worded produces a contradiction. Let me try to explain our approach to see whether we can convince her, but I

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suspect that we will be coming back to this issue on Report. It is not possible for the presumption to clash with the paramountcy principle. The paramountcy principle is not a rebuttable presumption. The child’s welfare must be the court’s paramount consideration. If the court does not believe that the child’s welfare is served by the involvement of a parent, it will not order any such involvement, and the clause does not require it to do so. We are not saying that the court must make an order that involves both parents, nor are we seeking to define the nature of the involvement which the court may order. We are certainly not making any assumption about how the child’s time may be divided. That is not what the clause is about.

The Explanatory Notes set out clearly how the clause operates. We have included a process chart as well as an example situation to demonstrate how we would expect the presumption to work in practice. In addition, I have provided further information on the clause, which sets out in detail how the clause will work in practice, and it addresses the concerns that have been raised. We will also ensure that clear and accessible information is available for parents about the range of changes we are making. This will help to address wider concerns about the risk that the clause may be misunderstood. We have deliberately avoided defining the nature of involvement, which the court may order. The presumption stands if any form of involvement can take place without risk of harm to the child and would further the child’s welfare. We have used the word “involvement” as the simplest, most neutral approach to express the full spectrum of ways in which a child can have a relationship with a parent. We believe that the introduction of a presumption in legislation is the best and clearest way to ensure that children are able to benefit from the involvement of both parents following family separation.

This clause is part of the consistent messaging that will be conveyed throughout the dispute resolution process about the valuable role that both parents can play in their child’s life, whether they are together or apart. The deliberate reference to a presumption sends a strong signal to both parents and others as to how the court makes its decision. It makes clear that it is the norm rather than the exception for both parents to be involved in the child’s life. On the points raised, I think that I have already referred to the point made by the noble Baroness, Lady Hughes, about whether it was 50/50. The wording in the clause does not suggest or imply in any way equal or substantial shared time. The Explanatory Notes make it clear that this is not the expectation.

As regards the central argument put by the noble and learned Baroness, Lady Butler-Sloss, which I suspect we will continue to discuss on Report, we believe that there are no conflicting presumptions. The parental involvement presumption will always be rebutted in a situation in which the child’s welfare requires it, and the paramountcy principle is not rebuttable.

7.45 pm

A number of other points were made about the fact that so much of this is a minority issue and that most cases are sorted out. Related to the point made by the

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noble Baroness, Lady Tyler, the Sorting Out Separation app that DWP has launched will include comprehensive information so that parents understand what this change means, and what it does not mean. We want to work with relevant organisations in the voluntary sector to make sure that we get this right and that parents have the information that they need. I think that that covers it.

On the point that the noble Baroness, Lady Hamwee, made about the standard of proof, for the presumption to be rebutted the court must be satisfied that it is more likely than not that involvement would not further the welfare of the child.

What I want to do at this hour is take this issue away and read Hansard carefully and have discussions with colleagues. The difference in the debate at each end of Parliament is strange, however. It is not just that MPs see only the complainers at their surgeries. I wonder whether there is a generational gap here and whether at the other end there is more appreciation of the new dynamics of family that need to be recognised. I realise that in this place I am not trying to convince but trying to listen. We have had a substantial and useful debate, and I hope that in the 90 seconds left before the shutters come down, the noble Baroness, Lady Hughes, will gracefully withdraw her amendment—at least for another day. Again I thank her for her constructive approach.

Baroness Hughes of Stretford: My Lords, whatever I do, I hope that I will do it gracefully. We have had an excellent debate because we knew before we started that there would be a variety of views. It has been a very constructive debate, from which a great deal of consensus has emerged and become evident. We are all agreed that the welfare of the child should be paramount and that this principle should not be diluted. We are all agreed that continued involvement of both parents in a child’s life is desirable, indeed essential, to the child’s welfare, unless there are reasons to the contrary. We are all agreed, or at least will accept, that a change in the law of one kind or another to put greater emphasis on parental involvement would be acceptable; and we are all agreed that parental involvement should be determined from a child-centred point of view—that is, with reference to the child’s experience and not any particular division of the child’s time. I can reassure the noble Baroness, Lady Meacher, that our reference to indirect involvement is not intended to suggest that, say, three letters a year would be all right at all.

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Some differences of opinion are evident, particularly around whether the courts and professionals do enough at the moment to promote contact by fathers and whether there is an issue there. I feel that there is an issue there, and not just as a result of cases from when I was an MP. I take the point of the noble and learned Lord, Lord Mackay, about that. None the less, when as a Member of Parliament you get a large number of cases such as that, it behoves you to ask whether things are working properly. That is what you are there for.

I also cited the recent Court of Appeal judgment, which was very strong on the fact that many courts in that case had issued 82 orders and none of them had resulted in the contact that they had sought the father to make. The noble and learned Baroness, Lady Butler-Sloss, said that there is no evidence of bias. Of course, we do not get information from family courts about their individual decisions but there are certainly concerns among fathers themselves. I do not think that many people can top the noble and learned Baroness but in relation to Fathers 4 Justice I think I can, because they actually handcuffed me. However, as your Lordships can see, my wrists are so slender that I was able to slip out of it, much to the man’s consternation. However, I talked to some other very reasonable fathers’ groups over many years when I was Minister for Children. They testify to having difficulties and we have to take them seriously.

Having said all that, I am not sure whether we are any further forward because it depends on the Minister’s contention that the paramountcy principle cannot be overridden by a rebuttal presumption, which is that in Clause 11. So that we do not rehearse these same arguments at Report, I suggest to him with respect that he could arrange some meetings and further briefings so that we could have a discussion in a smaller environment to see whether we can find a way forward before Report. With that, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Amendments 54 and 55 not moved.

Clause 11 agreed.

Baroness Northover: My Lords, this may be a convenient moment for the Committee to adjourn.

Committee adjourned at 7.51 pm.