[Relevant documents: The Fourth Report from the Constitutional Affairs Committee, Session 2004-05, HC 116, on Family Justice: The Operation of the Family Courts; the Government’s response thereto, Cm 6507; and the Sixth Report from the Committee, Session 2005-06, HC 1086.]
As amended in the Committee, considered.
New Clause 3
Parental responsibility prior to adoption abroad
‘(1) At the end of section 84 of the Adoption and Children Act 2002 (c. 38) insert—
“(8) Subsection (4) does not prevent an application being made if the court gives leave to make it.”
(2) At the end of section 141 of the Adoption and Children Act 2002 (c. 38) insert—
“(7) Rules made in respect of proceedings under section 84 of the Act may prescribe—
(a) conditions in respect of which the court must be satisfied before granting leave under subsection (8); and
(b) for the court to permit the applicants to take the child who is the subject of the application out of the UK for such period or periods and subject to such conditions as the court thinks fit.”'.—[Annette Brooke.]
Brought up, and read the First time.
With this it will be convenient to discuss the following amendments: No. 2, in clause 9, page 13, line 21, leave out subsection (3) and insert—
‘(3) Before making an order in the case of a country or territory which is a Convention country, the Secretary of State shall consult the Hague Conference.'.
No. 1, in page 13, line 29, at end insert—
‘(c) the central authority in the country or territory to which restrictions are to apply.'.
No. 22, in page 13, line 33, at end insert
‘to include regular reviews on why that declaration should still apply'.
No. 4, in page 13, line 38, at end insert—
‘(9A) The Secretary of State must establish an appeals procedure to consider appeals against the decision to impose special restrictions on adoptions from abroad.'.
No. 23, in clause 10, page 14, line 17, at end insert
(c) prescribed organisations involved in adoption.'.
We are back here discussing these matters after a three-month gap. That is a long time and I am not sure why we had such a long break from our deliberations on the Bill. We discussed new clause 3 briefly in Committee in a clause stand part debate. The new clause was not actually tabled, and I wanted to revisit it to ensure that all the issues were covered.
In Committee, we learned that only about 300 international adoptions a year involved the United Kingdom. The new clause refers to something even more unusual: foreign adoptions of United Kingdom children. It is supported by both the British Association for Adoption and Fostering and the Intercountry Adoption Centre. In Committee, I said that I firmly believed that the child’s interests should be paramount. In her response, the Minister said
“we have come to the settled position that the 10-week provision is right, striking the balance between safeguarding children and having a requirement for adopters”.—[Official Report, Standing Committee B, 14 March 2006; c. 38.]
I respect that as a general position, but feel that there should be discretion to take into account special circumstances that, in some cases, might lead to a different judgment in relation to the child’s best interests. As some of us will argue later this afternoon, the child’s best interests must be served by examination of each individual case. That is what the new clause attempts to secure.
Section 84 of the Adoption and Children Act 2002 provides for the High Court to be able to make an order granting parental responsibility to applicants who are not domiciled or habitually resident in the United Kingdom when they wish to take a child out of the country for the purpose of adoption. Section 84(4) imposes a requirement for the child to have lived with the applicants for at least 10 weeks before an application may be made under the section. A similar provision in section 46 prescribes various minimum periods for which the child must have lived with the applicants before an application may be made for an adoption order, but the section also allows for the court to give leave for some applications to be made before the usual period has expired. The requirement for the 10-week minimum period is of course designed to safeguard the child, and to ensure that the child and adopters have time to become acquainted with each other before the jurisdiction. However, as the applicants will by definition be habitually resident in another country, it will often be not merely difficult but impossible for them to live in this country for a minimum period of 10 weeks with the child before making an application, possibly having to remain here for still longer pending the outcome of the application.
It is most likely that, when someone wants to adopt overseas a child from this country, there will already be some connection—probably, but not necessarily, a blood relationship. In some circumstances, the child may already be well acquainted with the proposed adopters—for example, having spent holidays with them—but the existing provision in the Adoption and Children Act does not allow any flexibility or exercise of discretion. The new clause and amendments would allow flexibility, but permit rules of court to provide further safeguards if that were thought necessary.
It is important to bear it in mind that section 84 applications can in any event only be made in the High Court. It is not suggested that a final order under section 84 should be made before the child has lived with the applicants for at least the 10 weeks required, nor that it would always be appropriate or helpful for the child to be permitted to leave the country with the prospective adopters without a period of living with them. But if the court is to be able to achieve the outcome that best meets the child’s needs, it is essential that it can consider all the circumstances and form a view on whether sufficient other safeguards are in place to permit the child to leave the jurisdiction. Without that, some children may be deprived of the possibility of secure family life with members of their extended family, or with adopters who share aspects of their heritage and culture, given that the 10 weeks may constitute an impossible barrier in some cases. I do not believe that it should be waived solely on the ground that it is an insurmountable barrier, but we need flexibility in such situations to make sure that the child’s interests are best served.
In most cases, a child would be placed overseas with someone related by blood, but in others the child would be placed with a person living abroad who was not a close relative. For example, the restriction on removing a child under section 85 of the 2002 Act applies to any child who is a Commonwealth citizen or habitually resident in the UK. The legislation that applied before the 2002 Act was introduced imposed a similar restriction in respect of children who were British or Irish citizens. Some children may be habitually resident in this country who not only are nationals of another country but have strong links with that country. For them, it would be most appropriate to be adopted in that other country.
In other cases, according to the BAAF, a local authority has tried to place a child with a family who have already adopted his or her older sibling but who have moved abroad. In extremely rare cases, the risks posed by a birth parent may be so great that one reason for seeking a placement outside UK jurisdiction is to ensure the safety of the child and of the proposed adopters. In proposing new clause 3, I am asking not for anything absolute but for flexibility, so that judgments made in the High Court are in the child’s best interests.
I am sure that the Conservative spokesman will present the arguments for the remaining amendments in the group in great detail, but I want to place it on record that my party is broadly supportive of all of them. As I said in Committee, I am sure that every politician and member of the general public is concerned about trafficking in children and other unethical practices, but we must also consider the plight of children in some countries in the developing world. We must focus on the welfare of the child and have regard to the UN convention on the rights of the child, so that the best interests of the child can be served. That may be achieved by allowing the child to live with a family in this country.
It is easy to understand and support the action that the Government have taken on Cambodia, but the remaining amendments in the group would help to provide a more balanced approach. In no way do they run counter to the best interests of the child, and their arguments for an appeals process, a review and recourse to the Hague convention seem compelling.
Today, I read again the Hansard report of our Committee proceedings, and I note that the Minister made various pledges to provide more information on the very high cost of overseas adoption. I hope that the House can be updated on when that information might be available, if is not so already.
As the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said, here we are again, at last—almost three months after we ended our discussion of the Bill in Committee. However, we are now able to deal with the large amount of business that was left unfinished then.
I have a deal of sympathy with new clause 3. Many technical deficiencies have emerged from the woodwork since the Adoption and Children Act 2002 came into force. We all supported that very comprehensive legislation, but the Government would do well to address some of the implications that have flowed from it. One area of difficulty arises from the problems with placing a UK child with adopters—such as suitable relatives, for example—in another country, where that is in the best interests of the child. However, to meet the terms of the 2002 Act, families may be required to spend as much as several months in the UK. That would appear to be excessive, and not in the interests of the child. That would be wholly impractical for some prospective adopting families from overseas who had work commitments or other children at school in their home country, so I certainly have some sympathy for the hon. Lady’s proposal. I shall be interested to hear the Government’s response and to learn whether they acknowledge that there is a genuine problem and whether they are prepared to accept the new clause or to revisit the problem, perhaps in regulation if that is possible.
Similar problems have emerged for British expatriate workers who adopt while they are in China. I do not know whether the Minister has been lobbied on the matter, as I have; my letter to her former colleague remains unanswered. The British adoption support group for China has been formed to deal with the problem that the Chinese authorities apparently require the British Government, through the Department for Education and Skills, to issue an approval letter to all prospective adopters to guarantee that the adopted children will be granted citizenship and UK passports. I think that is quite right, but the Department for Education and Skills will grant approval letters only to adoption applications filed by UK-registered adoption agencies and local councils, to which expats have no access because they are obviously not habitually resident in the UK while they are working overseas. In the spirit of the new clause, will the Minister undertake to look at the problem and, at the very least, to reply to my letter, which is now more than two months old? I know that she has received direct representations from expats working in China who have come up against that problem.
The other amendments are familiar to Members who were in Committee. Amendment No. 2 deals with the procedures whereby the Secretary of State can seek to suspend inter-country adoptions from a particular country. We agreed with that proposal in Committee; it is a tightening up exercise that the Secretary of State already has power to institute, but the amendment would bring the process into mainstream legislation and make it easier for the Secretary of State to take action where it is deemed that a country’s procedures for adoption fall well short of the expected standards. There may be suspicions of child trafficking, for example, as was the case with Cambodia, which is one country—if not the only one—on the suspended list for inter-country adoption.
There is some merit in our status, and that of several other countries, as signatories to the Hague conference convention. The amendment would cover countries that have signed up to the rules set out in the convention and that should, therefore, be entitled to be subject to a slightly different process. For some reason, the Minister has declined to respond to that suggestion in the past, asserting:
“There may be situations where a requirement to consult could have unfortunate implications for the welfare of those children by triggering a rush to adopt.”
However, inter-country adoption is, by its very nature, a slow, cumbersome and often expensive process for most adoptive parents, so that fear is rather overdone. Surely, as part of the process, we should have as much openness as possible about the fact that suspension is being considered, allowing adopters going through the process to make alternative arrangements or to reconsider their application. It would be helpful to include in the Bill a provision that a convention country and its authorities should be one of the statutory consultees.
Amendment No. 1, too, deals with the process used to put a country on the banned list. I am sure that we all agree that, before banning or suspending a country from inter-country adoptions, the Government should consult all interested parties as widely as possible. As well as the Department of Health in the UK and the Welsh Assembly, as stipulated in the Bill, the Government should speak to the relevant body or Government Department in the country that is to be placed on the suspended list. The Bill is deficient, as it fails to make that requirement. What is the Government’s interpretation of the phrase, “contrary to public policy”, in clause 9? Proper and transparent consultation is required if we are to suspend countries for the right reasons. We must monitor their suspension and make sure that prospective adoptive parents who are trying to adopt in that country are kept in the loop and informed of their entitlements.
It is a big step to put a country on the suspended list, as that prevents UK citizens from adopting children from that country. Cambodia, for example, has about 670,000 orphans under 18, which is 5 per cent. of its population. Some 30,000 of those orphans are children under 15 who are orphaned by AIDS. The UK has a role to play adopting children who cannot find suitable homes in their own country, so it was a big decision to add Cambodia to the suspended list, just as it will be a big decision to add other countries in future. The process must be clear, transparent and properly accountable.
Amendment No. 22, too, deals with the process for keeping countries on the suspended list. It stipulates that there should be regular reviews of the reasons for the regulation of a suspended country to determine whether they still apply. We teased out a little detail from the Government on Report, but we need to know how much evidence they require to prove that the system in a prospective country for adoption is not working properly and that child trafficking, not genuine adoption, is taking place. What burdens and parameters of proof will be set? At what stage will a potential adopter be forced to abort the process of adoption from a country that is added to the list, and when can it be resumed if that country is removed from the list? Again, transparency is required if we are to make sure that everyone is happy and satisfied that the Government have taken appropriate action.
The penultimate amendment in this group is amendment No. 4, which stipulates:
“The Secretary of State must establish an appeals procedure to consider appeals against the decision to impose special restrictions on adoptions from abroad.”
Clause 9(9) says:
“The restricted list and the reasons are to be published in whatever way the Secretary of State thinks appropriate for bringing them to the attention of adoption agencies and members of the public.”
We have granted the Secretary of State an enormous blank cheque, as the provision does not specify how he will make that decision, how it will be communicated and consulted on, and how it can be reversed if the situation changes. It is therefore right to have proper checks and balances in the Bill and to establish the appeals procedure that amendment No. 4 seeks. The Bill must establish an appeals procedure to consider appeals against decisions to suspend, and against decisions not to permit individual applications to proceed, thereby ensuring transparency in all aspects of the decision-making process. It should be possible to bring together a group of people—independent of the Government, the agency and the applicants—with the relevant knowledge and expertise to form a properly constituted, working appeals procedure. We have raised this issue in Committee, but I hope that the Government will respond more favourably at this stage.
Finally, I turn to amendment No. 23, which would require the review process to include prescribed organisations. The Bill stipulates that the Government should consult only the National Assembly for Wales and Government Departments in Northern Ireland. But as we said in Committee, there is a whole host of other agencies and organisations in the UK involved with adoption—headed by the British Association for Adoption and Fostering, with which we and the Government are well familiar—that have something to say, rightly, and a good deal of expertise that needs to be consulted.
We need to make sure that, if these important decisions are to be made barring adoptions from certain countries, they are taken on the basis of considerations that are entirely dictated by the welfare of the children involved, and not on the basis of political considerations or of the state of diplomatic relations with certain countries. They must be based purely on what is in the best interests of the children who are prospectively to be adopted. That is why we are asking for a wider remit to consult other organisations whose only interest is promoting the cause of adoption for children for whom adoption is in their best interests, and which are without any political slant or international prejudices that might colour the Secretary of State’s decision.
The five amendments in my name and of other Opposition Members are constructive amendments aimed at improving the nature of this part of the Bill, which we support and have done all along. We are trying to put more detail in the Bill, which should provide more safeguards for those involved in the international adoption process, in the interests of transparency and fairness and ultimately, therefore, of the children whom this part of the Bill is all about.
This group of amendments seeks further clarification on our proposals for inter-country adoption and I welcome the opportunity to provide it. The amendments cover a wide range of related topics, including the process for imposing special restrictions on particular countries, the determination of the fee for inter-country adoption casework—although that issue has not been touched on in our debates, it is dealt with in the amendments—and arrangements for safeguarding children adopted abroad from this country. They raise different issues, and I will try to deal with each in turn.
As they stand, sections 84 and 85 of the Adoption and Children Act 2002 prevent children from being removed from this country for the purposes of adoption abroad unless certain conditions have been met. The aim of those provisions is to help to prevent the abduction of, and trafficking in, children, and to ensure the development by affected children of secure attachments with their prospective future legal parent. I am sure that Members will agree that we should do nothing to weaken that safeguard unless we are satisfied that it is absolutely necessary to do so.
New clause 3 would allow the current minimum cohabitation period of 10 weeks to be waived, as the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said. I did not serve on the Standing Committee, but the hon. Lady did, and I am sure that she will recall that we explained the rationale behind the requirement for an appropriate period of cohabitation in section 84 and why that means that the period of cohabitation must take place in the United Kingdom. However, I shall briefly rehearse some of that rationale.
Until an order is made under section 84, the local authority retains parental responsibility for the child, and hence remains responsible for the child. In the parallel situation of a domestic adoption, no application for an adoption order may be made unless the child has been living with the prospective adopters for 10 weeks. A similar requirement therefore applies to applications for an order under section 84, which allows the local authority to monitor and assess the placement and to step in immediately and directly if there are any problems. That is part of our reason for not wanting the 10-week period to be waived. Obviously, the local authority would not be able to monitor or take action as directly or as immediately if the child were outside the UK. The requirements in section 84 therefore give the same safeguards and protection to children placed with prospective adopters who intend to adopt the child outside the UK as are given to children placed with domestic adopters.
Various reports and information must be made available to the court when considering an order under section 84, including reports and information arising from a review of the placement. It is important that the court has information on the success, or otherwise, of the placement before making an order that authorises the prospective adopters to remove the child from the country, and to distance the child, in every sense, from its birth family. The proposed measure would limit the information available to the court, and a report of the assessment of the placement is a significant, if not pivotal, piece of information.
Having carefully considered the arguments previously put on this issue, we continue to believe that it would not be appropriate to water down such an important safeguard. There can be no justification for a lower standard of safeguarding for children placed for adoption outside this country than applies for domestic adoptions. We therefore do not support the new clause. I understand that last December the period in question was six months, and it has subsequently been reduced; it is now 10 weeks. We feel that that is appropriate and proportionate, and we do not as yet have any evidence to the contrary, although we would always consider such evidence, if it were offered.
Amendment No. 1 would require the Secretary of State to consult
“the central authority in the country or territory to which restrictions are to apply”
before making a declaration. The Hague convention requires contracting states to designate at least one central authority to discharge functions in respect of inter-country adoption. As it stands, clause 9 requires the Secretary of State to consult the devolved Administrations in Wales and Northern Ireland before making a declaration of special restrictions. Adoption is a devolved policy area, and that requirement is entirely reasonable, as a declaration will have a direct effect on those countries. Such consultations are undertaken relatively often and are not a significant cause of delay.
One of the concerns that caused us to introduce the Bill is child trafficking, which appears often to be fuelled and assisted by corruption and improper financial gain. That was one of the specific areas of concern that led to the introduction of a temporary suspension of adoptions from Cambodia, which I know was thoroughly discussed in Committee. Sadly, corruption and the lure of improper financial gain will be present in some countries that may be placed on the restricted list at all levels up to, and including, the central authority. Indeed, in some cases the central authority could even be the main cause of such problems.
In such circumstances, consulting the central authority could pose significant risks to children by triggering a rush—the hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned this—to process adoptions much more quickly, before the special restrictions are introduced. We are not suggesting that that will be a feature of all situations where a country is placed on the restricted list. Indeed, information gathered from the central authority may be of significant value in a number of cases. However, a requirement in primary legislation to consult in each and every case is clearly not appropriate, so I am sure that the hon. Gentleman will understand that we cannot accept the amendment.
Amendment No. 2 would require the Secretary of State to consult the Hague conference on private international law before making an order to impose special restrictions on a country that had ratified or acceded to the Hague convention. I assume that the intention is for the Secretary of State to consult the permanent bureau, which acts as the secretariat to the Hague conference, rather than the 65 member states that make up the conference. When concerns are raised regarding a Hague convention country, they should indeed be raised with the permanent bureau, which would generally expect to act as a mediator to help to resolve the situation. It can and does do that. In 2003, the permanent bureau convened a meeting of contracting states to discuss with Guatemala how concerns about adoptions from that country could be addressed.
We have a good working relationship with the permanent bureau and we understand that it would both expect and—importantly—be happy to be consulted. I can therefore reassure the hon. Gentleman that amendment No. 2 is not necessary, because we already use the mechanisms of co-operation managed by the permanent bureau. However, for the same reason that relates to amendment No. 1, there might conceivably be cases in which we will need to act quickly and do not want to risk the delay of consulting the permanent bureau. We would therefore not want a statutory obligation to consult in all cases—in case one of those exceptional circumstances should arise.
Amendment No. 4 would require the Secretary of State to establish a procedure to consider appeals against the decision to introduce special restrictions. It is only right that there are appropriate checks and balances on the powers of the Secretary of State, but I can assure the hon. Gentleman that they are in place without the need for the amendment. First, following the recommendation of the House of Lords Delegated Powers and Regulatory Reform Committee, clause 9(4) was amended to provide that the Secretary of State’s declaration that special restrictions will apply shall be made by order. That means that the order that declares that special restrictions are to apply is subject to the usual parliamentary scrutiny and could be annulled under the negative procedure in Parliament.
Secondly, when special restrictions are in place, it would also be open to anyone to make representations to the Secretary of State, which he would have a duty to consider. Clause 10 requires the Secretary of State to keep the special restrictions under review and, if he no longer has concerns over practices in the relevant country in connection with adoption, the restrictions must be removed. The consideration of representations would form part of the review of a restricted country and consideration of its removal from the restricted list. Thirdly, the introduction of special restrictions is an administrative decision made by the Secretary of State and, as such, will be subject to the supervisory jurisdiction of the High Court. Application for a judicial review is therefore also available as a course for challenging the Secretary of State’s decision to introduce special restrictions. As we know, that has happened; there has been a challenge in the past.
Clause 11 already provides a mechanism for individual prospective adopters to argue that their application should proceed, despite the special restrictions. Cases will be decided on their merits after consideration of the prevailing circumstances and the best interests of the child concerned. Several examples of that were fleshed out in Committee. Given all the protections that are in place, there is no need to add a statutory framework for appeals.
I am happy to say that amendment No. 22, which would require regular reviews of decisions to impose special restrictions, is not necessary. Clause 10(1) will explicitly require the Secretary of State to keep under review whether any country on the restricted list should remain as such.
Yes, clause 10(1) will indeed oblige the Secretary of State to keep the matter under review, but it will not oblige him to publish his findings. We do not know the form that the internal review might take. We are trying to make the point through the amendment that a much more transparent system is needed so that people who wished to adopt, or whose prospective adoption was interrupted by a suspension process, could be kept fully in the loop. The amendment would mean that everyone could be assured that the reasons for suspending a country were valid while the suspension was in place.
The hon. Gentleman makes a fair point. It is in the interests of the Secretary of State and all of us to ensure that these matters are in the public domain and are fleshed out as far as possible. The Bill’s provisions are sufficiently strong for us not to require anything further in statute. The hon. Gentleman asked a specific question about China, to which I will ensure he gets a quick response. I understand that the Department for Education and Skills has been in dialogue with its Chinese counterparts and we are hoping for a conclusion to be reached sooner rather than later.
Amendment No. 23 would require that before revoking a declaration of special restrictions, the Secretary of State would have to consult prescribed organisations involved in adoption, as well as colleagues in Wales and Northern Ireland. As I have said already, there are good administrative reasons why consultation with the devolved Administrations is appropriate when making or revoking declarations of special restrictions. There might well be occasions when organisations involved in adoption that might know something about the circumstances in the relevant country would be consulted before revoking a declaration, but that will not be necessary in every case, so we should not put a blanket provision in the Bill. There is a commitment that such consultation will take place when we can glean additional information that will give us more knowledge of what is happening on the ground to assist the Secretary of State to make a decision.
As I said at the outset, I am grateful to the hon. Members for Mid-Dorset and North Poole and for East Worthing and Shoreham for giving me the opportunity to clarify our position on an important, yet not uncomplicated, set of provisions. I hope that I have been able to offer sufficient reassurance about our intention to be transparent, which is especially important in this area of work, and our use of the provisions. We will be guided at all times by the objective of safeguarding children, which we all support. On that basis, I hope that the hon. Member for Mid-Dorset and North Poole will withdraw the new clause.
I will not press new clause 3 to a Division. I take heart from the Minister saying that the matter can be kept under review because I am sure that if the appropriate agencies have such evidence as is feared, they will feel able to contact the Minister directly. I am not entirely convinced that the transparency and openness will be as great as Opposition Members would like, but, with those few comments, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 4
Presumption in favour of co-parenting
‘After section 1(1) of the Children Act 1989 (c. 41) insert—
“(1A) In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child's welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”'.—[Tim Loughton.]
Brought up, and read the First time.
With this it will be convenient to discuss the following: New clause 9—Reasonable contact: no order principle—
‘After section 1(5) of the Children Act 1989 (c. 41) insert—
“(6) The “no order” principle in section 5 shall be construed subject to section 1A of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”'.
New clause 11—Provision as to family assistance orders—
‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child's interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.'.
New clause 12—Reasonable contact: welfare checklist—
‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—
“(h) the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.” '.
New clause 13—Presumption of reasonable contact—
‘After section 1(1) of the Children Act 1989 (c. 41) insert—
“(1A) In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child's interests are best served through reasonable contact with both his parents in the absence of good reason to the contrary.” '.
New clause 16—Extended family: desirability of contact—
‘After section 5 of the Children Act 1989 (c. 41) insert—
“5A Extended family: desirability of contact
(1) Where an order with respect to a child is made by the court the court must take into account the desirability of contact between the child and his extended family.
(2) Subsection (1) will not be taken into account by a court if it conflicts with any welfare requirements in Section 1.”'.
New clause 17—Non-resident parents—
‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—
“(h) the importance of sustaining a relationship between the child and a non-residential parent.” '.
New clause 18—Statutory objectives—
‘(1) In discharging their respective functions in connection with any proceedings in which the court is considering whether to make provision about contact with a child—
(a) the court;
(b) the Children and Family Court Advisory and Support Service; and
(c) the parties' legal representatives (if any)
must, so far as is reasonably possible, act in a way that is compatible with the objectives set out in subsection (2).
(2) The objectives under subsection (1) are—
(a) the welfare of the child;
(b) reduction of the risk of harm;
(c) reasonable contact; and
(d) post separation parenting.
(3) The welfare of the child applies in all respects as set out in section 1 of the Children Act 1989.
(4) “Reduction of the risk of harm” means that the safety of children and other persons involved in contact arrangements should be assessed and planned for and the danger of violence should be minimised.
(5) “Reasonable contact” means the promotion of ongoing contact between a child and his parents and other family members to an extent that is reasonable having regard to the facts of the individual case.
(6) In having regard to post separation parenting the court, the Children and Family Court Advisory and Support Service and the parties' legal representatives (if any) shall promote the desirability of co-operation between parents in the making of arrangements for any child contact.
(7) In applying these objectives the court, the Children and Family Court Advisory and Support Service and the parties' legal representatives (if any) shall have regard to the contribution that mediation may make to achieving them.'.
New clause 19—Applications for contact orders (grandparents and family carers)—
‘(1) In the event of an application to a court for an order permitting contact with a child by—
(a) a grandparent of the child; or
(b) a relative with whom the child has lived for a period of at least one year,
the application may be made without the leave of the court.
(2) The period of one year mentioned in subsection (1) need not be continuous but must not have begun more than three years before, or ended more than three months before, the making of the application.
(3) The Secretary of State may by regulation amend section 10 of the Children Act 1989 in accordance with the provisions of subsections (1) and (2).'.
New clause 24—Presumption of reasonable contact in the absence of good reason to the contrary—
‘After section 1(1) of the Children Act 1989 (c.41) insert—
“(1A) In respect of subsection 1(1) above, subject to good reason to the contrary and where the safety of the child is not an issue, the court shall act on the presumption that the child's interests are best served through reasonable contact with both of his parents whether or not he is resident with either parent.
(1B) In determining what “reasonable contact” is in respect of subsection (1A) the court shall have regard to the desirability of—
(a) contact facilitating a positive and fulfilling relationship between the parent and the child;
(b) frequent contact;
(c) contact lasting for lengthy time periods;
(d) contact with siblings; and
(e) contact with extended family.”'.
New clause 25—Default contact arrangements—
‘Schedule (New Schedule 1) (which makes provision for default contact arrangements) has effect.'.
New schedule 1—Default contact arrangements—
1 (1) This Schedule applies where two persons having parental responsibility for a child under the age of 14 years are at the commencement of this Act living or thereafter commence to live in separate households from each other.
(2) In this Schedule the “resident parent” means that person with parental responsibility for a child specified under sub-paragraph (1) who is principally resident in the same household as the child; the “non-resident parent” shall mean the other person, with whom the child does not reside.
(3) The provisions of this Schedule are entirely without prejudice to the responsibility of the resident and non-resident parents in any case to which this Schedule applies to make such agreed arrangements for contact with the child as they may decide are appropriate in the child's best interests.
(4) In any case to which this Schedule applies in it shall be the responsibility of both the resident and the non-resident parents—
(a) to endeavour to reach agreement as to such arrangements for contact or,
(b) if they are to give effect to the default contact arrangements set out in paragraph 4 below, to endeavour—
(i) to ensure that the default contact arrangements operate smoothly;
(ii) to reach agreement as to the detailed implementation of the default contact arrangements; and
(iii) to reach agreement as to such variations to the default contact arrangements with regard to dates, times and delivery and collection arrangements as may be appropriate to suit the circumstances and commitments of the child, any sibling of the child, the resident parent and the non-resident parent.
(5) On any application to a court for contact with any child the way in which the resident and non-resident parent have each discharged the responsibility set out in paragraph 1(4) shall be a circumstance which it shall be relevant for the court to consider.
2 In any case where the resident parent and the non-resident parent commence living in separate households after the commencement of this Act they shall be deemed to have agreed upon such separation to the arrangements for contact between the child and the non-resident parent set out in paragraph 4 below (“the default contact arrangements”) and such arrangements shall be put into effect from the date of such separation unless and until either—
(a) the resident parent and the non-resident parent have agreed alternative arrangements for such contact; or
(b) a court otherwise orders.
3 In any case where the resident parent and the non-resident parent are already living in separate households at the commencement of this Act they shall be deemed to have agreed at the date of such commencement to the arrangements for contact between the child and the non-resident parent set out in paragraph 4 below (“the default contact arrangements”) and such arrangements shall be put into effect unless and until either—
(a) the resident parent and the non-resident parent have agreed alternative arrangements for such contact; or
(b) a court otherwise orders.
4 The default contact arrangements to which paragraphs 2 and 3 above refer shall be as follows—
(1) In the case of an infant under one year old, the child shall visit the non-resident parent every Sunday between 9 a.m. and 5 p.m.; and the resident and non-resident parents shall share responsibility for transport of the child between their homes.
(2) In the case of any child who has attained the age of one year but is not yet in full-time education, the child shall—
(a) stay with the non-resident parent on alternate weekends from 10 a.m. on Saturday until 5 p.m. on Sunday;
(b) visit the non-resident parent from 2 p.m. until 5 p.m. every Wednesday;
(c) stay with the non-resident parent for seven weeks' holiday per year, on dates to be agreed between the resident and non-resident parents or, in default of such an agreement, determined by a court; and
(d) the resident and non-resident parents shall share responsibility for transport of the child between their homes.
(3) In the case of any child in full-time education who has not yet attained the age of fourteen years, the child shall—
(a) stay with the non-resident parent on alternate weekends from after the child finishes school on Friday until 6 p.m. on Sunday;
(b) visit the non-resident parent from 4 p.m. until 6 p.m. every Wednesday;
(c) stay with the non-resident parent for seven weeks' holiday per year, of which at least ten days shall be in the Christmas school holidays, ten days shall be in the Easter school holidays; and the balance in the summer school holidays, the precise dates to be agreed between the resident and non-resident parents or, in default of such agreements, determined by a court; and
(d) the resident and non-resident parents shall share responsibility for transport of the child between their homes and/or the child's school.
5 This Schedule shall not apply in circumstances where allegations of child abuse are made in such form as the Secretary of State may by order prescribe.'.
We come to the guts of the main part of the Bill. In the absence of any signs to the contrary, I shall speak, first, generally to the thrust of the new clauses before going into detail.
New clause 4 goes to the heart of the principle that we think should be set out in the Bill. If the Government agreed to the principle that is enshrined in the new clause, they would, at a stroke, remove the major objections to why the Bill, in its current form, will not work and why it will prove to be a damp squib, as we have warned all along. The principle is clear: it is that a child’s welfare and interests are best served by both his parents being as actively involved in his upbringing as possible unless there are good reasons to the contrary that pose a risk to the safety of that child. That rider runs through every amendment that the Opposition have tabled to the Bill throughout all stages of its consideration.
The new clause and the associated new clauses are not about parents’ rights. We have not once addressed the Bill in terms of parents’ rights. The new clauses are not about treating a child as some accessory or commodity whose ownership should be tightly defined and whose diary should be artificially prescribed on a rota basis between each of his parents. The new clauses are not about compromising the paramountcy of the welfare of the child as set out in section 1 of the Children Act 1989, some 17 years ago. That piece of legislation is as relevant and valued today as it was when it was first debated in the House.
Surely a child’s welfare is best served by maximising the time—preferably quality time—that is spent with both his parents. That is complementary to, and not contradictory to, the paramountcy of the welfare of that child. The new clauses represent none of the things that they have at times been caricatured to represent by the Minister and her predecessor, who was guaranteed to launch into a frenzy every time the issue of co-parenting was mentioned.
I do not disagree with the principle of a child’s welfare being met by contact with both parents. Does the hon. Gentleman agree that in new clause 4 his definition of a child’s welfare is prescriptive? For example, it reads that the presumption is
“that if his parents are not living together”,
the child’s welfare is best served through residence with one of them. A child’s need for quality parenting from both parents could be met by residence for three days with one parent and four days with the other. I am suggesting to the hon. Gentleman that perhaps the new clause demonstrates the difficulty of trying to define in the Bill in a prescriptive way how a child’s welfare needs might be met. It is something that might be better met by a court’s decision.
I appreciate the hon. Lady’s point. I appreciate also her longstanding interest in and great involvement with this Bill at all stages. However, what she is suggesting would be rather more prescriptive. What we have put in the new clause is broad ranging. It sets down a principle that can be applied to other aspects of the Bill.
I do not want to say that a child should spend three days with one parent and four days with the other, or vice versa, or any computation of that. We have never once tried to do that. That would be extremely prescriptive. New clause 4 and the other similar new clauses set out the principle that should be applied throughout this Bill and which should be used to amend the Children Act 1989. It underlines the fact that it is in the best interests of the child to spend as much quality time as possible with each of the parents. As new clause 4 says, those parents should be
“as fully and equally involved in his parenting as possible.”
In using the word “equally”, we are in no way trying to prescribe that they should spend 50 per cent. of the time with their children. That would be absolutely wrong; it would not be a reflection of real life, as the hon. Member for Stockport (Ann Coffey) will know from her experience and as I do from mine. I am afraid that there is no way that I spend 50 per cent. of the time, divided between myself and my wife, with my children, regretfully. That is the nature of hon. Members’ jobs, and it is the same for many other people’s jobs. To try to replicate a 50:50 division of time after a couple had split up would not properly reflect the nature of a parent’s relationship with a child when a couple is together in a united family. We have been at great pains to try to ensure that new clause 4 is not prescriptive, but it is fundamental to the principle behind our whole approach to the Bill.
The early-day motion on parenting time presumption, tabled by the right hon. Member for Maidenhead (Mrs. May), goes to the root of the issue and has received extensive cross-party support. I welcome the new clause, but would the hon. Gentleman not acknowledge that the use of the word “equal” will, no doubt, allow various debates to ensue? Would not a word such as “comparable” give a more appropriate impression of what he is trying to achieve?
I welcome the hon. Gentleman’s involvement in the discussion and the fact that he is one of the 116 Labour signatories who have made early-day motion 128—tabled by my right hon. Friend the Member for Maidenhead (Mrs. May), me and other hon. Members—one of the top three most supported early-day motions in this Parliament. Before I come to that subject, I want to refer to his mention of the word “equal”. We do not talk about equality in that respect; we use the phrase
“as fully and equally involved…as possible”.
That should not be taken to mean 50:50—that would not be a reflection of reality, as I was at pains to point out to the hon. Member for Stockport.
The principle of new clause 4 lies behind early-day motion 128, which was launched more than a year ago and has now been signed by 345 hon. Members of all parties—a clear majority of hon. Members. It has been signed by 116 Labour Members, 157 Conservative Members and 50 Liberal Democrat Members—although, sadly, not the hon. Member for Mid-Dorset and North Poole (Annette Brooke), who speaks from the Front Bench. Many Democratic Unionist party Members, all Ulster Unionist party Members and a goodly number of Welsh nationalists, Scottish nationalists, Social Democratic and Labour party Members and even Respect have added their names to that early-day motion.
At the eleventh hour in the passage of the Bill, if the Government are really serious about improving the life chances of some the most vulnerable children in our society, as the Minister for Children and Families put it on Second Reading, it is time—long overdue—that she took note of the views of the House as expressed in that early-day motion. I hope that, if we press the new clause to a vote, we will see a rather fuller Chamber, reflecting the commitment that hon. Members made when they signed that early-day motion and when they responded to their constituents through various organisations that lobbied them to say, “Yes, we support this principle.” We now expect them to put their money where their mouths are, because the problem is getting worse, not better.
Every year, between 150,000 and 250,000 parental couples separate. One in four of the 12 million children in this country will experience the separation of their parents at some point, and 68 per cent. of them will be aged 10 or less. As a child, I was in that position, as I am sure were many other hon. Members. For many children, the future in the family is sorted out amicably and does not require the interference of court proceedings, mercifully. We are told that 90 per cent. of cases are settled without recourse to the courts, but that figure disguises the fact that many non-resident parents are forced to submit to unsatisfactory, unfair or non-existent contact arrangements, because of the fear of long-drawn-out and expensive court procedures. That is why around 40 per cent. of non-resident parents lose contact—or lose meaningful contact—with their children within two years of a family breakdown. Of those who go down the legal route, because they feel that they have to, that number has mushroomed. The number of applications for contact going through the courts has ballooned from 17,470 in 1992 to 70,169. A study by Oxford university that was cited in Committee postulated that there may be 2 million non-resident fathers in the population, as 80 per cent. of children in separated families live exclusively or mainly with their mothers.
Clearly, the current law is not working as a deterrent to acrimonious court action. We believe that it needs to be turned on its head—hence new clause 4, which does precisely that, backed up to varying degrees by other new clauses and amendments. What could be more sensible than new clause 4, which simply seeks to enshrine in statute what we are constantly told the courts seek to achieve in practice—that
“a child’s welfare is best served”
through both parents being
“as fully and equally involved in his parenting as possible”?
From that basic premise, each parent can set out his or her stall on a level playing field and decide how time and attention can best be spent with his or her child. No arguments about rights will happen if we start from an equal basis.
We have some very good parents in this country, but we also have some lousy ones. We have some dedicated, loving, attentive parents not living with their children who are too often frozen out of reasonable contact arrangements with their children; and we have some lousy parents who are living with and responsible for their children who too often use them as pawns in an acrimonious dispute with a former partner, particularly when they hold the strongest cards. Too many of those parents subsequently become serial breachers of contact orders with impunity, which is why the Bill was necessary in the first place.
Family breakdown is rarely, if ever, the fault of the child, but too often the child becomes the victim when arrangements are not settled sensibly and amicably. The principle set out in new clause 4 was endorsed by the noble Lord Adonis, the Minister in the other place, when the Bill was debated there on 29 June 2005. He said:
“We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, so long as it is safe”—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 251.]
Let us therefore have that built into the Bill. The principle was also supported in the Green Paper, which said that after separation both parents should have a responsibility for and a safe meaningful relationship with their children, so long as it was safe, and it pointed out that that was the view of most people in our society. I entirely concur with that.
We all know the statistics about the benefits of maximising contact with non-resident parents, who tend to be the fathers. The children achieve more academically; they are less likely to get into trouble with the police; they become more sociable; and they have better health outcomes. Effectively, the new clauses and amendments are a statement of the bleeding obvious—[Interruption.] They need to be stated directly in the Bill because, as it stands, it will not work properly.
I have dealt with new clause 4, which sets out the principle. New clause 9 is—[Interruption.] I believe that I used parliamentary language and I have not been hauled up for it, but I think that we have got the point from what I said.
New clause 9 is a technical amendment to section 1 of the Children Act 1989, which is designed to extend the basic principle that in the absence of evidence of any likely harm being caused to the child, contact is better than no contact. New clause 11 is designed to extend the reasonable contact principle to family assistant orders. New clause 12 amends the welfare checklist in the Children Act and deals with the accusation that our amendments would undermine the paramountcy of the welfare of the child. I would contend in any case that we can have a hierarchy of presumptions about what is best for the welfare of the child. We have argued all along that maximising contact with parents is integral to promoting the welfare of the child. The welfare checklist in section 1, which is so important to the 1989 Act, already contains considerations about physical and emotional needs, the effect of changing circumstances and the capability of the parent, so surely desirability of contact complements that list, rather than undermines it. That is why new clause 12 is such an important addition to the amendments that we propose.
New clause 13 mentions again the desirability of reasonable contact under section 1 of the Children Act. “Reasonable contact” is a phrase that we used frequently in Committee. In many cases, unfortunately, the corresponding amendments were not selected for debate, but reasonable contact goes to the heart of what we are suggesting. That is why new clause 24 aims to define what constitutes reasonable contact.
New clause 24 states:
“In determining what ‘reasonable contact’ is in respect of subsection (1A) the court shall have regard to the desirability of”—
and we give five considerations of what constitutes reasonable contact. They are, first,
“contact facilitating a positive and fulfilling relationship between the parent and the child”.
All of us can take a view on what that means. It clearly sends a message that reasonable contact needs to achieve something and is based on quality, not just quantity.
Secondly, the court should have regard to the desirability of “frequent contact”.
A nice long letter once a year, a Christmas card, a birthday card or an annual visit is not frequent contact. That would not constitute reasonable contact. The third consideration is that contact should last for lengthy periods. A couple of hours snatched on a wet and windy seafront on an autumn trip does not constitute reasonable contact, unless it is ongoing.
The fourth consideration is contact with siblings. This is an aspect on which many hon. Members focused in Committee, especially my hon. Friend the Member for Peterborough (Mr. Jackson). Siblings and extended family, which is the subject of the fifth consideration—brothers and sisters or, more frequently, grandparents of children in a family that has split up—become the victims and are frozen out of future relationships with those children. That is not in the best interests of the child’s welfare and is also not fair to the grandparents and the siblings, who in many cases have played no part in whatever led to the breakdown of that family unit. New clause 24 is a useful addition to define what we mean by reasonable contact, which is essential to the success of the Bill.
New clause 16, following on from the theme that I have just outlined, would amend section 5 of the Children Act to reinforce the desirability of contact with the extended family, particularly grandparents. Just because a couple decide that they no longer want to live with each other or continue a marriage, the children should not be deprived of meaningful contact and a meaningful ongoing quality relationship with grandparents, uncles, aunts and cousins, who can provide some degree of stability and continuity in what can be a very turbulent period, especially for young children. Their role is perhaps even more important at a time when a family unit breaks up than it was when a loving father and mother were present all the time for those children.
My hon. Friend is making an important point about grandparents, who are so vital and can often be an anchor when parents unfortunately split up. That is why it is so important that the children maintain their relationship with grandparents. We strongly endorse that.
I am grateful for my hon. Friend’s support. That point found support on both sides of the Committee. After my parents split up, my relationship with my grandparents was important—I particularly enjoyed my frequent visits to Eastbourne pier, where I became a fruit machine junky, although that is another story for another day.
I will not go into detail on the new clauses tabled by other hon. Members. New clause 17, tabled by the hon. Member for Mid-Dorset and North Poole, is similar in many respects to our own attempt to amend the welfare checklist, and as such it merits our support.
New clause 18, tabled by the hon. Member for Stafford (Mr. Kidney), concerns the Children and Family Court Advisory and Support Service objectives on welfare. It has some merit, and I will be interested to hear what he has to say. Newclause 19 deals with access by grandparents, which I have already mentioned and which we support.
I have severe reservations about new clause 25 and new schedule 1, tabled by the hon. Member for Mid-Dorset and North Poole on behalf of the Liberal Democrats. The new clause and, in particular, the new schedule, which details the arrangements, go completely against the concept of non-prescription that we have tried to promote throughout the Bill. To try to set down in statute, whether it be by default or otherwise, prescriptive arrangements on how a child’s time should be broken up risks treating that child as a commodity and undermines a lot of the good work on bringing about cordial arrangements between parents that are in the best interests of the child. For example, what would happen if a child who is supposed to spend every other Saturday afternoon with their father had a school football match? Must the child opt out of the football match in order to satisfy their father’s or mother’s part of the deal?
I am sure that new clause 25 was tabled with the best of intentions, as is the case with so much of what we get from the Liberal Democrats, but it is entirely unworkable in practice and would be dangerous if it were added to the Bill. If the hon. Member for Mid-Dorset and North Poole is minded to push new clause 25 to a vote, she should not come to us touting for support, because she will not get it.
None of our amendments is rocket science. The concept of shared parenting being enshrined in statute is being looked at in a number of other countries and several US states: it was an undertaking of the new Canadian Government; it is being examined in the Senate in Italy; a considerable amount of work is currently going on in Australia; and, as we speak, the Senate in Brazil is considering a new law establishing joint custody for children as the first option after divorce—the new law has already been passed by the federal deputy chamber.
The idea is not new in this country. As I said in Committee, the previous Conservative Government considered amending the law along those lines in the Family Law Act 1996, section 11(4) of which states:
“the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by-
(i) his having regular contact with those who have parental responsibility for him and with other members of his family; and
(ii) the maintenance of as good a continuing relationship with his parents as is possible”.
I would also mention the Children (Scotland) Act 1995, which enshrines the desirability of maintaining personal relations and direct contact with non-resident parents on a regular basis.
Why cannot we have that here? Many people with children’s best interests at heart have been calling for it for many years. We have consistently called for these amendments throughout every stage of the Bill’s progress in this House and in their lordships’ Chamber. They would set out for a separating mother and father what the norm will be, what will be expected of them, and what will happen to them if they do not respect the judgments made. It is as simple as the principle that one is innocent until proven guilty. Someone who is a good parent should be deemed to be such unless and until it is proven reasonably that they are not. We want to establish the principle that it is a norm that reasonable contact should be assumed after a split because that is in the best interests of the child in the absence of evidence to the contrary.
If the Government are serious about wanting to deal with the problems that many of our constituents face, and about producing worthwhile legislation that will do something about them instead of just talking about it, headlining the problem and ticking the boxes, they should add these new clauses to the Bill. They are fundamental to its workability and go to the heart of the problem. On that basis, I wholeheartedly commend them to the House.
New clause 18 stands in my name and in those of the hon. Members for Mid-Dorset and North Poole (Annette Brooke) and for Ceredigion (Mark Williams). New clause 19 also stands in my name.
Debate on the Bill, in this House and outside, has largely been polarised around two issues and two groups of people. One group is keen to prevent an obstructive parent from stopping the other parent having contact with the child, while the other is worried about domestic violence and abuse being insufficiently recognised in court proceedings to make a parent allow contact between the child in their care and the parent who is not resident with the child. In new clause 18, I attempt to rise above those polarised points of view and say that there is merit in both arguments, but not in one to the exclusion of the other. I hit upon the idea that if the Bill were to have statutory objectives added to it, we might be able to reach an agreed solution. Sadly, it seems that I have fallen between the two stools, and neither have I attracted the support of the Minister. However, I will explain why I think that it is a good approach.
Statutory objectives are quite rare, but they have been seen to work in other areas of the law. A good example from a completely different area is that of the Financial Services and Markets Act 2000, which has four statutory objectives in regulating the Financial Services Authority. That authority has been able to adopt a risk-based approach to regulation that has been beneficial for this country’s financial services sector, which is probably the most successful in the world. I decided that in trying to resolve disputes about contact with children, the courts, CAFCASS officers and those in the Welsh service who deal with preparing court cases involving parents who are in dispute, and the legal representatives of those who want to go to court, should all have regard to four statutory objectives, namely:
“(a) the welfare of the child;
(b) reduction of the risk of harm;
(c) reasonable contact; and
(d) post separation parenting.”
As the hon. Member for East Worthing and Shoreham (Tim Loughton) said, the first—the welfare of the child—comes from the Children Act 1989, a successful measure that has stood the test of time. Its aims of putting children’s interests first have been successful. Section 1 states that
“the child’s welfare shall be the court’s paramount consideration.”
Nothing should interfere with that resounding statement that children’s interests come first.
The polarised arguments about preventing obstructive parents from getting in the way of contact in, for example, new clause 4, try to solve the problem by attacking the paramountcy of the child’s welfare. New clause 4 would force the court to presume that the child’s welfare includes so-called co-parenting. That is far too narrow. Section 1(3) of the Children Act contains a welfare checklist, which sets out all the issues that courts should take into account when deciding what is in the child’s best interests. They include all the relevant matters that the hon. Member for East Worthing and Shoreham set out for our consideration.
I am following the hon. Gentleman’s argument closely, but does he believe that it is incumbent on him to define robustly the paramountcy principle, given that the Bill does not do that? It continues to be a panacea, which children’s charities, the Government and others use. Should it not be properly defined for us to go forward?
With the greatest respect to the hon. Gentleman, for whom I have great respect, especially for his views about grandparents in the sort of proceedings that we are discussing, I believe that he is wrong. As I said, the Children Act has stood the test of time and thousands of courts have made decisions about contact in the light of that measure. The welfare of the child and its paramountcy is well understood and applied correctly by the courts.
The presumption of contact is well established. Those of us who served on the Committee often heard reference to a report by Her Majesty’s inspectorate of court administration, “Domestic Violence, Safety and Family Proceedings”, which said that in all the practice sessions that it had observed in the inspection, the presumption of contact was evident. Indeed, paragraph 3.9 of the report worryingly stated:
“and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases.”
The presumption of contact is therefore alive and well and the report alerts us to the fact that it applies to an inappropriate extent and that, in some cases, there might be danger for children and parents in allowing contact to proceed.
That brings us to the statutory objective that I propose—to reduce the risk of harm. The other great polarised debate is about whether there should be no contact if there is any risk at all of abuse to the child or the other parent. Again, I believe that it goes too far, but until the House of Lords included clause 7, the Bill contained no provision for the court even to ascertain whether any harm was being done.
The statement that preceded our proceedings was about schools checking whether staff employed there might pose a risk to children. What about courts? They order somebody to allow contact. Surely they should consider whether there is a risk of harm. Clause 7 provides that if there is suspicion of harm, CAFCASS will undertake a risk assessment, but the Bill includes nothing about what anyone does with it. Under clause 7, at least it will go to the court, and the court will have the power to make orders. My statutory objective about reducing the risk of harm would at least remind the courts that, when they receive a risk assessment report, something ought to be done with it.
The fourth of my statutory objectives deals with parenting relationships after a separation. This brings me to a report to which the hon. Member for East Worthing and Shoreham and I both referred with approval in Committee. It is an excellent report by the University of Oxford, “Family Policy Briefing 3”, produced in January 2004, which gives advice to policy makers such as ourselves. Its final section, “The way forward”, warns us to be cautious about making any legislative change at all. It states:
“Introducing a presumption of contact is…problematic”
“case for amending the Children Act may be stronger in relation to domestic violence”.
The report goes on:
“Post-separation parenting is a very neglected area…There would be widespread support for a programme aimed at improving service provision”
to promote better relationships between parents after they separate. That is why my fourth statutory objective would be beneficial in the longer term. This is a longer-term issue.
I am listening carefully to the hon. Gentleman’s speech. Will he enlarge on who exactly would provide the support for the parents in those circumstances? It is patently clear that, in its present form, CAFCASS would be unable to take on any burden over and above what is being placed on it by the Bill.
I mentioned earlier the problems associated with polarised debates. There are lots of reasons why contact does not proceed, including obstructive parents, delays in the investigations associated with court proceedings, and a lack of resources for those who are supposed to give the kind of support about which the hon. Gentleman is asking.
I note that CAFCASS is developing a change to its approach to court proceedings, so that it can make more active interventions at the beginning of a case. In that way, it could facilitate early agreements and make use of the provisions in the Bill for contact activities. It would therefore be easier to solve problems at the beginning. “Sort, not report” is the strap-line that it uses. Instead of writing a report that could take 12 weeks to deliver, it will try to act more quickly to solve the problem. So perhaps a change of approach from CAFCASS, with good leadership and reasonable resources, is the way to ensure that there is support during court proceedings, when judges look for support for the directions that they give.
I want to move on to new clause 19 in a moment, but for completeness I want to mention a charity in my constituency called Stafford PAIRS, which stands for “preventing abuse in relationships”. The charity is strongly supportive of risk assessments in cases of domestic violence or abuse. One of the partners to that charity, a worker with Women’s Aid in Stafford, told me that, of 18 clients with whom she had dealt since October 2004, three had expressed suicidal feelings because of the pressures of being compelled through court proceedings to allow the other parent contact with their child after domestic violence had caused the breakdown of the relationship. I want people to appreciate the other side of the argument.
New clause 19 is a procedural amendment that would allow grandparents the same opportunity to ask a court to allow contact that a parent has now. Parents are entitled to apply to a court for a contact order, but grandparents are not. The new clause proposes that grandparents should have the same right to join in proceedings to ask the court to consider whether a contact order should be granted in their favour. I leave it to the hon. Member for East Worthing and Shoreham to explain why relationships with grandparents are beneficial to grandchildren. I merely say that grandparents should be given the opportunity to show that to the courts, and that court orders would then follow.
New clause 19 also proposes that other family carers—not parents or grandparents—who have cared for a child for at least a year ought to be at least in the same position as a foster carer who has cared for a child for a year, and should be able to apply to the court for a contact order. The new clause is a procedural device to put such people on the same level as those who already have similar rights under legislation.
As I seem to have little support from Members on either side of the House or from the Government Front Bench, I am not hopeful that my new clauses will make progress, but I believe that if the Bill is to prove a lasting success when enacted, we must do more both to ensure that children maintain contact with both parents, and to root out cases of domestic violence earlier.
I have great sympathy with most of what was said by the hon. Member for Stafford (Mr. Kidney). I sincerely believe that we need to find a solution. Our starting point is the United Nations convention on the rights of the child, which states that a child has the right to direct and regular contact with both parents unless that is contrary to the child’s best interests. It is strange that we are struggling—by “we”, I mean the majority of the House—to find a solution that will put something in the Bill without risking the safety of the child or undermining the child’s paramountcy.
It is generally acknowledged to be in the child's best interests to sustain a full relationship with both parents, but obviously it will not be if there is a risk of harm, or in relationships involving extreme conflict, which can be immensely damaging for a child caught in the middle. I do not think that we should be too prescriptive. I shall be explaining an unusual proposal when I have dealt with the others.
I genuinely believe that every case is different, but we need to have more in legislation than we have at present. Parents should be able to assume that contact should take place in most cases. I am sure all our surgeries have often been visited by grandparents in great distress. I should like the Bill to incorporate a provision applying in particular to grandparents and the extended family, and I hope that the Minister will be able to give us some comfort. A number of suggestions have been made today and we have rehearsed many of the arguments that were presented in Committee. What exactly is the problem?
One of the conclusions of the Constitutional Affairs Committee’s fourth report of the Session 2004-05, entitled “Family Justice: the operation of the family courts”, was
“We consider that a clear statutory statement of this principle would encourage resident parents to assume in most cases that contact should be taking place.”
Such a provision would set the scene, or the culture, to which we should move. The percentage of intractable cases is relatively small, but the outcome of some that are settled out of court is not ideal, and I would not wish to suggest otherwise.
The hon. Member for East Worthing and Shoreham (Tim Loughton) said that a birthday card was not enough. Every time he makes that point it tears at me somewhat. I only wish that we had evidence of how often that is the case, and in what circumstances. Certainly, we hear of such cases, but we usually get only one side of the story and not all the details.
New clause 4 contains the term “legal presumption”. I made it clear on Second Reading and in Committee that that is a problem for us. The Select Committee considered the arguments carefully and it is interesting that Resolution—the new name for the Solicitors Family Law Association—suggested in written evidence that there should be a second, lower order, presumption, although part of that suggestion was retracted in subsequent oral evidence.
I am saddened but not entirely surprised to hear that the hon. Lady has problems with the phrase “legal presumption”. Will she explain why 50 of her colleagues have signed early-day motion 128, which refers specifically to the need to have a “legal presumption of contact”? Are they misguided, or not on message? Will they surprise her with how they vote if the new clause is pressed to a Division?
I thank the hon. Gentleman for that intervention, which was not entirely surprising. All hon. Members are genuinely concerned about parents losing contact with their children. I am sure that every word of the early-day motion arouses sympathy, but any proposal that would put the phrase “legal presumption” on the face of the Bill requires a great deal of thought. Some very eminent people have said that conflict could arise if there are two legal presumptions. That deserves much serious consideration, given that five or six children’s organisations have said that they share that concern.
I am grateful to the hon. Lady, who must find it painful to be in a minority in her party. She is right to say that we, as legislators, have a responsibility, and our first responsibility is to be consistent. Most members of her party are prepared, for cheap gratification, to assuage the concerns of those who are genuinely affected by the problem that we are discussing by agreeing to sign up to early-day motion 128, but will they support the new clause in the Division? That is what is important. I despair at the duplicity of the Liberal Democrats, who claim to support a proposal in principle but who utterly fail to do so when it really matters.
Perhaps I should just pass on that intervention. We will support the Select Committee recommendation—which has been accepted by a number of people who gave evidence to the Committee and were involved in the discussions—that a statement should be inserted into the welfare checklist required under the Children Act. For my version of the provision, I have chosen the wording recommended by the Select Committee—that the courts should have regard to
“the importance of sustaining a relationship between the child and a non-residential parent”.
It is important that we find wording that will not cause conflict between two legal presumptions. To pursue something that might lead to a dangerous outcome is far more damaging than feeling that one has signed one’s life away because one has signed an early-day motion. When people sign an early-day motion they do not expect every word of it to appear in legislation.
Our proposal is important to us; there should be such a legislative statement. I was attracted to the new clause proposed by the hon. Member for Stafford (Mr. Kidney), as its ingredients included all the issues that we want to raise. We need provisions that will move us forward rather than saying, “No, no, we cannot put anything on the face of the Bill”, but we must give them due consideration.
It is interesting that the Government picked up the suggestion for an addition to the welfare checklist as an idea that they would investigate. It was supported by the scrutiny Committee for the draft Bill, but the Government said at one stage that it was not appropriate because it would be relevant only to private law and not to public law. I cannot follow that argument, because one would not need to take such a checklist into consideration in a public law case. I would have thought that there was a way round that point and that it need not be the problem that has been suggested.
All Liberal Democrat MPs are concerned that children and parents retain contact where it is safe to do so, but we need to find the right route. I look forward to the response of the Under-Secretary of State for Education and Skills, the hon. Member for Gloucester (Mr. Dhanda). New clause 4 is slightly different from the provision on which we voted in Committee, but if he can reassure me that it is perfectly safe, we could vote for it. However, on such an important issue, when we know that children die if wrong decisions are made—
I am confused about the official Liberal Democrat policy on co-parenting and the early-day motion signed by about 85 per cent. of the parliamentary party. I am also confused by the fact that the hon. Lady says that she will look to the Minister to agree, or not, to the Conservative new clause. What does she think of our new clause and will she support it? Or is this a case of something that fits neatly into a “Focus” leaflet but is not followed through in a vote in the House?
That is the most demeaning point that could be made in a serious debate. Conservative Members may think that this is an issue to be put out in slogans and leaflets, but I think that children’s interests come first, first and first. That was a shocking intervention that reduced the level of discussion. Children’s lives and, at the other end of the scale, relationships with parents are at stake.
I want to move on to our new clause 18, which people are right to say looks prescriptive, although I have in the past argued against too much prescriptiveness. The new clause was tabled in a very different form in Committee, but was not selected because it was not sufficiently detailed. We therefore faced a dilemma, as it would have been far more appropriate to discuss the principle behind it in Committee than to do so on Report. We do not mind if the Minister ignores the detail of our proposal, but we would like him to engage with its basic concept and the need to place a strong emphasis on mediation and efforts to find solutions. The provision is not perfectly worded, but it makes provision for a risk assessment to be carried out if there is an accusation of domestic violence. It applies to parents who have reached the end of the line, cannot be reconciled and are waiting for a slot in court. Opposition Members often say that it is a tragedy that 40 per cent. of parents lose contact with their children after a dispute. If a parent has to wait a long time before their case comes to the court, they may not be welcomed by the child because there is an automatic break in the relationship. One could argue that the solution is to ensure that the case comes to court more quickly—I wish that I believed that we would achieve that in the immediate future—but the latest report by the Select Committee makes it clear that we still do not have enough full-time judges, and that there is a long time to wait. Our proposal would not kick in until it was crystal clear that the situation was intractable and that there were no safety issues.
I have practised in family law for 25 years and the problem results partly from the lack of full-time judges. However, there are not enough experienced CAFCASS officers so that, in north Wales, for example, there is a terrible delay of three months or even 16 weeks before a report is produced.
I wish that we could solve all those problems, but we will not do so immediately or in the next year—it will take much longer.
Once that dreadful position is reached, the non-resident parent is prevented from seeing the child altogether, even though the safety issues have been resolved. We have proposed a default contact arrangement for parents, who could make variations to suit themselves but, none the less, they will have contact with the child. Our new clause therefore includes a little of the Opposition’s “no order principle”, but the difference is that it takes account of the individual cases. We have proposed an interim arrangement until they can fight their battle in court, as we want to try to keep continuity of contact with the child. I am surprised that, given everything that they have said about wanting contact, the Conservatives have started to ridicule our proposal. I am, however, prepared for the details to be ridiculed, because it was difficult to express the concept in an acceptable form on the amendment paper. I genuinely wanted to discuss the issue in Committee, because I thought that we could find a way to progress that idea.
I hope that I have made myself crystal clear. We have not attempted to provide a rigid arrangement but an interim arrangement while people wait to go to court. Once it is in place, the parents may agree to work things out between themselves, so that the situation does not become intractable. There has never been a suggestion on my part that the new clause be pressed to the vote, because I am aware of its inadequacies. The concept, however, is important and I hope that the Minister will respond in the spirit in which it was proposed. I take the matter seriously, as we need to tackle the gap which, hon. Members will concur, may lead to one parent losing contact with their child for life. An arrangement that is a little rigid and lasts a few months may be a price worth paying to stay on the path to keeping contact.
I wish to speak to new clause 4, which I tabled with my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), before touching on new clauses 13, 16 and 19. I will resist the temptation to say that it is a pleasure to follow the hon. Member for Mid-Dorset and North Poole (Annette Brooke), and merely observe that the Liberal Democrats are Olympic medal winners in sanctimonious and patronising equivocation. At the election, the Conservatives will expose their cynicism and duplicity in every constituency. It is not about playing politics; it is about making local undertakings and doing something completely different when the votes come in.
New clause 4 deals with the presumption in favour of co-parenting and reasonable contact. We all believe that the child’s welfare is best served by residency with their parents or, if they do not live together, residency with one parent. Reasonable contact allows both parents to be fully involved in parenting. Having participated in the lengthy proceedings on the Bill, I believe that there has been too much heat but not enough light. I broadly support the Bill with some important caveats, but it is a missed opportunity. It could have united children’s charities and Families Need Fathers; it could have united parties from all parts of the House. However, after the trench warfare of the past year or so in the other place, in Standing Committee, and on Second Reading, consensus has been lost. The Government have set their face against concessions, and are guilty of intransigence, inertia and discrimination, particularly against non-resident parents of both sexes.
New clause 4 does not undermine the paramountcy principle—indeed, it enhances it. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) has a strong record in extolling the virtues of co-parenting and the importance to the future of children in this country of having—if at all possible, and with the caveat that the safety of the child is always paramount—both parents involved in their upbringing.
The Government are using the paramountcy principle as a rock on which all appeals to flexibility and logic, and the experience of real life, are smashed. The paramountcy principle is an opaque panacea; it is not set down in legislation and it is used by Ministers and Back Benchers to stop any discussion, even of the hierarchy of paramountcy.
This issue is about human rights, fairness and equity, and equality of gender. I will not take any lectures from the Liberal Democrats because, like many Members in all parts of the Chamber, I know from my surgery casework how this issue affects and undermines families. It is important that we bear it in mind that we are talking not about dry, dusty, arcane legal principles, but people’s lives and futures, and their children.
Frankly, I cannot understand why parents who were fit and proper parents when they were married, or together in a non-married relationship, are deemed suddenly to cross a line and to become unfit parents, and are therefore not permitted to see their children—under the auspices of family courts or otherwise. No Minister has explained that to any of us. Why are they any less good, loving, caring parents? Ministers need to address that issue.
Dame Elizabeth Butler-Sloss, one of the pre-eminent experts in family law in this country and president of the family division, recently said:
“There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in family courts, is a long way from recognised syndrome requiring mental health professionals to play an expert role.”
Baroness Ashton stated in a letter of 14 July 2006 to Baroness Morris of Bolton:
“We accept that in many cases this”—
the presumption of co-parenting—
“is true and indeed this position is supported by case law, which states that children generally benefit from a meaningful relationship with both parents after separation so long as it is safe and in their best interest.”
In further case law, the judge ruling in the 1997 case R v. B said that
“to deprive a father who bona fide wishes to have contact with his child of that contact is a drastic step. The court’s general policy is clear: contact between a child and its natural parent is something which should be maintained wherever this is practical”.
So Ministers are clearly setting their faces against case law, which raises the important and apposite question of why they are doing so. But is it case law in respect of reasonable contact? It is probably not, because reasonable contact is not enshrined in current legislation; only contact is. That is of relevance to an important point that my hon. Friend the Member for East Worthing and Shoreham made earlier. A postcard every month or every year, or a telephone call, is not reasonable contact. The Minister should address that issue in his concluding remarks.
It might be appropriate at this stage to refer to the comments made in the briefings of children’s charities such as the National Children’s Home and Barnardo’s, and in particular the National Society for the Prevention of Cruelty to Children. As I said on Second Reading and in Committee, I deprecate their comments because they are based on an unfair analysis, they are complacent and partial, and they support the discrimination inherent in the Government’s position.
Let us make no mistake: the Government’s approach to the family law system is failing non-resident parents—men and women—as well as extended family members. I quote Sir Bob Geldof, who, as Members know, has written on this subject. In “The Real Love That Dare Not Speak Its Name: A Sometimes Coherent Rant”, he wrote:
“Upon separation, the system is slow and delay occurs immediately. This allows the status quo to be established. As the process labours on it becomes impossible to alter. This is unfair. It is nearly always possible for the resident parent (let’s face it, the girl)”—
not very politically correct, but they are his words—
“to establish a pattern. It is then deemed in the child’s interest not to break this routine. But at the cost of losing sight and touch of their father, we must really examine all our assumptions without fear. Then we can move to building a more equitable system benefiting all equally.”
The paramountcy principle is not stated anywhere and is used with impunity to defend the current situation. A key institutional issue is that certain vested interests would be challenged by changes to the current system. It is not only children’s charities that have such vested interests; so, too, do the National Association of Probation Officers and some elements in the Children and Family Court Advisory and Support Service.
New clause 4 would strengthen, rather than weaken, the paramountcy principle. Throughout the Bill’s passage—in the different stages in the other place, in Committee and in the Chamber—I have yet to hear one convincing, coherent and persuasive argument against such a new clause, and certainly not from the hon. Member for Liverpool, Garston (Maria Eagle), whose presence on the Front Bench is much missed.
The arguments advanced are based on myths. Child abuse is just as likely from a stressed sole parent or their partner as from a non-resident parent. [Interruption.] The hon. Member for Luton, South (Margaret Moran) makes faces from a sedentary position, but that is the case. Recently, the Royal Society for the Prevention of Accidents concluded, in an analysis of children’s injuries, that more malicious injuries were inflicted by mothers than by fathers. Indeed, an NSPCC report published in 2000, which that charity currently conveniently disregards, entitled “Child maltreatment in the United Kingdom: a study of the prevalence of child abuse and neglect”, stated that
“most violence occurred at home (78 per cent.) with mothers being primarily responsible in 49 per cent. of cases and fathers in 40 per cent. of cases”.
When this matter was debated at length in the other place, Lord Northbourne made some key points that bear repetition about the success of co-parenting and maximum conflict resolution—the subject of new clause 22—and the early intervention parenting plan, with which new clause 1, tabled by my hon. Friend the Member for East Worthing and Shoreham, deals. In Florida—for which we could equally substitute Canada, Australia and other states in the United States—the system, which uses the attributes proposed in our new clauses, is working. Families are staying together, children are safe and we are seeing reasonable shared parenting and reasonable contact—without casting aside the paramountcy principle and the safety and welfare of children. The provision is about gender equality and the rights of children to enjoy the love of both parents, as long as it is safe for them to do so. I look to the Minister to rise to the challenge and talk about the paramountcy principle and the paucity of the arguments that were used by the Government at all the stages of the Bill.
The hon. Lady knows that I am talking sense, despite her heckles.
New clause 10, on reasonable contact, seeks to amend the Children Act 1989. At the moment, as I said, we have contact set down in legislation, but not reasonable contact. If hon. Members do not like the word “reasonable”, they might prefer “meaningful”. The words are interchangeable. The new clause requests the court to have regard to the issue of reasonableness, but it is important to make the point that inserting the concept of reasonableness does not fetter the discretion of the court. Despite the debate in the other place and in this House, we are not talking about something that is necessarily wedded to a time-bound formula. We are talking not about equal being 50:50, but about equal being fair. We have some lawyers here today. The concept of reasonableness is easily understood by lawyers and it would be practically understood in the family courts. I cannot understand why the Government should disregard our new clause.
In 2004, Lord Justice Wall, as quoted by Lord Adonis in the other place, said:
“Unless there are cogent reasons against it the children of separated parents are entitled to know and have the love and society of both their parents…the courts recognise the vital importance of the role of non-resident fathers in the lives of their children”—[Official Report, House of Lords, 11 October 2005; Vol. 674, c. GC6-7.]
The Government pay due regard to case law, the position of Ministers and the settled opinion of a wide variety of groups that are stakeholders in the debate, but they cannot go that final step in accepting the reasonable amendment of inserting the word “reasonable” in the Bill.
We have to ask ourselves whether the Children Act really meant contact to be a postcard, a snatched telephone call or a trip to McDonald’s for 30 minutes? When we enacted that landmark legislation under a Conservative Government in 1989, did we really mean to enshrine in legislation that level of contact? The answer is, no, we did not. Surely it is right that the family courts should be predisposed towards reasonableness and that the burden of proof should lie in favour of more reasonable contact.
There is one thing on which I will agree with the hon. Member for Mid-Dorset and North Poole (Annette Brooke). [Interruption.] Steady on. There is a human rights issue in respect of our obligations to the United Nations. At present, the United Kingdom is de facto in breach of the UN convention on the rights of the child, because it can be argued that it prevents reasonable access to children’s parents.
I will talk briefly—I hope—on grandparents’ rights, which is the subject of new clause 19. I pay tribute to the hon. Member for Stafford (Mr. Kidney) for his reasonable, cogent and well argued new clause. I am sorry that, in some respects, it looks as though the Government are going to ignore that and ignore the huge welter of evidence from our postbags and surgeries that an injustice needs to be righted with respect to grandparents.
Two of my constituents who are grandparents, Mr. and Mrs. Jennings, have found themselves responsible through no fault of their own for the care of two very young children at a time in their life when they are on reduced incomes and when they are least able to look after them. They have absolutely no assistance whatsoever. They wrote to Ministers some considerable time ago, but they contacted me today to say that they still have not had a reply. Does my hon. Friend agree that perhaps we should be looking at providing more assistance for grandparents, not less?
My hon. Friend makes an important point. I am sure that the Minister is listening closely with respect to the correspondence entered into by her constituents.
In Committee, we did not have as long as we would have liked to debate the issue of grandparents’ rights and the diminution of those rights in respect of the family court, so you will forgive me if I put the importance of new clause 19 into context, Mr. Deputy Speaker. Again, this is a debate about the value society places on people who do a fantastic job in caring for their family, whose love is unconditional and who feel excluded from the decision-making processes in family courts in particular. Let us make no mistake: grandparents are role models and good carers. They are a bridge between the past and the future. The case for reform in relation to the issue raised by the hon. Member for Stafford is compelling. How can it be right that many grandparents, often on low incomes, in or near retirement, become the sole carers for their grandchildren, but, in taking on that vital role as foster parents, do not have the same rights as unrelated foster parents in terms of their income, benefits and allowances? That issue was brought to our attention by my hon. Friend the Member for Mid-Bedfordshire (Mrs. Dorries).
The issue is not party political in that respect. I repeat that the right hon. Member for Birkenhead (Mr. Field) has done an excellent job in keeping the issue at the top of the agenda with his studies and the reports that he has produced about grandparents in his constituency on the Wirral and the difficulties that they have making ends meet as foster parents. I commend to the House a report produced by the families and social capital group at London South Bank university last summer, “An Evaluation of the Grandparent-Toddler Groups Initiative”, which shows the positive impact that grandparents have on very young children and the work that they do in saving the state significant amounts of public money.
Again, the obsession with the paramountcy principle is being used to block reasonable access by grandparents. I do not believe that that is right. I cannot believe that the Government have not made a more compelling argument against getting rid of the requirement to seek leave of a court to apply for a contact order. I read the reports of the Standing Committee and the Second Reading debate and I could not find a coherent argument against that from the hon. Member for Liverpool, Garston. The Government seem to have decided that no amount of argument—even by people as eloquent as the hon. Member for Stafford—will prevent them from carrying on as they are now, which means continuing to be unfair to grandparents vis-à-vis non-family carers. When I say grandparents, I mean extended family carers as well. The irony is that primary legislation is not needed. The measure could have been enacted by secondary legislation two or three years ago. There is a consensus across the House. I would like the Minister to look at that point and to make the case for why the measure has not been enacted.
We face some key challenges on the question of grandparents, although I think that the argument is coming our way. People realise that it is wrong to discriminate financially. It is wrong that the 1989 Act has not been implemented properly in respect of the financial circumstances of grandparents and the presumption that grandparents and the extended family should be considered as carers before others. I am thus delighted to support new clause 19, which was tabled by the hon. Member for Stafford. I am proud to be associated with the campaign of the Grandparents Association and others. They have done an excellent job.
Let us work on a cross-party basis. I will be delighted if the Minister says that the power of my rhetoric and my eloquence and soaring oratory has convinced him of the right thing to do. We would need not a new Bill, but good sense and the political will to right a profound wrong. I hope that he will make my day and that of the hon. Member for Stafford by agreeing to do that—[Interruption.] I notice that the Minister for the Cabinet Office, the former Chief Whip, has not moved on to new pastures and is still heckling from the Front Bench. However, I conclude by repeating my support for the new clauses that I have mentioned.
I fear that the consensus that we have achieved so far today might be about to come to an end. The hon. Member for East Worthing and Shoreham (Tim Loughton) put some statistics on the record, so I thought that I would kick off by doing the same. He might not entirely agree with the figures, but they come from the Office for National Statistics. About three quarters of non-resident parents have some direct contact. Around three quarters of non-resident parents have either direct or indirect contact at least once a week, and less than 10 per cent. of non-resident parents have no contact with their children at all. It is also worth saying that less than 1 per cent. of applications for contact are refused by the courts. Those statistics give some of the context for the debate that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) wanted to put on record.
The new clauses and new schedule in the large and varied group are united by a desire to promote contact between children and both their parents, or other relatives, following parental separation. Some of the measures raise specific points to which I will turn in due course, but there are fundamental points of principle that run through all of them.
First, I make it absolutely clear that it is our view that children will nearly always benefit from a continued and meaningful relationship with both parents following separation, so long as that is safe and in their best interest. I believe that we can all agree on that, and the debates in Committee made it clear that hon. Members on both sides of the House are united behind that position. Our view is that the legislative framework that we have in place, which is centred on the excellent Children Act 1989, is the right one. The paramountcy principle is clearly laid out in that Act, which says clearly and without qualification that when deciding any question affecting a child’s upbringing, the welfare of the child should be the court’s paramount consideration. I do not think that there is any disagreement about that either.
The worry that hon. Members on both sides of the House have expressed is about what is happening in practice. We all regularly hear sad stories from our constituents in our surgeries. Such cases are the motivation behind many of the measures in this group of new clauses. The vast majority of the measures would insert provisions into the Children Act to direct the courts to promote, or presume that there should be, contact with both parents, but that causes us much concern. We have examined the matter closely, but, quite simply, we cannot find a form of words that would send such a signal to the courts without moving the focus of legislation away from the fundamental principle that the welfare of the child is paramount. Any shift in favour of a presumption would be a move towards a legal model under which a court would have to start by assuming the specific position that as much contact as possible is in a child’s best interest. It would have to take that position independently of considering the facts of a particular case and move away from it only in exceptional circumstances. Such an approach would be very different from starting by considering an individual child and ordering what is best for that child, which is the legal position that we have at present. I believe that that position is right.
However, that is not to say that everything is perfect—that is something on which I agree with the hon. Member for East Worthing and Shoreham. We share the concern that there might be a need for a change in practice and a shift towards better support for families to help to ensure that both parents remain involved in parenting. Such an approach would require a shift that was more cultural than legislative.
I hope that I have explained not only our general concerns about the measures, but our sympathy for the intentions behind them. Some of the measures raise specific difficulties that I shall now address.
The aim of several of the measures is to try to avert cases from going to the courts by giving parents an idea in advance of what a court would be likely to order. The problem of trying to do that is illustrated graphically by new schedule 1, which new clause 25 would insert in the Bill, in which the hon. Member for Mid-Dorset and North Poole has made a valiant attempt to set out what default contact arrangements might look like. As hon. Members will have noted, new schedule 1 is extremely detailed. I am sure that the hon. Lady accepts that it is easy to imagine the objections that would come in from parents about why the arrangements would not be appropriate in their individual case. Even more concerning is the fact that the new schedule would apply to people who had never been anywhere near a court, so it would represent a rather inappropriate intrusion by the state into the lives of private individuals who have not turned to the courts at all.
Although new clause 9 is essentially about a presumption of contact, it would have the very odd effect of changing the no order principle in the Children Act 1989. That principle, as it stands, says that a court should not make an order unless it is satisfied that doing so is better for the child than making no order at all. That is self-evidently a sensible position, but new clause 9 would drive a coach and horses through it by saying, in effect, that a court should make an order for “reasonable contact”, even in the absence of any evidence that doing so would be better for the child than making no order.
New clause 11 would require the Children and Family Court Advisory and Support Service and local authority officers to proceed on a presumption of reasonable contact when carrying out family assistance orders. Such a requirement would be odd in the context of orders that are intended to support children and families. The role of an officer carrying out such an order is to “advise, assist, and befriend”, usually in the context of directions given by a court, not to make assumptions about what may or may not be in those people’s best interests.
New clauses 12 and 17 would insert presumptions of contact into the welfare checklist. I am impressed by the innovation of the hon. Member for East Worthing and Shoreham because he seems to have come at the Bill from every angle to try to find a way of getting his point across. Such measures would be an especially inappropriate way of proceeding. As was explained in Committee, the welfare checklist is a list of things to which courts must have regard when making their decisions. It includes matters such as any harm that the child may have suffered, the ascertainable wishes and feelings of a child and the capacity of a child’s parents to look after the child. All those factors are relevant, but do not direct the court one way or another about what it should decide. There is thus a clear and stark difference between the approaches. A presumption of contact would be a very strange addition to the checklist in this context. A further problem would be that the welfare checklist applies in public law cases, such as care proceedings, although I do not believe that the hon. Gentleman would wish such cases to be covered by new clause 12.
New clauses 13, 4, and 24 express in different ways a simple presumption of contact. I have said already that we are concerned that all the new clauses would move away from the paramountcy principle as the centre of children’s law, which we would consider to be deeply undesirable.
New clause 24 makes some attempts to explain what “reasonable contact” means, including the worthy sentence that it should facilitate
“a positive and fulfilling relationship”
We can all agree with that as a goal, but I do not believe that a statutory presumption is the best way forward.
New clause 16 extends the principle of a presumption to the extended family. I know that it reflects the concerns of grandparents in particular, to which I shall return in a moment. Grandparents are sometimes tragically excluded from their children’s lives as a result of a conflict between parents. That is unjust and it can have a terrible side effect, given the pain that individuals feel at the end of a relationship. It is, however, not something that can be solved by a presumption that would serve only to weaken the paramountcy principle.
New clause 18 comes at the problem from yet another perspective. I have discussed the clause—we had a discussion outside the Chamber—with my hon. Friend the Member for Stafford (Mr. Kidney), who was a little downhearted earlier on because he did not see me giving in on this issue. I know that my hon. Friend’s aim is to find a way through the difficulties that I have set out, namely avoiding conflict with the paramountcy principle. He does so by setting out, instead of a presumption, a set of objectives that the court should have in mind when making provision about contact with the child. These are worthy objectives, including reducing the risk of harm to the child and promoting contact between the child and the child’s parents and other family members.
Unfortunately, as I said to my hon. Friend when we met, the new clause does not avoid the danger of upsetting the paramountcy principle. It would effectively alter the starting point of the court, away from whatever is best for an individual child and towards making orders that would fit with the objectives set out in new clause 18.
Finally, there is new clause 19.
My hon. Friend kindly refers to our discussions, so he knows that I do not agree with his conclusion. However, putting that on one side, he talks about a change in culture. Will he at least give the commitment today that there will be adequate resources for contact activities, risk assessments and the education that is necessary so that parents understand their responsibilities?
I give that commitment to my hon. Friend. If he is patient, I may give him other commitments as well. I know that when we spoke he was keen on the work that has been done, which has been agreed by Baroness Ashton. That involved a closer look at the breakdown of contact in the 99.2 per cent. of cases where contact is awarded. It would be good to see how that work progresses. I gather that we now have the academics in place who will undertake that work. I am sure that they could feed back into that work for future guidelines, which I am sure that CAFCASS and other organisations would wish to take on board.
New clause 19 focuses on the important issue of contact with grandparents, and the need for them to seek the leave of the court to apply for contact orders. The Government recognise the value of grandparents and the significant role that they and other relatives play in children’s lives. Where there is a requirement for the court’s permission to apply for contact, that exists to filter out applications that are unlikely to succeed, and which may not be in the child’s best interests. It prevents children from becoming involved unnecessarily in court proceedings. The underpinning rationale for the three-year period is to ensure that a solid degree of commitment has been shown to the child.
I think that I have made the point on new clause 17 already. I will be happy to provide further information to the hon. Lady in writing. It does not sound as if I have satisfied her with the conclusions that I have come to on that new clause.
On grandparents, the courts will consider whether to grant leave at the same time as the first hearing in contact proceedings. Thus, applicants are not required to pay two sets of fees and the requirement does not create delay. We have considered the issue with great care. On balance, I think that the requirement for leave and a three-year period is an important safeguard. However, having listened to the hon. Member for Peterborough (Mr. Jackson), and having had good discussions with my hon. Friend the Member for Stafford, I can undertake to review cases of grandparents who have to seek leave of the court. I am happy to do that and to engage in some further work in that area.
The Minister has just given an important undertaking. It is not a question of saving duplicate fees at the time of the initial application for contact, it is about grandparents being frozen out of a relationship, either at the beginning, but often later on, so that the whole court process may have to start again. Some of the most tragic cases of people losing contact with children, in my constituency and I am sure in many others, involve grandparents who are completely frozen out and for whom the courts do not appear to offer redress.
That is a fair point. All hon. Members receive correspondence about that. We want to test whether that is the case and whether there is an evidence base for that. I undertake to hold a review on exactly that.
This is a substantial group of new clauses and I hope that hon. Members will forgive me for having been brief in dealing with each of them. I have said that our fundamental concern is that all the new clauses, in one way or another, could risk moving courts away from the statutory focus on doing what is best for the child. Having listened to the debate, I hope that hon. Members will consider the points that I have made and not press the new clauses to a vote.
We have certainly had another full and lengthy debate, but I fear that, yet again, it is without impact on the Government. I congratulate the new Minister on his appointment. He has certainly been thrown in at the deep end, but I fear that, in taking on this difficult mantle, he has adopted the same mindset as the Minister for Children and Families—one of being completely closed to practical, sensible suggestions, based on the real-life experiences of our constituents throughout the country, in refusing yet again in any way to amend the Bill, which is why it will fail.
I want to make a few brief comments because we have had a lengthy debate. The hon. Member for Stafford (Mr. Kidney) put some perfectly reasonable cases in speaking to his two new clauses. New clause 18, on statutory objectives, would be a sensible way forward, and he drew a very good analogy with the Financial Services and Markets Act 2000, with which he and I were involved all those years ago. There is certainly a cut-across that could be applied in this case.
The procedure for allowing grandparents greater access that the hon. Gentleman sets out in new clause 19 is absolutely essential, and I am encouraged by the Minister’s last comments about agreeing to look into that issue. I hope that there will be a meaningful review of the problem. If the hon. Gentleman were minded to press either of his new clauses to a vote—I think that he probably will not, given his ambitions for his place on the Government Benches—he would find support among Opposition Members at the very least. I am sorry if he does not quite have the courage of those convictions to push those new clauses all the way.
We should not be surprised about the extraordinary new clauses and lack of consistency from the Liberal Democrats. I feel some sympathy with the hon. Member for Mid-Dorset and North Poole (Annette Brooke)—it is not easy being a Liberal Democrat Member of Parliament, signing up to one thing and doing another in the Lobby—but she said that new schedule 1 was easy to ridicule. Well, it is, which is why I want to have another go at it. Let us consider what would be required.
The hon. Lady admits that new schedule 1 may not be exactly flawless, but it says that
“any child who has attained the age of one year but is not yet in full-time education…shall…stay with the non-resident parent on alternative weekends from 10 a.m. on Saturday until 5 p.m. on Sunday”.
It also says:
“In the case of any child in full-time education who has not yet attained the age of fourteen years, the child shall…stay with the non-resident parent on alternate weekends from after the child finishes school on Friday until 6 p.m. on Sunday”.
My son would be furious: he would miss “Time Team” on Sunday afternoons if that provision were to apply to a situation such as mine. He would then
“visit the non-resident parent from 4 p.m. until 6 p.m. every Wednesday”.
Well, that is cricket practice out of the way as well. That is absurd. It is the sort of prescriptive nonsense that we must avoid in the Bill.
I am sorry to interrupt the hon. Gentleman’s enjoyment. However, I hope that he listened to the words that accompanied the proposal. Does he not think it worthy to try to think of a solution for the intractable problem of when no agreement is made and a huge gap subsequently appears when no contact takes place?
A prescriptive solution is suggested that would victimise the child most of all—children might want to have a say; they might not want to stay at a certain time with parent A or parent B—and would not be in the interests of the parent or the child and could result in more frustration and more court action when the whole thing falls apart. That is not a solution. I really do get exasperated with the Liberal Democrats. If they fail to follow us into the Division Lobby in support of new clause 4 this evening, having signed up to early-day motion 128 and supposedly supporting that very same principle, let it be put on the record and known around the country that they are prepared to say one thing to their constituents and not to have the courage of those convictions when and where it matters.
No, I was not. The hon. Gentleman will note that several hon. Members, including 115 members of the Labour party, have signed that early-day motion. It is very easy for him to make cheap comments, but that early-day motion does not tie any hon. Member to what is in his ridiculous new clause.
If the hon. Gentleman had been here earlier in the debate, he would have heard several hon. Members trot out all the figures for how many hon. Members on both sides of the House have signed that early-day motion, which has a direct cut-across to the wording in new clause 4, which is not ridiculous. Some 85 per cent. of his parliamentary colleagues thought that it was not ridiculous to sign the early-day motion and fob off their constituents by telling them that they had done so, but they are apparently not going to put their money where their mouths are and vote for the new clause.
I will not go over all the Minister’s responses, but what worries me—[Interruption.] I hope that the Minister for the Cabinet Office, the former Chief Whip, will stop heckling for a change, for the first time in her life. She has not been here for the whole debate. She comes here purely to heckle and disrupt, not to add anything constructive to a very important matter that some of us have spent the past year trying to debate, with no help from her. The Minister’s response to new clause 12 was typical. [Interruption.] She is still doing it. If she wants to interrupt, let her do it constructively from the Dispatch Box. If not, perhaps she could listen—she may learn.
The Minister’s response to new clause 12 was to say that by amending the checklist—[Interruption.]
Order. We will now have both Government and Opposition Front Benchers obeying the normal rules of the House and listening to the remarks of the hon. Member for East Worthing and Shoreham (Tim Loughton).
Order. I hope that the Minister for the Cabinet Office heard what I said.
Yes, Mr. Deputy Speaker.
With new clause 12, we are seeking to amend the welfare checklist in the Children Act 1989. The Minister described it as a novel and possibly good way of tackling the problem, but then completely wrote off our approach to amending the checklist by saying that adding
“the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary”
was completely out of kilter with everything else already in the checklist. It is not, because it is not a requirement or a direction, but a “have regard to” the “desirability of” something—that is how it is worded. For some reason, the Minister will not accept it, and I am afraid that that attitude has pervaded all our debates and deliberations on adding the principle of reasonable contact to various parts of the Bill.
For that reason, Mr. Deputy Speaker, and because we have spent so much time and effort, and because so many people in the country place such great store on amending the Bill to make it meaningful, practical and workable, we have to press these essential new clauses, which go to the heart of our approach to the Bill, to the vote. Without them, the Bill will not be workable, it will lack guts and it will turn out to be a dud. On that basis, I urge my hon. Friends and all hon. Members who signed the early-day motion over the last few months to join us in the Lobby to make the Bill workable, so that it actually achieves the aims that the Government say that they want it to achieve.
Question put, That the clause be read a Second time:—
New Clause 17
‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—
“(h) the importance of sustaining a relationship between the child and a non-residential parent.” '.—[Annette Brooke.]
Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:—
New Clause 20
‘After section 16 of the Children Act 1989 (c.41) insert—
“16A Risk assessments
(1) This section applies to the following functions of officers of the Service or Welsh family proceedings officers—
(a) any function in connection with family proceedings in which the court has power to make an order under this Part with respect to a child or in which a question with respect to such an order arises;
(b) any function in connection with an order made by the court in such proceedings.
(2) If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given reasonable grounds to suspect that the child concerned is at risk of significant harm, he must—
(a) make a risk assessment in relation to the child, and
(b) provide the risk assessment to the court.
(3) In respect of subsection (2), significant risk involves a risk—
(a) to the child's physical safety, or
(b) of sexual abuse.
(4) All risk assessments undertaken pursuant to subsection (2) shall proceed on the presumption that the child's interests are best served through reasonable contact with both parents unless good reason to the contrary is shown and the safety of a child is not an issue.
(5) A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.
(6) In any risk assessment based upon the likelihood of recurrence of previous risks it shall be a requirement that no reliance is placed upon previous events or previous risks in the absence of a finding of fact that those events or risks actually occurred.”'.—[Mrs. Miller.]
Brought up, and read the First time.
With this it will be convenient to discuss the following amendments: No. 20, in page 12, line 2, leave out clause 7.
No. 19, in page 12, line 20, after ‘child', insert
‘and an assessment of the differential impact upon the child of the options available to the court'.
New clause 20 is an attempt to tie down some of the detail about when risk assessments are used, and I want to discuss three elements of it.
First, the trigger for a risk assessment is important. The trigger in new clause 20 specifies
“grounds to suspect that the child concerned is at risk of significant harm”.
Secondly, we all agree that risk assessments should have regard to the best interests of the child, which is why new clause 20 allows reasonable contact with both parents, unless there are good reasons to the contrary and safety is an issue. That point reflects the detailed discussion conducted by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) earlier this evening.
Thirdly, new clause 20 contains a tighter definition of what constitutes a risk of harm to the child, which includes a physical threat to a child’s safety and sexual abuse. The concept of a risk assessment was originally introduced in the Lords to ensure that domestic violence and child abuse could be properly assessed as soon as they were raised as part of court proceedings. Our objective this evening is to make sure that the Bill is in the best interests of the child and that safety is uppermost in our minds.
In Committee, it was highlighted that risk assessments are not always in the best interests of a child, because they can delay court proceedings and stop contact between children and non-resident parents, which is why it is important that we get the detail right. Quite a bit of research is available, particularly from the Department for Constitutional Affairs, about issues surrounding court applications. It was interesting to read that one third of court applications are because of a breach in orders laid out by a court. Some parents do not adhere to court orders, and we need to make sure that that problem will not cause problems with the risk assessments in the Bill. New clause 20 will protect the interests of the child and make sure that the best interests of the child are uppermost in everyone’s minds when risk assessments are considered.
In Committee, there was a great deal of debate about this aspect of the Bill. I am sure that the Minister will point out that the threshold detailed in new clause 20 is too high for CAFCASS to carry out, which would lead to far fewer risk assessments being undertaken and could impact on the welfare of a child. I do not think that that issue should prevent us from including new clause 20 in the Bill.
As I have said, the trigger for using the risk assessments is important. It is important that risk assessments are not used when they are not needed, because they will, by definition, lead to a loss of contact with non-resident parents and a disruption in the relationship between children and their parents. We have already heard this evening that the majority of hon. Members feel that contact with both parents is important, and this is just another issue within that argument. We must get the provision right, because it is not in the interests of the child to experience a break in contact, which could be the result of a risk assessment. Safety is always paramount, and new clause 20 does not take away from the safety of the child—indeed, it adds to their welfare.
An allegation of sexual abuse or violence towards a child is an alarm bell that should be investigated. Does the hon. Lady agree that new clause 20 is substantially less protective than clause 7, as drafted? For example, “grounds to suspect” becomes “reasonable grounds to suspect” and “risk of harm” becomes “risk of significant harm”. Subsection (4) requires the courts to press on and assume that contact should go ahead, and subsection (6) states that the courts should not have regard to similar evidence from the past. Are those not terrible reductions in the protection available to children?
I disagree with the hon. Gentleman. The Bill provides that, if people suspect that sexual abuse is taking place, it will be investigated. The only difference concerns “reasonable grounds” for suspecting that sexual abuse is occurring rather than “cause to believe” that it is taking place. As I have said, implementing a risk assessment of such important and difficult issues will, of necessity, mean that a child loses contact with one or other of their parents. That needs to have a high threshold of implementation because of the consequences for the welfare of the child.
I have come across cases in my constituency where frivolous allegations have been made against the absent parent by the person who has the child so that contact is withdrawn while assessments are made. Is my hon. Friend trying to overcome that sort of problem?
I thank my hon. Friend for his timely intervention. That is precisely the sort of problem that we are trying to overcome, not only in this amendment but in others. That is not in any way to detract from the significant problems that are faced by families and by children throughout such proceedings. There are genuine problems associated with domestic violence and sexual abuse, but equally we have to ensure that parents do not use these provisions as a tool to beat each other over the head.
A risk assessment must be undertaken only when there is a real risk of harm. The level of repeat applications as a result of breaches of court orders illustrates the concern about the motivations of some parents in this situation. They are obviously in a very small minority, but it is something of which we need to be aware. It is our No. 1 priority to ensure the welfare of the child is protected at all stages, and part of that is to ensure that they are not tied up in protracted court proceedings. My hon. Friend the Member for East Worthing and Shoreham and I recently went to a family court to see first-hand some of the pressures that children are put under in these situations, not by the courts but by the emotional nature of the proceedings. We must always get the balance right and ensure that we are, as the Minister is always stressing to us, acting in the best interests of the child, but we must not allow the tools in the Bill to be used in a way that I am sure that he and his colleagues would not wish them to be used. That is the point that we are trying to make.
My hon. Friend the Member for East Worthing and Shoreham talked at some length about reasonable contact with both parents, so I will not delay the House with an equally detailed argument. I remind the House that it is not a requirement in law for a resident parent to allow contact with another parent, because it is viewed as a private matter, as is entirely proper. Dame Elizabeth Butler-Sloss has said:
“The courts naturally start with the view that in most cases contact between the child and the non-resident parent is desirable both for the child and for the parent.”
It is desirable, but it is not enshrined in legislation. We are talking about those who come to the courts to get resolutions to the difficulties that they face in separation and divorce. Only 10 per cent. of people in this situation undertake separation and divorce; 90 per cent. of them do not go to court. We should be concerned about the fact so many people do not undertake any formal separation procedure. In my constituency, that gives rise to several cases whereby some years after a separation parents can find that if relations break down contact with children can be lost. Settlements that have been reached informally can become difficult to keep in place if they have not been formalised, perhaps not through the courts but in another way.
I should like the Minister to acknowledge that contact is associated with better outcomes for children. To all of us who are parents, aunts, uncles or grandparents, that is not something that we should question. It is a matter of fact that children who have contact with both parents experience much better outcomes in their lives. It is not just down to the fact of contact but to the nature of the contact that those children enjoy with both their parents. That is why we are striving to gain an acknowledgement from the Government that reasonable contact is crucial. Other hon. Members are in receipt of an excellent briefing from the University of Oxford’s department of social work and social policy, which draws out the point that the mere presence of a father is not enough—it is the quality of the contact, the parenting, and the time that non-resident parents are allowed to spend with their children that are so vital. I urge the Minister to consider that further.
I shall say a few words about the tighter definition of what constitutes a risk of harm to the child. It is important that we make risk assessments when there is a genuine risk of harm to the child. We cannot allow this provision to be used by parents who are not enjoying the best of relations—otherwise, they would not be seeking the guidance of the court—to formalise and legitimise the breaking of contact between a non-resident parent and a child. Our amendment would ensure that the Bill works in the way that we all want—in the best interests of the child.
In reality, many non-resident parents lose contact with their children after divorce. I was disappointed when the Minister gave the House a very narrow version of the research that is available on this. He quoted from one source, but there are several differing sources. It is confusing, but we must understand that there is a problem for fathers, mothers and grandparents. The tone of the Minister’s response underestimated its importance; frankly, he was complacent. He should go away and think about this further. The number of people involved in divorce and separation is growing. The situation could be dealt with in one way a decade ago but has to be dealt with very differently now. There are 160,000 divorces a year, which is the highest number for a decade. Three million children have experienced divorce or separation. In 2004, 700,000 contact orders were awarded; in 1992, the figure was 17,000. We need to ensure that the Bill covers not only the few intractable cases but the very many people who are going through this. We must set out guidelines on how people should conduct themselves through that difficult process.
It is our duty to protect a growing group of children. As my hon. Friend the Member for East Worthing and Shoreham said, 345 hon. Members have shown support for the concept of legal presumption of contact. The concept is supported throughout the House and I hope that the Government listen to the strength of feeling on that important matter.
My hon. Friend makes a compelling case. Is part of the problem with the family courts the fact that the Government are not in a position to undertake a rational analysis of what is going on because they do not collect the data on many issues properly? For example, when I wrote to the Department for Constitutional Affairs about the number of people who apply for special guardianship orders, the answer was that the Department did not collect that data. How can the Government examine and take the policy forward if they do not collect the appropriate data from which to make a decision?
My hon. Friend makes a pertinent point. I had hoped that the Under-Secretary, who is new to his job, would appreciate the scale of difference in the available data and feel that it deserved further investigation. My hon. Friend is right to raise the matter. I reiterate that the number of people that the matter affects is growing. The Government cannot continue to bury their head in the sand. We need to get to the bottom of the issue.
The problem affects not only men but women. Women have attended my surgery who have found it difficult as non-resident parents to keep in contact with their children. If the Government lend their support to the amendment, they would acknowledge that the matter needs addressing.
I want to make some brief comments about amendment No. 19. Liberal Democrat Members welcome the new risk assessment that clause 7 proposes, but we believe that there is room for clarification. At the moment, there is a lack of detail about what a risk assessment would involve.
Clause 7 simply says that a risk assessment is an assessment of risk. I abbreviate slightly, but that is what it boils down to. Subsection (3) states:
“A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.”
That lacks clarity. Surely there is scope for saying a little more in the Bill or perhaps I could tempt the Under-Secretary to offer some guidance—I realise that that is a favoured medium for clarification.
Amendment No. 19 would ensure that risk assessments included analysis of the impact on the child of the different options that the court could choose—for example, ascertaining how a child would fare if a court ordered one sort of contact order rather than another. That could provide a useful tool to improve the court’s decision making in cases in which the child may be at risk, and make the court’s decision that much more likely to be safe and in the child’s interests. The amendment would make risk assessments more valuable in that they would contain information to guide the courts to make better contact arrangements. I shall be interested to hear the Under-Secretary’s response, and will he at least say whether clause 7 requires more guidance.
I want to respond to a couple of points that the hon. Member for Basingstoke (Mrs. Miller) made. She rightly said that 90 per cent. of people do not go through a formal separation procedure. That is because 90 per cent. of people do not turn to the courts in the first place. Two thirds say that they are content with their arrangements, which is not to suggest that her comments are frivolous—we need to consider the people for whom the system is not working. However, the purpose of the Bill is to try to keep people out of the courts and intervene, if possible, to take people out of the process. That is why the measure is so important.
The amendments deal with the difficult but important issues of risk assessment and domestic violence. Although there is dispute about the proportion of contact cases that involve domestic violence, there is no doubt that far too many fall into that category. It is right to treat such behaviour with little tolerance, but we must also be cautious not to do anything that would deter people from making their genuine fears known to the courts.
Amendment No. 20 and new clause 20 would, taken together, remove clause 7 and insert a replacement clause. As the hon. Member for Basingstoke will remember, in Committee she explained that she was concerned that “cause to suspect” might be too low a threshold, and would result in CAFCASS conducting risk assessments in cases where there was no need to do so. I agree that it would be wrong for risk assessments to be conducted unnecessarily. That would not only deplete CAFCASS’s limited resources, but cause unnecessary delay in many cases.
However, I do not believe that it is necessary to introduce a higher hurdle, as the amendment would, to prevent CAFCASS from carrying out unnecessary risk assessments. As the hon. Lady acknowledged in Committee, CAFCASS officers are skilled people who are experienced at picking up signs of domestic violence or abuse. They will know when a risk assessment is appropriate. I would not want to second-guess those professionals. If we raise the hurdle for when it is permissible to carry out a risk assessment so that it may be carried out only when there are “reasonable grounds”, we risk making CAFCASS unable to carry out risk assessments in cases when it feels that they are needed.
It is a valid concern. When frivolous allegations are made, the courts will be informed of that when the risk assessment is carried out. There are case law examples of the use of such evidence and the case rightly going against the person who made the frivolous allegations.
The wording of the new clause implies that a court needs to assess whether there is a risk of harm before a risk assessment could be made. It could create circumstances in which cases of low-level or well-hidden abuse were more likely to slip through. None of us wants that.
In addition, new clause 20 means that no regard would be paid to the emotional harm that the child may suffer as a result of a court order. As was stated in Committee, the concept of harm includes not only physical and sexual but emotional abuse. I am surprised that the Opposition try to disregard the effects on the child of emotional abuse. Perhaps it was a genuine omission.
Amendment No. 19 would require CAFCASS, when conducting a risk assessment under clause 7, to supply the court with its assessment of the impact that the options available to the court might have on the child. It is sensible for CAFCASS to be asked to consider such issues, and I reassure the hon. Member for Mid-Dorset and North Poole (Annette Brooke) that it is already in a position to do that. Rather than being part of a risk assessment, it would be more appropriate for it to be done as part of a welfare report, which courts can already order under section 7 of the Children Act 1989. A risk assessment would be exactly that: an assessment of the risk of harm to the child that would inform the court’s judgment. In our view, it is appropriate that this should be a focused piece of work looking solely at risk, separate from the wider welfare report that the court may also consider. Having said that, it would also be open to the CAFCASS officer to comment if he or she thought that the court should be informed that a course of action might increase or reduce the risk of harm.
I have no doubt that the new clause is well intentioned, and it has been moved well today. The proposals were also discussed in Committee. However, I hope that my comments will have allayed hon. Members’ fears and that the new clause will therefore be withdrawn.
I thank the Minister for his detailed and measured reply. He did not take part in our deliberations in Committee, but it is clear from his response that he has taken a great deal of time to go through what was said, and we very much appreciate that. He has made a few points that are worthy of comment. He said that two thirds of those who did not contest their divorce proceedings in court were content with the arrangements that they had. Perhaps that was because they were worried about the process that they might be exposed to if they were to go to court. Equally, however, that must mean that one third were not content.
One lesson that we can all take from the debate today is that an enormous number of people out there are not being well served by the existing legislation. They do not have the financial resources to go to court when their relationship breaks down, but they still want to do the best thing for their family. At the moment, however, precious little is being done to support them in that regard, and we should all be most concerned about that. We are all aware of such cases through our constituency work.
I agree that we should keep people out of the courts. Having been to a family court myself, as I mentioned earlier, I know that it is not a place that I would want anyone to visit if that could be avoided. I hope that, with that in mind, the Minister will be able to support the amendment on mediation, which we shall come to later. We would like to increase the role of mediation in the process. We do not want to make it mandatory, but we would like it to be part of the process. At the moment, too many people are not offered mediation as an option.
I hope that the Minister will also acknowledge the importance of minimising delay in the process. We should not allow risk assessments to form a logjam in the divorce or separation process. Equally, they should not divert CAFCASS’s scarce resources, which will become even scarcer, given the additional provisions in the Bill. Its resources should be used correctly.
The Minister said that we might be setting the bar too high in regard to risk assessments. I would like him to consider that, if we set the bar too low, the people who decide whether a risk assessment should be made might feel compelled to undertake them even when the evidence was not as strong as it might be. This can work both ways; we need to be aware that it is a two-way street. We are putting extra burdens on the people involved in making decisions on risk assessments by making the threshold lower than it ought to be.
I note that the Minister did not respond to my point about non-resident parents losing contact, or to my request for more reassurance on the figures involved. That point was reiterated by my hon. Friend the Member for Peterborough (Mr. Jackson). If we had a better perspective on how many people were involved in losing contact with their children, we would all be better placed to assess whether new clauses such as this were needed. I urge the Minister to consider that point carefully.
I thank the Minister for that implicit acknowledgement that there is a need to review these issues. I hope that, in continuing our discussions on this matter today, I have been able to embed it in the Minister’s mind, and that he will go away from this place mindful of the fact that we need to learn more about it. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 21
Recompense of those penalised by non-compliance with a contact order
‘After section 11P of the Children Act 1989 insert—
“11Q Recompense of those penalised by non-compliance with a contact order
(1) This section applies—
(a) in circumstances where a contact order has been made in regard to a child, and
(b) where the actions of an individual bound by a contact order have resulted in another individual—
(i) bound by the same contact order,
(ii) falling under subsection (5), or
(iii) applying under subsection (3),
being deprived of the contact time specified in the contact order.
(2) A court may, pursuant to subsection (1), make an order granting additional contact time between the individual parent whose contact order has been breached and in respect of the child of whom the contact order was made.
(3) An order under subsection (2) may be made only on an application by the individual claiming to have been deprived of contact time.
(4) In determining an application made under subsection (3), the burden of proof shall rest on the individual claiming to have been deprived of contact time.
(5) The additional time awarded by the court shall be either—
(a) equal to, or
(b) more than
the amount of time that the individual applying under subsection (3) has been deprived of.
(6) This section applies to a person if he is—
(a) the person whose contact with the child concerned is provided for under the contact order, or
(b) an individual subject to a condition imposed by the contact order.
(7) The court may not make an order under subsection (2) if it is of the opinion that the individual in breach had a reasonable excuse for failing to comply with the contact order.
(8) In exercising its powers under this section, a court shall have primary regard to the welfare of the child concerned.”'.—[Tim Loughton.]
Brought up, and read the First time.
With this it will be convenient to discuss the following amendments: No. 21, in clause 4, page 7, line 22, at end insert—
‘(3A) In deciding whether a person had reasonable excuse for failing to comply with a contact order, the court shall consider—
(a) the wishes and feelings of the child;
(b) any concerns about the safety of the child; and
(c) any concerns about the safety of any member of the child's family.'.
No. 11, in page 7, line 25, at end insert—
‘(4A) When considering whether to make an enforcement order, the Court shall have regard to the principle that, subject to the welfare of the child, the court acts on the presumption that a child's welfare is best served through reasonable contact with both his parents unless good reason to the contrary is shown.'.
No. 18, in page 7, line 25, at end insert—
‘( ) When considering whether the person has a reasonable excuse the welfare of the child is to be the court's paramount consideration.'.
No. 16, in page 9, line 15, at end insert—
‘(5A) A court that proposes to make an enforcement order must order for the separate representation of the child, unless it is satisfied that it is not necessary to do so in order to safeguard his interests.'.
No. 10, in line 26, clause 5, page 10, leave out subsections (7) and (8).
New clause 21 deals with compensatory contact, a subject that we raised in Committee. It deals with what I would call serial breaches of contact orders, and with how enforcement should be made against them. We have all acknowledged the lack of research on the failure of contact orders to work in too many cases. We know that about 70,000 contact orders are granted each year, and we know how many result in a revisit to the court because one of the two parties involved has not adhered to the order.
Several hon. Members referred to the Oxford university research paper today. It underlines what it calls the “situational power” of the resident parent, the cost of returning to court—often against a legally aided partner—and the slowness of the legal system. It also highlights the fact that a parent can fall out of touch with a child if he or she is denied the opportunity to see them over an extended period because of pending court action. The father or, less usually, the mother would subsequently become unfamiliar to the child. The child, particularly if young and impressionable, might then be less willing to see the non-resident parent. Those examples are cited by Oxford university as reasons why a parent with residency is in a much stronger position. If such a parent were minded to play the system, he or she could use it to restrict the opportunities of the non-resident parent to maintain meaningful contact with the children.
The problem is that the only real penalty that the courts have against someone who breaches a contact order is to levy a charge of contempt of court, and that is rarely done. The courts are reluctant to take that course of action because it could result in charges being brought against the parent, and that is regarded as the nuclear option.
We do not know the extent of the problem. I recently tabled a parliamentary question to the Minister of State, Department for Constitutional Affairs, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), asking how many people had breached child contact orders in the past few years. She replied that
“it is not possible to identify the number of cases in which failure to comply with a contact order leads to the matter being dealt with as a contempt of court…This information is not held centrally”.—[Official Report, 15 May 2006; Vol. 446, c. 731W.]
So we do not know how often the sanction of contempt of court is used, but we hear anecdotally from the courts that it is rarely brought to bear.
Effectively, therefore, a lot of articulate people in the know are able to play the system to frustrate contact by a former partner on the basis that there is a strong chance that no penalty will be brought to bear against them. A judge can say, “Don’t breach the contact order, or I’ll haul you back before the court and tell you not to breach the contact order again.” That is as punchy as it gets. Such a judge would have all the force of an unarmed, one-legged policeman shouting “Stop, or I’ll shout ‘stop’ again” at a fleeing criminal. I am afraid that that is just not good enough. It has given rise to many complaints, and to a perception that the system does not work in favour of a non-resident parent who happens to be at loggerheads with the parent who has custody and who is determined to use, in extreme cases, the children as pawns to fight battles with his or her partner rather than acting in the best interest of the children. As has been said today, in most cases what is in their best interest is maximum contact with both parents.
Let me give the Government their due. They recognise the problem, which is why the Bill exists and why they have added the enforcement orders provisions in clause 4. The clause requires breachers of contact orders to undertake unpaid work if no good reason for the breach is given, and to instigate compensation for financial loss. That may involve travel costs, or a holiday booked by a non-resident parent which becomes impossible when the parent with custody decides to take the children to the other end of the country.
The provision is good as far as it goes, but it lacks real teeth. Conservative Members are pleased that the Government dropped some of the more draconian measures, such as the tagging of errant parents with custody, which would not have been a fitting penalty in such sensitive cases. However, if—say—a mother with custody is fined, the fine will often be paid from the maintenance paid by her ex-husband. The money will be recycled, and those who lose out most will be the children who can no longer enjoy the benefit of funds intended for their upkeep.
Those who are determined to flout contact orders will ask “What is the worst that can happen to me?” At present, the answer is “Not a lot.” We tabled new clause 21 because we think that what is needed is a proper, recognisable, easily understood sliding scale of penalties, the award of custody against the resident parent being the ultimate sanction against the serial breacher of contact orders who simply will not come into line with what the court has decided.
If a non-resident parent is deemed fit to share in the upbringing of his or her child, he or she should have the opportunity to do a better job than the parent who has frustrated contact orders, which surely cannot be in the child’s best interest if the court has deemed that the child should have contact with both parents. We consider that the compensatory contact time proposed in new clause 21 represents an appropriate and proportionate middle way. It would make the parent at fault think twice. If he or she genuinely thinks that it is harmful for the child to spend more time with the non-resident parent, surely he or she will not risk the award of additional compensatory contact time with the non-resident parent.
Other countries impose a range of penalties. The Government of the Netherlands have power to suspend child support payments temporarily when a parent has frustrated contact arrangements. In the United States, an occupational driving or sports licence can be suspended. In the state of Arizona, an independent court official is appointed as a go-between to supervise the way in which contact works. Much of the power to frustrate orders is removed from parents. In Germany, non-complying parents can lose their right to manage contact arrangements, which then pass to a court-appointed contact guardian. That is similar to the system in Arizona.
Surely the middle way suggested in new clause 21 is a more balanced, relevant and proportionate response to the problem with which we are dealing. It would still be subject to checks and balances connected with possible risks to the welfare of the child, which are important features of other parts of the Bill. The burden of proof, however, must fall on the person who has not complied with a court order. It must be for that person to prove that he or she had good cause not to do so.
We consider the new clause to be sensible, practical, proportionate and workable. It should be seen not as a reward for an aggrieved parent, but as an effective disincentive to the breacher of a contact order who has ignored the judgment of the court.
Amendment No. 11 would make the enforcement order subject to the principle that the child’s best interests are served through reasonable contact with both parents, in the absence of safety considerations. I shall not rehearse the arguments that have already been presented about reasonable contact. Amendment No. 10 deals with the provisions requiring children making applications to obtain the leave of the court. My hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) may touch on that later.
I am sure that the hon. Member for Luton, South (Margaret Moran) will shortly speak on her amendment No. 21, which states that decisions on whether there was a reasonable excuse for failing to comply with an order must take account of the wishes and safety of the child. We believe that that will be implicit in the thinking anyway. As I have been at pains to stress, the paramountcy of the child’s welfare and of considerations about the child’s safety must be taken into account in all our proposals.
The hon. Lady also tabled amendment No. 16, which concerns the separate representation of a child in court. The amendment has an interesting distinction: until yesterday, one of the signatories was a Minister. I note that she has removed her name; it would have been rather interesting if the Government had declined to accept it. Amendment No. 18, tabled by the Liberal Democrats, states that the child’s welfare must be paramount when the court considers whether a person has a reasonable excuse.
We shall hear what others have to say about the amendments that they have tabled, but we think that our new clause would beef up the Bill and give it real, workable teeth. In its current form, it is a good try, but we do not think that it will work. We believe that new clause 21 will make what the Government want to achieve practicable.
My purpose is to ensure that the paramountcy of the child’s interests, which we have discussed repeatedly in Committee and today, is made clear in the Bill. I believe that some of the proposals advanced by, in particular, Opposition Members undermine that paramountcy principle. Amendment No. 21 would introduce important safeguards to enforcement proceedings. I believe that while not constituting a bar to the effective enforcement sought by the hon. Member for East Worthing and Shoreham (Tim Loughton), it would require courts to consider first the ascertainable views of the child and, secondly—and most important—any risk of harm to the child or any member of the family when deciding whether a party had a reasonable excuse for breaching an order. The Government have limited the extent of provisions relating to children in clause 4, arguing that breach of contact orders, and their enforcement, are about parents. With my amendment, I am arguing that they should be about children and their welfare.
As I understand it, the Government argument is that concerns about the child are dealt with when the original contact order is decided by the court. As a result, the principle of the paramountcy of the child’s welfare appears, in effect, to have been removed from the clause, as has the standard child’s welfare checklist that the Children Act 1989 requires the court to use in all other proceedings. In other words, the clause contains less emphasis on the importance and paramountcy of the child’s welfare than any other in the Bill.
However, children frequently say that the enforcement stage is the most frightening period. The available research shows that the points of contact and enforcement are the most dangerous ones for separating partners, especially women, and for children. Evidence from children’s charities suggests that children find the stage of the process when they are in effect being torn between two parents frightening, and that anxiety and other welfare repercussions ensue.
Research by the Department for Constitutional Affairs into children’s wishes and feelings about contact found that children
“imagined the courts to be ‘scary places’ with judges who have the capacity to ‘punish’ their parents. Some children worried that one or other of their parents could be sent to prison for behaviour for which they themselves felt responsible, such as refusing to go on a contact visit.”
In other words, children internalise the conflict going on around them in the court, often after repeated court visits. That must have a damaging effect, and we know from other legislation that cognisance must be taken of the damage inflicted on a child who witnesses such conflict. That is especially true in situations involving domestic violence, but account must be taken of the fact that a child is also damaged who is pulled between parents in the course of repeated court cases about contact. We believe that, in order to address such concerns, the stage of the proceedings covered by clause 4 needs a much stronger focus on children.
The focus on parents rather than children in clause 4 also fails to acknowledge that the circumstances of a child’s safety and welfare might change substantially by the time that the enforcement stage is reached. In many cases, that might be a year or more after the court hearing in respect of the original contact order. Many things can happen in such a long time: the conflict between the parents can escalate, as can the risk to the child, who might be damaged or even abused in that period. It is therefore essential that we reassess the risk to the child at that point.
As it stands, the Bill assumes that the child’s safety and welfare is addressed when the original contact order is made, and that another check is unnecessary. That is badly thought through, however: children are put at greater risk because there is a long gap after the original contact order is made, and also because there is the potential for conflict in repeated court appearances.
To refocus the clause on to children rather than parents, an amendment was moved in the other place requiring the courts to consider the views of children and any risk of harm. The Minister in the other place agreed with the content of the amendment, and said that the Government were “entirely sympathetic” with its objective. However, the amendment was rejected, with the Minister claiming that the standard welfare checklist of the Children Act applied and that the amendment was therefore unnecessary.
However, I am advised by children’s charities, and especially the National Society for the Prevention of Cruelty to Children, that the standard welfare checklist does not apply. It is therefore essential that the safeguards are reintroduced into clause 4, to minimise the risks to children. That is the purpose of amendment No. 21.
I turn now to amendment No. 16, which deals with the separate representation of the child in contact order proceedings. The National Youth Advocacy Service published a review of 52 cases involving 95 children whom it represented in family proceedings. It found that, when children are represented, the outcome—for the child and for both parents—is infinitely better than when there is the sort of longstanding conflict that inevitably arises, and which we have discussed already.
We talked about the need to find a middle way through the conflict between parents. Amendment No. 16 would facilitate that by focusing on the views and needs of the child, and taking the debate away from the tussle—the tug of war or the tug of love—that goes on between parents over their children. It would put the child’s views at the centre of decisions made by Parliament and the courts in respect of these terrible cases.
In their research, NYAS caseworkers studied cases involving intractable disputes—the toughest cases coming before the courts, which form 98 per cent. of the organisation’s work load. Of those cases, 52 per cent. had been before the courts for more than three years, and 16 per cent. for between seven and 10 years. It is hard to imagine the impact that repeated court hearings over such a long period about where a child is to reside must have on the people involved. What conflicts would emerge for the child? What feelings would those children have during such a protracted period?
The NYAS research found that ascertaining the wishes and feelings of the children concerned and actively and safely representing them to the parents could act as a catalyst for the resolution of longstanding, acrimonious and intractable disputes in ways that were effective both for the families and the children. Moreover, they were cost effective too, as they put an end to interminable court proceedings.
The NYAS research found that future contact arrangements were made successfully in 86 per cent. of cases, and that in 95 per cent. of cases the representation of the child’s wishes and feelings had a significant positive effect on decision making. In 89 per cent. of cases, the NYAS report on the child’s wishes and feelings coincided with the outcome of the proceedings. That shows that the court listened to the NYAS representations, and that they led to a satisfactory outcome.
That experience shows that representing the wishes and feelings of the child can have a very beneficial effect in resolving intractable disputes between parents. Parents can be brought to realise and acknowledge the true feelings that their child is enduring, with the result that both find it much easier to give up their entrenched positions. They are less likely to be locked into a battle of, “He said, she said”, and interminable arguments about the rights and wrongs of each party, perhaps going back over many years, with the digging up of old disputes and bitterness that inevitably occurs in such proceedings. All those things, which can go on for years in such cases, can be resolved because there is a focus on the needs of the child and their experience, giving parents the opportunity to step back from conflict. At the end of the process, they feel that a satisfactory arrangement has been achieved because the child was at the centre of the proceedings.
That approach also provides a more constructive foundation for future co-parenting. Relationships between the parents are much better after that type of process than if an ordinary conflictual court hearing had taken its usual course. There are beneficial effects all round as well as benefits for the future parenting of the child.
The results in the report were not a one-off; they were replicated by the mediation centre in Stafford and CAFCASS recently carried out a review of the outcomes of approximately 100 cases in which children had been similarly represented and which also reported positive outcomes. At the time of the review not one of those 100 cases had come back to court. The system was efficient and effective and enabled the achievement of good outcomes for all parties. The research shows a growing body of evidence indicating that instead of children’s representation being seen as an expensive add-on to court proceedings it could and should be seen as having the potential to bring long-running and distressing disputes about residence and contact to an end in ways that are fair to parents and are in the child’s best interests.
In addition, by stopping the revolving door of proceedings that we see in case after case, such measures can make the court process much more cost-effective. To summarise the beneficial effects: cases where children were caught in intractable and long-running disputes would be brought to earlier resolution; the distress and harm suffered by children involved in the revolving door of continual proceedings would be limited; there would be a reduction in the potential for disputes between parents to become increasingly acrimonious—as it does over time—and in cases where there are questions about safety, separate representation of the child’s wishes and feelings provides information that is invaluable in helping the court to decide what is safe in the long term and what is in the child’s best interests. That representation provides objective information, rather than the hearsay that is sometimes expressed in court, which will distinguish the non-resident parent who poses no threat to their child from the minority who may pose such a risk.
Those outcomes are in the interests of both parents. By shortening contact disputes and by helping in the assessment of allegations about safety, they could also address some of the concerns from fathers’ groups, which were expressed earlier, that false allegations are being made. The emphasis is being put back on to the child’s welfare rather than on the grievances of father against mother or vice versa. The debate will be taken out of that battlefield.
The system would be cost-effective. Disputes can run for a long time and cases regularly return to court to incur significant financial and emotional costs to several parties. The cost of such court processes is prohibitive and when we add the costs incurred by other agencies—social services, children’s services, CAFCASS and so on—to support parents and children suffering from the dispute, we see that such cases cost a huge amount not only in emotional disturbance to the child but also to the public purse. The savings gained from minimising such costs would offset the cost of providing separate representation for the child.
I am not proposing that all children be separately represented in proceedings, which is one argument that has been made against the proposal. I am asking that section 122 of the Adoption and Children Act 2002 be implemented, thus giving children a potential right to be represented. That right can be exercised at the discretion of the court in circumstances specified by the court rules and guidance in the legislation, which could act as a filter for the number of cases using separate representation of the child. The NSPCC, a key advocate of the proposal, expects that no more than 1,500 to 2,000 cases a year will be separately represented. We know, from the Government’s research, especially the research recently commissioned by the DCA, that they believe that separate representation can be effective.
The DCA report, published in March, recommended an amendment to the Bill to ensure that children are separately represented in enforcement proceedings. That is the aim of the amendment. We are working in accordance with the DCA research and its specific recommendation for such a provision. Time after time in the debate, we have observed that there is a lack of research and evidence on many aspects of the Bill, and I welcome the commitment given by Ministers in Committee to carry out further research. However, separate representation is one area where we have a clear steer, because research has been carried out, so it would be perverse to ignore what little research there is when it gives us the positive recommendation that representation of the views and feelings of the child can have a beneficial effect.
It is also essential that we give judges a consistent message about our views on representation of the child. Section 122 of the 2002 Act is an essential part of the framework of provisions available to the courts, but without a clear statutory provision for separate representation of the child’s interests other parts of the Bill will be undermined; for example, it is no good making accurate risk assessments if there is no one to put the child’s case in court. Ambiguity about the implementation of section 122 and the way in which separate representations are dealt with in the Bill means that we risk sending confusing messages to judges.
The amendment therefore seeks to enhance the compliance, consistency and effectiveness of decisions on the representation of the child’s views. We have a long history of legislating for the separate representation of children but, sadly, we do not have such a good history of implementing that legislation. Separate representation provision was incorporated in section 64 of the Family Law Act 1996, but it was shelved. In 2002, Parliament made the case for the separate representation of children in the Adoption and Children Act but, again, implementation has been delayed and perhaps postponed indefinitely. When are we going to do what we have repeatedly said we want to do in legislation and implement the representation of the child? The amendment benefits all parties, and it proves our determination to represent children’s views in such proceedings, so I commend it to the House.
I concur with everything that the hon. Member for Luton, South (Margaret Moran) said. It is easy to be led along other routes, but she rightly brought the debate back to focus on the interests of the child. She made some very powerful points indeed about the benefits for both the child and the parents of taking the child’s wishes on board. Her argument is not just emotional, as it is backed by clear evidence from the National Youth Advocacy Service and others. That should be our starting point, as we are here to do what is best for the child.
I support amendment No. 21, although we have proposed an alternative in amendment No. 18. Hon. Members who served on the Committee will recall that we had a long debate about the fact that the principle that the child’s interests should be paramount was not maintained in clauses 4 and 5, which caused some of us a great deal of concern. The hon. Member for Luton, South and I approached the issue from different directions, only to realise that we were saying the same thing. The hon. Member for Stockport (Ann Coffey) made a powerful case, in which she pointed out that the child’s interests were taken into consideration when the contact order was made. I remained uneasy, however, about the fact that, under clause 4, someone may offer a reasonable excuse for failing to comply with a contact order. It could be a straightforward matter of an urgent hospital appointment, but I cited a constituency case in which a contact order stipulated that the father was to visit the child at the mother’s home. The mother is petrified of those visits—there are no two ways about it—and, although measures have been taken to return to court, that will take a worryingly long time.
Alarm bells therefore rang when I saw the provision for reasonable excuse, as I believe that the court must consider the primary interests of the child. The hon. Member for Stockport made a cogent argument in which she said that that had already been considered, but there was a strong case for restating the paramountcy principle. The hon. Member for Luton, South reminded us that in Committee we were told that the welfare checklist applies, but the NSPCC says that it does not. There is therefore a fundamental difference in opinion—either it does or it does not—so we need a clear statement in Hansard about the absolute truth before we move on.
In many ways, I prefer amendment No. 21 to our amendment, because it makes open reference to
“the wishes and feelings of the child”.
However, they both aim to achieve the same objective. I have put my name to amendment No. 16 because it makes an important proposal, which was first included in the Adoption and Children Act 2002. Time has passed since the introduction of that measure, so it is strange that it still has not been implemented.
It seemed to me that there was an absolute belief that the measure would be implemented. It was then deferred while the Department for Constitutional Affairs commissioned research, but that research has now been published and recommends that the separate representation of children is appropriate and beneficial in some cases. I cannot understand why one Department is saying one thing and, if the new clause is not agreed to tonight, another Department will be saying something different. It should be of concern to us that in this critical area, Departments are not saying the same thing. I hope that the Minister will reassure us that he is working closely with his colleagues in the DCA and that measures will be introduced to enable section 122 of the 2002 Act, at long last, to be implemented, because separate representation could be very beneficial in particularly difficult cases.
That idea has clearly been accepted for a long time and caution has been exercised. As the hon. Member for Luton, South rightly said, this is one area in which the research has been completed, although it is very poor that more research was not carried out, given that the consultation process started five years ago. The research was carried out by a Government Department, rather than a think-tank that could perhaps have been criticised for starting from a particular perspective. In essence, the Government recommended such an amendment, so if they do not agree with the precise wording of ours, I hope that the Minister will show us clearly the way forward on the important issue of separate representation.
All of us are aware that in discussing these matters we are discussing, in a sense, the second-best option, and whatever our answers will be, they are liable to have untoward consequences and not cover the wide range of cases that we all come across in our constituency surgeries.
I rise briefly to support my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) in his desire for a change in the law to ensure that the resident parent has an ever-present understanding that the contact arrangements are serious and need to be carried through, and that if they are not that could have a permanent effect on the way in which arrangements for the children are made.
I have great sympathy with what the hon. Member for Luton, South (Margaret Moran) said—at some length—and I understand what she is seeking to do. However, in my constituency the fundamental problem is often that, following a court decision, the parent who has the maximum amount of custody frequently feels very little need to carry through the other part of the arrangements. In a sense, they sometimes think of it as a battle won and, having won it, they feel that almost any excuse—and sometimes none—is perfectly reasonable because the child has now been consigned to their care, rather than to that of their partner.
My hon. Friend the Member for East Worthing and Shoreham made an important point, because what he proposes in his new clause is clear and comprehensible to a very wide range of the people affected. At present, the law is such that, to a great degree, courts hesitate to impose a contempt of court order, which is the only means that they have of insisting on the agreement being carried through. Therefore, I commend the proposal to the House. It is important that the Government take it on board.
At the same time, I want to underline what several Members have said about the paucity of sensible information and research. The hon. Member for Mid-Dorset and North Poole (Annette Brooke) pointed out the surprising fact that, even when the research has been done, it does not seem to make a difference to the Government’s decisions. There are many other areas in this whole fraught consideration in which the research is just not there. We are therefore dealing with a difficult, delicate and damaging area of law with much less information that we would have in many less important areas.
As we now live in a society in which the attitude towards marriage and the upbringing of children has become increasingly less serious and secure, to the disbenefit of the children, we have to spend more time and resources in ensuring that the decisions that we make in these circumstances are based on good science, so to speak, rather than anecdotal attitudes and efforts. In commending the proposal from my hon. Friend the Member for East Worthing and Shoreham, I ask the Government again to support what has been said in another place and to widen their determination to provide for the House in future the kind of information on which sensible decisions can be made in these delicate areas.
I want to say a few words in support of new clause 21 and amendment No. 10. As the House is now well aware, new clause 21 makes provision for the court to have an order for compensatory contact available to it as one sanction for the breach of a contact order. The primary advantage of that would be that it is only an order of compensatory contact that can give effect to the original intention of the court. Only when we can put right what has gone wrong will the court be able to see its original order being put into effect. That is important.
The touchstone at the heart of everything that has been said in the course of this debate—rightly so—is that all of us in the House are concerned to make sure that the welfare of the child is the first consideration of all those involved in the court process. If that is so, and assuming that the court process operates as it should and as we would expect it to, the court could come to the conclusion that, in the best interests of the child and the child’s welfare, a certain provision should be made for contact with the non-resident parent. That must self-evidently be the case. The court’s view will be that, for a particular period of time, the child should have contact with the non-resident parent.
The new clause would come into effect only in circumstances in which the contact arrangement that the court had decided was appropriate had not taken effect for one reason or another. That must mean that the child’s best interests are not being served—because contact is not taking place in the way that the court ordered that it should. I agree entirely with the point made by the hon. Member for Luton, South (Margaret Moran) that what is to be avoided is the perception by the child, or anyone else, that parents are being punished, especially when that has a negative impact on the child. However, surely it must be right that, in order to look after the best interests of the child, the court has the option, at the very least, of being able to put the child into the position that it originally intended the child to be in. That is why I support new clause 21.
The idea behind amendment No. 10 was discussed in Committee. The same mistake that was made in Committee has been made again. There should be an addition to the amendment to say that subsection (6)(d) on page 10 of the Bill should also be deleted. The effect of amendment No. 10, as it stands, is to delete subsections (7) and (8) of proposed new section 110 of the Children Act 1989, which would be inserted by clause 5 of the Bill. Subsections (7) and (8) deal with subsection (6)(d) of the proposed new section, which adds “the child concerned” to the list of people who are able to apply for compensation for financial loss. Of course, that is the substantial aspect of the measure that is objectionable to Conservative Members. Subsections (7) and (8) contain qualifications that deal with the child obtaining the leave of the court before making such an application, which will be granted under subsection (8) only if the court is satisfied that the child has the necessary “sufficient understanding” to make the application. It thus follows that amendment No. 10 should also delete subsection (6)(d).
As subsection (6)(d) will remain in the Bill, the problem is straightforward. The touchstone of the entire Bill is that the welfare of the child is the most important thing. It does not seem sensible or in accordance with that principle that a child should be encouraged to enter into an arena in which a discussion is held—perhaps a quite acrimonious discussion—about whether financial compensation should be made in one direction or another. Of course, that argument was made in Committee, when the Government said that it is perfectly in order for a child to be involved in the making of a contact order in the first place. That is of course right, but the process is fundamentally different from that involving compensation for financial loss. It is perfectly right to involve a child in decisions about contact because the court recognises that the views of a child about contact are important and thus includes the child as one of the people who can contribute to that process. However, when compensation for financial loss is being considered, blame is being apportioned for something that has gone wrong. That is wholly different in nature from the process of decisions about contact, so it is wholly inappropriate for a child to be involved in such matters.
It is also hard to conceive of a situation in which a child would need to be involved in such a process. It is difficult to envisage a situation in which the financial loss would not be occasioned to one parent or other, both of whom would be able to make an application for compensation for financial loss under proposed new section 110. Amendment No. 10 would thus remove an unnecessary and possibly damaging aspect of that provision, so I commend it to the House.
On behalf of the House, I should probably take this opportunity to wish England good luck in the World cup match that is being played at the moment. I believe that we are winning one-nil—[Hon. Members: “Hooray!”] Even Scottish Members are pleased about that. Back to business.
The new clause and amendments all deal with compliance with contact orders. They cover several different issues in respect of enforcement and I recognise that they address the matter from more than one perspective. I will thus deal with the issues that they raise in turn.
New clause 21 would provide for courts to order additional contact time as a form of sanction for a breach of a contact order. I understand that the aim of the measure is to address a loss of contact, but I am worried by the notion that contact with a child should be seen as a form of punishment for one of the parents, rather than something that the child needs from the process. We made it clear in Committee that courts already have the power to vary contact orders to provide for more time with one or other parent. In fact, they use that power in response to breaches of contact orders. That is the right way in which such circumstances should be addressed, governed by the paramountcy principle and the welfare checklist. Orders made under new clause 21 would be governed by neither of those and would be far too focused on the conflict between adults, rather than the needs of children.
If contact has been thwarted, how often does the Minister think that courts award additional contact time by way of compensation, rather than just replacement contact time, which is hardly anything of a penalty, but a way of shifting the opportunity to have contact?
In all honesty, I do not have the figures with me. I agree with the right hon. Member for Suffolk, Coastal (Mr. Gummer) that more work and research is needed in this area. However, the courts have ample powers at their disposal. There is a sliding scale of compensatory contact, ending in a change of custody. There are provisions already to reverse residence orders. It is interesting to see what can be done.
Cannot the Minister understand that the point is that, unless the parents know that there is a connection between their carrying through the proper decision of the courts and the way in which they will be treated, they will continue as they do at present, which often means frustrating the will of the courts? By not facing this, the Minister is placing many children in a position in which they do not see, as they should see, one of their parents.
We are facing up to this. It is one reason why the Bill introduces a range of measures, including contact activities. It gives CAFCASS a new and broader role in befriending couples who are going through separation. To take all of that into account, I think that the hon. Gentleman would probably wish to review what he has said and the way in which he said it. The Bill is an effective measure. I think that all Members in this place and the other place have agreed with that during its passage.
Amendment No. 10 is identical to the proposition that was debated in Committee. During that debate, Opposition Members clarified that they had meant to omit paragraph 6(d) from new section 110. Unfortunately, they made the same mistake again. That being so, the effect of amendment No. 10 is to continue to allow the child concerned to apply for a financial compensation order to remove the safeguards that would be attached to the application. However, I will proceed on the basis of the intention, which is to prevent the child from applying for a financial compensation order. I think that that is where the Opposition wish to be.
I sympathise with the concern that children should not become involved in what are essentially pecuniary proceedings, involving usually their parents. I doubt that many children will apply for financial compensation when one of the parties to the proceedings has breached a contact order to which they are subject. That said, there may be a few cases where a child has spent his or her own money to attend contact that did not take place. I imagine that these cases will be few and far between. Nonetheless, they are a possibility, and that is why they have been accounted for.
Amendment No. 16 would require a court that is considering making an enforcement order to make an order for the separate representation of the child, unless satisfied that it is not necessary to do so to safeguard the child’s interests. I do not necessarily agree that that is best done by having separate representation of children in all enforcement proceedings, as amendment No.16 proposes. I have already had discussions with my hon. Friend the Member for Luton, South (Margaret Moran) in private.
The court can already, under existing provisions, consider separate representation of children, not just at enforcement stage but throughout Children Act 1989 proceedings. Under rule 9.5 of the family proceedings rules, the court may appoint a guardian for the child if it appears that it is in the best interests of the child for him or her to be made a party to the proceedings. That rule will apply also in respect of enforcement orders.
In April 2004, the president of the family division issued practice direction outlining the circumstances in which the court could consider making a child a party to the proceedings. Those include where the child has a standpoint or an interest that cannot be adequately represented by the other parties, where there is an intractable dispute over contact or residence and where there are serious allegations of physical, sexual or other abuse in relation to that child. The Cardiff university research report draws attention to the disadvantages of separate representation—for example, increased delay, additional stress and confusion to the child, which I think is particularly important and potentially too great a weight of responsibility on what are very young children. Important factors should be weighed up each time a court considers making an order for the separate representation of a child.
Amendments Nos. 18 and 21 would affect a court’s deliberations in deciding whether someone had a reasonable excuse to breach a contact order. Amendment No. 18 would make the welfare of the child paramount in such decisions. Amendment No. 21 would require the court to consider the child’s wishes and feelings and any concerns about the child’s safety or, indeed, the safety of any member of the family. I am happy to repeat that a reasonable excuse could include a genuine fear of domestic violence, whether to the adult or the child. In so far as ensuring that the courts have sufficient regard to child protection issues, the change proposed is not necessary. Similarly, the court will already take into account the safety of another adult. We should also bear it in mind that not all reasonable excuses involve domestic violence. A medical emergency could be why an order was breached, in which case the considerations in the amendments would not be appropriate.
Amendment No. 11 would require the court, in considering whether to make an enforcement order, to have regard to the principle that the court should act on the presumption that a child’s welfare is best served by reasonable contact with both parents in the absence of a good reason to the contrary. However, the principle is said to be subject to the welfare of the child. In effect, that requires the court to operate subject to a presumption of reasonable contact in deciding whether to make an enforcement order in response to the breach of a contact order. In our view, it would be especially inappropriate to insert a presumption in that context. The original contact order would have already involved the court in considering the welfare of the child as paramount. When presented with enforcement issues, the concern of the court should simply be whether enforcement is necessary and proportionate to secure compliance with a contact order. The matter of what is in the child’s best interests will have been considered already.
I have said already that this is a diverse set of amendments. I hope that I have explained why we would have difficulty in accepting them. I urge hon. Members not to press them to a vote.
We have had quite a full debate on, as the Minister says, a diverse selection of amendments. I certainly wish to reinforce the points made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) that the purpose of new clause 21 in particular is to ensure that a parent who might breach a contact order takes that court order seriously and is fully aware of the consequences of not doing so. We have tried to set down a clear and comprehensible penalty that would be understood by a large number of people. It is a form of sanction; it is not about using time with the children as some form of punishment—I went into all the details of why it should not be seen as such—but it is about using a relevant and proportionate deterrent that can be understood by anyone who might seek to breach a contact order without good reason.
The Minister said that the courts already have ample powers to do such things. If they do, they do not use them. That is the point of new clause 21. They do not use contempt of court penalties, other than in a very few cases. Again, incidents of custody being taken away from one parent and awarded to another are few and far between—it is the nuclear option—so many parents think, “What is the worst that can happen to me?”, and it is not very much.
I am mindful, however, that we are approaching the cut-off time for the debates on Report. We still have the important section on mediation to consider, so on the basis that I should like at least my hon. Friend the Member for Basingstoke (Mrs. Miller) to have a look in on proposing new clause 22 on mediation, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 22
Mediation pre-child contact order where the safety of the child is not an issue
‘Before section 8 of the Children Act 1989 (c.41) insert—
“7A Mediation pre-child contact order
(1) The President of the Family Division shall—
(a) keep a register of mediators,
(b) make regulations about the qualifications and conduct required for registration as a mediator under this subsection.
(2) No person may act as a mediator for the purposes of this section unless he is on the register.
(3) Before the court makes an order under section 8 about contact in cases where the safety of the child is not an issue, it must give a direction requiring each party to attend a meeting with a mediator arranged in accordance with the direction for the purpose of—
(a) enabling the mediator to explain the facilities and options open to the parents regarding parent education, parenting plans, dispute resolution and mediation in relation to disputes over child contact, and
(b) enabling parents to resolve the dispute about contact by reaching an agreement for the child to have reasonable contact with both parents.
(4) A party's failure to attend the mediation must stand on their court record and may form part of the basis on which the court makes an order under section 8.
(5) The mediator must give a certificate and report to the court when, in his opinion, the parties have—
(a) reached a satisfactory solution, or
(b) have failed to reach a satisfactory solution and it is clear to the mediator that they will not.
In either event, the parties may then continue with any application to the court for an order under section 8.”'.— [Mrs. Maria Miller.]
Brought up, and read the First time.
With this it will be convenient to discuss the following amendments: No. 15, in clause 1, page 2, line 10, at end insert—
‘(5A) Any information or advice given under subsection (5)(b) about making arrangements for contact with a child by means of mediation shall be given by an accredited mediator.'.
No. 14, in page 2, leave out line 14.
Given the lateness of the hour, it is right to say now that we intend to press for a vote after debating this group of amendments. I shall speak to new clause 22 and the two amendments.
New clause 22 deals directly with mediation and I draw the House’s attention to two aspects. First, it will require each party taking part in the proceedings to attend a meeting with a mediator arranged in accordance with the court’s direction and, secondly, failure to attend mediation will stand on the person’s court record. We believe that that is important to ensure that the system works for the best interest of the child. Strong encouragements should be in place to ensure that mediation occurs before the divorce process starts and there should be sanctions if the mediation does not take place.
I am pleased that the new clause was tabled, because the Select Committee recommended that the parties should be required to attend a mediation meeting. What is not clear—perhaps the hon. Lady could quickly make it clear—is whether the provision goes as far as to say that people have to go through the whole process of mediation. No one who spoke to the Select Committee recommended that. It was felt that compulsorily introducing the parties to the possibility of mediation was as far as the element of compulsion should go.
The right hon. Gentleman makes a good point. The new clause is not intended to make mediation compulsory. It is not possible to do that, but we can make mediation a routine part of accepted practice in court proceedings. If the mediation does not take place, it is right to take note of it. There should be some acknowledgement that mediation is a good process to go through. We tabled the new clause because we believe that it is in the best interests of the child to try to resolve these situations without the acrimony that often pervades court proceedings. Indeed, a strong argument can be made for the beneficial effects of mediation. Agreements reached in the shadow of the court can often be pressurised and, if they break down, it is certainly not in the child’s best interests.
The benefits of mediation are well catalogued. Members will recall from debates in Committee that just five hours of mediation can promote sustained contact between absent parents and children many years beyond the separation and divorce. Indeed, the University of Virginia conducted a study into that very aspect and it provides compelling figures. It found that, after 12 years, 30 per cent. of parents who attended mediation were in weekly contact with their children, in comparison with 9 per cent. of those who had been through litigation and not participated in mediation. Those are important figures that I hope will help the House to understand why we feel that mediation should be a routine part of the procedures of divorcing parents who are going through these processes.
The hon. Lady knows from Committee that I strongly support mediation, but the first part of new clause 22 calls for the setting up of a register of mediators. Does she accept that the register already exists? In fact, there are already two registers of accredited mediators, so the new clause is not needed.
That is a matter that the hon. Gentleman has obviously considered in detail in respect of other aspects of the Bill, but I shall confine my remarks to the pertinent point that we need mediation to become part of the process.
I am mindful of the time, so I shall pick up on a few of the points that the Minister detailed in Committee. She set out three main arguments against the inclusion of a mediation clause in the Bill. She said that it would contravene article 6 of the European convention on human rights and remove the right of access to the court, which would make such a provision unacceptable. She then made two judgments that I found interesting—that mediation would delay proceedings rather than always yielding a benefit, and that some people would feel pressurised by the mediation process. I am not sure that those arguments hold water.
The new clause does not make mediation mandatory, so it would not hinder access to the courts. I am not sure that that argument blocks our way. In her remarks in Committee, the Minister was prejudging the appropriateness of mediation. The evidence that I presented earlier shows the long-term benefit not just to the parents but, much more importantly, to the children, who retain longer contact with their parents over many more years.
In conclusion, a quote from a National Family Mediation briefing concisely sums up our feelings on the matter. It states:
“To exclude the possibility of mediation whenever any indication of concern about domestic violence has been made is to withdraw at the outset one means of securing an appropriate level of contact between children and their divorcing parents and deny parents the ability to continue to parent their children. NFM contends that an indication of concern about domestic violence should not preclude the possibility of mediation.”
As the House has heard, it is not just the Opposition who believe that mediation should form a much firmer part of the process. That view is shared by outside bodies that have great understanding of these matters.
We intend to press the motion to a Division because there is clear evidence that mediation can create better long-term outcomes for our children. At present, the availability of mediation is, at best, patchy. By amending the Bill, we would make mediation a routine part of divorce, hopefully take the sting out of the tail of some of the more acrimonious situations in which families find themselves and, ultimately, ensure better outcomes for children. Time does not allow a full debate on the two amendments in the group, so I shall bring my remarks to a close. [Interruption.]
In a sentence, on a matter that affects the welfare of many children caught in difficult and desperate situations, which I would have hoped was of concern to hon. Members, even those standing below the Bar, the Select Committee strongly recommended that there should be an element of compulsion to embark upon the possibility of mediation, and recently recorded that participation in the family resolutions pilot project was so poor that the project had to be accounted a failure because there was no element of compulsion about it. Those seem to be strong reasons for including a provision along these lines in the Bill.
The hon. Member for Basingstoke (Mrs. Miller) was so familiar with the debate in Committee that she able to read—mostly, but not entirely, correctly—the arguments that I advanced to show why we could not accept the amendments. I accept that the amendments arise from a desire to promote family mediation, which we want to do, but I do not believe that compulsory family mediation is desirable or likely to be successful.
Contrary to the comments of the hon. Lady, amendment No. 14 and new clause 22 provide for compulsory mediation. As we explained in our previous debates on the matter, we have serious concerns about the effects of compelling mediation, rather than encouraging it in the strongest terms and providing for parties to have an information session about mediation. We think that is the right way to go.
The hon. Member for Basingstoke got one of my reasons right, which is that her amendment potentially contravenes the Human Rights Act 1998 on access to the courts. However, the main issue is that requiring parties who are not willing to sit in the same room to—
It being Nine o’clock, Madam Deputy Speaker put forthwith the Question already proposed from the chair, pursuant to Order [2 March].
Question put, That the clause be read a Second time.
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.
The Bill is important and will have considerable implications and benefits for many families. It is therefore important that we can say that our debates at various stages of its passage have been constructive and valuable and, above all, have shown the commitment throughout the House to improving outcomes for children.
The measure tackles some difficult issues—for many families, the most difficult and emotional that they will face: the break-up of families, parenting children and, in difficult circumstances, adopting children in other countries. It has received rigorous scrutiny from hon. Members of all parties at all stages. I am grateful for the chairing of our discussions today and for the equally kind but firm chairmanship in Committee.
I thank the hon. Members for East Worthing and Shoreham (Tim Loughton) and for Mid-Dorset and North Poole (Annette Brooke), who led the debates from the Opposition Benches, and their hon. Friends. I also thank the previous Under-Secretary, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), now Under-Secretary of State for Northern Ireland, for the valuable part that she played before moving on to other things.
I especially thank the Under-Secretary of State for Education and Skills, my hon. Friend the Member for Gloucester (Mr. Dhanda), who showed today how well he has grasped the detail in a short time and responded to amendments and hon. Members’ points with consideration and thoughtfulness. I hope that hon. Members appreciate that. He is not in his place to hear that tribute because he needed to have something to eat, but I want the record to show my appreciation of him.
I also want to thank all my hon. Friends who have taken part so actively in the debate, and all the Clerks and officials who have supported us so well. It has been apparent that all Members have approached these issues with great diligence, and with great commitment to getting the detail of the Bill right. I want to thank them for doing that, and to pay tribute to the spirit in which they have done it. Finally, I should like to express my gratitude to the members of the Joint Committee that gave the Bill its pre-legislative scrutiny, who were responsible for some important changes before the Bill reached the Floor of the House.
I have already said that the Bill addresses some fundamental issues. As we have seen again today, some fundamental differences have been expressed during the debate, particularly on the question of whether the Bill should make explicit reference to the need for reasonable contact and so, in our view, compromise the principle of paramountcy of the welfare of the child. I believe that Opposition Members share our aim of providing for the child’s best interests above all else, but we have fundamentally different views—they have been explored somewhat graphically on occasion today—on how that should best be achieved. We are united in the view that the courts will want to enable children to maintain good contact with both parents. In our view, however, compromising the principle of the paramountcy of the individual child’s welfare is not the right way to achieve that. Notwithstanding the rather intemperate remarks of the hon. Member for East Worthing and Shoreham, I hope that he and his hon. Friends on the Conservative Front Bench will accept that we have come to our view with careful thought and integrity, just as I accept that he has done to his, however misguided I believe it to be.
From a child’s point of view, the break-up of a family is a devastating experience in most cases. Most children want their parents to stay together, almost at any cost. So when parents have decided that that is not possible, the first and overriding priority must be to safeguard the child’s welfare, her emotional and psychological health, her experience of being loved by both parents, and her ability to draw strongly on the contribution that each parent can make to her health, growth and development.
The Bill gives the courts the power to do what is right for children. It offers them the flexibility to support the 10 per cent. of separating parents who turn to them, by helping to facilitate contact at the start of proceedings, and by giving them options about how to enforce it when things go wrong, but focusing always on the interests of the child. Thanks to a very welcome amendment in the other place, the Bill also now introduces an important new measure to safeguard children involved in court proceedings by requiring a risk assessment when CAFCASS has cause to suspect that a child might be at risk of harm. This is equally a Bill about inter-country adoption, and about putting in place the right arrangements to help children in difficult circumstances in other countries to find a home in ours.
This is a Bill that has at its heart the principle that every child matters. It deals with some of the most vulnerable children in our society and abroad, and I believe that it will make life better for many of those children. I welcome the support that the vast majority of measures in the Bill have received from Members in all parts of the House. I think that our debates have dealt with some of the important issues of detail, and that some have led to improvements.
I commend the Bill. I am sure that its implementation will make a significant difference to many children and families.
Perhaps my few comments, with the support of other speakers, will take us past the 9.45 pm watershed after which it will be safe to summon colleagues back for a debate that may or may not happen.
I, too, thank the various Members and staff who have aided our deliberations. I pay tribute to my hon. Friend the Member for Basingstoke (Mrs. Miller), who has performed a tour de force on the Front Bench throughout the Bill’s passage. I also pay tribute to my hon. Friends the Members for Rugby and Kenilworth (Jeremy Wright) and for Peterborough (Mr. Jackson), both of whom served on the Committee, and of course to our assiduous Whip, my hon. Friend the Member for Bexleyheath and Crayford (Mr. Evennett). To be fair, I should also congratulate the new Under-Secretary of State for Education and Skills, the hon. Member for Gloucester (Mr. Dhanda), on dealing single-handedly with the entire Report stage, apart from two minutes before 9 pm. For him to do that after being thrown in at the deep end was no mean feat, given that this is a complex and controversial Bill that has been around for a year, since well before the hon. Gentleman’s promotion. He had a very quick dinner, but some of us did not have any dinner at all. There are those who did not have any lunch either, but that is another matter.
This has been a long journey. Back in 2004, we saw the Green Paper “Parental Separation: Children’s Needs and Parents’ Responsibilities”. Back in January 2005, we saw the next steps progress report. Soon after that, we saw the draft Bill. Before the last election, the draft Bill was presented to a pre-legislative scrutiny Committee in a rather truncated form. On 29 June 2005, almost a year ago, the Bill started its passage in the other place. It came to this House on 14 November, and ended its Committee stage at the end of March. Three months later, we are finally finishing Third Reading. It seems to take rather a long time for some Bills, particularly those dealing with children, to progress through both Houses, and there seem to be large gaps between the ending of their Committee stages and the start of their Report stages. This is not the first time that that has happened.
Meanwhile, there has been an extraordinary development in the shape of early-day motion 128, which has been mentioned several times today and which was signed by a majority of Members of Parliament of all political persuasions. The signatures of 345 Members appear on that motion, which supports us on the principle and presumption of reasonable contact being in the child's best interests.
I am grateful to my hon. Friend. Of course, as well as those who do not sign early-day motions for reasons of personal choice, there are Ministers, who cannot sign them. That means that a vast majority of free-thinking Members put their pens to the motion. Only 146 of those 345, however, were prepared to go into the Lobby this evening, when it really mattered. That speaks volumes about the attitude of certain Members.
The Minister said that, taken as a whole, the Bill offered improvement in life chances for some of the most vulnerable children in our society, and elsewhere. We, of course, support that intent. She also said that the House was united in wanting to maintain good contact with both parents, and we agree with that too. However, she could not resist tagging on a condemnation of the Opposition’s approach, which she said compromised the paramountcy of the child’s welfare.
The Minister made that remark even though we have made it quite clear that the welfare of the child was the ultimate consideration in every case. We would not have proposed any of our amendments if we thought that the paramountcy of the child’s welfare would be compromised. She called us misguided, but at least we are misguided with integrity.
I am encouraged that the Government acknowledge the problems that result from the increasing numbers of families who split up. There are 12 million children in this country, and one in four experience the repercussions when couples separate. The Government also acknowledge the need to do something to beef up the penalties against serial flouters of contact orders, and to monitor contact proceedings.
The Government recognise, too, that something more must be done to prevent couples from going to court in the first place, as that is what leads to the long-drawn-out, expensive and acrimonious legal action that is the reason for this Bill’s introduction. That is why proactive mediation is so important. All the Opposition amendments have been predicated on the need to safeguard the welfare of children, but the problem is that Ministers too often seem to be hiding behind the paramountcy principle that was introduced—by a Conservative Government—in section 1 of the Children Act 1989. It remains relevant and valuable to this day, but Ministers use it as an excuse for not taking the serious and radical action that would go a long way to addressing the problems that we have all acknowledged. Instead, they go through the motions, posturing, ticking the boxes and claiming that problems will be sorted out.
The Bill is full of good intentions and warm words, but it shies away from the radical overhaul of the legal system that is so vital. On Second Reading, I said that it was a “toothless fudge”—a rather mixed metaphor, I admit, but we gave the Government the benefit of the doubt. We argued long and hard—on Second Reading, in Committee and on Report today—for serious improvements that would have given the Bill real teeth and firmed up the fudge. However, this Minister and this Government have singularly failed to engage in the debate. They have failed to take on board—
I am grateful, Madam Deputy Speaker, as my point is that the Bill, which has not been amended as we would have liked, shows that the Government have missed a major opportunity. As a result, it has ended up being a dud that is difficult for us to support.
Under the Bill as it stands, serial breachers of contact orders will continue to offend because they will continue to think that they are able to get away with doing so. Courts will be reluctant to award fines that may cause children to suffer, and will not be obliged by statute to treat both parents on a level playing field. People who breach contact orders will know that the longer they can spin out legal procedures, the more worn down the non-resident partner will become, and thus the less likely he or she will be to carry on with a claim in the courts. Moreover, mediation without some form of necessary encouragement will not work when entrenched partners who refuse to take part in the process—regardless of the feelings of the other partner—know that their refusal will not count against them later in court. All of that could have been addressed in the Bill by a simple but fundamental change to the law, to recognise the desirability of presuming that a child’s interests are best served by maximising quality time spent with both parents—always subject to concern for the safety of the child.
In rejecting the Bill, we do not reject the principle but rather the complete failure of the Government and the Minister to engage in constructive debate to produce a workable piece of legislation that really addresses the problem. We support better mediation: the Bill will not produce it. We support more effective and meaningful penalties against non-compliance—a sliding scale: the Bill will not produce it. We certainly support the inter-country adoption measures and safeguards, as we have made clear all along, but they are just a small part of a bigger, flawed Bill.
The Bill will do little to achieve better mediation and the need proactively to keep couples away from the long slippery slope that acrimonious court action can be. The Bill will not provide a real deterrent to serial breachers of contact orders, who know how to play the system and how to wear down a former partner. Above all, in its current form, the Bill will not achieve a level playing field for separating parents making arrangements for their children based on respect for a child’s right to maximum quality time with both of his or her parents, on the presumption that it is in his or her best interests to achieve that, barring any genuine risks to his or her safety.
The Bill is a major missed opportunity. We have engaged in constructive debate over the last year and we have given the Government the benefit of the doubt. I fear that they have failed to respond. They certainly failed to take on a single one of the amendments that we proposed to the House in good faith. Despite the good measures that the Bill achieves on inter-country adoption and the good intentions it professes on mediation and on enforcement against breach of contact orders, we fear that it will not work. On that basis, it will not achieve what it set out to do. The Bill is a dud and sadly—very sadly—I must urge Opposition Members to vote against it, because it will not do what it was supposed to do.
I, too, start by thanking the Officers of the House and Chairmen who have already been mentioned. I particularly thank my hon. Friend the Member for Ceredigion (Mark Williams) who stood in for me in Committee during the brief time when I was unable to attend. I also thank the Chairman of the Select Committee on Constitutional Affairs; he and his Committee have produced two reports that were pertinent to our discussions.
I pay tribute to the former Minister, the hon. Member for Liverpool, Garston (Maria Eagle), now the Under-Secretary of State for Northern Ireland. I am sorry that she was ill during the Committee stage, but I am pleased that she seems to be fully recovered. We should pay tribute, too, to the Under-Secretary of State for Education and Skills, the hon. Member for Gloucester (Mr. Dhanda). It was remarkable and refreshing to hear him answer our points in a clear, non-confrontational and helpful way. I would like to say that I look forward to working with him on future Bills, but this is my fourth Bill this Session and I am reaching saturation point, having also been a member of the Standing Committee considering the Education and Inspections Bill, so I hope that the Minister for Children and Families will let us consolidate children’s measures for a while—perhaps we could do lots of good work in our many all-party parliamentary groups rather than spending our time on Bills. I thank the Minister who has been exceedingly courteous and helpful throughout our proceedings.
We need to focus on children and, as I said earlier, we have been in danger of straying into the realm of what parents want. Recently I received a letter—not from someone in my constituency—and I got to the third page before the child was mentioned. That really made me think; it was all about “I, I, I” and “I want this”, which is worrying. That is part of our culture, so we must make sure that we put our children first. It is a sad reflection on society that children, who are entirely innocent parties, are dragged into conflict and suffer a great deal.
We must move forward in a number of areas. The Bill does not go far enough, but I do not disagree with any of its measures, so it would be extremely churlish to vote against it. External problems must be addressed, and we should not overlook the fact that the Bill is only a small part of the equation, as CAFCASS, the family courts and the judges are all important. It was not appropriate to support new clause 22, but we have said all along that there should be a compulsory meeting on mediation, even if the couple had to meet the mediator separately—in different rooms if necessary—provided that there were no domestic violence issues. I am sorry that an amendment was not tabled to that effect, particularly as the Bill identifies a compulsory meeting before mediation as a contact activity. I do not see why mediation should not begin earlier, and I am sorry that we did not include such a provision. I did not manage to table a suitable amendment, despite giving the matter a great deal of thought, although proposed subsection (3)(a) of new clause 22 is almost perfect for my purposes. We should not be complacent, as the failure of the family resolutions pilot project, in which there was low participation, cannot be ignored. I am sure that we all wish to avoid expensive, harmful and hurtful court procedures, and early intervention is a much better option.
I am grateful, Mr. Speaker.
The changes to CAFCASS are connected to the Bill, because they are part of the changing culture. I am deeply concerned, however, that the service does not have enough resources for contact activities, monitoring and family assistance orders. I hope that finance will be monitored, but excellent work is under way. The Select Committee pointed out that family courts should be more open. That has begun to happen, and it will help to reduce conflict. However, we need more full-time judges so that processes can be speeded up. I tabled an amendment in an attempt to address the gap before a case comes to court, when contact is often lost for good.
I welcome the fact that research is under way, but it is late and we have not yet experienced its benefits. I hope that a review will follow, as we need to revisit the issue. I am disappointed by the absence of a legislative statement that does not conflict with the paramountcy of the child’s interests. We must take on board the views not just of non-lawyers but of the many members of the legal profession who have pointed out that the inclusion of conflicting presumptions is a serious problem.
Contact with parents and grandparents is all-important. Despite my great disappointment that there is not some form of legislative statement, I hope that we will work on that. The Minister has promised a review of the grandparent issue—
I thank you, Mr. Speaker, for drawing my attention to the fact that I was straying.
Having made all my points, I conclude by saying that, overall, we support the basis of the Bill. As I have said, it is churlish to vote against a Bill if there is nothing in it with which one disagrees. The Bill has some good provisions—particularly on adoption, contact orders and enforcement—so we will vote with the Government, but that does not mean that we think it is perfect.
You, Mr. Speaker, better than most, will understand that those of us with other duties in this House sometimes have difficulty in participating as much as we would like to do in all aspects of legislation. I have studied the Bill on paper—only on paper, not in the Chamber—and followed its processes in the House of Lords, on Second Reading in this House, in Committee and, finally, this evening. It is with a very heavy heart—I say this curiously, in a sense—that I rise to support my friends on the Front Bench, because there is much of merit in the deliberations behind the Bill and, indeed, in the Bill. However, the fact is that, on its Third Reading, it is still deeply flawed. After all the effort that has been put in—I believe with good will—by both Government and Opposition Front Benchers in both Houses, that is tremendously sad.
It is one of the difficulties of these Houses that after a Bill starts in the House of Lords and is passed on to the House of Commons—where it is studied and read—has its Second Reading, its Committee stage and its Third Reading, it has nowhere else to go other than on to the statute book, or out. I sense that tonight, there might have been a willingness among Members in all parts of the House to send the Bill somewhere else and to think again. However, and as you have pointed out, Mr. Speaker, this is a Third Reading debate, so this is the full stop and, as things stand, we have nowhere else to go.
As my Front-Bench colleagues have suggested, the fact is that elements are missing from the Bill. You, Mr. Speaker, admonished the hon. Member for Mid-Dorset and North Poole (Annette Brooke), who spoke for the Liberal Democrats, for commenting on what were almost Second Reading issues. Of course, we have to comment on what is in the Bill, but we must also comment on what is not in it and on the opportunities missed, to use the phrase coined by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton).
There are issues relating to the rights of parents and grandparents that have not properly been touched on. It might surprise you to learn that I am not yet a grandparent, Mr. Speaker, but I wish I was. However, like most of us, I have constituency advice surgeries to which grandparents come to plead a cause. If the Bill is about anything, it is about children, and such grandparents can offer an opportunity to children who are the subjects—I hesitate to say victims—of broken marriages.
I suppose that, at this point, I ought to place my own interest on the record. I am a divorcee and I have a daughter who is the victim—if that is the right word—of a broken marriage. Happily, my former wife and I managed to work together to look after our daughter. My current wife was a single parent—the father of her child was murdered. I adopted my eldest son. I feel quite strongly about these matters. The relationships—and the contact—between people and their children are vital, but the most vital issue is the children.
To come back to the point about grandparents, we are missing an opportunity. The Bill does not say that grandparents have rights. We were talking about mediation. You were otherwise engaged, Mr. Speaker, but, in a brief intervention just before the last guillotine, my hon. Friend the Member for Basingstoke (Mrs. Miller) sought to indicate the breadth and the depth that mediation might embrace. However, that is not in the Bill. We ought to be talking about creating opportunities for people to get together, not to fall apart.
In the interests of the children, we ought to be talking about how we can maximise the contact between the two parents—if we believe, and I think that the House still does, that fundamentally children need two parents and the love, affection and attention of two parents. We cannot achieve that by compulsion; we can achieve it only by the getting together of willing parties. We will not get willing parties together by forcing them into funnels of courts of law, where they are represented by people who may think that they are presenting the interests of children, but who are in fact presenting the interests of two separating people. Children need the support of a flexible system.
I am very sorry. I believe that the Minister is committed to the cause. I happen to think that my hon. Friends on the Front Bench are committed to the cause. I wish that the Bill could go somewhere other than to a Third Reading vote to say yes or no, but it cannot. The Bill is flawed. As my hon. Friend the Member for East Worthing and Shoreham has said, it is an opportunity missed. On that basis, with a very heavy heart, I will have to oppose a Bill that has much merit in it, but does not go far enough.
I am pleased to be able to conclude the Third Reading debate. [Interruption.] It is gratifying to know that I am the cause of such hilarity on the Government Front Bench—particularly on the part of the Under-Secretary of State for Work and Pensions, the hon. Member for Warwick and Leamington (Mr. Plaskitt). This is a serious issue. We have had a good debate on Report and at Third Reading. I reiterate the comments of my hon. Friend the Member for North Thanet (Mr. Gale) that we could have had a great deal of consensus at Third Reading. We could have been united across the House on the fact that we all care about the future of our children and their family lives and prospects, and that we all care about fairness and equality between men and women. We all understand the tragedy that people’s lives do not go as they planned and that they split up and separate, and there is animosity, bitterness and hatred. We could have taken the opportunity to do something about that by sending an important practical signal.
I said in Committee that kind words butter no parsnips. I was right, because although we have heard a lot of kind words from Ministers, we have not seen solid proposals. I congratulate the Under-Secretary of State for Education and Skills, the hon. Member for Gloucester (Mr. Dhanda), on his appointment and welcome him to the Dispatch Box. We go back some way from our days in the London borough of Ealing. His career has taken off, and although mine is on a slower trajectory, I hope to catch up.
I hear what my hon. Friend says.
We wanted consensus. We have done our best to ensure that good sense and practical experience inform the debate. We have received an undertaking from the Minister on reviewing the situation on grandparents’ access, which was addressed by new clause 19. There will also be a review of the paramountcy principle and an examination of how that works in the family court system. We have done our best, and I thank hon. Members such as the hon. Member for Stafford (Mr. Kidney) for doing their best to achieve consensus. We are committed to the changes that were proposed by the amendments that we tabled, and we wait for a Conservative Government to enact those changes.
Question put, That the Bill be now read the Third time:—
Bill read the Third time, and passed.