Skip to main content

Children (Access to Parents)

Volume 526: debated on Tuesday 29 March 2011

Motion for leave to bring in a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to require courts, local authorities and other bodies, when determining or enforcing issues of residence and contact, to operate under the presumption that the rights of a child include the right to grow up knowing and having access to and contact with both of the parents involved in the residence or contact case concerned, unless exceptional circumstances are demonstrated that such contact is not in the best interests of the child; to create an offence if a relevant body or person does not operate under or respect such a presumption; and for connected purposes.

There are 3 million children who live apart from a parent in the UK, about 1 million of whom have no contact with the non-resident parent three years after separation. We know from the statistics that the number of court applications is rising. In 2005, it was 110,330 and in 2009—the most recent year for which the figures are available, I understand—it was 137,480.

We also know that the Children and Family Court Advisory and Support Service case load has been rising sharply. In 2007-08, there were 39,432 cases, and in 2009-10 there were 44,722. That was the subject of a recent Public Accounts Committee report and a National Audit Office investigation, which found that CAFCASS is not timely and that eight out of 10 Ofsted cases are failed. That is not good enough and as a result we have a massive delay in the court system. Even after a contact order is granted, as we all know from our surgeries it is all too often ignored, not enforced and not dealt with. The situation is simply unacceptable.

I am promoting the Bill today because I believe that there is a better way. First, we should reform things so that we have mediation rather than endless court cases. On average, mediation costs £752 a case whereas court proceedings cost £1,682 a case, and mediation takes 110 days whereas court cases take 435 days—more than a year. Some 95% of mediations are complete within nine months whereas only 70% of court cases are complete within 18 months.

Secondly, we need to reform and enforce contact properly. We need to place a duty on all involved. Too often, people say it is about mums’ rights or dads’ rights, but actually it is about the rights of a child to know and have a relationship with both their parents. That is the nub of what the Bill is about. It is not right that parents should sink their children’s right to know them in a sea of acrimony when they split up.

There are those who would say, “That doesn’t happen. The Bill is not necessary; it is a waste of parliamentary time. It’s not an issue. Why is Mr Elphicke bothering to do this?” Let me give some case studies. Mrs A, of Wootton in my constituency, wrote to me about her son’s experience with his children. She said:

“Each time a visit is due their mother creates a great deal of hassle—never being able to give a precise date etc. and has twice prevented the visit completely.”

The son went off to court to get a contact order. The letter went on:

“He has been in front of several different judges and every one has refused to do anything at all—just shrugging their shoulders, treating my son like a criminal, not even looking at the paper work and evidence. They just say there is nothing they can do.”

Mr G of Dover writes to me:

“I understand as they are my children I should help towards their upbringing, but surely this should not just involve paying my ex money and only speaking to them on a Sunday morning for 30 mins.”

Some people might think that this is all about dads. No, it is not. Let me give an example. Kenn Griffiths of sent me details of a case involving a mother who was divorced several years ago. The father has residence and the mother tells a moving story about how the father has been poisoning her children against her, telling them that she is ill and will never get better and that if they live with her they will make her even more ill. He has been saying the same to the CAFCASS representative. The only information the CAFCASS representative had in front of her was the father’s allegations, and she recommended that the mother see the children every other weekend in a contact centre, not for half the time as she does at the moment. Surely that cannot be the right way forward.

Let me give another case from just last week, of Tommy, a soldier from Coventry. He has a six-year-old daughter who lives with her mother. Court proceedings started last year. There was contact until January of this year, when the mother ended it. There was a court hearing and it all kicked off because CAFCASS could not get its ducks in a row until October of this year, but there is an issue here. Tommy is a soldier and he is about to be deployed to Afghanistan at the end of this month—this week, he will go to Afghanistan.

In January, Tommy applied for a specific order so that he could see his six-year-old daughter and take his leave of her before he went to serve his country—and, possibly, did not come back. He applied to the court. Was the judge at the hearing sympathetic? Did he allow Tommy to take leave of his six-year-old daughter before he went off to war? The judge said that it was unreasonable of him to ask to see his daughter and he should wait until October 2011 before the court would resume proceedings. This is a man who is off to serve his country. I wholeheartedly condemn that judge at Leicester county court for living in an ivory tower and having no idea about the real world and the parents’ feelings about seeing their children.

Let me detail the case of an alienated mother in which the father has the residence order for their two boys. They had 46 hearings between 2000 and 2006 before contact was finally achieved, by which time the damage had been done and the children were so alienated that they had no relationship with their mother. How can that be right? This is the existing law that we have to contend with.

Then there are the blackmail cases. Danny saw his six-year-old daughter every other weekend and on Wednesday evenings. He pays his ex-partner’s mortgage and he pays maintenance through the Child Support Agency, but one Friday before he was due to make a visit, mum said, “I need a new bed; if you don’t buy one, you won’t see your daughter tomorrow.” That was two years ago and he has not seen his daughter since because the judiciary will not enforce the contact orders. The system is stacked against him.

The reason I am putting this Bill before the House is to ensure that there is a clear and enforceable right of the child—a clear presumption in law—that will send a clear message to all those involved, including CAFCASS and all the weak-kneed judges who will not make or enforce any orders. To the parents who have residence orders and should know better, I want us to send the message that this is not about their rights: it is about their children’s rights to grow up knowing both their mother and their father.

I rise to oppose the Bill and declare that I practised in family law as both a solicitor and a barrister for about 35 years. I therefore draw on a number of years’ experience in the courts. I believe that the motion has been made with the best possible intentions, but if the Bill was passed, it would fall foul of the law of unintended consequences.

In all cases in which decisions are made regarding contact arrangements for children, paramount consideration must always be given to the welfare of the child, as required under the Children Act 1989 and article 3 of the UN convention on the rights of the child. Thus far, the hon. Member for Dover (Charlie Elphicke) and I agree. Sustaining meaningful relationships with non-resident parents and other carers such as grandparents, whether male or female, is important for meeting a child’s emotional needs. Thus far we still agree. It is often in the best interests of the child to ensure that contact with both parents and other carers is maintained. Again, we agree.

However, many organisations, including the National Society for the Prevention of Cruelty to Children, do not support any measures that seek to alter the paramountcy principle defined in the 1989 Act, which ensures that the welfare of children overrides all other considerations. That is a view with which I entirely concur. There is evidence to suggest that the paramountcy principle might be undermined by informal arrangements. Research published by Her Majesty’s inspectorate of court administration shows that courts already operate with an informal presumption of contact despite there being no legislation to require that. HMICA found that this informal arrangement has had the effect of undermining the safety of children who were at risk by focusing courts’ attention on contact rather than on the welfare of the child. More research is needed to assess the extent and impact of the informal use of presumption of contact in family courts.

Fewer than one in 10 cases in which parents divorce or separate comes before a family court for decisions to be made or disputes to be settled regarding contact arrangements involving children, but it is important to appreciate just how regularly the risks to a child’s welfare need to be actively considered by judges when ruling on parental access in family courts. Research for the Ministry of Justice in 2008 on applications for child contact across 11 courts found that the majority of cases included serious welfare concerns about the impact on the child of domestic violence, parental mental health issues, parental drug or alcohol misuse, a parent’s learning disability or the likelihood of a parent abducting the child. Only 37% of applications did not contain any serious welfare concerns which might affect the child. The most frequent welfare concern was domestic violence, which affected 154 of the 308 case files reviewed. Domestic violence is widely recognised as a major child protection issue, with 750,000 children witnessing domestic violence annually.

Victims of domestic violence face greatest risk post-separation, and research shows that children ordered by courts to have contact with a violent parent are likely to be abused themselves and, in the most extreme cases, killed. In 2005 HMICA published a report on the handling of safety in family proceedings. The research found that courts already operate with an informal presumption of contact, even when there is nothing in legislation to require this. The report said:

“The presumption of contact was evident in all the practice sessions observed during this inspection 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.”

More research needs to be carried out by the Ministry of Justice. The forthcoming interim report from the Family Justice Review, likely to be published by the end of this month, may address the matter and its findings should not be pre-empted.

The issue of parental contact was debated in detail in the 2005-06 parliamentary Session during the passage of the Children and Adoption Bill. The resulting Children and Adoption Act 2006 amended the Children Act 1989 to allow greater flexibility for courts facilitating contact and gave courts powers to require parents to undertake a contact activity, such as attending a parenting programme or information session. Following that Bill’s passage, the then Government committed to carrying out further research on parental access issues. Any further consideration to alter the current arrangements should result from evidence-based research and further study of the effects of contact on the welfare of the child.

I will offer one case study, that of Vivian Gamor. In 2007 a judge criticised decisions which allowed a mentally ill woman access to her children, whom she subsequently killed. Vivian Gamor, 29, beat Antoine, 10 years old, and suffocated Kenniece, three years old, in east London, in January 2007. The judge, Peter Rook QC, said that in retrospect Gamor should not have been given free access to the youngsters. The serious case review highlighted many problems. It showed that despite reports of some successful contact visits by Ms Gamor and her plan to have the children live with her, further efforts should have been made to contact the children’s father, with whom they had been living, to assess the situation before deciding whether to support Ms Gamor’s request for further contact. Judge Rook said that

“this terrible tragedy could have been avoided if Gamor had not been allowed unsupervised access and the children’s father’s grave concerns had been given weight.”

Ms Gamor was sectioned for serious mental illness in early 2006 and the children moved in with their father. However, she was later released from care after doctors concluded that she posed no risk to herself or others. Following her release, she was gradually granted supervised access to the children in November 2006, and then, on three occasions, unsupervised access to her children. It was on the third occasion of unsupervised access that Ms Gamor killed her children during the night at her flat, just two weeks after overnight contact had begun.

In conclusion, we should be very wary of diluting the paramountcy principle because it is clear that in any family breakdown, the most vulnerable players are the children. We must continue to have their welfare in mind first and foremost, and nothing that I have heard today or witnessed in the family courts persuades me that a change in the law is required.

Question put (Standing Order No. 23) and agreed to.


That Charlie Elphicke, Penny Mordaunt, Priti Patel, Charlotte Leslie, Kwasi Kwarteng, Margot James, Caroline Dinenage, Chris Heaton-Harris, Tracey Crouch, Nadhim Zahawi, Karen Lumley and Jane Ellison present the Bill.

Charlie Elphicke accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 13 May and to be printed (Bill 174).