Orders of the Day – in the House of Commons at 4:45 pm on 20 June 2006.
'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.
I beg to move, That the clause be read a Second 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 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 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 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 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
"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"—[ Hansard, 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 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 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 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.
5.30 pm
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" although the
"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 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.
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.
Will the hon. Lady give way?
I want to move on—[Hon. Members: "Give way."] Very well, I give way to the hon. Gentleman.
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 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, 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.
Will the hon. Lady give way?
I am happy to do so, but afterwards I should like to explain the concept behind our proposals.
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 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 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 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
"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 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. ] 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,
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 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 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 Mrs. Dorries.
The issue is not party political in that respect. I repeat that 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. 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 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 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 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. 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 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.
Will the hon. Gentleman give way?
Perhaps the hon. Gentleman will tell us whether he is one of the signatories.
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 Tim Loughton.
Thank you, Mr. Deputy Speaker— [Interruption.]
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.