Clause 4 - Enforcement orders
Children and Adoption Bill [Lords]
1:00 pm
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
As I was saying, all these amendments attempt in one way or another to introduce the concept of reasonable contact in various parts of the Children Act 1989 and the Bill. The hon. Member for East Worthing and Shoreham (Tim Loughton) had been arguing that the Government’s analysis is flawed and that the real issue underpinning all of the amendments is that the courts need to award more contact. I was attempting to point out that his analysis is flawed.
The evidence we have is not that the courts do not order sufficient contact in the first place, but that parents are seeking to address the failure of one parent to comply with the contact order that has been issued. The Government have introduced the enforcement measures in the Bill because of evidence that that is where the main problems lie. I do not agree with the hon. Gentleman’s analysis and therefore I do not agree that the measures he suggests address what the evidence suggests is the main problem. Moreover, his proposals would have consequences that we could not support. I have two concerns, which other hon. Members raised on Second Reading.
First, a presumption in statute can be rebutted only in exceptional circumstances. The courts would need strong evidence before deciding not to order contact. Ongoing contact with both parents would often be a good outcome for the child, but in a minority of cases—perhaps a significant minority, especially where domestic violence is involved—it would not. My central concern is the principle. The Children Act 1989 is based firmly on the principle that the child’s welfare is paramount. To qualify that clear statement and instruction to the court with any kind of presumption would mean that the court would start not from the consideration of what is best for each child but on the presumption that a certain thing would be best. The parties involved would have to persuade the court of any other position.
Such a presumption, independent of the evidence, is quite wrong and is not focused on putting the child’s needs first. Any presumption in law, which is what we would be talking about, would have to be taken into account by the courts. As such it would need to be balanced against the paramountcy principle. That means that the central achievement of the Children Act, which is the unqualified principle that the child’s welfare is the court’s paramount consideration, and irrespective of our views on preferred models of contact or whatever, would be undermined.