New Clause 6 - Compensatory contact
Children and Adoption Bill [Lords]
Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)
We are on the final leg of this Bill and many of us will miss our regular slots in this Committee room, discussing very important and weighty matters—[Interruption.] I am sorry that the Minister does not take it quite as seriously as Opposition Members.
Although new clause 6 comes at the end of our deliberations, it is a significant and serious proposal in the spirit of making practical suggestions to try to give the Bill some teeth. For people who breach contact orders, particularly on a regular basis, the threat or perception of penalties becoming a reality is far too weak.
As I said this morning, there is a problem with lack of research on the failure of contact orders to work in too many cases. I think that all hon. Members will have received papers produced by the university of Oxford department of social policy and social work. They have some interesting things to say about the reasons for breaking contact orders. They refer to the situational power of the resident parent, meaning that the parent who lives with the child is in a strong position if he or she is minded not to comply with contact orders. Although legal remedies are available, fathers can all too often be discouraged by the costs of returning to court, deterred by legal advice on the prospects of success and disadvantaged by having to represent themselves, often against a legally aided partner with custody. The slow legal system allows a status quo to be established that it is hard to overturn.
The Government have recognised that there is a problem regarding parents who have custody not abiding with contact orders. If they had not recognised that problem, the Bill would not exist. The Government’s attempts to insert an enforcement process in the current law are welcome, but they only go halfway, if that. As it stands, the only real penalty available to a court against a serial breacher of contact arrangements is to put them in contempt of court. Most judges are reluctant to go down that route, because pursued to its ultimate conclusion, it could result in a custodial sentence for the offending parent. Obviously, that would not be in the best interests of the children concerned, and the welfare of the child must be paramount throughout. Therefore, when the Government published their original proposals, which suggested community orders and tagging, at least they were going in the right direction in establishing a graded series of penalties that were practical and did not disadvantage children, who must be protected.
The trouble is that much of the Bill refers to financial compensation and financial penalties, which are effectively fines. As Opposition Members have mentioned, if a non-resident father is paying maintenance to the parent who has custody and the parent with custody is required to pay a fine for breaching the terms of the contact order, the money is simply recycled back to the non-resident parent. In many cases, that could disadvantage the children whom the money was supposed to support.
If a parent with custody wants to proceed with a breach of contact, the financial penalty for doing so may disadvantage the children. If that parent is living on benefits and is in a fairly impoverished state, they will not be able to pay money back, in which case they are in a Catch-22 situation. Then we are looking at some form of community service, which I believe has possible applications in limited circumstances, but again will not be appropriate for some people. What then happens is that the penalties run out. I believe that the perception, particularly in the eyes of the serial breacher of contact orders, will be “What’s the worst that can happen to me? At the very worst I might have to do some community work, but it is highly unlikely that that would ever be laid at my door.”
If we are serious about the Bill and about addressing the problem that too many people still breach contact orders, we must create a scale of penalties that are appropriate to the breach. Above all, they should not detrimentally affect the child, and it should be commonly perceived that they will be enforced if somebody continues to breach contact orders without good reason and in spite of all the checks and balances, with all the damage that that causes to the non-resident parent’s agreed access to his or her children. I also believe that ultimately there should be a mechanism whereby, if it is appropriate and the parents are willing, in respect of the most serious serial breachers of contact orders the custody of the children could be switched to the non-resident parent. However, there is a shortage of research into the real cause of breaches of contact orders in this country.
Some of those whom I quoted this morning in relation to the early interventions project said that we could learn a great deal from overseas countries, but that for some reason, we had failed to do so. I want to quote again from the Oxford university paper, which gives examples of different forms of penalties that can be brought against a breacher of contact orders. For example, in the Netherlands it is possible to suspend child support temporarily and to terminate adult maintenance. In some US states, occupational, driving or sports licences can be suspended. In other countries such as Germany a non-complying parent can lose their right to manage contact arrangements, which will then pass to a court-appointed contact guardian. In Greenlee county in Arizona, a third party handles all the mechanics of contact. That makes it more difficult for somebody to breach the contact order and much more obvious to an independent person acting as a go-between when they have done so. The third party can then notify the court and take the matter to another level to get something done about it.
We want to see an additional, appropriate level of penalty, which is not financially so penal that the welfare of the children is affected and which can be inserted on the scale between somebody getting a warning for a breach of contact order initially and, ultimately, in the extreme nuclear option, losing custody. We therefore believe that in this case, the principle of compensatory contact is appropriate and measured. The hon. Member for Stafford (Mr. Kidney) said that he had some sympathy with that view when the subject was broached on Second Reading.
Under new clause 6, after the initial mediation, parenting plans and so on that we propose, if a court is satisfied that an individual has failed to comply with a contact order and deems it appropriate, it has the authority to decide to award more contact time to the aggrieved non-resident parent as the penalty for the parent with custody not complying with an earlier contact order. People may ask whether that is in the best interests of the child, but there are checks and balances in the proposal whereby if the parent with custody thinks that there is a danger to the child, the burden of proof will be on that parent. If they have a case they will be permitted to present it, not punished for having breached the contact order. The new clause contains all the checks and balances in respect of domestic violence and other matters, but the burden of proof must be on the person who has not complied with a court order to prove that they had good cause not to do so.
If the parent with custody is concerned that spending more time with the non-resident parent is bad for their child, it will be a big disincentive for them to breach the contact order, because the implication will be that the child will then spend even more time with the other parent. If there is no danger and it is what the child wants to do, the parent with custody will have to make a value judgment of what is better for the child.
What we propose is a sensible, appropriate, practical and workable addition to the scale of penalties in the system, when too many contact orders are still being breached. It does not mean imposing a financial penalty that it may be inappropriate to impose on a resident parent with custody, or that the parent may be sent to jail, but it does ensure that if someone continues to frustrate a contact order, there will be a danger that the child whom they are trying to keep away from the other parent will have more time with that parent. The proposal is not meant as a reward to the other parent; it is meant to achieve a more equitable balance in the time that each parent spends with the child and, above all, to reinforce the principle that the parents should respect the terms of the contact order that the court has set down. If, having gone through the due processes of law, a person does not respect those terms, they need to be made to do so and ultimately to be penalised if they continue not to respect them.
The proposal would be a valuable addition to the Bill, as the scale of penalties would make it clear that the measure has teeth. I fear that too many people will look at the Bill as drafted and think, “Well, it’s never going to happen to me.” They will think that they can play the system and take matters right to the brink without anything happening to them. In the meantime, they will have frustrated the right of the other parent to have a contact order respected, extra court costs will have been incurred and the child will have spent more time away from the non-resident parent, from whom he or she may become alienated. New clause 6 would therefore be a helpful addition to the Bill.
New clause 7 speaks for itself. If additional contact time with the child is to be granted to a non-resident parent following failure by an individual to comply with the contact order, the court needs to be satisfied that the parent who has breached the contact order has been properly notified of his or her entitlement and of the ramifications of not complying with a court order. They can therefore have no excuse for saying that they did not know or did not realise what was happening. The new clause would tighten up the grounds on which a penalty for the breach of a contact order is imposed or varied to give the non-resident parent more time with his or her child.
The new clauses are practical and workable measures that would enhance the Bill and go some way toward giving it the teeth that I fear are lacking in too many parts. That is why, if the Bill is left in its present state, it will be an enormously wasted opportunity to remedy the situation that we know exists.