moved Amendment No. 1:
After section 1(1) of the Children Act 1989 (c. 41) (welfare of the child) insert—
"(1A) In respect of subsection (1)(a) the court shall, unless a good reason to the contrary 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 sole residence with one parent or shared residence with both of them and through both of them being as fully and equally involved in his parenting as possible.""
My Lords, I thank the noble Baroness, Lady Ashton, for the full and frank meeting that we had last week; I am especially grateful to her for the mountain of extra reading that she provided. I also thank the noble Lord, Lord Adonis, for his detailed letters following Committee stage. With Amendments Nos. 1 and 8, we return to the lively and important debate that we had in Committee. Our Amendment No. 18 addresses the crucial importance to children of their extended family.
"Both parents are equal and both should continue to have a meaningful relationship with their children following separation, so long as it is safe and in the child's best interests".
Those are not my words but the view expressed by the Government in their Green Paper on parental separation. Yet the reality for too many parents is that they face too many battles within our family law system to achieve the positive outcomes that they so desperately want for their children. That was never the intention of the Children Act 1989. In his opening speech on that Bill in your Lordships' House in December 1988, my noble and learned friend Lord Mackay of Clashfern, in his valued role of Lord Chancellor, said:
"The Bill will, in particular, establish a framework of rights and responsibilities with which to see that children in need receive the care, upbringing and protection they require, and that parents and others with an interest in the child can play a full part in those crucially important decisions".—[Hansard, 6/12/88; col. 496.]
The intention of the Bill was to take the rancour out of proceedings and to encourage both parents to share in their children's upbringing even after separation or divorce. But as I said in Committee, over the weeks and months since Second Reading we have built up a picture of an outdated family law system that leaves the impression that if you get the best lawyer you can have the house, keep the kids and airbrush the non-resident parent out of your life. Many professionals in the family law world now think that the pendulum has swung too far. So we have retabled our amendment on the legal presumption of co-parenting. I can fully understand why there is anxiety at that. There is a concern to prevent any weakening of the fundamental principle that a child's welfare will be the paramount consideration. Not only do we understand, but we share that anxiety and it is not our intention to weaken that fundamental principle in what we propose.
What we propose is entirely consistent with that paramount consideration. Our amendment springs from our belief that where safety is not an issue, a child has a right to a full and meaningful relationship with both his or her parents. My noble friend Lord Howe and I would not stand here and move our amendments on co-parenting and reasonable contact if we thought for one moment that we were putting one child in danger. It is for that reason that the safety side of this debate is so crucial and why we have tabled a robust amendment on this issue.
Amendment No. 1 is also about the responsibilities of a non-resident parent. A good and loving parent is no less that after the breakdown of a relationship and separation. A good and loving parent is therefore entitled to the fullest possible part in the upbringing of his or her child. Such a parent is entitled to the knowledge, the hope and the security that this amendment would bring—that there is a presumption that he or she will be able to discharge their parental responsibilities toward their children, a presumption enshrined in statute, and in a way which would require a court in each case to give clear reasons why a parent is to be restricted or denied the exercise of parental responsibility. We cannot see how this is, or should be, controversial.
Clearly the presumption which we propose would be displaced if a contrary reason was shown. I shall take an extreme example. No one would suggest that a persistent and physically or mentally abusive parent would enjoy substantial, or indeed any, contact. In such a case, the safety of the child is a real issue. The very behaviour of such an inadequate parent could of course amount to a contrary reason. The behaviour of such a parent would demonstrate an inability to exercise parental responsibility, which would either restrict or deny that parent any involvement in parenting.
"calling for a presumption of full and equal involvement by both parents in the upbringing of their children after separation undermined the paramountcy principle".—[Official Report, 11/10/05; col. GC 7.]
I will repeat what I said at Second Reading and in Grand Committee. Co-parenting is not equal parenting in the way the Minister continually seeks to describe it. We do not see children as a possession to be shared out like a record collection. This amendment simply recognises the benefit to a child of a meaningful relationship with both his parents. This is a fundamental right of the child.
There are other benefits too. As I was driving to the House last Monday, throughout the morning Radio Five Live was broadcasting a piece about the failure of the Child Support Agency. As I heard the piece for about the fourth time, I could not help thinking that if parents were obliged to maintain some link for the sake of their children then financial problems might not be quite so bad. Later that day, while researching something for this Bill, I came across an article from
There are also controversies about the amendment. Others ask why we press on with it when, within the present statutory framework, a court is able to—and courts do—take account of all parties including the non-resident parent. Why muddy the waters with the amendment? We all know that, when relationships break down, there is often bitterness—even hatred—between fundamentally decent people who carry the scars of emotional battles, will not forget, and all too often cannot bring themselves to acknowledge that their former husband, wife or partner should have any contact with their children. Any child is not only entitled to the fullest possible access to each parent, whatever the residual bitterness between them, but to each child's family—to feel a full part of that family. That is a privilege that should not be lightly denied.
A separated parent should not have to prove a right to contact, nor have to prove to a court's satisfaction the extent of that contact. Parents accepted as fit—as good and loving parents—during their relationship do not, whatever the issues between them, become unfit on separation. The amendment recognises that and requires as full and equal an involvement in parenting as possible. It is only if that presumption is displaced on the balance of probabilities that, in the interests of the child, a parent will be denied responsibility for the upbringing of the child. That is right and fair. The principle demands statutory force, to the mutual benefit of children and their separating parents. The signal will be clear. The best parent for a child is both parents.
We have tabled Amendment No. 8 because it is important that the contact that a child has with both his parents is not only reasonable—my noble friend Lord Howe will talk about that shortly—but frequent and continuous. I cited the case in Committee of a mother who, despite being in receipt of two contact orders, had been to court 35 times and spent £70,000, but still did not see her sons. After such a gap, she fully realises that the judge will have to possess the wisdom of Solomon. A recent IPPR pamphlet, Daddy Dearest?, cites research that shows that contact needs to be designed in such a way that father and child regularly experience a range of activities together—bedtimes, mealtimes, watching TV, doing homework, trips out, "hanging" in, and visiting friends and family. All that is important because, once a parent is disempowered, the links begin to unravel.
That leads me to Amendment No. 18 on the desirability of contact between the child and his extended family in the absence of good reason to the contrary. The group that we really have in mind is grandparents. At Second Reading, I described them as,
"unpaid childminder, cook, taxi driver, nurse, marriage guidance counsellor and overdraft facility. And yet, overnight, their relationship with a much cherished grandchild can be ended".—[Hansard, 29/6/05; col. 255.]
They are the innocent party in the whole proceedings. A project funded by the Department of Health between 1996 and 1999 called Care and Family Life in Later Childhood found that grandparents emerged as important figures. They were considered by children to be important in symbolic, practical and expressive ways. Children also held their aunts and uncles in high regard, especially their blood-related ones. The family is the most immediate and important group within which people share responsibility for one another's well-being. It is the very foundation for the good and just society that we all desire.
It is time for the rhetoric to stop. We need radically to reshape our family law system. We need to effect a culture change in attitudes to parenting, and to use legislation to send an important signal that extended families matter, and that the best parent for a child is both parents. I beg to move.
My Lords, I shall speak to Amendment Nos. 11 and 12 in my name in this group. First, I will not be in a position to support the amendments of the official Opposition in this group today. That is not because I do not think it is highly desirable to have a sensible and clear definition in statute of the fact that children should have reasonable contact with both their parents. It is a good idea to have something very clear. If a couple go into their solicitor's office and say, "What does the law say about this?", the solicitor will not be able to easily demonstrate what the law says about it if he has to refer to half a dozen law books and pull down several cases, which is what the noble Lord, Lord Adonis, appeared to be suggesting in Committee. It is much better if we have a clear statute so that people can understand what the law says. The very fact that you have case law does not preclude putting something clear in statute. After all, there was an offence of theft long before theft was clearly defined in statute. Unfortunately, we do not live in an ideal world. In an ideal world I would be able to support amendments like my own and vote on them, and like some of those of the official Opposition today. But we do not live in an ideal world and in real politics one sometimes has to prioritise.
Unfortunately, the issues about child safety will be debated later today. My priority is the welfare of the child—to protect and make sure children are safe. My second priority is to get dissenting couples out of the courts and agreeing with each other; to fulfil their responsibility as parents together by agreement; and to remember that they may not be married any longer but that they are still parents and the child's interests must come first. That is my second priority and that is why I shall be promoting our amendments on mediation very strongly.
My third priority is to get something into statute, which does not have the danger of overcoming the presumption that the child's welfare has to have absolute primacy. So, I will not support Amendment No. 1, even though about a year ago in the House of Commons, my honourable friends in another place were able to support an amendment to the Children Bill. Unfortunately, a very paltry amount of time was given to that amendment, as so often happens in another place. My honourable friend, the Member for Somerton and Frome, said:
"It is a great shame that we do not have sufficient time to explore the issue properly but in stating clearly that the child's welfare is paramount—the honourable Gentleman [Mr Dominic Grieve] has done so without equivocation, for which I am grateful—and in putting forward a proposal that one doubts will take us further than case law in terms of its effect.—[Hansard, Commons, 2/11/04; col. 233.]
"The timing of this debate is unfortunate, as we have not yet had responses to the Green Paper, which is a serious piece of work and deserves our proper attention, and because the Select Committee on Constitutional Affairs, so ably chaired by my right hon. Friend Mr. Beith, is even now taking an abundance of evidence and is yet to reach conclusions. His plea to both sides of the Chamber not to close down options until that process was complete was entirely appropriate. Sadly, it went unheard by those on both Front Benches.—[Hansard, Commons, 13/12/04; col. 1471.]
My honourable friend went on to say that he agreed with many things in the Official Opposition's Motion. He also criticised a great many things. Ultimately, he advised his honourable friends to support it. He said:
"I will advise my right hon. and hon. Friends to support the Conservative motion today because there is more in it that we support than we reject, notwithstanding my trenchant criticisms of some aspects of it. I will reject the Government motion because it smacks of self-congratulation and I do not believe that they have got it right".—[Hansard, Commons, 13/12/04; col. 1476.]
My honourable friend was so hesitant because the Constitutional Affairs Select Committee was taking evidence at that time. One rather significant thing happened: the Solicitors' Family Law Association changed its position between its written evidence and its subsequent oral evidence. That was reflected in the Select Committee report published on
"We also received evidence from witnesses who pointed out the risks inherent in forcing separating couples to share contact in all cases, because of the prevalence of domestic violence and the risks to children".
Initially, a statutory presumption appeared to have the backing of the Solicitors' Family Law Association, which had commented in its written evidence that it believed that there should be a statutory presumption that children should have contact with both parents post-separation unless there are reasons that militate against that, such as safety concerns. During our oral evidence session with the judiciary, difficulties were identified with that proposal. A potential compromise was identified. Dame Elizabeth Butler-Sloss commented:
"we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which one takes precedence?".
I have very much taken to heart the words of Dame Elizabeth Butler-Sloss. The amendments to which I shall speak in a moment are, I hope, worded in such a way that they do not take precedence over the primacy of the welfare of the child.
The Select Committee's report continues:
"In oral evidence from the legal profession it emerged that this compromise had support. Mr Christopher Goulden who appeared on behalf of the SFLA stated that:
'I have to deviate slightly from the SFLA line on [the proposal for a statutory presumption]. We have had subsequent discussions about that. I do not think that that is as well put as it might have been, with all due respect to my organisation. I think a better way would be perhaps to follow what the President said which is to have it as part of the welfare check-list and then it would get over that problem of there being, as it were, two conflicting presumptions. There is nothing wrong with having a presumption which is rebuttable, as was the recommendation in our written evidence, but as long as it came in perhaps by means of being part of the welfare check-list' ".
We will come to the welfare check-list later.
I cannot support the amendment proposed by the Official Opposition because I believe that it is too prescriptive. My honourable friends in another place agree that our position has moved on, given the evidence and the report of the Select Committee and given what I have heard during our debates on the Bill from many concerned organisations. In an ideal world, court systems would be robust enough to protect every child. It would then be safe to put a rebuttable presumption of reasonable contact into statute.
It is an absolute disgrace that we are not able to do the right thing today because the Government have not given proper resources to CAFCASS and have not ensured that statute on the protection of the child is as robust as it should be. I hope that noble Lords will listen carefully to the suggestions on that front to be made by the noble Baroness, Lady Thornton.
The second reason why we cannot support Amendment No. 1 and would prefer our amendments is that we think that they are better. For example, a statutory presumption regarding the exercise of parental rights, as set out in Amendment No. 11, raises a presumption for all separating parents that they should make arrangements that enable the child to spend time and have a continuing relationship with both parents unless there is evidence that that would be contrary to the child's best interest. I ask noble Lords to notice that our amendment is rebuttable if there is evidence to the contrary. That would apply whether they agree arrangements privately, invoke mediation or go to court, but there will always be cases where the parties do not agree and end up in court. In those circumstances, it is important that the strong message from research that the welfare of children is best served by continuing to have a relationship with both parents is well understood. It has been well established in case law. The amendment strives to send that clear message in primary legislation so that it is not just embedded in case law and, as I said, inaccessible to the majority of litigants. The law would reinforce the message that parents should find a way to enable each other to remain involved with the child. Members in all parts of the House want to ensure that that happens. On that, I agree with the noble Baroness, Lady Morris of Bolton. Of course, it has to be subject to any safety considerations.
The effect of my amendment would be that those who are negotiating in the shadow of the law, whether on their own, in mediation or through negotiations with solicitors, will be clearly aware of the principle that the court will apply if they cannot reach agreement and have to invoke the jurisdiction of the court. That principle in primary legislation will also underpin the suggestions made in the guide, What to do if you can't agree, which accompanies the parenting plan and gives examples of how other parents have resolved differences in typical scenarios that arise on separation. However, the amendment does not attempt the impossible task of being prescriptive about what arrangements the court will order if it has to become involved because they necessarily vary according to the circumstances of each case, as the noble Lord, Lord Adonis, pointed out to us several times in Committee.
I am aware that it is heresy to talk about amending Section 1 of the Children Act. However, it is not a question of amending the substance of the paramountcy principle. I would not have tabled an amendment to do that. Rather, it is a question of amplifying how the Government and the courts view child welfare when parents separate. The Act has been amended before in respect of issues that needed to be considered in relation to a child being placed for adoption, for example, by Section 1(4)(f) of the Adoption and Children Act 1989. That is why I had the temerity to suggest it today.
Amendment No. 12 is somewhat different. It is about parental responsibility. The current publicity from fathers' groups about 50:50 parenting raises important issues. As we try to do the right thing—all noble Lords in the House are trying to do that today—those issues need to be addressed. However, in our view, the solutions are not what fathers' groups would want. It is clear that the power dynamic between the parties is frequently defined by which parent has "got" the children. It is often, but not always, the mother. If the parties have been separated for some time, the status quo of the arrangements made immediately after separation has become entrenched, which makes it difficult for parties to change the arrangements without causing further disruption to the children. None of us wants to do that. In some, but not all, cases, that can create a power imbalance between the parties when it comes to renegotiating the arrangements.
Following the recent amendment of the Children Act 1989 by Section 111 of the Adoption and Children Act 2002, most parents will have parental responsibility for their children, but the law needs to define in statute how that parental responsibility should be exercised post-separation, so that the law encourages co-operative parenting—hence Amendment No. 12. It is inadequate to leave it to case law to define parental responsibility and how it should be exercised post-separation. The law should be clear and unambiguous to separating parents so that one cannot act unilaterally on big questions concerning the raising of the child, unless he or she is authorised to do so by the court.
Those are the reasons why we think our approach is better. It is less prescriptive, and it allows the courts to have their prerogative of looking at the circumstances of a case. I do not intend to vote on the amendments today, because my priority is to look at what we can do to strengthen the Bill. I hope that the Government are listening carefully to the concerns that have come from all sides. The safety of the child must come first, but we must strengthen the arrangements for couples to mediate, to do it effectively and to do it before they go anywhere near the doors of the court.
My Lords, I support the noble Baroness, Lady Walmsley: the message that we send to parents is of huge importance, and that message will not get through if it is buried in case law.
I added my name to Amendment No. 1 because I believe in the principle that, wherever possible and safe, both parents should continue to be as fully and equally involved as possible in the parenting of their child. The object that we all want to achieve—in Grand Committee there was huge agreement about the outcomes that we wanted, although there was significant disagreement on the means whereby those outcomes were to be achieved—is that a child's family life and his trusting and loving relationship with his parents should be as little disrupted as possible. As we all know, that is most likely to happen if future parenting arrangements are worked out, where possible, amicably between the parents. In order to achieve that, not only do the courts need to be clear on what they think and what they mean, but separating parents also need to be clear about what the courts mean and what they are likely to do.
I have one reservation on Amendment No. 1—the words "the presumption". I should like to be assured that that presumption does not in any way intrude upon the paramountcy of the welfare of the child as set out in Section 1 of the Children Act 1989. In that context, I should like to quote from the Solicitors' Family Law Association, to which the noble Baroness, Lady Walmsley, referred, because I think that it is extremely relevant. In a report dated June 2004 entitled Practical Steps to Co-Parenting, it states:
"The Association was in favour of a legal presumption of contact for both parents, but with the proviso that the child's best interests should remain the paramount consideration in any dispute:
'A presumption, enshrined in law, that children should have an on-going relationship with both parents unless this would not be in their best interests. This should make it crystal clear that a child's relationship with a parent is not dependent on the wishes of the other parent. The child's best interests should remain the paramount consideration in any dispute. This principle is fundamental and should not be diluted by pressures to deliver rights for either parent' ".
That is all that I need to say on Amendment No. 1.
My Lords, I understand absolutely the sentiments behind the amendment. I believe that all sides of the House have the interests of children securely at heart, I simply think that we come at the issue from different positions. I shall outline why I cannot support the amendment.
First, let us remember that we want all children to live in stable, loving families with both parents. We all want that to happen. When problems arise, we want them to have access to help that brings them back to that stability and contact when that breaks down. We want to think about the difference between safety and safeguarding. I know that we shall be talking about safety later on, but I want to talk a little about safeguarding.
Safeguarding is to do with the whole development of the child. A presumption that a child's welfare is best served through residence with his or her parents and the concept of equal involvement in the difficult situations we are dealing with is unrealistic, unhelpful and in my view potentially dangerous. That, if you like, is at the other end of the spectrum when we are talking about safety.
Many of the problems that I see regularly in the court do not necessarily involve reasonable adults talking about safety, but unreasonable adults. All of us can be unreasonable, so there is nothing strange about people who find themselves in such situations, when powerful emotions are evoked. The most powerful emotions can be felt when people who said that they loved each other and have had children split up and face all the difficulties involved in breaking up. Noble Lords who have had that experience will know the power of those emotions, and those who have not will know what it is like to have normal household rows and what sorts of emotions are involved.
In such situations, we are often dealing with families who also have other difficulties. Research has shown that they are families at the end of the spectrum—not all of them, but many of them—where there are other difficulties. Let us remind ourselves that most families find a solution to contact themselves. Most families are able to find help if they actually need it. Of the ones who come to court, CAFCASS can often find ways to solve the problem before the case goes before a magistrate or judge. A number of our projects are proving extremely successful throughout the country in doing that. However, 1 per cent of cases end up with no contact, and I see many of those cases.
The child's needs must remain paramount, and our courts and staff should put them first. The noble Baroness, Lady Morris, talked a lot about the rights of parents. Yes, I believe that parents have rights, but the matter goes above and beyond the rights of parents who have decided to separate and have got themselves into such difficulties and have not decided that sticking together for life for the sake of their children is what they intend to do—there are many families who decide to do that, and I admire them. Those rights are not the ones that we should consider. The paramount responsibility and right at that moment is the need of the child who comes before the court. As I said, I believe that the child's needs are met by contact with both parents when possible. In terms of their development, even when children are not at risk in a technical sense, there will be times when contact will be very difficult to decide on. I have had CAFCASS officers and judges distraught because they can see the need but find some cases difficult to take through.
I should point out again that we are not talking about situations in which a contact order has been made and then broken or that we believe that the resident parent is being unreasonable. In those situations, we are dealing with the provisions about enforcement. Again, I know personally and professionally situations in which there are unreasonable parents—very often mothers but sometimes fathers—who, for their own reasons, not for the value or needs of the child, do not wish the child to see the other parent. That is when we need enforcement; that is when judges are asking us to take further action. But that relates to another part of the Bill; it does not relate to the part that we are discussing.
A massive amount of scarce professional time, including court time, is used when judges and CAFCASS practitioners try to reason with parents who are hostile to each other. They must at the end of the day be able to focus on the one thing that matters and not be distracted by other issues such as terms like, "reasonable contact" or "the presumption of contact". We have seen in the report from Her Majesty's Inspectors that that can affect the judgment of staff—and I believe that that happens. I welcomed enormously the speech made by the noble Baroness, Lady Walmsley, whom I have always seen as a champion for children. It was heartening to hear her talking about the paramountcy of children's welfare. I hope that she does not believe that it is because of staff attitudes that there are difficulties. The staff are seriously influenced by the culture that we create legislatively, in our newspapers and for certain groups who have made their life misery. That has been the difficulty.
My Lords, I do indeed, as I know the noble Baroness too well to think otherwise. I was simply commenting on her being a children's champion.
Over the past few weeks, I have spoken to judges, magistrates and our own staff, who all consider that such an amendment would simply lengthen the court process when we are working hard to shorten it. People would then begin to debate what was reasonable or a presumption, and we do not want that to happen; we want the court process to be shortened. I say to the noble Baroness, Lady Morris of Bolton, that if she looks more closely at the research she will see that when fathers contribute to their children, they are usually fathers who are having more contact. Contact and pay for support go together, but often the fathers who do not want to continue to pay their support are the ones that walk away. In fact, we have indications that fathers walk away because of some of the pressures of building a new family and the finances involved in all that.
In conclusion—I recognise that it is not a Second Reading debate—I encourage us continually to keep it in mind that, unless we have the paramountcy of the child at heart, not only will that be unfortunate for children but it will affect how people in the courts and the other professionals view how they go about their job. We see ourselves as influencing people; that is why we have legislation and why we have such debates. Let us influence for good and ensure that everyone has clearly in their sights the interests and paramountcy of the child. Therefore, I would be unable to support the amendment.
My Lords, I declare an interest as the chair of CAFCASS. I have only a little to add to the magnificent input from my deputy chair, the noble Baroness, Lady Howarth of Breckland, but some things bear repeating. We must remember that 90 per cent of all parents who separate make their own post-separation arrangements. Of those, research shows that 82 per cent of resident parents are satisfied or very satisfied with the arrangements that they make and 88 per cent of non-resident parents are satisfied or very satisfied. So when cases can be easily resolved in the ways perhaps implied by the amendment, they have already been resolved—by lawyers, mediators, friends or the people involved themselves. If we could guarantee that all separating parents, however much bitterness there had been between them, would act in a safe, sensitive and intelligent way, I would not have any problems with the amendment—but we cannot guarantee that.
An increasing number of private law cases such as the ones that CAFCASS deals with have the characteristics of public law cases, in that there are alcohol and drug abuse, anger management problems, domestic violence and personality disorders. All those are common in the cases that our officers in CAFCASS have to deal with; they are difficult enough and we have to approach them in a very open way, for the sake of the children—as the noble Baroness said. We do not have to be constrained by a set of legal presumptions, which would make it harder to get parents on the specific actual situation, faced by individual children, which needs a much more tailored and personalised approach. After all, in a great deal of public policy we are moving away from the idea that one size fits all towards a more individualised approach, which is very welcome. The children that CAFCASS deals with deserve nothing less.
In summary, the reason I oppose these amendments is that only 10 per cent of separated families approach the court with contact disputes, but those families have the highest level of conflict between the parents and the highest level of other problems. As your Lordships will know, there are relatively high levels of allegations of domestic violence among the parents approaching the courts, which means that concerns over the safety of the children and/or the other parent may mean that direct contact cannot take place, particularly given the lack of supervised contact centres.
Contact is refused in only a small number of cases where there are grave and justified concerns about the well-being of the children. I would be concerned that adding a presumption of the right to contact would lead to an increase in litigation, because we have to move away from parents thinking that litigation can solve these problems.
On a practical level, as other people have said, introducing a presumption of contact would mean changing the Children Act 1989, and therefore would have far-reaching results. It is, therefore, to be avoided.
My Lords, most of the important arguments have already been very well put. I salute the intention of the movers of this amendment. I join with the noble Baroness, Lady Walmsley, in saying that the current situation is far from ideal. That is one of the reasons I find this amendment difficult to accept. I welcome what my noble friend Lady Howarth of Breckland said about the wider question of addressing not just the safety of children, but also their welfare, and the danger of their being drawn into the conflict between their two warring parents. That can happen if the balance is not struck exactly right between promoting contact, which is normally in the best interests of children, and preventing children getting caught up in continuing long-term conflict.
My Lords, I am grateful to the noble Earl for giving way. Does he accept that great emotional damage can also be done to a child if he believes that his father who used to love him has walked away and deserted him?
My Lords, I agree. My own father was quite advanced in age when I was born, and when I was 13 I was sent to a boarding school. One of the reasons for that was that my parents believed I needed contact with an older man to be a sort of surrogate father figure. Indeed, my housemaster was kind to me, and I became attached to him. Sadly, he had to move on when I was 15, and that was a very sad experience for me. I was sad about that for several months afterwards, and this Bill has brought it back to the front of my mind.
So, in a way, I have a little experience of what the noble Lord has described: this loss of a father figure. I do not demur from what he has said, but I emphasise that there is a balance to be struck—a difficult balance—between the hell of a child losing contact with a parent, and the hell of a child being caught up in a long-term conflict between parents. I agree with the noble Baroness, Lady Pitkeathley, that we need to approach this on a case-by-case basis and consider the complexities behind each case.
My Lords, I was very sorry not to be able to participate in our discussions in Committee, and I apologise to the noble Baroness for giving her so much reading. Of course the upside for her is that, having given it to her, I had to read it all as well. I am sure she will agree that it was well worth the effort to ensure that we understood all of the background.
I am also grateful to all noble Lords who have discussed the issued raised here with me and my noble friend Lord Adonis outside your Lordships' House. I join all those who have spoken in saying I completely understand the motivation behind the amendments, and salute everyone who has spoken for the passion with which they have declared the desire to see our court system work to the best effect for children and their families.
I remind your Lordships where we started from with the Bill. In this part of the Bill we were seeking to deal with an injustice to children, who, despite the courts saying that it was in their best interests to have the attention of both parents, found that for whatever reason they were denied access. All the anecdotal evidence, and evidence of which noble Lords are aware, suggest that fathers, in particular, are affected. We know that the judiciary was frustrated that it could not deal with this matter as effectively as it might.
We have sought to achieve two things: first, to increase the speed with which cases can return to court and, secondly, to create sanctions that would work. Fathers' groups in particular pointed out that when things went wrong it took so long to return to court that, effectively, a new status quo was in place, which could not be overturned easily and they found that they could not have what they had been told was in the best interests of their child, with which they had concurred. As noble Lords will appreciate, it is difficult to find a sanction that does not, in effect, create even more tension in the relationship between the child, the resident parent and the non-resident parent. That is what we have sought to do. The Bill should be seen in the context of a whole raft of work that is taking place to try to ensure that the system works more effectively, more efficiently and quicker for parents and children.
We have recognised a fundamental point about the way in which our courts work. I do not presume that anyone is trying to undermine that, but it is at the heart of why I cannot accept the amendments. The more I look back at what happened in 1989, the more remarkable it appears. We did something that is now being copied in over 12 jurisdictions across the world and for which the noble Lord, Lord Laming, among others—he could not be with us today—spent 20 years of his life campaigning. At the heart of our court system is the fact that a child's interests come first; in other words, a child has rights—the paramountcy principle, much debated in your Lordships' House. It is important to reflect on how critical a development that was. It has been heralded across the world. We do not want people to end up in court and we are delighted that 90 per cent do not.
We shall do more and more. Perhaps as the afternoon develops I shall talk about the work we are undertaking on mediation, for which I, as a Minister, am responsible. However, we do not want people to go to court, but sometimes matters become so difficult, so intractable that people end up in court, and sometimes, as the evidence suggests, couples come to court because they want the reassurance of a court order.
Above all else, what is best for children? The courts act on behalf of our society asking what we should do when things are difficult, times are tough and the parents cannot agree. We look at the innocent, at the person who does not have a voice. We ask what is in the child's best interests. Almost invariably it is contact with both parents, but that contact will vary. Sometimes, unfortunately, there will not be contact in the short term—perhaps not in the long term—but that is a fact.
The evidence that we have gained, particularly from the University of Leeds, from the work of Carol Smart, Vanessa May and others, is that when parents go to court, their concerns for their children are not fabricated, but they are not necessarily the driving force behind the conflict. Everything else that has gone wrong drives the parents' anger with each other. As the courts do not deal with such matters, parents channel their hostility into issues that they can take to a judge—issues of residency and contact. Researchers call it the parenting contest. There are very high stakes. Is she a decent mother? Is he a good father? In the context of trying to channel all that anger and hostility, many of the disputes take place. It is very important to remember that when the courts are confronted with that, they begin from a very different starting point. They have before them—not necessarily physically, but in their minds—children who need the best possible outcome which will make their lives as good as possible.
As research indicates, we find parents who are at odds with each other but at the same time we see a competing set of values and ideas about child rearing. The noble Baronesses, Lady Howarth and Lady Pitkeathley, referred to their experience with CAFCASS and families with multiple problems. We also see children who have clear feelings about their parents, extended families who have very strong views and, above everything else, we see huge amounts of distress. I believe that we all agree in your Lordships' House that in that context it is very important to be clear that the interests of these children come first.
I believe that we have developed the right approach in what are always difficult circumstances. I understand that it is not the desire of noble Lords to overturn that paramountcy principle by their amendments. However, we have a problem in that that is precisely what would happen. One amendment that I rather hoped would be tabled in your Lordships' House—perhaps this is an invitation to the noble Baroness, Lady Walmsley, more than anyone, and she will know instantly why that is so—concerns a matter that we have not dealt with very well and need to deal with better, and that is listening to the voice of the child. We need to ensure that what children feel and think is taken more seriously. We know that when confronted with a certain degree of parental conflict and distress, children say that they would rather not see the parent at all than put up with that. That tells us an awful lot about what more we have to do to stop people reaching that point of great conflict. We need to recognise that these children are caught in impossible situations. We must look after them above and beyond anything else.
That does not mean that I do not respect and admire what noble Lords have sought to do with their amendments and their translation of the strength of feeling of different organisations which have met the noble Baroness, Lady Morris, the noble Earl, Lord Howe, the noble Baroness, Lady Walmsley, and ourselves. I recognise that not everything is perfect and that we have more to do. However, I want to be clear that I cannot go down the route proposed in these amendments as they would rub against the paramountcy principle, and I cannot afford to do that.
The amendment on co-parenting, tabled by the noble Baroness, Lady Morris, has a laudable aim. The trouble is that in the end it would invite more litigation because we would have to sort out what takes precedence in a world where we have the paramountcy principle and the idea that co-parenting somehow runs alongside that. There are many good reasons why children's lives do not allow for parenting to be equal or for it to be the way one would like it if the parents were together. It may be a matter of geographical distance apart from anything else. It may be the nature of the child's life. It is very important that we ensure that we do not go back to having things done to the child rather than the child being involved. It is very important that we do not pass amendments that would permit more litigation in that a case would have to go to the Court of Appeal and ultimately to the House of Lords to determine what takes precedence and what is meant by the Bill's intentions.
I accept that there are safety issues on the frequent and continuing contact amendment. I completely accept that no noble Lord is suggesting for one minute that where safety issues are involved, we should do other than put those top of the queue. However, the courts take other matters into account. They take into account the wishes and feelings of the child. They also take into account social welfare issues. One needs to define what is meant by "continuing and frequent" as one person's frequency is someone else's infrequency. It is difficult to define. We know that the courts are already required to deal with appropriate arrangements. Therefore, I am not sure what we would add by the measure except the potential to create confusion and, of course, more litigation—which we all wish to avoid.
As children grow older their needs and desires for contact with their parents change. I call it turning into a taxi service, from my experience. We need to ensure that we do not accidentally create a measure which says, "It always has to be like this". It might be great when children are five but it would be hopeless when they are 15 and their lives have moved on. Spending time with parents at that age is not as cool as it used to be, when they could spend it with their friends.
The real problem is that we define quantity and regularity from the perspective of the parent, not the child. A whole body of research was looked at by the University of Oxford, and we know that it is the nature and the quality of parenting that is critical, not necessarily the quantity. Parents know that, too. It is not how much time you spend with your children, but what happens when you do. We need to hang on to that as well. I have a problem with frequency as it implies quantity, not quality of parental perspective, and it does not give the flexibility that we need. Children are trapped in these situations, which is the difficult part of it.
The noble Baroness, Lady Walmsley, has done a lot of work on her amendment, but my problem is that it still leads us into some kind of presumption. I have looked carefully to see whether there is a way of putting some provision into statute without detracting from the welfare provision, but I cannot find it. The noble Baroness will know that I try hard to achieve that when I see the point of something. The difficulty is including in the Bill a provision that needs to be interpreted. The judiciary will rightly ask why we have added something new when Parliament is asking for something different. That is the difficulty, but we shall continue to talk about it.
I see the aim of Amendment No. 12—consulting each other about decisions on bringing up children. The problem with the amendment, which I am not sure the noble Baroness realises, is that it covers all parents, including those who have never come near the court at all. I am not keen. The "nanny state" Daily Mail headline would run riot on that point. I am not keen to get into the business of instructing parents in that way.
It is also difficult to define an important decision, especially at times of parental conflict. Parents will claim that a particular decision is important, such as, for example, whether the child goes on a school trip; goes for tea at somebody's house, and so on. They will claim that such decisions are important because it suits them to do so at a time of enormous conflict. I am sure that the noble Baroness and I would agree on what we thought was important, but it is difficult without a list being defined.
Sadly, as the noble Baroness, Lady Pitkeathley, said, there will be cases when co-operative decisions cannot be reached. There may be fear of violence, intimidation or bullying, which tragically happens in some relationships, or sometimes parents just cannot stand each other. Decisions cannot be made co-operatively in those circumstances. We cannot generalise about that.
There are also difficulties with phrases, such as "brought up by". It will be a happy time for lawyers trying to define such phrases, but I am fearful of ending up with more litigation, however much I understand and share the objectives. The objective of extending the family welfare checklist is fine, but there is a problem with putting it here in this way. The checklist is factual—trying to establish facts about what is happening, which is important.
In winding up on this group of amendments, my theme on this part of the Bill is that I completely accept the ambition to do two things. The first is to be clear about parental responsibility. The noble Lord, Lord Northbourne, reminds us of this in every Bill with which I have ever been involved around this subject. You cannot walk away from your children, and you should take responsibility for them seriously. That includes financial and emotional support, as well as good quality time. Children should not be ignored and abandoned. We need to consider what we should do about those issues.
Secondly, we need to consider parental rights. They want to be involved with their children; they love them and want to prevent them being harmed. They do not want to be cast out of their lives. Those issues are important, but they are not for this part of the Bill, which is about trying to do something different. But they are relevant to the programme of work that we should be considering.
I have tried to set out a series of measures to ensure that we develop a better system. I talked about mediation, for which I have grand plans, but we shall discuss it in later amendments. I have much time for the work that needs to be done on getting information out to parents much earlier—even before they think of separating, but certainly at the point they do—through all the organisations, websites, and so on, that they can consult about what to expect. We need to look carefully to ensure that we understand what happens in our court system, and I shall be happy to discuss that further.
I have two final points. A number of things have been said about other jurisdictions that are based on presumptions. Noble Lords know that legal systems are different and the profile of the populations using the courts is different. We have found little evidence from across the world to explain what happens. Making changes here on the basis of no evidence from other jurisdictions is making bad law. We need to be clear about our evidence base. I know that the noble Baroness, Lady Morris, is particularly interested in Australia, which is not adopting any presumption about contact. Rather it is saying that the court will regard the best interests of the child as a paramount consideration. I promised to check that for the noble Baroness, and I have done so.
To move away from the principle that the child needs to be the basis on which the court makes its decision would be a travesty of justice for some of the most vulnerable people in our society. In 1989, in a sense we led the world in making it absolutely clear that when it came to those moments of real dispute our interests would lie with the child. People fought very hard to put children at the centre; we must not change that. It would be wrong to do so.
I hope that noble Lords will not push the amendments but rather that they will work with us to ensure that everything that I volunteered to do will make sure that children get the best that they possibly can from the justice system. We want parents to understand their roles and responsibilities, and we want to right the wrongs where parents have not been able to see their children, not because the courts have not ordered it but because it has not worked out that way because of the other parent. All that we are trying to do in the Bill is ensure that children get the best possible deal, and within that to make sure that those family members who want to be with their children get to do so. I hope on that basis that noble Lords will not press their amendments.
My Lords, I thank the Minister for that full and, as always, gracious reply. However, I am disappointed that she cannot accept our amendments, because I genuinely believe that she wants to see better outcomes. I stress that we are not talking about equal parenting. We recognise that as children grow their needs will change, but a parent who feels secure in their relationship with their child will not be as rigid as they are if they are fearful that they will lose contact with their child.
I thank all noble Lords for such a thoughtful debate. I thank the noble Lord, Lord Northbourne, for his support for our amendments. He was absolutely right that it is important that the message sent out to parents is not buried in case law. We discussed with the Minister last week how to get information to parents. Yes, you can open telephone helplines and print leaflets, or get a storyline going in a soap, but to change the law would be like nailing the information to every lamp post in the country. The noble Baroness, Lady Howarth, talked about unreasonable people, but the system makes people unreasonable. She talked about the few, as did the noble Baroness, Lady Pitkeathley, at the hard end of the process. They will always be there; but there are many who do not even seek recourse in the courts because they fear the system. There are no certainties; they are unsure of the outcomes, and it is expensive, so they settle for second best, fearful that what little contact they have could be lost. That is the silent majority that we are also seeking to help. We must be careful not to penalise the majority because of the few. We need robust safety measures set against the amendment. The noble Baroness, Lady Walmsley, said that she could not support us because other things needed to happen first, but all other measures without a change in the law are like running a bath without putting the plug in.
"Legislation that is presented to Parliament, no matter what its content, should aim to do one thing—to make the world a better place, to put it in the broadest of terms. If we were trying to sum up what we wanted to do to make the world better for those parents whose marriages were breaking up, we would say this. We want to help children continue to see and spend time with both their parents, wherever violence is not an issue".—[Hansard, 29/6/05; col. 282.]
I simply cannot begin to think what life would be like if I could not see my children or I was told I could only see them every now and then. Over the course of this Bill my noble friend Lord Howe and I have been privileged to meet some truly wonderful people. They are good decent people. They come from different backgrounds, different parts of the country and different age groups. They are united by their grief because they cannot see their children. In their name I would like to test the opinion of the House.
moved Amendment No. 2:
In section 8(1) of the Children Act 1989 (c. 41) (residence, contact and other orders with respect to children), for the definition of "a contact order" there is substituted— a contact order" means an order requiring the person with whom a child lives, or is to live, to allow the child to have reasonable contact with the person named in the order in the absence of good reason to the contrary"."
My Lords, nearly a generation ago this House met to debate and to pass the Children Act. It was a measure which, as the noble Baroness said, was by any standards groundbreaking in defining the way that our society and our legal system should treat children. The Children Act 1989 has rightly been held up as a model of excellence in legislation, which other countries have sought to copy. It established for the first time in statute the paramountcy principle, to which we have already referred; that is, the test that says that in all decisions taken by the courts and by public authorities involving a child's welfare, it is the child's best interests which must be considered paramount. No one argues with that principle, least of all me.
It is generally agreed that the Children Act has worked well, even though, over the years, it has been amended in various ways for very good reasons by successive governments. There is, however, one aspect which has not delivered all that we hoped that it would; namely, the provisions which relate to the way in which contact between a child and his parents is maintained following separation or divorce.
The whole purpose and rationale of the Children Act was to ensure that the law recognised and promoted the best interests of children. Throughout recorded history, civilised societies have taken it as axiomatic that it was in a child's best interests to experience the love and influence of both parents; that that love and influence was every person's birthright; and that, therefore, unless there is good reason to the contrary, the state has no business to sever the parent/child bond. That is most decidedly my belief. I like to think, having read the Government's Green Paper, that it is the belief of Ministers as well.
The opening paragraphs of the Green Paper state:
"We believe that in most cases it is very much in the interests of the child to have an on-going relationship with both parents and so we hope that through improving the system, more non-resident parents will enjoy meaningful on-going relationships with their children. After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe . . . It is in the interests of the child to have a meaningful ongoing relationship with both parents".
Amen to all of that. In effect, the Green Paper is saying that a child's best interests are served by a presumptive right of meaningful contact with both his parents, with that right being denied to him only if it is unsafe to exercise it.
The whole of the Green Paper is suffused and shot through with that idea. You cannot read it and emerge at the end believing anything other than that, in the view of the Government, children and parents have a natural right of reasonable contact; that all too often the legal system as it currently stands fails to deliver reasonable contact; and that, therefore, the way in which the courts intervene in disputed contact cases requires radical amendment.
In Grand Committee, we debated the significance of case law in that area. Case law has established the principle that, in the absence of good reason to the contrary, both parents, upon separation or divorce, have a right of contact with their child and vice-versa. It is important to understand what that means. The right of contact is not the same as the right of reasonable contact or meaningful contact.
What do we mean by a meaningful relationship or meaningful contact? If you ask most non-resident parents what they mean by it, they would say that they mean doing those ordinary little things which parents and children in undivided households take for granted—tucking a child up in bed, reading the child a bedtime story, cooking a child's supper, eating a meal at home together or taking a child to the supermarket. It is through those ordinary, but deeply important, acts that a child has a life in his parents and the parents have a life in the child. That simple truth was reflected in the words of the Green Paper. On page 22, it speaks of the need for arrangements which,
"result in children feeling comfortable in both parents' homes. A typical arrangement might be for a child to live at one parent's home and to spend alternate weekends, a mid-week visit, alternate special or festive occasions and extended time during the school holidays with the other parent".
Many of us took tremendous heart from that, because it demonstrates the Government's recognition that a meaningful relationship between a child and a non-resident parent cannot be achieved without them being allowed to enjoy each other's company in unforced surroundings for a goodly period of time. It is stated in terms in the Green Paper that an approach that incorporates shared parenting arrangements in this broad sense promotes the interests of the child.
In Committee, the noble Lord, Lord Adonis, told us that cases in which the courts denied a request for contact from a non-resident parent were extremely rare. He said:
"we note that all but 1 per cent of requests for contact lead to the making of contact orders".—[Official Report, 17/10/05; col. GC 157.]
The noble Baroness, Lady Howarth, said something similar: in fact, on
The accuracy of both those assertions has been completely and utterly demolished by the publication last month of a survey by Napo, the trade union representing family court and probation staff. The Napo survey provides us with the first ever ray of light to fall on the decisions that are being taken day in, day out in our family courts. Of 864 cases sampled, no fewer than 5.2 per cent resulted in a no contact order. A further 8.2 per cent resulted in an order for indirect contact only. For those of your Lordships who are unfamiliar with the term, indirect contact means that you are allowed to communicate with your child in some pre-agreed way, but you may not actually see or be with him. A further 5.7 per cent of cases resulted in an order for contact on condition that any meeting between parent and child is supervised by someone else, typically in institutional surroundings, such as a contact centre.
If we put those figures together and ask ourselves what they mean, the answer is this: of the 864 cases in this sample, a not insignificant number, just short of 20 per cent, resulted in an order of the court that prevents the non-resident parent from being alone in the same room as his child. In other words, the key figure is not less than 1 per cent; virtually a fifth of contact decisions make it impossible for the parent/child bond to be meaningfully nurtured. They allow no bedtime stories, no tucking into bed, no sharing a meal around the kitchen table, no pushing a trolley around the supermarket. I do not for a moment seek to play down or belittle the significance of domestic violence as a factor in some of these cases, but 20 per cent is a very substantial figure. It is a figure that excludes all those court decisions where direct contact is granted to the non-resident parent, but only at minimal levels: one afternoon a month for two hours and that sort of thing.
We do not know what the percentage of such court orders is, so we cannot say much about them, beyond the fact that, anecdotally at least, they occur very regularly. In Grand Committee on
The difference between a presumption of contact and a presumption of reasonable contact is this: if as a non-resident parent you enter the family court with a presumption of contact, and no more than that, you can expect the courts to award you at least minimal contact with your child in the absence of good reason to the contrary. At the same time the onus is on you to argue to the court why it would be in the child's interests to have a more substantial quantum of contact.
By contrast, if you were to enter the court with a presumption of reasonable contact, the onus would be on others to show why contact arrangements which afforded the prospect of a meaningful relationship between you and your child were unreasonable. That is the difference. They would need to produce a good reason, such as domestic violence, to deny the parent and child a reasonable or meaningful degree of contact.
At present, the absence of a presumption of reasonable contact means that material contact between a parent and child can be brought to an end for no good reason; in other words, for trivial or immaterial reasons. That means that the slightest blemish on the track record of the non-resident parent can be enough for him or her to be damned in the eyes of CAFCASS and the court as a "bad parent" and therefore unfit to look after the child. "He lost a sock". "He fed the child inappropriate food". "He fell asleep while reading a bedtime story". Those are the sorts of trivial immaterial reasons that are produced to demonstrate somebody's unfitness to look after a child.
By the same token, the slightest plea from the resident parent that a proposed contact arrangement is inconvenient for one reason or another can carry weight far beyond what most would regard as reasonable. To the casual observer it may appear that two parents in a contact dispute have equal rights before the courts, but in practice, because the law is as it is, the scales in contact cases are weighted heavily in favour of the resident parent. In that respect the Children Act has failed children and parents. That is the reason I propose these amendments. They would ensure that, provided there was no good reason to the contrary, the court would have a duty to make contact arrangements that were reasonable.
The definition of what is "reasonable" or "meaningful" would be arrived at in two ways—through guidelines issued by the courts and, in time, by case law. The guidelines would take the form of approximate allocations of time which, in the court's judgment, were applicable to different circumstances—all other things being equal. We see a model for this in other jurisdictions such as Florida, a number of other US states, Scandinavia and New Zealand.
There are those who maintain that a presumption of reasonable contact and the existence of guidelines would serve to place children at greater risk of harm. I respectfully disagree. A presumption of reasonable contact will not of itself increase the risk of harm to a child because, as now, any suggestion of genuine risk to the child's well-being would count as a good reason not to grant meaningful contact or, indeed, any contact at all. If the worry is that genuine risks to the child's well-being are not being picked up, the answer is not to perpetuate a system that denies meaningful contact, even when there is no hint of a good reason to do so, but to improve the protocols for establishing whether an allegation of violence or child abuse has real substance and then proceed from there. We shall be debating later some separate amendments designed to work towards that end. In those jurisdictions where there is a legal presumption of reasonable contact, backed by court guidelines, contact disputes have fallen to extremely low levels with, if anything, less risk to children than before, because the system provides for very swift intervention by the courts when violence or abuse is an issue.
I believe that my proposals are wholly at one with both the substance and the spirit of the Government's Green Paper and with numerous public utterances by a number of Ministers over many months about the benefits of dual parenting. It is a mystery to me why the Government should now oppose them. The noble Lord, Lord Adonis, said in Committee that the amendments would amount to a qualification of the paramountcy principle. That would certainly be true if I were proposing that the paramountcy principle and the presumption of reasonable contact should carry equal weight in the eyes of the court. I am not proposing that. I am saying that the courts are perfectly capable of operating on the basis of an overarching principle that the child's best interests should be paramount; and, beneath that, the subsidiary principle that, in the absence of good reason to the contrary, both parents should have reasonable, meaningful contact with their own child.
I come back to the point with which I began. No one in 1989 can have intended to pass a law, and surely no one can now support a law, which provides that all material contact—the very measure that we agree is in the best interests of children—can be stopped even if there is no good reason to stop it. Surely no one can have intended the law to allow that the parent/child bond can be set aside lightly. Yet this is what the law allows and what happens every day in our courts. I am afraid that the Government are trying to tinker at the edges of a system that, in their own words, does not work well. I do not believe that we will succeed in doing justice to children and non-resident parents without a complete change of approach. I beg to move.
My Lords, we are making a mistake in trying to define contact in terms of the benefit that it brings to the parents. If we really mean that the welfare of the child is paramount, any attempt to give guidance to the courts and CAFCASS about how much or what kind of contact they should encourage should be worded in such a way as to make it clear that it is child-centred. The Government will say, "Why give guidance at all? Why not just leave the presumption of Clause 1 in the Children Act and let the courts make all the decisions through case law?" I understand that that is the Government's position. I believe that they are wrong. The courts have now been in the driving seat for six to eight years and the outcomes for children are not yet satisfactory. Parliament is responsible for this legislation and for what is going on. Therefore, Parliament should make clear what it wants. The noble Earl, Lord Howe, quoted someone saying that the system requires "radical revision". Perhaps that is what we should be trying to do.
The noble Earl's amendment about reasonable contact introduced this difficult word "reasonable". Neither he nor anyone else has been able to tell me what reasonable means. It seems that reasonable is what a person thinks is reasonable. What I think is reasonable may be different from what you think is reasonable. We could turn this round by including some words that made it clear that what matters is that the policy is child-centred, so I propose adding "child-centred". I do not know whether that works well, but my Amendment No. 17 would insert "child-centred" before "contact". On reflection, I hate the word "contact" because it implies the sort of uncomfortable sessions to which the noble Earl referred. The phrase "child-centred parenting" should be included. That is what I would like to see.
Moving on boldly, I thought that I had better try to define "child-centred contact" or "reasonable contact", but then I thought that my amendment would not be accepted so I had better define "reasonable contact" as well. I have done that in Amendment No. 16, where I have drawn attention to two or three things. They may not end up in the Bill, but it is tremendously important to make the point that one of the essential features of the relationship between a child and its parent is attachment, as we all know. Attachment means love and trust. One of the things that very often breaks down when a parental partnership breaks up is that one parent—usually the father—goes away. That is perceived by the child as abandonment and desertion, and sometimes it is, although sometimes he is driven away. The word "trust" should be included as well as "love". Also included are the obvious things such as the "care, support and education" that the child needs. I leave those amendments on the table for discussion.
The noble Earl made an extraordinarily good and rather frightening case. Is it really true that the onus in court is on the non-residential parent to show that they should have more time for contact with the child? Can it really be the case that contact can be ended for no good reason? If so, the noble Earl is surely right in saying that the scales are too heavily weighted against the non-resident parent. I beg to move Amendment No. 3.
My Lords, the noble Earl quoted research which showed that, as the noble Lord, Lord Northbourne, picked up, the courts were inclined to take the word of the resident parent against the non-resident parent, but many of us would say that that research was selective. We might also quote the recent HMICA report on domestic violence, which showed that, on the contrary, the presumption was rather too much towards assumption of contact. My real difficulty with the noble Earl's amendment is that it is a mistake to assume that you can have a once-and-for-all decision about what is reasonable contact.
I must speak up for CAFCASS workers who work with very difficult parents, not for weeks or months but sometimes for years to establish reasonable contact. I have sheaves of letters that I could quote to your Lordships; I will spare noble Lords that, but I shall quote one, from a parent who says:
"I know now", at long last,
"that this case is not about what either parent wants, and is all to do with the needs of the children, but it has been my deepest wish that my children would one day see my home and be a part of my life, and it has taken me years to achieve this.
To me the weekend was a huge success and I must give credit to the children's mother for her complete compliance with the court order and giving every chance for the weekend to work".
Those are parents who until now could not even be in the same room with each other. That kind of work goes on all the time. It seems to me, however, that the amendment tabled by the noble Earl starts and stops with parents, whereas the work done by CAFCASS with resident and non-resident parents starts and stays with the individual children. Of course there is a get-out clause in the amendment, unless a good reason to the contrary is shown; but there are often good reasons, and the problem is that in my view the amendment would weight the legislation and legal advocacy too far towards the parents' rights and not enough towards the children's rights.
My Lords, I find myself agreeing with a great deal of what the noble Earl, Lord Howe, said. However, for the reasons I explained when speaking to the first group of amendments, I could not support him in the Lobby if he chose to seek the opinion of the House today, because of the hierarchy of priorities that I hold. In an ideal world, I would very much like to see us put something into statute about reasonable contact or even child-centred contact, because it would be very much clearer for everybody. But until we have sorted out the safety issues, which we shall do later today, I would not feel in a position to do that.
Noble Lords will notice that my name and that of my noble friend Lady Barker are attached to Amendment No. 6; that is because it was part of a package of amendments that we tabled in Committee. On the other amendments we have changed our approach. In an ideal world, I should like to amend the Bill in that way, but I do not feel that we can do that until we have sorted out the safety issues.
As for the amendment of the noble Lord, Lord Northbourne, I very much understand the spirit of what he is trying to do, but I question whether any piece of legislation could enable a child to love and trust each of his parents. That is a very noble aspiration, but it is beyond the means of any legislation to be able to ensure such a thing.
As for Amendment No. 4—to return to my comments on the first group of amendments—I noted that the Select Committee on Constitutional Affairs suggested that it might be a good way forward to put something about reasonable contact in the welfare checklist. I look forward to hearing the Minister's remarks in that regard, because I would very much welcome a conversation with the noble Earl, Lord Howe, and the noble Baroness, Lady Morris, on the subject.
My Lords, I understand that point, but I still think that it is beyond any legislation to devise anything that is likely or unlikely to lead to such a thing.
As I said, I would very much welcome a conversation with the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton, particularly about Amendment No. 4, after today's debate. It could be that if we are satisfied on the issues of safety later in today's debates, we might find ourselves being able to work together on something like that for the next stage of the Bill.
My Lords, I was not going to speak to these amendments but, having been goaded by the noble Earl, Lord Howe, I need to say a couple of words. First, I admired, as I always admire, his carefully reasoned arguments. They are always carefully thought through and, I believe, very much in the interests of the child and the family. Disagreeing with him does not mean I do not sympathise with the objective he is trying to reach.
I start with the "lies, damn lies and statistics" issue. The figure of 1 per cent comes from the judicial statistics. The Napo research, which is a useful piece of work that I find extremely valuable, has a quite different objective, and shows that CAFCASS was indeed doing its job. We should not be producing a whole load of reports, but intervening on behalf of children and working with the families to improve contact. The research is very selective. It is not modelled; it is an experiential piece of work that looks at cases, so it is not balanced against the whole numbers issue. It is valuable, however, in that it shows that if we work carefully with families we can increase contact. This is what we should be looking for.
The noble Earl is right in saying that the sooner these issues are dealt with, the more likely it is that contact will be maintained, which is what we all want to happen. However, he is not right in suggesting that one parent has to argue for or against contact. It is the responsibility of those looking at the situation, and of the judge assessing the situation, to ensure that the child's interests are put first in whatever is decided. When you are in court, you feel you are arguing for your case, and I usually hear that both parents feel that.
Much as I admire the argument, eloquent as it is, I still do not feel that I could vote for anything that interferes with the central presumption of the child's welfare and interests being paramount.
My Lords, I thank the noble Earl, Lord Howe, for putting the case so eloquently for his amendment. As Anthony Douglas, the chief executive of the Child and Family Court Advisory Support Service, has said to me, 30 to 50 per cent of these cases are fairly straightforward, and the rest are complex cases verging on public law. As I said before, there is a balance to be struck between the hell of a child not having reasonable contact, so he cannot be read a bedtime story by his father, and the other hell of him or her being caught in a continual conflict between warring parents. It is a difficult balance to get right.
Several of your Lordships have referred to the HMICA report. In chapter 3, regarding domestic violence, it says:
"Practitioners and managers told Inspectors that, whilst they may not always agree with it, private law practice is driven by what is known as 'the presumption of contact' . . . Inspectors were told by practitioners that 'the presumption of contact is so strong. It makes it difficult to challenge and we don't give adequate attention to the continuing impact of the abuse on the child'".
This is a report on domestic violence, but its findings are relevant to a wider group of families in these proceedings. My assessment of the report is that it underlines that CAFCASS, as the noble Earl has said, is faulty and struggling in several ways. I was glad that the chief executive, Anthony Douglas, acknowledged the strength of the report in this chapter, and that there is a lot of work to be done at CAFCASS.
There is such a strong presumption of contact that not only the safety of children but also their welfare is being put to one side, in a drive to get contact between parents as far as possible. There is a balance to be struck but the report suggests that the balance is not being struck and that it is going too much in one direction. I am concerned that the amendment, with its laudable aims, would push the balance too far in the wrong direction at the current time and in the current context. I look forward to the Minister's response to the amendment.
My Lords, I shall not repeat what I said in our previous discussions on presumption. I firmly believe that the paramountcy principle must be crystal clear within the Children Act. In moving their amendments I know that noble Lords do not seek to dilute that, but it is quite clear that that would happen. So it is very difficult for the Government to say anything other than that they cannot accept the move in that direction. It is absolutely clear to us that a child's interests must come first.
Noble Lords have focused heavily, for very good reasons, on issues of violence, and will probably know that the NSPCC has indicated its strong opposition to the presumption of reasonable contact. The noble Baroness, Lady Walmsley, is an ambassador for the NSPCC. It believes that the problems identified in the report, to which the noble Earl referred, would deepen if shared contact were observed to be prioritised over the risk of domestic violence. The NSPCC has made a statement, of which I shall ensure noble Lords have sight, to explain its reasons for doing that.
We shall consider the important issue of domestic violence and the role of CAFCASS and we welcome the amendments that will be tabled—I do not want to say too much. We start from the principle that the child's interests must come first. I would be as appalled as the noble Earl if, because a dad lost a sock or fed the children a Chinese takeaway or whatever, the courts did anything other than dismiss any claim.
My Lords, I thought the noble Earl would say that, but we do not know what else was going on at the same time. It is absolutely right and proper that we ensure that the courts act in the best interests of the child. The noble Earl says that those are real examples, but we do not know what else was happening. I have indicated all along that we need evidence to ensure that we are correct. I believe that the time has come for us to look very carefully at repudiating some of the anecdotal evidence or to consider carefully what has happened in the courts. To understand more about the process we shall research what happens when the courts start with a desire for contact and see what the final orders are. Noble Lords will know that we are also considering transparency in the family courts, a matter for which I am responsible.
My Lords, the noble Baroness will not be surprised that I cannot do that. I have only just decided to do that in the past two or three days. It resulted from the conversations I have had with noble Lords through the passage of this Bill. To a degree, we are faced with an anecdotal base for some of this work. I recognise that the courts do a fantastic job—I believe that noble Lords would agree with that. None the less, we need to understand anecdotal stories that abound about what happens. I put it no higher than that. I shall write to the noble Baroness and to the noble Earl to explain what we may be able to do and I shall invite their comments. I stand by what I said, that I do not believe that it is right and proper for a child to be denied access because a dad lost a sock. If I worked on that basis my children would never see me at all.
Turning to the "reasonable" amendment, I hope the noble Earl will not mind me saying that it is slightly paradoxical. In making decisions, the courts consider that what they have done is reasonable. So if we say to the courts that what they currently do is not reasonable and, therefore, we want them to do something that is reasonable—but they believe they are being reasonable, as they are trying to make reasonable decisions—I am not sure where that would get us.
More importantly, I think what the noble Earl's amendment says is that it is for the resident parent to allow reasonable contact. Therefore, the courts would order the resident parent to give reasonable contact. The effect of the amendment is that the resident parent would determine what is reasonable. I do not think that is at all what the noble Earl intended. However, I believe that would be the effect of his amendment. I hope, therefore, that the noble Earl will think very carefully about it. Indeed, it would not achieve at all what the noble Earl seeks, rather it would do something entirely different. That is certainly my interpretation of the amendment.
The survey to which the noble Baroness, Lady Howarth, referred looked specifically at cases at the hardest end. It is important to understand that. I pay tribute to CAFCASS which discovered that before court proceedings 36 per cent of fathers in the sample had no contact, but that by the end of the court process, thanks to the work of CAFCASS officers, that figure dropped to 8 per cent. That survey indicates strongly the tremendous work that CAFCASS staff do all the time. As we have already indicated, of all the contact applications in 2004, less than 1 per cent resulted in a court order for no contact.
I turn to the amendments of the noble Lord, Lord Northbourne. I sympathise entirely with what the noble Lord seeks to do. I had the benefit of having a previous conversation on the matter with the noble Lord. I cannot accept the amendments because I cannot accept the amendments that they seek to amend due to the difficulties which we have with the presumption. However, I understand entirely what the noble Lord seeks to do, which is to state that the purpose of contact is ultimately to benefit the child. Ultimately, that is what it is for. Good contact with both parents, where that works well and there are no safety issues, is critically important.
The noble Baroness, Lady Walmsley, was keen to have further discussion with the noble Earl on Amendment No. 6. The difficulty is that the "no order" principle is designed in part to deal with the situation where parents agree. Where parents are clearly about to agree, or an agreement has been reached, the court will not make an order, partly because orders can in some ways drive up a conflict rather than resolve it. It would be a pity to move away from that. It is not a "no order" principle in the sense of not making a decision; it is designed specifically for the situation where parents reach an agreement. The court then has the ability to say, "In that case we shall not make an order". I do not think that the purpose of the amendment is to upset that opportunity. If an agreement had been reached, it would be very odd to try to impose a condition on it, but that, sadly, would be the effect of the amendment. The amendment has a further problem in that it contains no reference to a parent, so it would enable anyone to apply for contact. I do not think that is what is intended. I hope that noble Lords will understand that we consider that the amendment would increase rather than reduce conflict. I do not think that is what the noble Earl or the noble Baroness sought to do.
This is an important group of amendments. As with the earlier group of amendments, we believe that it is critically important that the paramountcy principle is crystal clear to the courts. We believe—and we consider that this belief is shared—that for the vast majority of children it is obviously in their best interests to see both parents and to have a loving strong relationship with them. Therefore, there should be no conflict in the courts between the desire of parents and the desire to see the children get the best possible deal except where safety issues arise. Of course it needs to be recognised that children have their needs as well. We have talked about the different needs of children at different ages. This matter is trapped in a big conflict between two adults who have ended up in court and who will be seeking different outcomes, and who frankly may not get everything that they want in terms of contact. It is also true that the resident parent may not get everything that he or she wants either, which may lead to anger. Taking the child's interests into account is precisely what we should be doing.
I have said that I am keen to look carefully at what is happening around the court system in order to deal in a proper way with some of the anecdotal issues that come to light. I shall write and set out how I propose to do that. On the basis of the unintended consequences of how the amendments are framed, I hope that the noble Earl will feel that he does not want to achieve what the amendments would achieve, if I may put it that way, and accept that the noble Lord, Lord Northbourne, is seeking to do something that would be more acceptable to me. But, even by amending them, we would still run into the problem that the question of presumption runs against the paramountcy principle in a way that would not work. On that basis, I hope that the noble Earl will withdraw his amendment.
My Lords, it defeats me to understand how I can press an amendment to an amendment that does not exist.
I welcome the support of the noble Baroness, Lady Pitkeathley, on the importance of child-centredness, and that of the noble Baroness. I shall not press the amendment this afternoon, but if the noble Earl succeeds in his amendment, or perhaps redrafts it, I may come at it again to attempt to amend whatever he may have done at that time. In the mean time, I beg leave to withdraw the amendment.
My Lords, this has been an interesting debate and I am grateful to all who have spoken. The noble Lord, Lord Northbourne, asked me what adding the word "reasonable" would achieve. It would act as a signpost to anyone wishing to dispute a contact arrangement. The signpost would say that to challenge a contact arrangement, one would need to do so on the ground of reasonableness. The court, and in certain instances the Court of Appeal, would rule on what constituted a good reason and the circumstances in which the guidelines would apply.
The Government appear to believe that they can arrive at the same end point without that change. But they have omitted to see that unless we change the law in the kind of way that I propose, and have court-backed guidelines with a presumption of reasonable contact, there will be no incentive for a resident parent to reach an agreement out of court. Why? Because the resident parent knows, or will soon realise, that in the eyes of the court every case is different, and that all material contact can be brought to an end for no material reason. We have to move away from that.
The noble Baroness, Lady Howarth, challenged that interpretation. She said that in her experience non-resident parents do not have to argue for contact, but they feel as if they do. They feel it because they know that case law gives them a presumption of contact, and that is all. Many non-resident parents go back to court time after time to argue for the tiniest quantum of extra contact.
My Lords, I agree that many people find contact issue difficult. I believe that that is because we do not have the right kind of remedies to ensure that contact can be enforced. That is not the same as the initial contact orders being made with the paramountcy of the child in view. That is the difference.
My Lords, as I made clear, I am not arguing against the paramountcy principle. In many cases there is no question of violence or risk to the child. but the non-resident parent cannot get the court to agree to extra contact. The reasons adduced are not what most people would regard as substantive.
The noble Baroness, Lady Ashton, resisted the idea that we could have a countervailing presumption to the paramountcy principle. If Ministers are really saying that, why on earth has the noble Lord, Lord Adonis, devoted considerable effort to setting out, in Grand Committee and in correspondence, the case law that clearly shows that there is already a presumption countervailing the paramountcy principle? It is a presumption of contact—not "reasonable contact", however. That presumption appears to exist perfectly happily side by side with the paramountcy principle. The courts have no difficulty operating on that basis, and the legal advice that I have received is that they should have no difficulty operating with a presumption of reasonable contact provided, as I propose, that that presumption is treated as subordinate to the paramountcy principle. Apparently, according to the Government, we can have a presumption in case law, but not in statute. I frankly find that incomprehensible.
It was said by a number of noble Lords, including the noble Earl, Lord Listowel, that they were worried that a presumption of the kind that I am proposing would increase the risk of harm to a child. That is not the experience in Florida, and nor would it have been with the original early interventions project, which would nip in the bud any genuine risk of violence by having an early hearing on that issue. I was pleased that the noble Baroness, Lady Howarth, agreed with me on that point. The Government really cannot dismiss out of hand the success secured by other countries that have adopted early intervention principles; the track record over more than 10 years is proven. I have read the critical passage of the HMICA report, and I have read a great deal of the rest of the report.
One reaches the conclusion that it is not the presumption of contact that is wrong but the lack—if I may say this without sounding too critical—of proper procedures to evaluate allegations of violence. I am afraid that reading that report did not put me off my stride. The Minister does not accept that the courts act unreasonably; indeed, what she said carried the implication that everything that the courts did was inherently reasonable because they had to act in the child's best interest, and that every order is in the child's best interests irrespective of what it is. That is an extraordinarily Panglossian view of the world, which really does not bear close scrutiny. The Minister admits that we lack detailed statistics of what the courts actually do in contact cases, but those statistics that we do have are apparently dismissed as of no account. I emphatically cannot go along with that.
My Lords, I was talking not so much about statistics as about looking at what happens in the process. The noble Earl would accept that neither of us should change the law on the basis of anecdotal evidence.
My Lords, we should not change the law on the basis of anecdotal evidence, strong as that is, but the point is that the Napo survey provides us with our first, revealing glimpse of the decisions being taken by courts. If the statistic that I quoted were substantially less than the figure that I gave I might not be so worried, but I was very shocked.
We need to draw this to a conclusion. The Government say that they believe in the value of a meaningful relationship between the child and both his parents, and they say that the way that the courts intervene currently does not work well, but they do not take the obvious next step, which is to change the way that the court system works. They said in the Green Paper that they would do so but instead they are tinkering at the edges of the existing system, they resist any notion of court-backed guidelines and they repeat the argument that every case is different. It is completely baffling to me why they should be arguing against themselves. There is no doubt in my mind that technical defects or not—and those can be put right—this is an issue on which it is appropriate for me to seek the opinion of the House.
moved Amendment No. 9:
(1) The Secretary of State must issue guidance for the courts and for separating parents called parenting time plans ("the guidance").
(2) The plans must outline the kind of contact orders the court is likely to impose in a range of circumstances should parents be unable to reach agreement regarding contact with their child.
(3) Before publishing guidance under subsection (1), the Secretary of State shall consult and seek approval from the following—
(a) child development experts,
(b) the family courts of England and Wales,
(c) any other person who appears to him to have an interest in the issue.
(5) The Secretary of State may, from time to time, revise the guidance.
(6) A revised version of the plans does not come into force until the Secretary of State lays it before Parliament.
(7) Where either House, before the end of the period of 40 days beginning with the day on which a revised version of the guidance is laid before it, by resolution annuls that version—
(a) the Secretary of State must, under subsection (5), make such further revisions to the guidance as appear to him to be required in the circumstances, and
(b) before the end of the period of 40 days beginning with the date on which the resolution is made, lay a further revised version of the guidance before Parliament.
(8) In reckoning any period of 40 days for the purposes of subsection (7) no account is to be taken of any time during which—
(a) Parliament is dissolved or prorogued, or
(b) both Houses are adjourned for more than four days.
(9) The Secretary of State must arrange for any revised guidance under this section to be published in such a manner he considers appropriate."
My Lords, in moving Amendment No. 9, I shall also speak to Amendments Nos. 10 and 29. In Grand Committee, we moved the amendments separately as we felt that full and thorough debates on the issues were needed. We were not disappointed. However, in practice, the amendments are intertwined. Amendment No. 9 allows the Secretary of State to issue guidance for separating parents called parenting time plans. They are not the same as those currently proposed by the Government. The House will not be surprised to hear that they will be based on reasonable contact between both parents and the child. The plans would form the basis of negotiations. Given the countless cases that have passed through the family courts, it is possible to set out a range of circumstances that the courts would impose if parents were unable to reach an agreement.
Around 10,000 judgments are made a year on overnight contact. Based on that, it should be possible to come up with a formula that says, "Overnight contact should be allowed to take place by X in determination of Y". Courts would take into account such things as religious holidays. I had a number of meetings with religious groups, and one recently with Rabbi Livingstone. A number of faiths, particularly the Jewish faith, are concerned that, where there is a right of passage for a young man, it is important that he has his father to support him through that wherever possible. The parenting time plans could take that into account.
Such plans work well in a number of other countries. I stress that they would be court-backed and prepared by child development experts in conjunction with the judiciary. Our plans differ from those proposed by the Government in that the government plans require the warring couples to sit down and write a series of mini-essays together on everything from GCSE choices to Saturday jobs. Although those are important issues, the way in which they are introduced at such a sensitive time can only fuel resentment. Even the most happily married couple might struggle to come through the marathon of the Government's proposed plan intact. Parents in a fragile state want some certainty and guidelines, and our plans would help.
In Amendment No. 10, we propose that couples seek dispute resolution and, if needed, mediation before they go to court. Professionals trained in mediation would make parents aware of the emotional and financial costs of resorting to court. Court-approved mediators and facilitators would provide a stark explanation of the effects on the well-being of children, the length of time that litigation can take, and the financial implication to parents. They would set out the parenting time plans.
We are clear that some parents may be able to sort out their differences through dispute resolution, but some scars may be so deep and some enmities so entrenched that mediation is the answer. Whatever is decided at that first meeting, it must be mandatory, otherwise the very people whom we need to help will not go. Resolution—previously the Solicitors' Family Law Association—believes that, for couples who cannot reach agreement on their own, there should be a swift and effective dispute resolution process, and that an application to court should trigger a compulsory intervention appointment.
A solicitor who specialises in family law said to me, "I can understand the argument about why clients' attendance at mediation should be voluntary, and when it works it works well, but the empirical evidence suggests that these cases are few and far between". He went on to say that, "making mediation compulsory would be one way, arguably the only way, of addressing the issue". Relate says it has no concerns about these meetings being compulsory. Its experience shows that people sent to Relate, at first probably reluctantly, quickly settle into a good relationship and usually feel very pleased they were sent.
As I said in Grand Committee, this amendment sends a clear message that when your relationship has broken down and children are involved, before you go your separate ways, you have an obligation and a duty to face the facts as they are and not as you would have them, and for the sake of your children, to sort it out.
Both the amendments I have spoken to would come together in our early intervention pilot. At first we did not think you could put a pilot into primary legislation and then realised there were pilots in the Housing Bill and one in a current electoral bill. I went into the history of the aborted early intervention project at length in Grand Committee. I do not propose to rehearse the details again today, except to say that the Government had handed to them a scheme designed by lawyers and members of the British judiciary which would work in the English legal system.
I do not pretend to be a parliamentary draftsman and I am sure this amendment is deficient in many ways. I suggest to Ministers that they have a thorough search of their respective departments. Somewhere, probably gathering dust on a shelf, is a properly thought-out pilot scheme. When they find it, please could they dust it down and take a good long look at it, as they might realise they have the answer to many of their problems?
In Grand Committee, I gave the last word of the amendment to Dame Margaret Booth, a retired High Court judge, who, speaking at a reception in Lincoln's Inn in May 2002, to mark the publication of the early interventions report said:
"Looking back at the Conference, perhaps the most striking point is how much we have to learn from other countries and their pre-hearing Information and Mediation approach, and from their consensus—sometimes their statutory definition—of the quantum of contact.
"It is a shame that our country does not easily learn from what other jurisdictions have done successfully for so long. In this matter, we are years behind. I believe profoundly that the time has come to remove our blinkers".
I beg to move.
My Lords, I support these three amendments in principle, because I have been much influenced by what I have read about the system in Florida. The information has been introduced to me by Dr Hamish Cameron, with whom I have worked as a trustee of the Caldecott Community and I believe to be an honest, good and wise man. In Florida, the early intervention principle has been firmly established for 10 years. It is proving successful although there has been no systematic, longitudinal evaluation. The principle is this, as Judge Lenderman said in his presentation at a seminar held in London in 2003:
"Our studies in the United States show, that the earlier child support is established, the earlier access is established, the better the family unit will work as we in the courts restructure their family life.
"The later child support is ordered or established, the less chance that child support will be paid, the more enforcement proceedings are going to take place, the more we are going to be jailing 'Gaddy Daddies' who do not pay their child support. Those fathers do not have access to their children as a result of their own actions".
Florida made four key changes. First, the early hearing date, which can be as little as five days after the court receives notice of parents divorcing or separating; secondly, a standing temporary order served on both parents at the start; thirdly, a mandatory parent education session; and fourthly, a mandatory ADR mediation session, which is a preparatory session to explain to parents the facilities for mediation and the opportunities they have to settle before going to court.
All separating parents are obliged to undergo this sequence. They have no choice but to sign in and learn—if you do not sign in, you cannot see the judge. An obligation is imposed on the parents, but parents who have taken part are pleased they have done so. They learn. The mandatory expectation respects them as parents but obliges them to make a parenting plan which is right for their child.
The noble Baroness has described to the House an equivalent scheme which has been prepared, and which would work in accordance with the jurisdiction of this country. We should not be too proud to consider it.
My Lords, I will not speak about parenting plans, but I want to say a quick word about mediation, because it is a word that is bandied about and has many meanings depending where you stand on the professional spectrum. There is a real misunderstanding about the role of mediation as a cure-all, and this persists and is apparent in many of the amendments. It might well be mediation-plus, and I am joined with this by many people in CAFCASS. I apologise to the House for failing to declare my interest in CAFCASS.
Traditional mediation—which I understand as a professional involved in a range of these issues—would make little dent on the families we work with. That is the view of the CAFCASS chief executive. Our models of dispute resolution increasingly involve the children, facilitated discussions and the use of therapeutic mediation models, such as the Relate model, but these are active and assertive rather than the traditional passive model. I have a real concern that we get into the right kind of pilot models and not into models that will not work. I am sure early intervention is the right process. There are a number of models on the shelf—one of which I am very familiar with—which might well be looked at again. But these are about practice rather than legislation. Your Lordships have great faith in legislation—we have a lot of it. I hope that we can also measure implementation because that is what matters.
My Lords, I seem to spend a lot of my life on legislation. I cannot but echo some of the sentiment behind it. So, of course, we only put forward legislation that is vital, as noble Lords will appreciate.
I want to deal with these amendments in order. I completely understand the aim behind Amendment No. 9 but, for a number of reasons, I am nervous about it. The first reason is that I am never entirely sure that the best way forward is to have the Secretary of State give out guidance in this area—not because we do not have magnificent Secretaries of State but because there is an issue about how much guidance a Secretary of State should be giving to the courts. I am also nervous about prescription. While I take the point that has been made to me both inside your Lordships' Chamber and outside that although we go on about how every case is different, noble Lords then point to the similarities between cases.
I asked the judiciary how they approach the issue. They say, "Of course the outcomes in many cases may look very similar because much of how we organise the lives of families with children who have broken up ends up looking pretty much the same". But you have to start from the court's perspective by saying, "This case is unique". In that way you can address the needs of the child and then look at the needs of the family from that unique perspective. So they are not actually contradictory. I believe that we should be nervous about prescription.
I am also a bit nervous on the issue of who one consults in arriving at this set of guidelines. You only have to look at our debate today and the expertise in your Lordships' House, never mind outside, to see that there are very differing views. I am not sure how we would reach the type of consensus that we would need to have. We have looked at setting up the parenting plans and consulted on a new set of parenting plans. I would be very keen to discuss with noble Lords opposite on both Benches what we have come up with to see whether there are any changes that we might make to the parenting plans. I accept that the issue that noble Lords are concerned with is partly addressed by the quantity of information and the quality of advice and the quality of the work that we do beforehand. So I make the absolute commitment that we will come to noble Lords with what we are drafting.
I take the point about filling in lots of things. But the purpose of the proposal is to get parents to think about different issues—such as whether your child should have a mobile phone, who is going to attend parents' evenings, and so on—and not just to get them to try to fill in all the information. However I take the point. I hope that we can have a really good discussion to see whether we can properly address those points. If noble Lords are willing to do that—as I hope they are—we will do that.
We talk about jurisdictions. One of the difficulties which I think I have already indicated is that it is very difficult to get empirical research about what happens in different countries. We cannot find any research from other countries that shows the beneficial impact of parenting plans on the child's welfare; if anyone has any, we would be very grateful to receive it. We have sought such information from other jurisdictions and looked at many research bodies but we simply cannot find any. If there is any we would be very happy to examine it between now and the next stage. But we do not think that such research exists.
A lot has been said about the Florida model, which I am not going to dispute works in Florida. Again, however, we do not have specific advice. As the Committee will know, the Florida situation is based on parents' rights and on children's welfare. That is the approach that they have taken and it is for them to decide what they want to do. Florida does not publish guidelines on contact.
In her Private Law Programme in July 2004, the then president of the Family Division focused on early judicial interventions and the extension of alternative dispute resolution supported by Her Majesty's Courts Service and by CAFCASS. The consultation seeks to underpin that approach by looking at CAFCASS to frontload earlier interventions. So there is no dispute between us about the need to look at early intervention as the way forward. I agree with that. It is very important that people do not end up in court; hence the mediation issues. I also take what the noble Baroness said about the particular issue of, I assume, parental involvement in Bar Mitzvahs and Bat Mitzvahs. Perhaps we can think about that. I am sure that that would be taken into account, but I also take the point of religious groups in saying that there is an issue that we should think about.
For those reasons, and with the commitment that we will bring forward the parenting plans to discuss with noble Lords in order to see whether we can improve them to achieve the objective at least in part, I hope that Amendment No. 9 will not be pressed.
Amendment No. 10 requires the president of the Family Division to compile a list of mediators. Noble Lords will probably know of the UK College of Family Mediators. I am keen to involve it in what we do, rather than moving to create a different list held by the president of the Family Division—who I am sure would be absolutely thrilled to hear that we want him to add this to the list of things that he does. However, I am happy to talk to the UK college and to other mediator bodies about how we do this. I am not sure whether that would move into a regulation but I think that we could talk to them about issues of concern, if noble Lords would like to talk to me about that outside.
The amendment includes a form of compulsory mediation. Noble Lords will know that there is a real issue in relation to Article 6 of the European Convention on Human Rights. In last year's judgment, Lord Justice Dyson said:
"It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their rights of access to the courts"
That would be contrary to Article 6 of the European Convention on Human Rights.
There is also an issue about whether forcing people into mediation could add to the delay in getting them into court when that might be the best solution. The amendment does not allow for the fact that they might have been through mediation already which proved unsuccessful. I am always nervous about compulsory mediation, for two other reasons. First, in many cases which have become intractable there is a difficult relationship between the parties which may include either domestic violence or certainly intimidation and bullying. To suggest that they are able to mediate as equal partners is not necessarily appropriate. So I am not keen to look at that as an absolute. The Bill already allows the courts to order people to participate in the information sessions. The Bill also enables us to order them to undergo counselling. My experience of talking to mediation organisations is that they are nervous about compulsory mediation for the reasons that I have given. Moreover, the families often need much more than mediation; they need counselling. There is a longer-term issue that can be addressed in the Bill.
I too am not going to go over the early intervention pilot. We will wait for the evaluation. I hope that my noble friend—it will not be me—will make that evaluation available. I think that it was a good pilot that achieved a great deal, although I know that noble Lords will take a different view. We have committed about £7.5 million over the next two years to support and develop child contact services. Without wanting to go down the route that is proposed by the noble Baroness, I should be keen to have discussions with noble Lords on how we might use some of that funding to develop services for the purposes that noble Lords are seeking to achieve in the amendment.
My Lords, can the Minister confirm that the group which was called together by the Department for Constitutional Affairs to examine the funding of contact recommended that £8 million a year be provided for the development of contact? The additional investment of which she speaks is very welcome, but can she say whether that is the correct figure and whether the Government are moving towards it?
My Lords, I do not know whether that figure is correct because the group was before my time. In the year and a bit that I have been at the Department for Constitutional Affairs, no group has been convened or has reported to me on any figures. I will write to the noble Earl and ensure that a copy is placed in the Library of the House. I would not be surprised if there has been a request for more funding than we have made available—that is always the job of government. However, we have made £7.5 million available and I am keen to ensure that we develop the services effectively. I hope that we can do that in dialogue with noble Lords opposite, because there is much in what is sought in the amendment.
My Lords, I thank the Minister for her detailed reply and once again express my thanks to the noble Lord, Lord Northbourne, for his support and for sharing with us his wealth of knowledge on Florida. As I think I said in Grand Committee, whenever we discuss mediation, we get to that moment of saying, "Oh yes, but what do you mean by that?" The word means so many different things to so many different people. That is one of the reasons why we talked about dispute resolution. I think that it is in fact dispute resolution or mediation with some form of therapy attached to it, which is perhaps needed for some people with very deep wounds and scars.
The Minister said that she was nervous about the parenting plans and about being prescriptive. As Conservatives, we also do not like to be prescriptive. I go back to what we are trying to achieve, which is clarity and confidence. In these parenting plans we are looking to have some anchor points so that people know a little more about what might happen.
The noble Baroness, Lady Ashton, also talked about the empirical research of the early interventions project, which reminded me of the Civil Service mantra—it seems to be working very well in practice, now let us see if it stands up to intellectual rigour. The fact is that it is working. It is keeping lots of families out of the courts and resolving their disputes at an early stage before bitterness and rancour set in. That is surely what we are looking for.
On early interventions, the difference between us and the Minister is that we were talking about the original early interventions project, which was designed by judges and those who practise in the family law world. It was adapted from America and put together in order that it would work here. It is somewhere in one of the Government's departments. That is the pilot we would like the Government to look at to see whether it might work. With that, I beg leave to withdraw the amendment.
moved Amendment No. 13:
Before section 8 of the Children Act 1989 (c. 41) (residence, contact and other orders with respect to children), insert—
"7A DISPUTE RESOLUTION AND MEDIATION BEFORE MAKING A CHILD CONTACT ORDER
(2) The President may make regulations about the qualifications and conduct required for registration as a mediator under subsection (1).
(3) A person may not act as a mediator for the purposes of this section unless he is on the register.
(4) Before the court hears an application under section 8 about contact, unless the court is satisfied that considerations concerning the safety of the child make it inappropriate to make such a direction, the court shall give a direction requiring each party to attend a meeting with a mediator arranged in accordance with the direction for the purpose—
(a) of enabling the mediator to explain the facilities and options open to the parties regarding parent education, parenting plans, dispute resolution and mediation in relation to disputes over child contact, and
(b) of enabling a timetable for dispute resolution and mediation discussions with a mediator regarding reasonable child contact for both parents.
(5) The parties may attend separate meetings if either of them wishes.
(6) The meeting with the mediator as described in subsection (4) shall be provided at no cost to either party.""
My Lords, in moving Amendment No. 13, I shall speak also to Amendment No. 15 in the group. We now come to the version of mediation amendments proposed by these Benches. CAFCASS published a report entitled Every Day Matters: New Directions for CAFCASS, which is a consultation paper on a new professional and organisational strategy. Section 36—Relationship Breakdown Cases Without Significant Harm—states a number of things, which I would pray in aid in support of these amendments and Amendment No. 14.
Section 36.1 states:
"CAFCASS (and other agencies) frequently intervene too late, long after parents' attitudes have hardened against one another, or long after one parent has created a new household, excluding their former partner. Indeed, many attitudes have hardened long before the first court application, hence the need for even earlier intervention where possible. Arguments about the fine detail of contact arrangements occupy huge amounts of scarce professional time, often unproductively. Once a court application is made, there is a clear risk of an adversarial model of law being started up before all attempts to resolve disputes on a basis of shared, co-operative parenting have been attempted".
Our amendments in this group attempt to make that even earlier intervention and to provide services which will assist parents to come to an agreement without the need for a court order at an even earlier stage.
Amendment No. 15 states:
"No application may be made for a contact order under section 8 unless the applicant has attended a meeting with a mediator and the mediator has certified that mediation is not suitable to resolve the issue which is the subject of the application".
By "not suitable", we would anticipate that a professional mediator would say that in cases where he or she has determined during the meeting that there is no agreement to be found between the couple through mediation and that the court will have to intervene. At those meetings, a professional mediator will probably be able to prevent quite a lot of parents having to ask the state to make decisions about the contact arrangements for their children. Through that early mediation, one would hope that some cases would be prevented from darkening the doors of the court.
I am sure noble Lords will agree that an agreement people have made themselves has a much greater chance of sticking and being complied with by both parties than even the most reasonable order made or imposed on them by a court. Very early mediation would be a service of enormous advantage to the children, who have our top priority; to the parents; and, of course, to the state. Every court case costs a great deal of money, particularly if it is publicly supported, and takes a lot of the professional time of court officers. It would be much better if that time could be devoted more to the cases where there has been an allegation of domestic violence in order to sort out the situation.
Noble Lords will notice that Amendment No. 13 is similar in some respects to Amendment No. 10 brought forward by the noble Baroness, Lady Morris of Bolton. It is important to have high quality mediation. That is why both Benches believe that there must be a register of mediators and that there must be regulations about the qualifications and conduct required for registration as a mediator. This should not just be done by a list that is held by any body—or even a professional organisation. It should be monitored externally and someone separately should reach a conclusion about the level of quality of such people.
But there are some differences between our Amendment No. 13 and Amendment No. 10, which we on these Benches believe are significant. First, subsection (4) of Amendment No. 13 refers to the court being,
"satisfied that considerations concerning the safety of the child make it inappropriate to make such a direction".
We believe that our wording is better than the comparable wording in Amendment No. 10, which says,
"where the safety of the child is not an issue".
That represents an opportunity for much clearer analysis by legal people.
Additionally, there is no compulsion in our amendment. We agree with the Minister that you can take a horse to water but you cannot make it drink. There are cases in which mediation will not work because the parties have set their faces against it. In that case, you have done your best and will hope to have helped some couples, but every couple cannot be helped by that means. We also believe that if the couple want—or if either of the couple wants—the mediation meeting to be separate, they should be able to make that decision. It should not be left to the court to decide whether it is appropriate for the mediation meeting to be conducted separately.
Finally, we believe that the meeting should be at no cost to either party. Noble Lords will notice that subsection (6) of our Amendment No. 13 provides for that. If the Government are so convinced of the benefits of mediation—I believe that the Minister is—why put any barrier whatever in the way of a couple who are willing to attend a meeting at least to find out the benefits of mediation? I would ask noble Lords to bear in mind that during that meeting the couple can be directed to advice about things other than child contact that might be concerning them, which might be getting in the way of decisions about child contact, issues about financial advice and housing, and so forth. Of course, the couple can also be presented with materials and information on how other parents have solved that same problem. Although every case is different, there are many similarities between groups of cases. It could be enormously helpful for parents to be shown case studies of how parents like them have addressed the matter in the interests of their children and how successful it has been in the past.
Such a meeting should not have any barrier of cost. What would the Government do if there was a charge and one of the parents simply refused to pay? If a person was not entitled to legal aid, the couple would not be able to have that valuable meeting if someone refused to pay. The small amount of money that it would cost to have such meetings would be a very good investment, giving opportunities to present parents with helpful and valuable materials which I believe are in preparation. Therefore, it seems perverse to suggest that a barrier of cost should be put in the way of anyone, however wealthy. It is a very small amount of money. I beg to move.
My Lords, I should probably have said all that I am going to say when I spoke about mediation. I have a great deal of sympathy with the noble Baroness's amendment, but I have concerns that I need to express. I am speaking as a practitioner, rather than as the deputy chair of CAFCASS, so this is a personal view. I am deeply concerned that when we are having discussions about mediation, we do not become locked in a series of activities that will be of no help to many families. The phrase "dispute resolution" is much better, and many of the families that we deal with understand the kind of intervention where someone is trying to talk with them round a table in a different way. I sat on the Select Committee and listened to associations dealing with mediation and the problem is that they are talking about a passive, non-interventionist type of mediation that will be very unhelpful to many of the families that cross the thresholds of the court and CAFCASS.
I also want to express some anxiety about the way we move forward. It might be appropriate for me to do so here and on the record. At the moment, CAFCASS is engaged in a number of new programmes. We have cases being dealt with by dispute resolution and the number needs to be increased nationally because we are having enormous success. That is what is reflected in the Napo document. When we intervene, we are successful. We know that casework works. Mediation may not, but casework works in Staffordshire, Colchester, Leeds, Norfolk and many other places.
I am anxious that the work is split between two major departments: DfES and DCA. With £7 million on the table and CAFCASS resources as they are, I make the point to the Minister that we are doing a great deal of work on a very under-resourced budget. I had to make that point at this moment.
My Lords, before the noble Baroness sits down, can she explain to the House what she means by the statement that casework by CAFCASS works and mediation by other organisations does not? It is not clear to me.
My Lords, I am sorry if I gave that impression. There are many good mediators who work with that form of mediation and for some people it works. With families where there is drug or alcohol abuse or issues of aggression, that type of passive mediation is not always the best type of intervention. I am worried about having a register that has one sort of people. I am not saying that mediation does not work and I apologise if I gave that impression. It works for some people. What we want is a wide enough register that is not so restrictive that we lose out on a range of new initiatives that will make a difference.
My Lords, I support what the noble Baroness, Lady Howarth, said. My slight worry is that these amendments are channelling us too far down a mediation route and do not look sufficiently flexibly and widely at alternative forms of dispute resolution. In some of the very successful dispute resolution schemes that CAFCASS is running—I am sorry that I cannot resist saying that we would run a great deal more if we had more money—the new way of working allows the parties to focus on specific issues and allows children to be much more involved so that we can hear the voice of child in some of these ways of resolving disputes.
My Lords, I do not think that any noble Lord who has spoken is terribly far away from any other noble Lord who has spoken on this amendment. I accept that mediation is very important and can prevent people ending up in court, but I also accept that there are other methods and other players who need to be involved and who can also do a fantastic job in preventing that. I take the point about the voice of the child perhaps being more easily involved through CAFCASS than it would be through traditional mediation methods. I have already indicated that we will think more carefully about the question of a register of mediators.
As a Minister, I work in Europe on European civil justice and I know that within the European Union we are looking at the question of mediators and mediation. I need to think again about how we reconcile the different issues while not putting an onus on the president of the Family Division that I do not think would work.
I have a slight difficulty because the amendment requires compulsory information sessions in every case. The noble Baroness, Lady Walmsley, says that the Bill already allows for these information sessions to be made compulsory in that the contact activities may include,
"sessions in which information or advice is given as regards making or operating arrangements for contact with the child, including making arrangements by means of mediation".
I do not want to put on the face of the Bill that this should be done in every case because it will catch cases where parents were able to reach agreement without needing mediation. Furthermore, it would not give the courts flexibility to decide that an information session was not appropriate in particular circumstances. I do not think that we are very far apart, but I do not want to go the extra mile and say that we should do this in all circumstances at all times.
(6)The difficulty with Amendment No. 15 is the European Convention on Human Rights. While I can see the logic of saying that no application can go forward unless a mediator has pronounced it mediation-unsuitable, it would be successfully argued that that would prevent access to the courts if a person were to refuse to undergo mediation. I do not think we could do that. If somebody did refuse to participate, it is, in theory, contempt of court. The reality is that if the court believed that an information session and mediation was important and that the parents had come because they wanted to sort out contact disputes, it would take very seriously the issue of whether somebody did not participate.
Although on an individual basis I can see that this would not cost very much, in 2004–05 the cost of 14,355 publicly funded family mediation was £14.2 million. Each individual case is not very much money, but I do not have a back pocket with extra money that I could put into this for parents who might be profiled like me or other noble Lords, who could afford to pay and who should do so as part of the process of trying to sort out their contact arrangements. Although I take the sentiment very well, the reality would be different. While I have enormous sympathy with the amendments, I do not want to go as far as saying that we would do this in every case.
New Section 8A provides that cases can only go forward after mediation, but we run straight into the difficulty that that would, in theory, deny people access to the courts, and cause me difficulties in the European Court. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
My Lords, I thank the Minister for her reply. I shall take back the point about the European Court, and I would not wish to press an amendment that would run into that difficulty. I will take advice on that before the next stage of the Bill.
I am sorry that the Minister will not go as far as we would like to go. The amount of money she has mentioned is substantial, but it is for all mediation, not just for the meeting about mediation, which would cost considerably less than the figure that she quoted. We are talking about a much smaller amount of money than that. I maintain my opinion that it would be money well spent. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 14:
"DEFAULT CONTACT ARRANGEMENTS
(1) The Secretary of State shall by regulations establish a range of contact arrangements, to be known as "the default contact arrangements", appropriate for children of different age groups.
(2) In the case of any child, following the separation of those having parental responsibility for that child, the default contact arrangements appropriate for the age group of that child shall be deemed to have been agreed between those having parental responsibility for the child unless and until either—
(a) those with parental responsibility for the child agree any other contact arrangements for the child (with or without the assistance of a mediator or other outside agency); or
(b) the court otherwise determines.
(3) If a person having parental responsibility for a child applies for an order which would have the effect of excluding contact between the child and any other such person, the court shall deal with any such application as quickly as reasonably practicable, (having regard to the requirements of section 7A of the Children Act 1989 (c. 41))."
My Lords, I apologise for my late appearance today. I had to be elsewhere earlier this afternoon. Amendment No. 14 concerns a matter we have not hitherto discussed. Its origins lie in our discussions in Grand Committee and those that we on these Benches have had with a wide range of practitioners. We did not consult CAFCASS but could have done so. In its report Every Day Matters it stated:
"CAFCASS favours a strong expectation that parents, with support, will reach agreements about future arrangements for their children and it supports a shared parenting framework in cases where there is no indication of risk to the child. Contact levels should normally be substantial, including overnight and weekend stays, if a relationship between a child and his/her non-resident parent is to be maintained and properly developed. Having said this, continuity of care is important, especially for babies and very young children, and the needs of each child have to be considered irrespective of general policy positions".
That report talks repeatedly and at length about the need to act quickly when people separate in order to establish patterns of contact and behaviour which are in the best interests of the child.
The amendment seeks to do a number of things. First, it recognises that there cannot be a universally suitable set of contact arrangements. Every case and the circumstances of every family will differ to some extent and there is a wide range of contact arrangements, varying from very limited contact in some unusual cases to fully shared parenting in other unusual cases. Nevertheless, there is a reasonable contact arrangement pattern which suits the circumstances of many families where parents live separately, particularly where the non-resident parent is in full-time work. In answer to a previous set of amendments the noble Baroness said something similar. Typically the pattern involves staying access every other weekend, for up to half the school holidays and every other Christmas and Easter. In addition, weekday access one day a week is quite common. Different arrangements often apply when children are very young, particularly for babies or where one parent lacks the necessary skills to care for a baby.
Some of the problems with the current law have been alluded to in other amendments. There is no statutory model to which parents can look for guidance on the structure they might choose to agree between themselves or what arrangements might be regarded as being fairly typical. Some resident parents discourage or oppose contact on the misguided basis that a child would be better off without it.
Practitioners have told us that, when people separate, the issue of property and which parent has the house are frequently bound up with the question of who will have contact with the child. The lack of any default contact arrangements makes resident parents who are opposed to contact less amenable to advice about the likely outcome of a court application for contact. Some non-resident parents are discouraged from applying for contact in the face of opposition by a lack of confidence about the outcome of such an application.
In the absence of a set of default contact arrangements, unless there is an agreement to vary them or an order of the court, a resident parent can impose his or her will on the non-resident parent, unless the resident parent makes an application to the court. While such an application is pending, there is a tendency for the status quo to become established in a way that not only may not be in the best interests of the child concerned, but which also may be difficult to change once the matter comes to court.
Therefore, we seek a set of default arrangements which parents, when they split up, can access easily. The provision would be in the Bill rather than being buried in case law. It would urge them to reach a framework for contact which suits them. They can vary it. And it would be in the best interests of their child. Parents are free, if they wish, to agree any other arrangements they choose at any stage. The court will approach every application for contact on its facts, without any statutory presumption. So the paramount interests of the child in the particular circumstances of each case will continue to govern the court's decision making.
So, in summary, the amendment seeks to put in place an anticipated arrangement which separating parents will know about and which they can use to come to an arrangement which is in the best interests of the child. I beg to move.
My Lords, I support the amendment of the noble Baroness, Lady Barker, regarding default contact arrangements, although we would prefer the amendment to provide for the court to define the arrangements rather than the Secretary of State.
The amendment provides a practical solution to the principles of co-parenting, reasonable contact and parental responsibility that we on these Benches have been calling for since well before the election in May.
As all sides of this House have recognised, it is vital that a child's well-being is maintained by maximum contact with both parents during and after a separation where the safety of the child is not an issue. Keeping that contact link is vital. We feel the amendment will go a significant way to addressing our concerns and maintaining the flexibility that Her Majesty's Government insist our amendments to date would preclude.
As the noble Baroness, Lady Barker, explained, the amendment will allow the Secretary of State by regulations to establish a range of contact arrangements, to be known as the "default contact arrangements", appropriate for children of different age groups. We have continually pointed out that there is enough case law and experience within the family law system to draw up guidelines, or, in this case, arrangements regarding contact for different age groups.
Am I doing something wrong? I would not be surprised if I was.
These arrangements will provide a basis which parents themselves can alter, depending on the individual situation.
Subsection (3) states that if a parent decides to apply for an order limiting or excluding contact of the child with the other parent,
"the court shall deal with any such application as quickly as reasonably practicable".
I take the opportunity once again to raise the issue of resources. Good resources, available contact centres and quickly implemented contact activities will aid the courts in processing each case as efficiently and effectively as possible.
My Lords, I should like briefly to support the amendment. If we are to persuade parents to settle early between themselves the future arrangements for parenting their children, they need to have some idea what will happen if they do not. There is a need for parents to know what they can expect if they do not settle these arrangements themselves. The amendment seems to me to fulfil that objective without having any other great objections to it.
My Lords, I admit to now being totally confused. I should be grateful for some clarification from the Minister about what the amendment intends. Clearly, parents should be given as much information about what happens in court and the possible outcomes. Indeed, there are real efforts to ensure that that happens at court, both face to face as well as with information sheets. If we are talking about having a set of criteria whereby we decide what is the best outcome for a child—and that is what is difficult to understand from the debate, and what I thought the noble Baroness, Lady Morris, implied might be the outcome—we debated that in Committee. I thought we had debated it here and suggested that that might affect the paramountcy in looking at each case. So, I would be grateful for clarification. I was not going to speak on the amendment because I did not understand it, but I felt I needed to seek clarification.
My Lords, I think I have lost the plot as well. I am with the noble Baroness, Lady Howarth. I apologise if that is the case. Let me explain what I am having trouble with. I apologise that I was grimacing at the noble Baroness, Lady Barker, and therefore put off the noble Baroness, Lady Morris. I do not like to grimace at the noble Baroness, Lady Barker, because I usually agree with her, but not always.
The difficulty that I have with this amendment is that it is suggested that the Secretary of State should come up with a default contact arrangement, presumably in the form of some kind of list that says—I am guessing—"If a child is eight years old and has these parents who live 50 miles away, the arrangement may look like this, but if they live 120 miles away, it may look like that". I am not quite sure how many variables one would have to build in to that. I therefore have a problem with lists, and I cannot work out the variables; namely, that if the child is six months old, it is like this, and if it is two years old, it is like that. That is not because I am against giving parents advice and support. That is what the parenting plans are meant to do. However, I have difficulty with trying to establish it by reference to problems for children of different age groups. Age is only one factor in a myriad of different matters that need to be taken into account in regard to contact with children.
We then go on to say, "That has been agreed unless you agree something else". Therefore, in the case of violent and abusive parents who disagree, it is suggested that unless they agree to something else or the court decides otherwise, it will be deemed to have been agreed. We therefore end up with the parties going to court and the court not having to take into account these default arrangements at all. It can simply override them. In the case of a bullying partner who says, "I want this, according to the law, I get this, I am not going to court and I am not going to let you go to court, so these are the arrangements that follow and I am going to intimidate you into agreeing them". I cannot quite work out how it will work.
I am not against the idea of giving parents a good deal of information. Before the noble Baroness was in her place, we were talking about the need to do more before cases reach the courts. I agree wholeheartedly that parents should receive information that explains that the courts act in a child's best interests and that, in the absence of a valid reason to the contrary, both parents can expect to have good contact with their child. I do not disagree with the end; the Bill negotiates the means. However, I have a problem with trying to set this up in the particular way suggested, both because I think that the criteria will be complicated to work out and because we are saying, "That applies unless the court tells you otherwise". If the court was not involved, how would you know whether it applied? How would you know that that was what you should do? It moves us away from the guidance and support for families that states, "You may want to think about these different issues, you may want to think about how close you live to the child, whether the child plays football on Saturdays" and so on, which is a parenting plan idea. It takes us a little too dangerously close to a principle that I would not want to invoke. It does not allow for the fact that, because they will be in real dispute, families should have advice that states, "You can expect that if your child is four years old, the arrangement should look like this". We are not taking account of the danger in that for dysfunctional families that are out of control and are relying on the courts to put matters right.
That is my problem with this amendment. Perhaps we have misunderstood it. I am certain that the noble Baroness, Lady Barker, is not trying to do what I have just suggested, but that is the effect of the amendment as I read it and according to the advice that I have received. I therefore hope that the noble Baroness will feel able to withdraw the amendment. Meanwhile, perhaps we can have a conversation about what lies behind it, which fits better with what the parenting plans attempt to achieve.
My Lords, I thank the noble Baroness, Lady Morris, and the noble Lord, Lord Northbourne, for their support.
The first point to make to the Minister is that paragraphs 2(b) and (3) of this amendment deal with precisely the kind of case that involves violent and abusive parents. This amendment seeks to ensure that parents who have split up are encouraged by seeing the law, without having to dig out parenting plans, good practice and case law, which says, "It is likely that in the case of your child the court may come to the following kinds of arrangement. You both have the power to vary that, in the best interests of the child as you see fit, but that is what is likely to happen". That gives a basis on which, where there is no issue about violence and where there is agreement, parents themselves can go ahead and make those arrangements at that very early point. That is crucial, in that it sets patterns of behaviour for later.
The noble Baroness asked what kinds of variables there are. There are many: how old a child is; where the parents live; whether the child goes to school; whether the child has extra-mural activities on certain days or particular interests. We would know about all those issues because they are contained in the parenting plans. I therefore do not believe that there is a problem about that. The first part of the clause refers to establishing a range of contact arrangements. It tries to set a normative framework under which people who have to deal with such issues can begin to agree arrangements. I do not accept the noble Baroness's analysis that people in violent relationships will be forced into that situation. If she reads the amendment, she will see that, as with the rest of the Bill, there is within it provision for safety. We have not yet reached the amendment tabled in the name of the noble Baroness, Lady Gould. When we do, it will have our utmost support.
It is not about compromising safety in any way. It is about encouraging that group of parents we have already identified during our debate, who probably want to come to an arrangement and who, in all likelihood, once they have been through the court process, will wind up coming to an arrangement that perhaps could have been predicted from the start. It encourages them to do that from the outset, thereby avoiding much of the disruption to children's lives where one, usually the resident, parent holds out contact as a means of settling other issues involved in the process of splitting up. It also releases the time of the courts, and that of CAFCASS, to get on with the necessary work in other cases.
That is what this amendment is about. I would like the noble Baroness to re-read it. I very much welcome the opportunity to discuss it with her, because I believe that this amendment will enable us to achieve what we are striving for; namely, to enable people to come to arrangements without in any way establishing principles and putting children's interests at a lower level. It does not do that.
My Lords, I am grateful to the noble Baroness for giving way and I thank her for that explanation. I now understand better what is behind the amendment. I shall be delighted to talk to the noble Baroness. I can see what she aims to achieve, and perhaps we can talk about it.
My Lords, in moving this amendment, I shall speak also to Amendment No. 20 standing in my name, before my noble friends Lady Gould and Lady Thornton move their amendments on the same issue. We now seem to have reached a point of peace and harmony in our debate. I therefore hope that it is appropriate for me to come on to the scene.
We have reached the important subject of domestic violence, which occupied a good deal of our consideration in Grand Committee, when we agreed that, in seeking to make contact arrangements, no subject was more important than proper and effective arrangements for addressing allegations of violence and safeguarding children. One of the issues raised repeatedly was that of contact activities and the concern that contact activities should include domestic violence perpetrator programmes. I promised to look at that further. Amendments Nos. 19 and 20 make crystal clear the contact activities that the court may require people to undertake through directions or conditions under Clause 1, which may include domestic violence perpetrator programmes.
It was always our intention that that would be the case—it was a recommendation of the Joint Committee that considered the Bill in draft. We are concerned that there should be no doubt whatever that this is indeed the case, least of all in the minds of the courts. These amendments put the policy on the face of the Bill explicitly. I beg to move.
My Lords, I very much appreciate the comments made by my noble friend Lord Adonis. They run very nicely with my own amendment and that of the noble Baroness, Lady Thornton. We appreciate the noble Baroness, Lady Walmsley, adding her name to the amendment.
Amendment No. 27 in this group relates to risk assessment. Amendment No. 34 is a consequential amendment, which I understand is necessary to ensure that Amendment No. 27 is within the scope of the Bill. In Committee, my noble friend Lord Adonis felt unable to accept the proposal for the risk assessment checklist as had my noble friend Lady Scotland previously. It is therefore necessary to find some other means to persuade my noble friends on the Front Bench that a risk assessment can and should be built into the legislation.
Everyone agrees—and it has been repeated throughout today's debate—that it is desirable for children to maintain contact with both parents following a separation. That requires not only quantity but quality of contact. Of course, shared parenting is desirable if the circumstances for it are right—circumstances that guarantee the safety of the child or children involved. That means that the welfare of a child must be paramount in family proceedings.
I do not want to reiterate all the points that were raised in Committee, but it is important to put on the record once again why this amendment is necessary. Some of the points have already been heard as the debate has progressed. The link between domestic violence and child abuse is also not questioned. The reality is, as cited in the Green Paper on parental separation, that there are concerns about the safety of the child in 35 per cent of cases. Again, using the Government's own evidence, nearly three-quarters of children on the at-risk register live in households where domestic violence occurs. The noble Baroness, Lady Howarth said on
"Some 66 per cent of the caseload of a CAFCASS officer concerns domestic violence".—[Official Report, 11/10/05; col. GC12.]
but the courts still fail to recognise that that is the reality.
The guidance for the courts on how to deal with contact applications, The Private Law Programme, makes it clear that the judiciary regards cases involving safety concerns as "exceptional" and that is reflected in court practice. In 2003, 67,000 applications were made for contact under Section 8 of the Children Act 1989. Only 601 cases were refused—less than 1 per cent of all applications, which when taken alongside the figures of domestic violence and child abuse represents a significant institutional failure to protect. Nothing has changed, in spite of the introduction of gateway guidelines. In 2004, the courts granted 70,169 contact orders and refused contact in only 504 cases—again less than 1 per cent.
Even when evidence is available, it is sometimes disregarded. Women's Aid reports that in 2003, a survey involving 178 refuge organisations found that 6 per cent knew of cases where contact orders had been granted to Schedule 1 offenders, and in some cases unsupervised contact was granted so there was no protection for the child at all. Dame Butler-Sloss said at the hearings of the Select Committee on Parental Contact:
"We do not always know that they are Schedule 1 offenders at the time".
This evidence shows that the family justice system does not have adequate proceedings for identifying high-risk cases and assessing and managing risk to ensure that contact is safe. That will not do. I was very interested to hear my noble friend earlier talk about looking at the system to see what is happening in the courts. That will be enlightening and interesting information.
In Committee, I referred to the cases where some judges now insist CAFCASS should not do checks where the domestic violence box has been ticked, if it does not have prior consent of the parents—in other words, parental rights are taking precedence over children's rights and safety. I hope that this amendment will change the court system and help to eliminate these practices along with other examples of domestic violence being ignored by the courts.
This is a very straightforward amendment, which will require CAFCASS officers or family proceedings officers in Wales to carry out a risk assessment whenever they are involved in private law proceedings where an issue of harm is raised. The first part of the amendment provides that the section is engaged whenever a CAFCASS officer is involved in any proceedings where the court can make an order under Part 2 of the 1989 Act, including, for instance, all contact and residence orders, or any function in connection with such an order or where a question with respect to such an order arises.
The second part of the amendment provides that if, in the circumstances described above, the CAFCASS officer is given any cause to suspect that there is a risk of harm to the child concerned, the officer must carry out a risk assessment and inform the courts of the results. Taking these two clauses together, the amendment imposes a wide duty on CAFCASS officers to carry out risk assessments. Such assessments will have to be applied consistently whenever there is an issue of harm raised in private law proceedings in which CAFCASS is engaged. That is important because each case must be considered individually with the focus on the well-being of the child.
I appreciate that the amendment places greater burdens on CAFCASS officers, but as my noble friend Lady Pitkeathley said in Committee, anything that enables those working with families to have more clarity about how they proceed is bound to be helpful. I hope that she, our Front Bench and the rest of the House find this amendment helpful, and I hope that it will be a part of their new CAFCASS domestic violence policy and toolkit. As others have said, the resources will have to accompany this extra duty.
I also appreciate that this amendment is not the total answer, and I have no doubt that when the opportunity arises we will return to the issue, but I believe that it is a major step forward and I hope that the Government will feel able accept it. It is clear that the present position is not robust enough and that providing guidance is not enough. Risk assessment has to be built into legislation. It is crucial to ensure that contact is safe before it is imposed.
My Lords, the clergy in their pastoral ministry often come across cases of domestic violence and, sadly, child abuse. In that regard, all of us on these Benches welcome the amendments. However, in my experience as a bishop I have come across complications relating specifically to risk assessment, where the precise qualifications of the risk assessor concerned have subsequently been questioned by a solicitor. In responding on these amendments, will the Minister reiterate and give further assurances about the ways in which the people who are to undertake risk assessment can be properly trained and the information about them made available to those whose job it is to decide on risk assessment? Particularly in my profession, we sometimes have to find people to do these risk assessments before an issue has come before the courts. Therefore, in that preventive area, it is extremely important for us, and any guidance the Minister can give on making secure these risk assessments would be most welcome.
My Lords, I support this amendment, to which I have put my name, because it does what I had hoped we would be able to do during this Bill—strengthening and making more consistent the processes by which children's safety is looked after by the courts.
I have been influenced considerably during our deliberations by the valuable report by Her Majesty's Inspectorate of Court Administration. It contains some conceptual leaps, but it is a very useful document. It makes a number of recommendations that line up very well with the amendment. Recommendation 2 says that CAFCASS should,
"ensure that all cases, including conciliation at court are subject to risk assessment and liaison with other agencies".
Recommendation 3 says that it should,
"implement a strategy to ensure improved practice in domestic abuse cases".
These are all recommendations to CAFCASS.
Recommendation 5 is that,
"to improve services to children and families CAFCASS should provide training . . . in assessment and risk assessment skills", picking up the point just made by the right reverend Prelate. Recommendation 8 is to,
"take steps to ensure an appropriate balance is maintained between safety and service delivery through the use of robust risk assessment procedures".
Finally, Recommendation 11 suggests that HMCS should,
"provide appropriate training to assist staff in gaining a greater understanding of domestic violence and its impact on survivors".
All those recommendations lead us to one such as has just been described by the noble Baroness, Lady Gould of Potternewton. However, a poor risk assessment could be much worse than no risk assessment at all, so training is very important indeed. If the Government are minded to accept the amendment, they must put the resources where their intentions are and provide the resources for that training and for the manpower—and woman power—that is to brought to bear to carry out the assessments, so that we can be assured that they will be of high quality.
I am aware that CAFCASS is not in a position to match the golden handshakes or enhanced salaries that many local authority social services are now offering to social workers to come and work for them because of the great crisis that we have had in recruitment and retention of social workers. CAFCASS has simply not been given the means to match those incentives and, unless it is, it will not get the best quality social workers coming to work there. That is what we need to support the amendment. However, I very strongly recommend it to the House and very much thank the noble Baronesses, Lady Gould of Potternewton and Lady Thornton, for their persistence in coming to something that I hope the Government will be able to accept.
My Lords, I join the noble Baroness, Lady Walmsley, in urging the acceptance of the amendment, which is everything that we have been pushing for over many years. I put on record how thankful I am for the support that Members throughout the House have given on the issue through many Bills over the past few years. As my noble friend Lady Gould has said, we believe that it is a reasonable start that everybody should be able to support. The Minister has also taken an important step in his amendments in recognising the issue—and I welcome that also.
My Lords, I support the amendments, especially that of my noble friends and the noble Baroness, Lady Walmsley. The noble Baroness mentioned the HMICA report, which has been mentioned several times in our deliberations today. Noble Lords will know that CAFCASS takes very seriously the recommendations in that report and has already implemented many of them, including producing its excellent toolkit, which I hope has been seen by many noble Lords throughout the House. If not, I can certainly provide them with copies.
CAFCASS is concerned about resources, but that does not in any way diminish our enthusiasm for taking on the role of risk assessment. We believe that it will help to focus our practice when under great pressure to broker agreements between warring parents. Sometimes the drive to reach an agreement about contact can mask underlying child protection concerns; at the moment, we have an inadequate statutory base for exploring those concerns. Making risk assessment mandatory will be an alert not just for CAFCASS practitioners but for those agencies from which we ask checks—courts and judges and all agencies in the family justice system. We should never forget that everybody has a responsibility for making sure that contact is safe. I am very glad to say that there is a clear consensus among all groups concerned for children to ensure that contact is safe, and that with all cases in which we are alerted to concerns, invariably in a court application by one party, we must carry out a formal risk assessment. We have clear procedures for that, and the amendment will lead directly to the protection of many children who are at the moment subject to an ambiguous legal framework.
I share the concerns that have been raised about how necessary it is to have adequate training, with the right level of staff. No doubt we shall come to that when discussing another amendment later tonight.
My Lords, I, too, support the amendment. I greatly admire the single-minded attention to the matter that the noble Baronesses, Lady Gould and Lady Thornton, have given on this occasion and in the past. I also remember how passionately Earl Russell felt about this issue.
I first wish to refer back to when, due to a failure on my part, I did not ask the noble Earl, Lord Howe, about his response to an earlier amendment. In referring to the report, he said that he believed that the failure was in assessment. Clearly, the amendment will work towards addressing the concern that he has, having read the report, that the assessment process was at fault. I wanted to ask him whether he recognised that that assessment failure will take a long time to remedy. It is not just about developing the new training programme; the courts need to be trained in it, as do the social workers. There is a culture in CAFCASS, which the report points to, of being hurried and not giving enough time to things, which is partly to do with resources, as noble Lords have said, and is partly to do with retraining. All those things take time to change.
I would not wish your Lordships to believe that, simply because we now have a welcome start in ensuring the safety of children involved in these processes, we can therefore move forward with the other measures that we decided not to include earlier this afternoon. That is the main point that I wish to make.
My Lords, we seem to have almost a unanimity of opinion in the House this afternoon, which I hope that we can retain for the rest of our proceedings. Amendments Nos. 27 and 34 have been tabled by my noble friends Lady Gould and Lady Thornton, to whom I pay tribute for the huge time that they have spent pursuing these issues, long before my arrival in the House, in successive Bills. The Government are happy to accept those amendments, as we believe that they are a very constructive step forward in ensuring that issues of domestic violence and child abuse are properly addressed as soon as they are raised and before decisions about contact are made, or at any other point in private law Children Act proceedings when they would be relevant.
(4)The right reverend Prelate raised the important issue of training officers who are to undertake risk assessments and how a risk assessment that is poorly undertaken can have calamitous consequences for those concerned. I entirely agree with him and know that the Children and Family Court Advisory and Support Service takes extremely seriously the training of those who undertake the assessments. He will have heard what my noble friend Lady Pitkeathley said on the subject. We believe that it is an important step forward. CAFCASS is already highly experienced in making these risk assessments and already undertakes them when it believes that they are appropriate, but putting it on a statutory basis will be a step forward and will address many of the concerns that have been raised in various stages of the debate on this Bill that the interests of the child should be paramount. That includes assessing as expeditiously as possible concerns about domestic violence and child abuse.
I am glad that the amendments have had such a warm welcome from CAFCASS. We believe that they will need to be properly resourced, and we will provide the resources necessary. We see this as an important step forward and are happy to support the amendments.
My Lords, the noble Baroness, Lady Walmsley, is absolutely right: sometimes persistence does pay off. On this occasion, I can only say I am delighted that the Government have accepted this amendment, and that changes need to be made to court processes. I repeat, however, that this amendment is not the total answer, but it will make a difference, and will ultimately provide a safer environment for so many children. I take the caveats about resources and training, and look forward to hearing that those will be made available, but it gives me great pleasure to commend my amendment to the House.
moved Amendment No. 21:
Page 2, line 21, at end insert—
"( ) Subject to subsection (9), in considering whether to make a contact activity direction, the court shall have regard to the desirability of each birth parent assuming their obligations to provide (or procure) for the child the support, care and education which he needs."
My Lords, I should say that I forgot to explain to the House that my noble friend Lady Finlay cannot be here because she has had to go to support her mother due to the death of a relative in France.
(6)This is a probing amendment. In the past 20 years the proportion of children born to unmarried parents has increased dramatically. While many unmarried fathers share parental responsibility, as defined in the Children Act, with the mother, it is estimated that more than 1 million do not. These fathers are in a kind of legal limbo. Many accept the full obligation of being a good father, unconscious of the fact that they have no right in relation to their child or its welfare. On the other hand, an increasing number of others consider that to father a large number of children is a macho achievement, and persuade themselves that it is up to the mother and the state to concern themselves with bringing up the child.
Setting aside entirely any moral considerations that may or may not be involved, I am concerned about the practical implications of this state of affairs for the welfare, well-being and future prospects of an increasingly substantial minority of the nation's children, and about the increasing cost to the state of assuming the responsibilities of more and more indigent fathers. This uncertainty in the law—and indeed in the shared values of our society—about the responsibilities of unmarried fathers means that children cannot be taught their responsibilities as citizens in this respect in school or elsewhere. Because we are a multicultural society, there are some ethnic groups whose cultures and values relating to parental responsibility are different from ours. How can they learn what it is to be a British citizen if we have no established norm?
At the root of the problem that this Bill is designed to address is the increase in the number of children exposed to family breakdown. How can this be reversed if there is fundamental uncertainty in the law about the responsibility of those 1 million citizens who have children but no parental responsibility?
So I ask the question: what are the obligations of a citizen who becomes a father, first towards his child, and secondly towards the state? This amendment, like its predecessor in Grand Committee, is a probing amendment to draw the attention of the House to the need to give some clear guidance on the obligations to his child of a father who does not have parental responsibility, and to ask the Government whether they are prepared to clarify the law on the obligations of unmarried fathers; and if not, why not? I beg to move.
My Lords, I speak to Amendment No. 22. I thank the Minister for his reply in Committee. However, we believe that delay is the enemy of resolving many of these problems. This amendment would require the court to consider the time by which a contact activity can be provided, and is likely to be completed, before making a direction, in order to allow sufficient time to work with the parent or family concerned, but to avoid such directions in themselves causing delay if the facility is not available. The amendment also highlights the need for adequate resources for the provision of a framework or range of contact activity services across the country in order that children and their families may benefit from them.
As I said in Committee, there is an acknowledged need for better facilitation of contact orders, and this amendment was suggested by the Law Society. However, we are concerned that there should be adequate resources for the provision of contact services across the country, in order that children and their families may benefit from them in a timely manner with less need for recourse to more lengthy or further court proceedings.
The range of options to assist the implementation of an order needs to be sufficiently flexible to address the problem, and the options themselves need to be available. For example, there is no point directing a parent to undertake a parenting programme designed to address intractable contact disputes if the facility is not available locally and is not accessible. In order to avoid directions in themselves causing delay, we therefore suggest that the court should be required to consider the time by which this time can be provided, and whether it can be provided over the likely appropriate period of time in respect of the family concerned.
There is already continuing concern among practitioners on the ground about the capacity of existing resources in some areas. For example, I believe that in some courts CAFCASS is not yet in a position to provide the additional facilitation and support services to fulfil its intended changing role in resolution, or supervised contact centre services may be unavailable. I believe that only one contact centre is available in Wales. In Committee, the Minister stated that he thought that the amendment,
"would impose an unnecessary burden on the courts and the providers to specify a precise time period over which the contact activity is to be provided".
He went on to say that this would run the risk of,
"reducing the flexibility that the Bill provides".—[Official Report, 12/10/05; col. GC 95-6.]
I argue the opposite. It will reduce flexibility and increase the burden only if the resources are not there. If they are not there in adequate measure, the principle of contact activities within this Bill will be empty, as they will not be able to be used in a timely and efficient manner.
My Lords, I thank the noble Baroness, Lady Morris of Bolton, for tabling this amendment, because it gives us another opportunity to emphasise the concern about the resourcing of contact. It also permits me to tell the Minister that I now recall it was Beverley Brooks—until quite recently the chair of the National Association of Contact Centres—who was appointed chair of the committee to look at the funding of contact centres. The committee found that to resource contact centres adequately cost £8 million a year, but, in her evidence to a Select Committee on this new Bill in the other place, she said something to the effect of: "Now you are asking contact centres to provide a lot of new services". So she expressed even more concern that contact was not being given the resources it needed to do the job required.
To the best of my recollection, the issue in Wales is that there is only one contact centre that provides supervised contact. That is important to our deliberations today.
My Lords, I thank the noble Lord, Lord Northbourne, for raising an important issue that he continually keeps us focused on: our responsibilities and obligations as parents, and particularly the rights of fathers, which is an issue of great concern to him.
I will not rise to the challenge of saying what we are going to do about unmarried fathers, because that is to suggest that there is a problem that lies only with people who happen to be unmarried. There are many stable relationships where marriage is not part of the relationship.
My Lords, I purposefully said fathers without parental responsibility. I am concerned about that group—the 1,000 fathers who do not have parental responsibility. Some unmarried fathers have parental responsibility.
My Lords, I understood what the noble Lord was saying. We must recognise the differences between different groups and that many take their responsibilities extremely seriously. Earlier the Child Support Agency was mentioned and my noble friend Lady Hollis, who is no longer in her place, pointed out that there are differences between those who contribute through the Child Support Agency and those who do not. It may be interesting to debate the various ways in which people approach the matter.
The noble Lord's amendment is interesting. We can offer him reassurance on the point of principle that he raised. In the Children Act 1989, there is a welfare checklist in Section 1(3). The checklist directs the court with respect to the child concerned to have regard to,
"how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs".
That is in the spirit of what the noble Lord is searching for in the Bill. I also accept that the noble Lord raises a much broader debate, which I shall not enter into with great gusto at this point, about how we ensure that people understand the importance of being a good parent, including education in its broadest sense, not just within the school framework. That is important long before people have children and it is important when they have children and a relationship ends and the situation comes within those covered by the Bill. I accept the importance and value of that, but I believe that we have covered that point in the Bill.
In Amendment No. 22, the noble Baroness, Lady Morris, considers the activity that will take place. There is a great deal in what she said. We have to be alive to the risk of delay for all the reasons mentioned by the noble Baroness. We shall ensure that the courts are guided by CAFCASS so that they can work out what is available locally and how quickly it can be made available. I believe that in the Bill we have covered the concerns of the noble Baroness and I hope that she will consider that. We have said that the courts must, before making a contact activity direction or condition, be satisfied that the suggested provider is suitable to provide the activity, that the activity is appropriate in the circumstances and that it is provided in a place to which the individual can reasonably be expected to travel.
We have established that the provider who is suitable to provide the activity will, in light of the no-delay principle in a Children Act, include establishing that the activity can be provided within the timescale. The combination of the no-delay principle within the Act combined with that point does what the noble Baroness wants to do. I hope that that gives her the assurance she seeks within the legislation. We shall undertake a full mapping exercise to ensure that we understand exactly what provision is available. I have already said that we want to ensure that the £7.5 million is spent well on child contact centres, notwithstanding what the noble Earl, Lord Listowel, has said—I am grateful to him for explaining that in more detail. We know there are issues about contact centres, both in terms of geographical reach and in what they are able to offer. The matter does not rest with my department any more, but I know from contact with my noble friend at the Department for Education and Skills that his department is looking at that. I am sure that he will write to the noble Earl to tell him more about that. We shall deal with this issue. I believe the amendment is covered in the Bill already.
My Lords, does the Minister agree that if we are to achieve what so many of us wish—meaningful contact between non-resident parents and children—it is crucial, especially in marginal cases, that there is a high quality supervisor who does not just sit in the corner of the room taking notes, but facilitates contact between perhaps a father who probably has not had contact with his child for a long time? The father may have had issues with, for example, alcohol in the past—it could equally well be a mother—or there could be a history of abuse, but the parent may want the child to have contact with the non-resident parent in a situation where there is a highly skilled professional at hand who can supervise the contact. Does the Minister agree with that?
My Lords, that is not the only activity covered in this part of the Bill. In all the activities, we are looking for the highest possible professional expertise available. I have been fortunate enough to see the staff of contact centres at work and I recognise their professionalism and the difficulties under which they operate with families who have gone through great difficulties and who may still be experiencing them. I pay tribute to those staff. By no means is the situation completely right, but the Government want to work closely with those involved with contact centres and provide the support we can within the inevitable limits.
My Lords, I thank the Minister for her reply. In light of her comments, I shall consider the Bill in more detail.
My Lords, I was contemplating reading your Lordships a chunk of Chetneys Family Law on deserving and undeserving fathers but, at this late hour, I shall spare the House. It is all very well working on the superstructure of the arrangements for helping separating parents and children, but if the foundation is not right the whole building may collapse. Part of the foundation is knowing the obligations of all kinds of different fathers and mothers. With that thought, I beg leave to withdraw the amendment.
moved Amendment No. 24:
After Clause 5, insert the following new clause—
After section 10 of the Children Act 1989 (c. 41) insert—
"10A SANCTIONS AGAINST FALSE ALLEGATIONS OF VIOLENCE OR SIGNIFICANT HARM
(1) The Secretary of State may make regulations to require the court to act in accordance with subsection (2).
(2) Where during the course of contact proceedings—
(a) a person makes an allegation of violence or significant harm against another person; and
(b) the allegation is found by the court upon investigation to have been fabricated; the court must have regard to this finding when considering any representations by either person about contact arrangements with a child and may treat it as an aggravating factor when considering whether to make an order under sections 11J to 11N.""
My Lords, in moving Amendment No. 24, I shall speak also to Amendment No. 25A. I hope Amendment No. 24 is self-explanatory. It is designed to highlight what I am afraid is a common occurrence in a separation or a divorce, and that is where one of the spouses manufactures an allegation of violence against the other spouse. Of course, that buys time, and often a great deal of time. No allegation of violence can ever be dismissed as being insignificant or of no account. If the allegation is of violence against a child, it carries even more serious implications: indeed it can be potentially fatal to any request for contact time by the accused parent.
My noble friend Lady Morris and I have been approached by a number of groups who have raised this issue with us. We believe it is genuine. It is quite separate, of course, from the issue of enforcement. The Bill attempts to deal with the case of a resident parent who is obstructive or otherwise non-compliant in adhering to a contact order. But there is no provision for a parent who, for his or her own end, lies to CAFCASS about the actions of the other parent and makes out that abuse or domestic violence has taken place when, in fact, it has not.
We believe it would be sensible to include in the Bill a clause along the lines of the amendment which says that where an allegation of domestic violence has been made, and that allegation turns out, on investigation, to have been made up, there should be consequences. The consequences would be up to the court, but I am suggesting that the court would have a duty to have regard to the fabricated allegation when making a contact order and should regard it as an aggravating factor in the context of any enforcement order being considered. The existence of a provision of that kind would, I think, act as a deterrent. I hope that the Minister will at least sympathise with the intent behind the amendment and give me some mild words of comfort.
On Amendment No. 25A, in part, the intent behind this amendment has been superseded by that of the noble Baroness, Lady Gould, whom I congratulate, without hesitation, on her success in winning the approval of the Government for her amendment. It is certainly a step forward. If she reads our amendment, she will see that we are trying to do something even more powerful.
I was very drawn to the amendment that she and her noble friend Lady Thornton tabled in Grand Committee, and I was rather sorry that that amendment did not return for further consideration on Report. However, our concern here is that in too many cases the concerns about the safety of the child are never resolved; they are allowed to drag on for a considerable period, often without a decision on whether the child is at risk. The only problem that I see with the amendment of the noble Baroness, Lady Gould, is that there is no sense in it of urgency or time horizons. In this amendment we have tried to introduce those time horizons because we think that it is important that the impetus in these matters is maintained by the court. It is very important for CAFCASS to do its work, but we do not want to see any slippage or lack of action.
Child safety should clearly be tackled from the outset and expeditiously. We are concerned that in too many cases an allegation is made which raises concerns over child safety that is then subsequently not addressed sufficiently, with allegations lying on file. It is clearly in the child's interests, but also in everyone else's, for such allegations to be fully investigated as soon as possible. I hope that the sense of that amendment will commend itself to the Minister as well, although I have no expectation that he will wish to adopt the wording we have suggested. However, I place the thought with him for his consideration and guidance. I beg to move.
My Lords, the noble Earl asked whether I could express sympathy with his intentions and offer some mild words of comfort. That was not a very demanding threshold; I am used to more demanding thresholds. Certainly I am in a position to offer him sympathy and, I hope, rather more than mild comfort that we are able to achieve the objectives he has set out.
The noble Earl's Amendment No 25A would ensure that comprehensive and timely investigations into allegations of domestic violence and abuse are made. The noble Earl's Amendment No. 24 would put sanctions in place on those who make false allegations. Amendment No. 25A makes the important point, with which we entirely sympathise, about the need to hold comprehensive and timely investigations. We believe that Amendment No. 27, tabled by my noble friends Lady Gould and Lady Thornton, and the noble Baroness, Lady Walmsley, will ensure that that takes place. It will ensure that there are risk assessments in all cases where domestic violence is alleged. We would expect those investigations to be timely because they will in most cases be precipitated by the new gateway form which is completed as soon as parents enter the system. In cases where allegations of domestic violence or abuse are made we would expect an investigation to take place pretty well immediately after that so we would expect the time lines the noble Earl has set out in his amendments to be adopted, but we do not think it is necessary to put them on the face of the legislation. We entirely share the objective that he seeks to achieve. We believe that the new and more robust statutory framework put in place by Amendment No. 27, with the requirement for risk assessments, will achieve what the noble Earl seeks to achieve.
Amendment No. 24 seeks to put in place sanctions to discourage false allegations of domestic violence or harm. The amendment proposes that the court should take such allegations into account when making contact decisions. It may also treat them as an aggravating factor when considering an enforcement order or financial compensation order. We again entirely share the concerns underlying this amendment, but we hope that it will not be pressed for two reasons. First, allegations of domestic violence or harm will now be assessed at the outset of contact proceedings and in any event under Amendment No. 27, which has just been accepted by the House. We believe that the fact that there will be rapid and comprehensive assessment of any allegations will be a very significant deterrent to making false allegations. So we believe that that objective will be secured.
(25)Secondly, there may be some cases where it is in the child's best interests to have a particular level of contact with an accusing parent despite the fact of the accusations. The courts will need to take account of that. But where the courts believe that a penalty would be appropriate and would be consistent with the best interests of the child, they already have the full powers at their disposal to make such a penalty, and indeed, they have been doing so. Only this year the Court of Appeal made a costs order against a parent who made such false allegations, and ensured that serious action was taken in that case. The case in question is Re T, which made the attitude of the courts very clear. In that case on the ending of a marriage various agreements and orders for contact had been made which had all faltered almost immediately. The resident parent then made allegations of sexual abuse. These were investigated and found to be false. The falsely accused parent had expended considerable sums in defending the actions. The Court of Appeal confirmed the decision that the resident parent pay costs to the non-resident parent. Cost orders are unusual in family proceedings since the courts are anxious to avoid seeming to punish one parent if that might lead to reduced co-operation between them. However, in this case Lord Justice Wall could not have been clearer in his judgment on upholding the application for costs. He said:
"We do not think that the orders for costs which we have upheld in the instant case are either likely to or should deter a resident parent from advancing a reasonable opposition to contact which is genuinely based on a proper perception of the child's interests. But those who unreasonably frustrate contact need to be aware that the court has the power to make cost orders in appropriate cases and that the consequences of such unreasonable behaviour may well be an order for costs made against the resident parent who has behaved unreasonably".
As I said, that is a Court of Appeal judgment made this year. The decision demonstrates that the courts can and do take appropriate action in cases of false allegations. They are very mindful of the concerns raised by the noble Earl. In the context of the more robust regime that we are putting in place for risk assessments, which we believe will also be a significant deterrent to false allegations, I hope that the noble Earl will feel able to withdraw his amendments.
My Lords, I derive comfort from that very helpful reply from the Minister. I hope, too, that those individuals and groups who have spoken to me will do the same. I am grateful to the Minister for what he said on Amendment No. 25A and the intention that CAFCASS should act expeditiously under the amendment spoken to by the noble Baroness, Lady Gould. It does, of course, raise issues of resources, as the noble Baroness herself pointed out. We all hope that CAFCASS will be adequately resourced to do the work which it is charged to do. But I take pleasure from the fact that these issues have been recognised by the Government and addressed in the way that they have. I beg leave to withdraw the amendment.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begins again not before 8.30 pm.