Clause 1 - Contact activity directions and conditions

Children and Adoption Bill [Lords] – in a Public Bill Committee at 4:00 pm on 14 March 2006.

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Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 4:00, 14 March 2006

I beg to move amendment No. 46, in clause 1, page 1, line 15, leave out

‘promotes contact with the child concerned’ and insert

‘directly promotes reasonable contact with the child concerned by negating or managing a specific shortcoming on the part of the person directed to attend the activity in the circumstances where this shortcoming—

(a)has been identified by the court in a finding of fact after due legal process, or

(b)is stated by the court to constitute a specific and significant impediment to a higher level of contact that might otherwise be ordered by the court.’.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss amendment No. 2, in clause 1, page 4, line 4, at end insert—

‘()Before making such an order, the court must consider the time by when the specified contact activity can be provided by the person proposed as the provider and shall specify the period over which the contact activity is to be provided.’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Welcome to the Chair, Mr. Hancock. I hope that our deliberations will be as amenable as they were this morning under the chairmanship of Mr. Hood, if perhaps not quite so strict.

The major part of the Bill deals with child contact. As I said to Mr. Hood this morning, a lot of general principle is involved with those provisions. Without wishing to criticise the Chairman’s selection of amendments, I have to say that the way in which they have been ordered results in the lead amendments to clause 1 dwelling on relatively ancillary matters. When it comes to later parts, especially clause 4 to which we have tabled many amendments that go to the heart of the Bill, you will perhaps allow us to talk more about general principles, Mr. Hancock, when presumption and reasonable contact needs to be aired more fully.

Amendment No. 46 would change the wording of subsection (3), which refers to the promotion of contact with the child and the nature of the contact activity directions that the Bill enables the court to give. The amendment and the clause make provision for the courts to make contact orders for contact activity directions, such as programme classes, counselling or guidance sessions, to promote better understanding between the parents involved to go forward for a formal contact arrangement with the   children. We are in favour of that general principle. We must all agree that we need to pursue anything that will avoid long drawn-out, acrimonious legal wrangles between separating partners, which often result in their children being used as pawns.

However, if, as part of that exercise, a court directs that parents should attend a certain course in order to deal with some of the problems that may have given rise to the acrimoniousness of a relationship, it is absolutely essential that the course is relevant and appropriate. As someone said, it is no good instructing a non-resident parent to attend a course that will teach him or her how to change nappies better if nappy-changing was not the fundamental problem between the two parents and the children.

Similarly, if the court directs that a parent or parents need to take certain action, the course must address all the outstanding problems. We do not want a parent to get help for a particular problem, only to be then told that there is another problem, as a result of which the whole thing drags on. That is often a criticism of such courses. All the time that the prearrangement settlement is going on, a non-resident parent loses contact with the children, and the relationship is gradually diluted. It becomes a Catch-22 situation, so that when the parents have supposedly addressed all the outstanding problems that they may have, they find themselves remote from the children to whom they are desperately trying to become closer.

The amendment says that a direction the court gives must be relevant and pertinent to the problem that the court and its officers have identified, and that it should be based on fact. It should not be based only on an accusation—without any facts—that a husband or wife has, for example, an anger problem or a tendency to violence, because we all know that when relationships go wrong accusations can flow thick and fast.

On other parts of the Bill, we will push the case that people are innocent until proven guilty, and if accusations are made about a partner’s behaviour, they should, when possible, be backed up. I know that there are difficulties with domestic violence issues—we shall come to them in a later clause—but such claims should be substantiated. They should be backed up with research by the court officers so that the court is apprised of the facts—or should get as close as it can to them—when it makes its direction.

The amendment would insert the phrase “reasonable contact”, and we shall keep coming back to that because it is fundamental to the Opposition case. There is a claim that courts currently act on a presumption of contact, and we want that to be apparent in the Bill, but a presumption of contact in principle is different from one in practice. More significant is the point that contact should be reasonable, because contact could amount to an exchange of Christmas or birthday cards, or seeing a separated child for one afternoon every month or every three months.

Each case is unique, but in many cases such limited contact cannot possibly be construed as reasonable on any justifiable definition. As I shall argue in more   detail in relation to other amendments, we want the Bill to be worded to achieve reasonable contact for non-resident parents unless there is, for want of a better phrase, a clear and present threat to the safety or welfare of the child. Welfare is paramount, and we have no disagreement with the Government on that. Everything must distil down to the safety and protection of the child and what is in the child’s best interests. On that we are at one with everyone who has an interest in the Bill.

As well as the requirement of reasonable contact, the amendment seeks a factual finding by the court on the problems that are required to be addressed. Paragraph (b) would require that what

“is stated by the court”— must—

“constitute a specific and significant impediment to a higher level of contact”.

That is all about relevancy and pertinence. We need to make sure that the findings of the court are appropriate to the parents being dealt with and to their children.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

In quoting the amendment the hon. Gentleman omits the phrase

“managing a specific shortcoming on the part of the person directed to attend the activity”.

Would not that undesirably narrow the clause, which is commendably open? What if the need for a contact activity results, not from a specific shortcoming, but from a long break and the need for a gentle restart to contact?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

That would surely have resulted from an identified shortcoming or from a shortcoming in the form of indifference on the part of the separated parent. Either way, the reason a parent petitions the court to have greater contact with his or her children will arise as a result of his or her having been prevented by determinations for contact in the past from having the degree of contact that he or she now seeks, because claims were made about safety or welfare considerations, or else the parent has been prevented for not having come up to scratch for other reasons that have now been addressed. The parent may have been a threat to the child, or have had physical and emotional problems that were deemed to be a threat to the child, but that have been addressed, which is good. Our amendment seeks to identify the problems that prevent a parent from having fuller contact with his or her children, whether they be allegations from the other parent that must be justified, or shortcomings on his or her own account, which may be addressed through medical, psychological, financial or whatever help or support.

We are not skirting the issue. The amendment is all about ensuring that if a court makes a direction, it is relevant and deals with the reason why sufficient contact was not granted. That is why we use “negating”—getting around something or controlling a specific shortcoming. The amendment sets out the provision more clearly than the rather woolly clause does.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Does my hon. Friend agree that in the example given by the hon. Member for Stafford (Mr. Kidney), the issue for the court would not necessarily be whether there had been a long gap in contact between the relevant parent and the child, but whether that gap had caused a difficulty with contact that needed to be remedied? In that context, “shortcoming” is designed not to criticise the parent in question, but to try to deal with a problem that the court has identified.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Absolutely. That is why I said there was a Catch-22 situation. The longer a non-resident parent is alienated from his or her children, the bigger the problem and challenge of getting them back together. If the parent has been away from the child for 12 months or more for reasons out of his or her control—perhaps because of false or over-egged allegations, the court system has been too drawn out, and they have drifted away from their children during that time—it does not mean that they are any less deserving of getting back together and establishing more regular contact. It does not diminish their desire and entitlement. I do not want to talk about the rights of parents, however, as we are concerned only with the rights of children. The rights of the children to maximise their time and social interaction with both parents have driven them away.

Contrary to what the hon. Member for Stafford said, as my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) pointed out, drafting the amendment in terms of negating or managing a specific shortcoming is right. It allows all potential problems to be actively or passively addressed.

Photo of Ann Coffey Ann Coffey PPS (Rt Hon Alistair Darling, Secretary of State), Scotland Office, PPS (Rt Hon Alistair Darling, Secretary of State), Department for Transport 4:15, 14 March 2006

My difficulty with the court’s identifying a specific shortcoming is that generally the inability of both parents to agree with and abide by a contact arrangement probably has something to do with the nature of the breakdown of their relationship, their feelings about each other and various other factors. It would be difficult to identify a specific shortcoming within all that. Given that there is often a generality of factors, it would be much better to let the court decide what generality of contact activity might be used to address the problem. For example, if the parents cannot see beyond their own needs to those of the child, then sending them to parenting guidance classes and the like gives the court discretion to deal with the generality of the problem. Perhaps the amendment would tie down the court too much to identifying something that cannot be identified so specifically.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

That got very close to being a speech, rather than an intervention.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It was a very good intervention, though, to be generous to the hon. Lady. I understand her point, but in keeping with the generality, we risk directing parents to seek guidance, assistance, counselling or whatever for things that bypass   fundamental problems, which may be why they were accused by one partner of not having proper contact with their children before the split happened.

The new favourite television programme of those of us who have taken an interest in this Bill, and everyone I have met as I have been briefed on the Bill, is all about divorce and shows late at night. A rather interesting child psychologist visits two warring parents to try to mediate between them. In the few moments I have had away from trying to study the Bill and cram on it, I have seen a couple of the programmes, which were absolutely fascinating. I saw one last week, or the week before, where a couple had split very acrimoniously. One criticism of the husband, who became the non-resident parent, was that he spent all his time watching football on television or going to football matches and was therefore not spending quality time with his children. He thought, as a treat, that he would take his children around Toys R Us where he was keen to buy them toys, and board games in particular, so that he could go home, play games with them and spend some quality time. The trouble was that he was trying to impose what he wanted to do by choosing board games that he was interested in, which usually had a football theme, but his two daughters did not have an awful lot of interest in that.

That man was trying to do the right thing for his children but was actually doing what he wanted to do, rather than what they wanted. The whole thing was quite fascinating. He had to go through a catharsis: he had to put football on one side and do things that put his children first and that his children really wanted to do. The quality time he was then able to spend was far more beneficial and enjoyed more by the children, so it was beneficial for all involved. It was quite interesting to see that happen in a media, “Big Brother” sort of a way.

The point of that example is that there was a specific shortcoming; the man was thinking within his own mindset rather than in those of his children as he tried to improve the quality of the relationship between them. We have probably all been guilty of that. There are those of us who try to take our children to political meetings or political coffee mornings on the basis that we are spending time with them, but are nine-year-olds really all that interested in drawing the raffle at the blue-rinse brigade’s latest event?

We have to consider such problems in our work-life balance, to use the topical phrase, which is why “specific shortcomings” can address such things. It can be suggested that parents should get assistance to enable them to see their children’s needs through their children’s eyes, rather than their own, which are slightly skewed. That applies only to a small number of parents, perhaps, and it is horses for courses: everyone is unique. However, it is an example of where the wording of the amendment would be more appropriate.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I thought that the panoply of things suggested here would not be necessary in a case in which there had been no contact for a while. An   absolutely faultless reason might be shown in the example of man in the armed forces who has been away, has come back and now has no contact. I would not have thought the amendment was necessary, even in the case of the hon. Gentleman’s example. Is he saying that a court would have to hold a hearing to find as a matter of fact that the man was too obsessed with his own need for football, and that that would constitute a “specific and significant impediment”, before he could even go on a contact activity directed by the court?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It is all part of the same thing. Somebody must first come to terms with the problem. The court must recognise the problem, suggest an activity specifically aimed at addressing the shortcoming or negating something counter-productive to the relationship with the child, and then come up with a relevant solution.

I judge that the aims of the hon. Gentleman, the hon. Member for Stockport (Ann Coffey) and myself are the same. Amendment No. 46 is relevant. Practical problems arise when people go to the court system and are then directed to do some activity that sounds very fluffy and nice but is entirely irrelevant to the problem underlying the lack of connectivity between a non-resident parent and his or her children. The amendment asks only for relevance and pertinence to the real problem. A non-resident parent can go on all sorts of courses and come back as the perfect nappy changer or practitioner of the game of Kerplunk! or of netball, but if his or her children hate netball, have never been near a Kerplunk! set and are far too old to be in nappies, it is all rather useless. I have given rather extreme examples, but that is the point that amendment No. 46 seeks to address.

Amendment No. 2 is not greatly linked to amendment No. 46, but in your great wisdom, Mr. Hancock, you have put them together. We respect, revere and bow down before that great wisdom, as we have done with the order of the rest of the amendments, because the debate is all about the problem of long drawn-out court processes.

The amendment was pushed in another place, and the Law Society is particularly keen on it because its purpose is to prevent court directions from causing further delay to the resolution of a process. We shall come to the issue later in clauses dealing more directly with the Children and Family Court Advisory and Support Service, the availability of support services and so on. If the legislation is to work, adequate resources are needed and a framework of a range of contact activity services must be provided across the country, so that children and their parents can benefit from them.

There is an acknowledged need for better facilitation of contact orders. As the Law Society puts it:

“There is no point directing a parent to undertake a parenting programme designed to address intractable contact disputes, or a domestic violence perpetrator programme, if the facility is not available locally, affordable and accessible ... the court should be required to consider the time by when a contact activity can be provided and whether it can be provided over the likely appropriate period of time in respect of the family concerned.”

If it cannot, meaning that the whole process is delayed by the wait for somebody to access a programme that has a very long waiting list or is not available locally, the relationship between the non-resident parent and his or her children could deteriorate during the time when proper contact is not operating, and we could get into a Catch-22 situation.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

This time, I very much support the hon. Gentleman. He may have seen that I tabled a similar amendment, although it was too late for today and is starred. We both want the judge to specify a start date as well as directing what the activity is, who will provide it and where it will take place. It may be too restrictive to say that the judge should specify an end date, but there should certainly be a review date to see how things are getting on.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I completely agree. One does not want to be too prescriptive, but if parents are given a direction, they should be able to expect recourse to the solution to be available and that it can be completed in as short a time as possible, for the reasons that I mentioned.

I entirely agree with the hon. Gentleman’s sentiments about wanting to set a start date and a completion date, and in an ideal world that would be right. The trouble is that there is an enormous shortage, and part of the problem with the subject of the Bill is that we can legislate until the cows come home and put into force all sorts of structures that make the system fairer and more accessible before the matter gets to an acrimonious lawyer-versus-lawyer situation, but if the support services—mediation, parenting programmes and so on—are not available, it will all come to nothing. If it takes even longer because a judge has directed that action can be pursued only after A, B and C have been completed and they are not available it will make the situation worse all round, partly because of the shortcomings of the resources at the disposal of CAFCASS, the mediation services and so on, which we will discuss later in more detail.

When the amendment was discussed in another place, Lord Adonis retorted that the Government had set aside £7.5 million for child contact services for developing and piloting a range of contact activities. But that money has also been earmarked for improving and upgrading centres for supervised contact, which are in a pretty shoddy state, and some of them are in depressing, anonymous places. The Government rightly have ambitious plans to incorporate some of the supervised contact facilities in family centres and other, more family-friendly places throughout the country, but £7.5 million will not go far if the clause is to achieve everything that the Government want.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

It is a pleasure to serve under your chairmanship, Mr. Hancock.

Does my hon. Friend agree that in respect of CAFCASS the amendment would impose the imperative of uniformity and access to resources throughout the country which would not exist without the proposal?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

My hon. Friend the Member for Peterborough (Mr. Jackson) is no longer a virgin, which will not mean much to you, perhaps, Mr. Hancock. He makes the very good point that there is presently a postcode lottery in respect of access to court services and the availability of CAFCASS. One has only to talk to the management of CAFCASS to understand that problem. My hon. Friends and I have been visiting CAFCASS centres around the country, and we have been directed towards CAFCASS centres that are rather good and others that, for whatever reason, are less good. We have seen those that are better resourced than others and those with a shortage of staff available to cope with the challenges presented to them.

Thus, there is a problem: the Bill suggests how the courts might do their job better, but that will come to nothing if the workers at the coalface are not available in the support services to enable the proposals to come to fruition.

The amendment would give a clear steer in the Bill that courts need, above everything, to be mindful that speeding things up should not lead to an inferior service. Whatever directions they make and whatever activities it is deemed the parents need to carry out, they should be available, do-able, practical and relevant, because if they are not, and if their completion is a condition of progressing further in the court process—we should remember that there are waiting lists—then the problem will be protracted. The problem of lack of integration between non-resident parent and the children will be exacerbated, which is counter-productive to everything that we are trying to achieve.

I commend both amendments. Amendment No. 46 would define more clearly the court’s priorities in determining what contact activities should be promoted. Amendment No. 2 would ensure that speed, accessibility and availability of those services should be of the essence before the directions are determined. As such, both amendments are helpful and seek to speed up what the Government are trying to achieve.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs) 4:30, 14 March 2006

From the Liberal Democrat Benches I also welcome you to the Chair, Mr. Hancock.

There is a link at least between the principles behind the two amendments, in that we would obviously want a contact activity to be relevant to whatever it is meant to address. We would expect some analysis in the court system; we would want the contact activity to be not only relevant but efficient and to work so as to achieve its objective; and we would definitely want the activity to be available, as amendment No. 2 states.

I have a great deal of sympathy with amendment No. 2, in as far as there will be a huge blockage in the system if people are referred to particular contact activities but, lo and behold, they are not available. They might then be sent on an inferior substitute. Availability is crucial. It is a question of resources, although it also involves much training of the people who are to run the courses. I would be particularly concerned about the availability of the domestic violence perpetrator programmes, which are incredibly important. They are being developed across the country, but I am sure that there is a lot more to be done. It might come as no great surprise but, with the refocusing of funds for adult education, courses to train counsellors in my area have been cancelled. That is a major impediment. I fear that other training to prepare people to give such courses might have been cancelled with the change in focus.

Amendment No. 2 is important because it refocuses on the necessity for ready availability, affordability and accessibility, to which the Law Society refers in its briefing. Obviously, provision has to be within easy access. I often mention my own county of Dorset, where one can forget getting somewhere by public transport. Such provision really has to be made within reasonable distance.

I have sympathy with the principles behind amendment No. 46 and with the point that we need direction to a relevant contact activity, but I am not yet at all convinced that the amendment would add clarity to the fairly simple statement in the Bill, which can sometimes be a better approach. So I shall wait to hear what the Minister has to say before making a final judgment about amendment No. 46, although I am certainly very supportive of amendment No. 2.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I am not the first, but may I be the latest to welcome you to the Chair this afternoon, Mr. Hancock?

Amendments Nos. 46 and 2 seek to amend the provisions in respect of contact activities. Amendment No. 46 seeks to focus the purpose of contact activities rather more narrowly–certainly so that they are chiefly concerned with promoting and lengthening contact. Amendment No. 2, as has become clear from hon. Members’ remarks, is more concerned with the practicalities of ensuring that contact activities take place on a reasonable time scale and begin as early as possible in the process. Perhaps I could say a little about each amendment.

As I understand it, amendment No. 46 would make two significant changes to the current function of contact activity directions and conditions as envisaged in the Bill. It would require in subsection (3) that contact activities should be designed to promote reasonable contact by addressing specific shortcomings that the court has identified in findings of fact or that have been separately stated by the court to impede the ordering of a greater amount of contact.

First and foremost, and I suspect that we will come back to this on a number of occasions, the word “reasonable” is one that every lawyer on the Committee will say is well known in the law. Any reference to “reasonable contact” that amendments to this Bill would place in the Children Act 1989 is unnecessary, because the court will always order what it considers to be reasonable contact in the circumstances of the case, based on its overwhelming priority that it must be in the best interests of the child. That is already what the courts do.

We can continue to have discussions about how that works out in individual cases, but I hope that the hon. Member for East Worthing and Shoreham (Tim Loughton) will accept that the court’s role is to order a reasonable level of contact, on the basis of the paramount consideration that it must give to the best interests and welfare of the child. It is well set in common law and case law that courts consider that, where possible and in the best interests of the child, reasonable contact or contact between both parents and children of divorced or separated couples will be the best outcome. I know that not everyone would agree with that, but certainly in any case the court will always do what it believes to be reasonable. There has to be a question about the extent to which adding the phrase adds anything that would help to direct the court. It already orders reasonable contact or acts in a reasonable way in each case that it considers.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I have just two straightforward questions. If reasonableness is assumed, what is the downside from adding the word “reasonable” before the mention of contact in the Bill? Secondly, what case law can she cite to support her assertion that reasonableness is always a fundamental presumption of the court in its contact directions?

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

The court always acts reasonably in carrying out its functions. The hon. Gentleman asks why if the word does not add anything there is anything wrong with putting it in. We could put a lot of words into the Bill that do not add anything to it, but we would have a lot of them in there and they would just obfuscate the real meaning of the legislation. Where a word is implied—the court deals with these issues on a daily basis and does so in a reasonable manner—it would be otiose to add “reasonable”.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

As I set out this morning, the reason why we are discussing the Bill is that in the eyes of a great many people who have gone through the court system the judgments handed down have been far from reasonable. We contend that although reasonableness may be the intention and the sentiment behind those involved in the courts, it is not manifesting itself in practice in reasonable judgments. Therefore the amendment is not otiose and the insertion of the word “reasonable” does not obfuscate, whereas the addition of a load of other words that the Minister or I may come up with could be described as such. The word “reasonable” is fundamental to our case. The Minister has not given a good case for why there would be damage by inserting “reasonable” in the clause.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I know that I have not convinced the hon. Gentleman, but we can all put our arguments and those who read Hansard and fellow Committee members will have to make their judgments. I am not saying that, when asked afterwards about the order that they received, every party to every case that comes before a court will say that it was reasonable. I am saying that the court behaves reasonably, therefore placing the word “reasonable” in the Bill would not add or assist the court in doing its job.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I want to ask the Minister about reasonableness and about what she has said about the need to include it in legislation, particularly with reference to enforcement orders.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Precisely, but the enforcement order clause says:

“the court may not make an enforcement order if it is satisfied that the person” has

“a reasonable excuse”.

Surely, “reasonable” is included in that clause to qualify the word “excuse” and ensure that not just any excuse will do but only a reasonable one. Is not the same true of contact? Our argument is, simply, that not every contact is reasonable. We would argue—I am sure that the Government would agree—that, in order to have proper contact, it must be reasonable and the word should be in the Bill.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

Order. Before we proceed, can I point out to Committee members that if they want to pursue reasonableness, there will be another more specific opportunity to do so later on? It might be more appropriate to deal with it then, rather than to continue to-ing and fro-ing on reasonableness at this stage.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I hear what you say, Mr. Hancock, and I shall not challenge your ruling. No doubt, we will return to that word. I suspect that we will do so at every opportunity that Opposition Members find. However, there is a difference between reasonableness in respect of an excuse and the reasonable behaviour of a court carrying out its functions generally. I will not be drawn any further down that road.

I do not want the hon. Member for East Worthing and Shoreham to think that I am not responding to his question. He asked whether I had a list of case law that suggested that children normally benefit from a meaningful relationship with both parents after separation, so long as it is safe and in their best interests, and I do have one. I will not go into all the facts, but if I refer to a number of cases, he can look them up in the law reports—although he probably already has copies in his files. They include: re T (A Minor); re O; Court of Appeal case re B; and re O, contact: withdrawal of application. There are others. Whether the facts of those cases show what I have suggested is a lawyer’s argument and not one with which we want to detain the Committee.

I was trying to make some progress on amendment No. 46; I did not get past the phrase “reasonable contact”. The amendment makes a number of suggestions about the purpose for which contact orders ought to be made. The amendment would introduce an unwelcome assumption that the main purpose of contact activities was just to increase the contact time between the child and whichever of his or her parents is subject to a contact activity direction or condition. That may well be so in many individual circumstances, and the contact activity might be designed to do just that in many individual circumstances, but it may not always be in the child’s best interests—paramountcy is supposed to mean that the court will first and foremost do what is in the best interests of the child—simply for the duration of contact to be extended. The contact activity may be designed to improve the quality of the contact time ordered by the court.

The amendment assumes a narrow definition of “contact activity”. If contact activities were only about addressing issues resulting from finding-of-fact hearings, or were just a means of increasing the contact that the court orders, that would fail to take into account current intent, which is to allow more flexibility. As the Bill stands, “contact activity” can be used to assist a person in establishing, maintaining or improving contact with a child. We do not want to narrow the activity down to just a question of whether the length of contact should be greater.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs) 4:45, 14 March 2006

I hope that the Minister is feeling a little better than she did this morning. I say “a little” because she certainly does not look quite on form yet, and I am sorry that she has to work all afternoon. That is my being nice for the day.

I absolutely agree about quality of time but, to backtrack to quantity of time, is there any evidence on cases in which contact is limited to just a Christmas card per year—on how widespread they are, and why they occur? It is easy to make sweeping statements that such cases exist, but there may be a few such cases or there may be many. I wonder whether the Minister has any idea of the scale.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I had not realised that I looked quite as bad as the hon. Lady suggests. None the less, I am grateful to her for wishing me well.

The hon. Lady may be aware that we have committed ourselves to commissioning the research that she asks for, and to investigating how courts approach contact cases, so that we can get a fuller picture and can consider whether any further change is necessary, in the law or elsewhere. That research has been commissioned, and we expect the body to report. When it does, we will, no doubt, publish it so that people can see the implications.

I was trying to argue that amendment No. 46 would make the definition of “contact activity” rather too narrow. I listened to what the hon. Member for East Worthing and Shoreham said about the shortcomings of particular parties, and I have some concerns about it. I understand that he is trying to promote contact   orders that are relevant and pertinent; one hopes that a sensible court and judge would not order contact activities that were neither. I hope that they would use their common sense to make sure that contact activities assisted in sorting out the problem, and were not irrelevant to it.

Aside from the potential delay caused by holding finding-of-fact hearings, I wonder whether the hon. Gentleman is really convinced that identifying specific shortcomings in one party would assist in the resolution of what, after all, are very complex contact cases, where relationship breakdown has led to a lack of understanding between the adults involved. Having the court point fingers about significant shortcomings in one of the adults is hardly more likely to lead to an easy resolution than the wider wording currently in the Bill. Although I understand where the hon. Gentleman is coming from, I do not believe that his amendment would assist.

I really appreciate the intention behind amendment No. 2, which is to ensure that the court does not order activities that may take a long time to set up or that may require the party’s involvement for extended periods. I reassure Committee members that those concerns are dealt with in the Bill, and by existing provisions of the Children Act. For example, proposed new section 11E(2) requires the activity that a court proposes to be appropriate to the circumstances of the case. I hope that that will also go some way toward dealing with relevancy and pertinence, which the hon. Gentleman raised in respect of amendment No. 46. It means that if the contact activity provider were unable to provide the activity for some time, or the activity required attendance for a long period, the court would have to consider whether the resulting delay to the outcome of the case would outweigh the benefit to the parties attending the activity. The Children Act requires the court to ensure that delay in proceedings is minimised—the hon. Gentleman knows that very well. Obviously, the court will apply its mind to that when making contact activity directions.

New section 11E also stipulates that the activity provider must be suitable to provide the activity, which would go to the question of the availability of the activity concerned, and that the activity should be provided in a place that the person undertaking it can reasonably travel to. Those provisions mean that the court would have to be convinced that an activity was particularly necessary before making an order that would cause delay in the way that the amendment envisages.

It is important to bear it in mind that the court will order contact activity conditions at the same time that it makes an order for contact. Therefore, it will often be the case that contact activities and contact take place in parallel, so any delay caused by going on the course or the contact activity will not necessarily prevent ongoing contact in suitable cases with the child or children.

As part of the process of referring parties to contact activities, the court will take account of available local provision and will make an assessment of who is best placed to provide which courses. In that respect, the Bill also provides that the court may ask a Children and Family Court Advisory and Support Service officer or a Welsh family proceedings officer to provide such information as it requires on such matters. I hope that that will give some reassurance in respect of amendment No. 2.

The hon. Member for East Worthing and Shoreham and the hon. Member for Mid-Dorset and North Poole (Annette Brooke) referred to resources, which of course are important. The predecessor of my right hon. Friend the Minister for Children and Families made it clear that we would not commence the Bill unless we were convinced that the available resources were such that it could be properly commenced.

The hon. Gentleman referred to £7.5 million that was recently made available for contact centres and suggested that it was intended for doing them up. The money is intended not for doing up child contact centres but to support child contact services, including those provided in child contact centres.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

My hon. Friend is quite right in saying that the money is meant to support child contact work. Is she aware of the low take-up of funds for outreach work in Northamptonshire and perhaps other areas? Could she comment on the steps that are being taken to determine why there is low take-up or to find other ways of doing effective outreach work?

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I hear what my hon. Friend says. I would be more than happy to take that issue back to my officials and try to find out what is going on in Northamptonshire. It is certainly not the intention that people should be unable to undertake the kind of activity that the Bill envisages being available to assist parties in such disputes.

It is not the case that there is only the £7.5 million to which the hon. Member for East Worthing and Shoreham referred. In appropriate cases and subject to their means, parties to cases will be expected to pay or contribute towards the cost of the child contact activities. It is not an issue of not enough money from central Government; the £7.5 million that he referred to is the latest in an ongoing increased commitment to providing this kind of activity.

I hope that on the basis of what I have said the hon. Gentleman might consider withdrawing the amendment. Of course, if I have not convinced him, he will not do so. We wait to hear what he has to say.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

May I place on the record the fact that the Minister is looking lovely after her torrid time with physical challenges, contrary to the entirely unreasonable assertion by the hon. Member for Mid-Dorset and North Poole?

The Minister made a good attempt at making a fist of her response to my amendment. I am disappointed, however, because the response was quite complacent. She says that the point made by my hon. Friend the   Member for Rugby and Kenilworth about enforcement orders, for which the use of the word “reasonable” is an integral and assumed part, is not appropriate for the clause because “courts always act reasonably”. I wish that were the case—but if it were, we would not be here today.

If the courts do not fail to act reasonably, the people to whom the courts hand down judgments fail to act reasonably in response to them, or the support services attached to the courts and part of the contacts direction handed down by them cannot offer reasonable access to services that are deemed to be part of the problem. That is the issue. To make the broad-brush statement that courts always act reasonably is breathtakingly complacent, however well intentioned the great majority of judges and other court officials are. It is not the case in practice; that is why the Bill is being discussed and why we feel it necessary for our amendments to be added.

The Minister also relied on sensible judges using their common sense. Again, there is so much more to this issue than a decent judge making a decent judgment. Such a judgment is often thrown completely back in the court’s face; there is often little comeback on those who flout a court’s activity directive. We shall discuss that in more detail when we come to enforcement orders and the penalties that go with them.

I also lack confidence in the Minister’s statement that the previous Minister for Children and Families stated categorically that the Government would not commence the undertakings in the Bill unless and until they were convinced that the services could be provided. Our discussions with CAFCASS, other workers in the court system, family groups with in-depth experience of the courts and lawyers who specialise in family law have revealed that services to provide the level of treatment that would make the elements of the Bill under discussion effective are not universally available.

As my hon. Friend the Member for Peterborough pointed out, there is a postcode lottery: some services may be up to scratch, but others will be woefully inadequate for a host of reasons. I mentioned that the £7.5 million available had to be stretched to provide a whole range of services because Lord Adonis said so in another place, although I do not have the quote to hand. He said that that £7.5 million is the major pot of money to provide the additional services—it supposedly provides the staff, staff training and facilities to make this element of the clause a reality but, in addition to that, all the contact centres and promotion of contact in supervised environments in them are beholden to that budget as well.

I perfectly appreciate that additional outside moneys come in, but the £7.5 million is the core funding. CAFCASS is facing a spending freeze, which will mean an effective shortfall of about £4 million. Anybody speaking to CAFCASS cannot but be troubled by its concerns; it wants to be able to deal with the problems it has already, let alone all the additional responsibilities that will be placed on it by the Bill. I shall come to that during discussion of   clauses 5, 6 and 7. The Minister’s response to the amendments smacks of wishful thinking, and that is regrettable.

To give another example, I was looking through a survey carried out by the National Youth Advocacy Service, which has a great deal of experience in the issues that we are discussing and provides advocacy services to children in family proceedings. It has been doing so for some while, has a good reputation and has built up quite a track record. The survey revealed that 44 per cent. of the children surveyed had been involved in court proceedings for between one and three years, 38 per cent. had been involved for between three and six years, and 16 per cent. had been involved for between seven and 10 years. More than half—54 per cent.—of the children in the survey had been involved in court proceedings for at least three years and as much as 10 years. That is alarming. It cannot be in the interest of any children to spend the majority of their childhood being dragged in and out courts, if not physically, certainly in name, with their parents going through protracted and acrimonious legal disputes about the future of those children. The figures are alarming and can have nothing other than a significantly detrimental effect on children’s welfare.

That is why the amendments are crucial, particularly amendment No. 2, which would ensure that cases are speeded up and that the paraphernalia we are talking about and are supposed to contribute to the solution do not turn out to be time-wasting, delaying measures to draw out cases to the length revealed by the survey.

The Minister has not convinced me and I do not think that I would be any more convinced if she were on top physical form. There is a degree of unanimity among the Opposition parties and there have been supportive words from the Labour Benches so, with your leave, Mr. Hancock, I will withdraw the main amendment, but press amendment No. 2 to a vote in due course to test the will of the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I beg to move amendment No. 58, in clause 1, page 2, line 10, at end insert—

‘(5A)In cases of domestic violence, the court shall refer the individual to a domestic violence perpetrator programme as defined by a Code of Practice issued by the Secretary of State.’.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to take the following: Amendment No. 31, in clause 1, page 4, line 31, at end insert—

‘(c)any experience of domestic violence that would place the child or individual at risk.’.’

New clause 5—Sanctions against false allegations of violence or significant harm—

‘After section 10 of the Children Act 1989 (c. 41) insert—

“10ASanctions 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.”’.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I welcome you to the Chair, Mr. Hancock. I am sure that we can rely on your judgment and common sense throughout.

Like the hon. Member for East Worthing and Shoreham, I feel sadness and regret that my hon. and learned Friend the Member for Redcar (Vera Baird) is not here to move the amendment and to speak with the same lucidity and passion that she demonstrated on Second Reading, but in her place, Mr. Hancock, you have me.

On Second Reading there were two strong themes relating to contact. One was about the safety of children, especially, but also of all the parties involved in contact situations. The second was the need for good and meaningful contact. It is not necessary to choose between them and to favour safety but not meaningful contact, or vice versa. They are complementary, and the more we can provide assurance that contact will be safe, the more we will be entitled to insist on good and meaningful contact in the remaining cases.

By moving the amendment, I am not suggesting that the fact that a case involves domestic violence, as has been mentioned, means that there will be no contact. On the contrary; the problem should be identified early and the necessary steps should be taken to remove that obstacle to contact, so that even in such cases meaningful contact would eventually take place. The point of the amendment is that once the domestic violence issue is identified, proper domestic violence perpetrator courses should be available for those who are identified as possibly presenting a risk during contact.

The reason the amendment specifically mentions such courses is to ensure that a quality and standard can be established for the kind of intervention that they would bring about. They are crucial to guarantee children’s safety and to help abusers to deal with the attitudes and beliefs that underlie their violent and abusive behaviour, so that contact can proceed.

The amendment refers to, but does not provide for, a code of practice. I hope that we will be able to debate a suggested wording for the establishment of a code of practice to set standards when we discuss clause 21. I move amendment No. 58 as a probing amendment and not, as I said, to steal the thunder of my hon. and learned Friend.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I am broadly supportive of amendment No. 58, and certainly of its principles. We will perhaps mention more than once the fact that we want domestic violence perpetrator courses to be effective. Clearly, there is a need for standards for those courses.

Amendment No. 31 would add new paragraph (c) to proposed new section 11E(6) of the Children Act 1989. The subsection would thus provide:

“Information about the likely effect of the direction ... may, in particular, include information as to—

(a)any conflict with the individual’s religious beliefs;

(b)any interference with the times (if any) at which he normally works or attends an educational establishment”— and, with the amendment—

“(c)any experience of domestic violence that would place the child or individual at risk.”

That, I think, is important. There is concern that there is nothing in the Bill that explicitly requires the courts to consider the safety of the child when they direct parties to contact activities. The amendment is intended to ensure that courts would consider any experience of domestic violence that could put the child at risk before such directions were given.

The purpose of the amendment is to fulfil the recommendation made by the Joint Committee that scrutinised the draft Bill, which concluded:

“Prior to ordering a contact activity, the Bill should require the court to consider the safety implications of making such a decision”.

If contact activities are to be safe, the Bill should clearly specify that. I am fairly heartened by the Government’s response to the Scrutiny Committee, in which they said:

“It was always our intention that courts should take into account any concerns about safety when deciding whether to make use of the new provisions in the Bill.”

I am looking for a little more than words outside the Bill; I want words that will be incorporated in the Bill.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I welcome you to the Chair, Mr. Hancock, and I look forward to serving under your chairmanship.

I wish to speak to new clause 5, but I shall first touch on the amendments. The hon. Member for Mid-Dorset and North Poole made some important points on amendment No. 31. We must ensure that the courts consider domestic violence, because the welfare of the child is of paramount importance. That obviously has a bearing in some cases. The hon. Member for Stafford said that safety and good and meaningful contact were complementary, a point made by my hon. Friend the Member for East Worthing and Shoreham on Second Reading. There is a good deal of alignment in our recognition of the importance of domestic violence.

New clause 5 seeks to probe in a slightly different way how to handle the question of domestic violence. It is a difficult issue, but it is important that we consider it; it is ultimately our responsibility to deal with the facts and not to turn away from them. I assure the Committee that I do not diminish the importance of recognising the role of domestic violence in such situations.

The Bill focuses on children’s welfare, which should be the courts’ paramount consideration. It is very much in the interest of children to have ongoing relationships with both parents. Indeed, those words were used in the Green Paper. As the hon. Member for Stafford said on Second Reading, it is important that the relationship with both parents is maintained, as it   is an important part of a child’s welfare. My noble Friend Baroness Morris of Bolton said on Report in another place that

“the best parent for a child is both parents”.—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 254.]

There seems to be agreement that the involvement of both parents in a child’s future is important, yet too many lose contact with a parent after a relatively short time.

When I wound up on Second Reading, some hon. Members questioned the number of non-resident parents who do not maintain contact. On looking further into the matter, there is much discussion outside this place on which figures are right, and whether 40 per cent. of parents lose contact within two years, the figure given by Bradshaw and Millar, or whether it is more. The Minister is doubtless aware of the figures, so I shall not labour that point, but a great number of fathers—I should call them non-resident parents—lose contact with their children after a relatively short time. Indeed, the Bradshaw and Millar report states that within two to three years only 53 per cent. have direct contact with their children once a week. I am sure that all members of the Committee who are parents would think hard about whether they could have a meaningful relationship with their children if they did not see them regularly.

Why do parents lose contact? There are many reasons. Perhaps it is to do with limited contact time; perhaps it is be down to geography or finance, or the bitterness of a family break up. Indeed, it is such cases that are most likely to come to court. However, we know that a third of court applications are associated with safety allegations. That creates delay and tension. Someone who specialises in that area pointed out to me that children are often caught in the middle of such tense and volatile situations, yet 90 per cent. of court orders are granted. I presume that, in the majority of cases, the court finds that safety complaints are not founded on evidence. The Committee needs to consider carefully the result of such a potentially destructive environment on the child’s relationship with the non-resident parent.

Photo of Margaret Moran Margaret Moran Labour, Luton South

Is the hon. Lady aware that, according to CAFCASS, domestic violence is a factor in 66 per cent. of the cases that come before it which are of the type that we are describing?

Photo of Maria Miller Maria Miller Shadow Minister (Education) 5:15, 14 March 2006

My point was that, although such allegations are made, judges are finding in favour of 90 per cent. of cases. In going through the process, they consider the validity of the claims.

I do not underestimate the importance of domestic violence. However, we have to remember the principle, mentioned by my hon. Friend the Member for East Worthing and Shoreham, that people are innocent until proven guilty. We have to be careful. We must ensure that we do not consider guilty those non-resident parents who have been proven innocent.

New clause 5 is all about introducing sanctions to show not only that ungrounded complaints of domestic violence are unacceptable in the eyes of the   law but that they will result in action being taken. While we in no way belittle the seriousness of domestic violence—indeed, our first concern is for the safety and well-being of the child—the figures suggest that there is a problem with the system. Parents know that safety accusations will, rightly, be investigated in full, and often at length by the police and social services, during which time the non-resident parent will be denied access. I have certainly come across examples of that in my constituency, and other hon. Members may have their own.

We propose new clause 5 because that should not be allowed to continue. Any parent bringing a complaint of domestic violence, which is a harrowing situation, should be taken seriously. The actions of parents who make unfounded allegations detract from that seriousness. If the hon. Member for Luton, South (Margaret Moran) feels that the courts are not treating domestic violence seriously or that cases of domestic violence are being overlooked, that is a serious matter, which must be considered. I can look at the figures to see whether there is a discrepancy. If there is, we should recognise it and do something about it.

Photo of Margaret Moran Margaret Moran Labour, Luton South

Does the hon. Lady acknowledge that the courts inspectorate has said that there are serious concerns about the way in which the courts currently presume contact, even when there is evidence of domestic violence in the household and of harm to the child? In cases of domestic violence, there is evidence of contact with schedule 1 offenders. Does the hon. Lady not accept the findings of the inspectorate’s report?

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I believe that that report says that just a small number of people are affected, but I totally understand the hon. Lady’s point. We should be concerned about any child who is put into a dangerous situation. My underlying concern is the well-being of the child. In the vast majority of cases, safety is not an issue, but it is sometimes used by a minority of parents as a way of denying access to non-resident parents, to the detriment of the welfare of the children. Ultimately, we are here to protect the welfare of the children.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Does my hon. Friend agree that the issue is that we do not have up-to-date research data? I was puzzled when the figure of 66 per cent. was used on Second Reading and would be interested if the Minister told us the basis for it. The figures that my hon. Friend the Member for East Worthing and Shoreham came up with earlier were from the latest research by the National Youth Advocacy Service, which showed that 26 per cent. of cases had some relation to domestic violence.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

My hon. Friend makes the important point that we need to keep a careful eye on how the situation changes over time, because it is obviously dynamic. I await with interest the Minister’s response to his request for an update on the figures—particularly the 66 per cent.—because we need to consider the matter carefully. My hon. Friend makes a good point.

Let me return to the issue of parents who bring a complaint of domestic violence. I imagine that it would be harrowing to bring such a complaint, and each has to be treated seriously. However, we cannot allow parents to use the serious nature of such an accusation to flout the court. If allegations are subsequently proven false, that, too, should be taken seriously, and there should be consequences. Those who make false allegations should be subject to sanction, and a false complaint should be considered an aggravating factor in respect of contact orders under the terms of the Children Act.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Will the hon. Lady consider the issue from the other point of view? Women’s Aid and other organisations have done some work on the tragic killings of children by their parents, and there have been some high-profile cases. Tracking back, it became clear that assessment of the risk to children at the point of separation had not been properly undertaken, and that problem has a long history. For a lot of people, the Bill will go some way towards redressing the balance by allowing us to look much more carefully at the risk posed to children and to take that risk seriously.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Again, I stress that I fully endorse the importance of taking domestic violence into consideration when we look at the child’s welfare—that must be part of the piece. Ultimately, we must keep the welfare of the child, rather than the parent, at the forefront of our minds.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

It would be nice if I could finish my thought.

I deliberately did not bring up the number of children who have died in the care of their non-resident or resident parents. If I did, as the hon. Member for Northampton, North (Ms Keeble) knows, I would point out that far more children have died with their resident parent than with their non-resident parent. However, any child death is tragic, and we must work against such things. The important point is that we must keep the child’s well-being at the forefront of our minds. In the vast majority of cases, the child’s well-being will involve both parents.

Photo of Margaret Moran Margaret Moran Labour, Luton South

Does the hon. Lady accept that the statistics that she has just quoted are nonsensical? By definition, the figures for the parent with whom the child has most contact will be disproportionately higher when there is harm to the child. Is the hon. Lady aware that it has already been accepted as part of the Adoption and Children Act 2002 that domestic violence, and even the witnessing of it, have a harmful impact on the child?

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The hon. Lady does not understand my point. I do not disagree with her points or that we must do everything we can to prevent children from being exposed to domestic violence. Equally, however—this is the point that I am trying to make, although I am not sure that Labour Members are picking up on it, so   perhaps I need to make it more clearly—we should not allow the law to be used against the best interests of our children. We would fail in our duty were we to do that and if we allowed the continuing problem of having a number of cases going to court that have safety allegations associated with them, which the court does not see. In some cases, children are denied access to a non-resident parent on issues not found to be sound by the court.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

Does the hon. Lady agree that the introduction of risk assessment in the Bill, if it could be carried out in due time, would address her concern?

Photo of Maria Miller Maria Miller Shadow Minister (Education)

It is important to bring up risk assessment at this stage. One of our amendments would include the importance of parents in the risk assessment’s consideration of the well-being of the child. That was part of the debate that we had on the Childcare Bill a few days ago. Contact with both parents is an important aspect in the welfare of a child and something that we should consider.

I want to get back to the point that we need to ensure that any false complaints are dealt with correctly. I believe that we need to instil in parents an ethos that focuses them on what is best for their children and a respect for the court system. When talking to those who deal with these problems on a day-to-day basis—I mean no disrespect to hon. Members who have made points on the issue—we find that some parents have a fundamental lack of respect for the court system. As Dame Elizabeth Butler-Sloss, who has much knowledge in this area, said:

“It is essential that judges have the necessary measures to ensure their court orders are respected.”

The amendment would improve the Bill and what it will do for children.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I belatedly welcome you to the Chair, Mr. Hancock. New clause 5, which I support, reflects the undoubted problem that some resident parents—I accept that it is a very small minority—use false allegations of domestic violence as a weapon in the contact procedure. There must be something that the Bill can do about that problem. That is not to say, of course, that anybody on this side of the Committee wishes to downplay the effect of domestic violence on children or anyone else. Nor do we deny that it happens, but when false allegations are made the courts ought to have some way to deal with them.

If there is no provision for that, and if new clause 5 does not find its way into the Bill, the currency of domestic violence allegations will continue to be devalued. As long as false domestic violence allegations are made in the course of contact proceedings in order to score points and gain an advantage—we must face up to the fact that that happens in a minority of cases—those who make genuine accusations of domestic violence will find it more and more difficult to have those allegations taken seriously by the courts. That is why those of us who are concerned that genuine cases should be taken seriously and pursued to the fullest extent ought to be in favour of new clause 5. I hope that it has the sympathy of the entire Committee.

Photo of Beverley Hughes Beverley Hughes Minister of State (Children, Young People and Families), Department for Education and Skills, Minister of State (Education and Skills) (Children, Young People and Families) 5:30, 14 March 2006

It is a great pleasure to see you in the Chair this afternoon, Mr. Hancock.

The amendments and the new clause relate to domestic violence. Two of the proposed measures seek to ensure that children and parents are protected in situations in which domestic violence is alleged or is present, and the third seeks to ensure that false allegations of domestic violence do not distort court proceedings.

Amendment No. 58, which was tabled by my hon. and learned Friend the Member for Redcar and moved so ably by my hon. Friend the Member for Stafford, would require a court faced with a case involving domestic violence to order the violent individual to attend a domestic perpetrator programme, and require the Secretary of State to issue a code of practice defining what constitutes such a programme.

I have great sympathy with the amendment. Where domestic violence is proven and places a child who is the subject of a contact order at risk, it is absolutely right that the court should take steps to address the violence. However, prescribing that that is always best managed by referral to a domestic violence perpetrator programme undermines the flexibility that the courts need and that judges have asked for in contact cases. That is true for two reasons. First, every case is different, and what is appropriate in one case might not be the best way of dealing with another.

Secondly, some of the underlying factors that can manifest themselves as domestic violence and need to be addressed can be very different. Domestic violence could be linked to serious alcohol abuse, in which case a domestic violence perpetrator programme would not address the underlying cause—there would need to be a programme designed to address alcohol abuse. Sadly, sometimes the domestic violence is so severe, long-standing and traumatic that no court would want to issue a contact order, in which case there would be no benefit to any of the parties attending such a perpetrator programme.

We must not lose sight of the purpose of contact or of the contact-activity conditions and directions in the Bill, which are intended to facilitate contact between the non-resident parent and the child. The perpetrator programmes in the Bill are intended to be available where violence is affecting contact. Other legislation and practical mechanisms are in place to deal with violence between partners that does not affect their children. I am concerned that the proposed amendments do not have the focus on the child that we have been at such pains to ensure is fundamental to the provisions in the Bill.

I am also wary of drawing up a code of practice setting out what does and does not fall within the category of domestic violence perpetrator programmes. Judges need flexibility to order the kind of contact activity that will address what they believe needs to be addressed in the circumstances. Different types of programme are designed to address different kinds of behaviour. Sometimes, that means violent behaviour, but, as we know, the definition of domestic violence that we have accepted includes non-violent but very controlling   behaviour, financial abuse, and emotional and psychological violence—not necessarily physical violence. Therefore, a range of programmes will be sought by the court to address a wide range of underlying issues and the range of manifestations of violence perpetrated in particular domestic situations. I do not think that it would be easy to define what could be appropriately defined as a domestic violence programme.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I follow the forceful argument that my right hon. Friend is making for flexibility. However, she would not argue, would she, that the programme, class, counselling or guidance session that the court directed could be of a flexible quality or standard? Surely she would want such courses to have a minimum standard. Would she at least agree that there should be some kind of accreditation for the people that those involved will go to and the courses that they will attend?

Photo of Beverley Hughes Beverley Hughes Minister of State (Children, Young People and Families), Department for Education and Skills, Minister of State (Education and Skills) (Children, Young People and Families)

Yes, I would. The organisations that present such programmes, such as the probation service, will have a fairly sophisticated programme of accreditation and training. In order to have an impact, whether through a domestic violence perpetrator programme or a parenting programme, high-quality programmes should have some validity established. In other words, they should have an impact and people should be trained to deliver the programmes effectively.

Amendment No. 31, tabled by the hon. Member for Mid-Dorset and North Poole, would require a court, before it made a contact activity direction, to consider any experience of domestic violence that might put the child or adult at risk, as well as any conflict with a person’s religious belief or with times when he or she normally works or takes part in education. I am pleased to be able to reassure the hon. Lady that the provisions of section 1 of the Children Act 1989 will apply—must apply—when a court considers whether to make a contact activity direction or condition. That means that not only the paramountcy principle but the provisions in the checklist in section 1(3) will apply. The checklist explicitly requires that the court must have regard to any harm that the child has suffered or is at risk of suffering.

The definition of “harm” in the 1989 Act was further clarified by an amendment to the Adoption and Children Act 2002, which now expressly includes the impairment of a child’s development resulting from seeing or hearing the ill treatment of another person. When considering the likely effect of a contact activity, direction or condition, the court must therefore already have regard to any experience of domestic violence that would place a child or another individual at risk.

Subsection (5) of proposed new section 11E will require the court to be satisfied that any proposed contact activity is appropriate in the circumstances of the case. If domestic violence were an issue in a particular case, it would be inappropriate for the court to order the parties to attend the same contact activity. The effect of subsection (5) is to ensure that the court will tailor the contact activity to suit the issues in the case, whether they are about domestic violence or other matters.

We have heard some debate about the figures for the number of cases in which domestic violence features. I can shed some light on that, but I am afraid that it is not definitive. A report produced by the National Association of Probation Officers refers to the number of children who might be affected by domestic violence. The upper figure of 70 per cent. in that report was based on a survey of 300 NAPO cases. NAPO represents those who were formerly children and family court reporters, and are now CAFCASS officers. Only a proportion of total cases are referred to CAFCASS and were therefore referred to in the report, and so the NAPO survey is bound to report a higher incidence. However, I think that that is where some of the figures come from.

Research commissioned by the Department for Constitutional Affairs suggested that domestic violence was at least a factor in almost 25 per cent. of child contact cases. Therefore, the figures vary widely. For that reason, the DCA has instituted research based on the gateway forms that are now being used, in which parties will state, initially with a tick in a box, whether domestic violence is a factor in a particular case. Although we have started to collect data it is too early to draw conclusions, but I hope that we will get some firmer data as a result of the research on the gateway forms.

The hon. Member for Basingstoke (Mrs. Miller) made the assumption that because 90 per cent. of orders are granted despite many allegations of domestic violence, those allegations are false. That is a false assumption, not least because the courts make contact orders in cases where there are domestic violence issues. Where courts feel that such issues do not present a risk to the child, or where the arrangements can be done in such a way that there is indirect contact or no contact at all between the two parties in terms of the handover of a child, they will order contact as part of the arrangements. That does not mean that the court is saying that the allegations of domestic violence are false and that that is the reason for the contact order. They try to make sure that even in circumstances where violence is an issue, where appropriate such arrangements are made if they do not present any risk to the child.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I know that the right hon. Lady did not bring up the figure of 66 per cent., although she has not necessarily demurred from what the hon. Member for Luton, South said on that, but the figures produced in the last academic survey—it was conducted in 2003—showed that incidents of domestic violence were cited in only 22 per cent. of court cases. Therefore, I press the right hon. Lady to examine the figure of 66 per cent. because I fear that we are allowing it to dominate the whole of this debate. While I obviously agree with my hon. Friend the Member for Basingstoke that we should not disregard the importance of that, it is necessary for us to concentrate on the facts rather than on predispositions.

Photo of Beverley Hughes Beverley Hughes Minister of State (Children, Young People and Families), Department for Education and Skills, Minister of State (Education and Skills) (Children, Young People and Families)

I was trying to be helpful by reporting to the Committee the information that we have at our disposal. I pointed out that, in respect of two sources of information, the figures vary very widely. In   one instance, possibly because there was a high concentration of cases in which there were difficulties, the DCA figure I quoted is much closer to that which the hon. Gentleman cites from another source. It is precisely for this reason—that there is no hard evidence—that the DCA is researching the evidence from the gateway forms that we currently have, and I hope that that will give us some harder information.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The right hon. Lady referred to cases where parents have made allegations with regard to safety but the court has made a ruling that that would not have any effect on granting access to the non-resident parent. Surely she has made the point for me, which is that the court has taken heed of the evidence that has been given and, although there may have been safety issues, the court has taken a view that they are not pertinent and relevant to the safety of the child in respect of an order being granted. It would not stop us tabling an amendment such as new clause 5 that would still make those who have made false allegations stand up and take the consequences of something that will have caused not only several problems for the court, but a great many problems for the children and would not have been in their best interests.

Photo of Beverley Hughes Beverley Hughes Minister of State (Children, Young People and Families), Department for Education and Skills, Minister of State (Education and Skills) (Children, Young People and Families) 5:45, 14 March 2006

The issue is not as black and white as the hon. Lady would have us believe. She will correct me if I am repeating her argument incorrectly, but I thought that in saying that 90 per cent. of orders are granted despite many allegations of domestic violence, she was asserting that many such allegations must be false. The court takes a view on the circumstances of each case. Even in cases when domestic violence has occurred, it may still take the view not that it is not pertinent to the case, but that arrangements can be made for the contact to take place in ways that the court will order which ensure that there is no risk to the child. That is different from simply saying that the domestic violence was not pertinent or that the allegations were false. She made a false assumption from the figure.

New clause 5 would require the courts to have regard to false allegations of domestic violence when considering contact arrangements and whether to make an enforcement order under the Bill. As the hon. Lady said, that issue was touched on in the debate on Second Reading. I am sure that we are all united in the view that allegations of domestic violence are extremely serious and that, consequently, false allegations are not only unpleasant and upsetting for the accused parents, but must be dealt with seriously and promptly in such circumstances.

I understand the feeling that has prompted the new clause, but I cannot accept it for two reasons. First, I have a real worry that putting such a provision in primary legislation might inhibit some parents from raising genuinely held fears of domestic violence. While there are cases when allegations are false and raised purely to frustrate contact, sadly there are others in which such allegations are true. Secondly, in another category of cases there might be a genuinely   held belief that the allegations that domestic violence will be perpetrated are true, even though subsequent investigation discovers that the fears are not borne out.

A parent with a genuine, reasonably held fear of domestic violence should not be discouraged from raising such issues or penalised for it. I am worried that the new clause would send out the wrong signal in that regard. For that reason, it is over-simplified to imagine that, in all cases, the court would be able to state what evidence is fabricated for the purpose of the new clause. It is well established in case law that some parties are convinced that, on the basis of past abuse, the other party intends to commit further violence when there is no evidence to support that other than the past abuse.

In 2002, the case of re L established that the genuine fears of a resident parent are a factor to be considered when deciding whether contact is in a child’s best interests. It is also important to remember that it is a function of the court to decide how to respond to false evidence. In any proceedings when a witness gives evidence, some of which the court finds to be false, the court may regard that witness’s evidence as a whole as unreliable. That is a basic legal principle that applies to Children Act proceedings as it applies to any other proceedings. However, it would be wrong to take the further step sought by the new clause and force the court to take particular account of part of the evidence of a witness in certain circumstances.

I hope that I have reassured the hon. Lady, the hon. Member for East Worthing and Shoreham and my hon. Friends that the Bill’s existing provisions provide adequately for the safety of children and that the wider issues of safety have been addressed.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Will the right hon. Lady confirm that she is saying that the only penalty against making a vexatious complaint that is found later to have no substance is that the supposed victim’s later evidence will be treated more lightly than it might have been? Does she not even go along with the proposal that is practised in parts of Australia, whereby a vexatious complaint, be it about domestic violence or a similar allegation, results in the costs of the case being awarded against the vexatious complainant? There is a tangible penalty when their case has not been proven and the complaint turns out to have been vexatious, notwithstanding all other reasons why a complaint may be justified even though the evidence for it may be difficult to prove.

Photo of Beverley Hughes Beverley Hughes Minister of State (Children, Young People and Families), Department for Education and Skills, Minister of State (Education and Skills) (Children, Young People and Families)

We may discuss vexatious complaints later. I shall be corrected if I am wrong, but as I understand it, the court is able to award costs. These courts are no different in that regard, and they are able to award costs in relation to the same circumstances as any other case, including vexatious or repetitious applications to the court. The power is not often used, but it is there for the court to take upon itself.

The hon. Gentleman has consolidated my general point that the courts have open to them the wherewithal to deal with the range of issues that both   sides present to it. I hope that my hon. Friend the Member for Stafford will therefore feel able to withdraw his amendment.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I thank my right hon. Friend for that excellent explanation of why she opposes the amendments.

On amendment No. 58, I said that I appreciate my right hon. Friend’s desire to allow the court the flexibility to make the right decision in the right case. However, when referring somebody for an activity to do with their abusive behaviour, it is important that the quality of the service to which they are referred is adequate. The flexibility to which she referred should not extend to there being a poor course of short duration with someone inadequately trained for such activities.

My right hon. Friend accepts that the training must be of proper quality, but she appears to feel that there is no need for the Bill to say so. I should like to consider that for our debate on Report, but for today, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I beg to move amendment No. 1, in clause 1, page 2, leave out line 14.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss the following: New clause 2—Parenting time plans—

‘(1)The Secretary of State must issue guidance for separating parents called parenting time plans (“the guidance”).

(2)The guidance 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—

(a)child development experts,

(b)the family courts of England and Wales, and

(c)any other person who appears to him to have an interest in the issue.

(4)The Secretary of State may not issue the guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.

(5)The Secretary of State may, from time to time, revise the guidance.

(6)A revised version of the guidance shall 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 disapproves 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 as he considers appropriate.’.

New clause 13—Pre-court dispute resolution and mediation when the safety of the child is not an issue—

‘Before section 8 of the Children Act 1989 (c. 41) insert—“7ADispute resolution and mediation before making a child contact order

(1)The President of the Family Division shall keep a register of mediators.

(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 makes an order under section 8 about contact in cases where the safety of the child is not an issue, it must give a direction requiring each party to attend a meeting with a mediator arranged in accordance with the direction for the purpose of—

(a)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)enabling a timetable for dispute resolution and mediation discussions with a mediator regarding reasonable child contact for both parents.

(5)The parties shall be required to attend the same meeting unless the court considers separate meetings to be more appropriate.

(6)The court may not issue a direction under subsection (4) unless it has issued a parenting time plan to each party, as provided for in section (Parenting time plans) of the Children and Adoption Act 2006.

(7)After a meeting held pursuant to a direction under subsection (4), the parties must attend such a course of dispute resolution and mediation as the mediator considers appropriate.

(8)A party’s failure to attend the mediation will stand on their court record and may form part of the basis on which the court makes an order under section 8.

(9)The mediator must give a certificate when, in his opinion, the parties have—(a)reached a satisfactory solution, or(b)failed to reach a satisfactory solution.

In either event, the parties may then continue with any application to the court for an order under section 8.”’.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

It is important to raise these points, because the Bill specifically states:

“No individual may be required by a contact activity direction ... to take part in mediation.”

That is an important missed opportunity, because mediation is an important tool for resolving disputes between parents. By moving the amendment and removing subsection (6)(b), we could encourage more parents to use mediation as a way forward. If they do not consider it to be a way forward, perhaps the court should take note, because it is not only swifter and cheaper than the alternative, but provides more of a child-centred approach at the beginning of the process. A great deal of evidence from other countries proves that it can give better long-term outcomes. That international evidence points to the success of mediation and I hope that that shows the Minister that the amendment is worthy of consideration.

As the hon. Member for Stafford pointed out on Second Reading, evidence in the US shows clearly that just five hours of mediation can promote sustained contact and an ongoing relationship between parents and children. His contribution demonstrates that there is a general consensus that mediation could be an important way forward. This could constitute an important amendment.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

I have a feeling that it was actually British, not American, evidence. I also made the point on Second Reading that if we cannot make things compulsory, because people want their day in court, we could consider making them routine. Has the hon. Lady now had an opportunity to see the evaluation of the family resolution pilots, poor though they might be? There is a good phrase on page 100 which relates to much more than mediation. It says:

“in practice, however, programmes that acquire strong inter-professional support and become the standard local operating procedure may be almost as effective as compulsory schemes.”

Perhaps if we establish them with a good enough reputation people will use them.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The hon. Gentleman makes an important point. There is a contradiction in terms in that one cannot make mediation compulsory; by definition, mediation requires both parties to be willing to come to the table in a constructive manner. If, as he says, we can make it routine, however, so that it is a generally accepted principle for the operation of the system, that could be an important way forward.

There are other examples of how mediation has created the right atmosphere to produce a good outcome for our children. Florida operates a dual system of parental education classes, supported by intensive contact-focused mediation for less easily resolved cases—again, with much success. The twin approach has been very successful not just in a minority of cases but in those involving serious problems when greater intervention is required.

Given that success, along with that of groups such as Relate and National Family Mediation, we welcome the provisions that move towards the availability of more mediation services, but Conservative Members feel that the Bill has a number of elements—the amendment deals with one of them—that may, perversely, draw people away from the pathway of mediation when they most need it. By removing those elements, the right atmosphere could be created—as the hon. Member for Stafford mentioned—for more routine mediation at the beginning of a court process, or before it is put in place.

New clause 2 provides for parenting time plans to outline the contact orders that the courts are likely to impose should parents be unable to reach agreements themselves. The provision would encourage parents to use mediation services to resolve their disputes amicably and swiftly, and would save people from some of the emotional turmoil, as well as some of the vast sums of money that are spent on litigation and court fees. All of that can only be in children’s best interests, which is what we have focused on throughout the sitting. Parenting time plans help “partners become parents”, a phrase that others have used elsewhere.

Many pressure groups have also mentioned the level of training and expertise that new mediators would need. New clause 13 succinctly addresses that point as well as a number of others relating to the operation of, and training for, the mediation system. Specifically, it   provides for mediators to be registered centrally with the president of the family division and for the president to determine their necessary level of training.

I commend amendment No. 1 and new clauses 2 and 13 to the Committee as ways to encourage a better process in the Bill.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families) 6:00, 14 March 2006

I shall set out what I believe the amendment and the new clauses say. Having had a look at them and heard the hon. Member for Basingstoke, I am a little confused. She will correct me if I am wrong, but I thought I heard her say that mediation cannot be made compulsory. Having read the amendments, however, I think that that is what a couple of them seek to do. No doubt she will sort out my confusion, but if she did say that, and if that is the position of the Opposition, there is nothing between us.

Amendment No. 1 and new clause 13 appear to be intended to promote family mediation, which is a good thing that we would all welcome. They would enable the courts to direct people to take part in mediation as a contact activity, effectively allowing compulsory mediation. That is my understanding.

New clause 2 would introduce parenting time plans, which would guide separating parents toward certain contact arrangements. We have serious concerns about that. The arguments have been rehearsed in another place—we had a brief canter around them on Second Reading—about the effects of compelling mediation. We also have concerns about publishing templates for contact rather than simply encouraging mediation in the strongest possible terms and making sensible orders.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I share the Minister’s concerns about the rigidity of a template, but it must be possible at least to provide a range of examples, perhaps in pamphlet form, to give some guidance. Is anything along those lines available?

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I shall certainly come to that point when I get to the appropriate bit of the amendment.

Amendment No. 1 removes the provision in clause 1 that no individual can be required by a contact activity direction to take part in mediation. Therefore, the amendment intends to allow the court to direct people to attend mediation as a contact activity. I shall not comment on the technicalities, as there is a bit of an issue over whether it would do that, but that appears to be the intention. New clause 2 proposes that the Secretary of State should produce guidance informing parents of the kind of contact order that the court is likely to impose in a range of circumstances.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

My hon. Friend is moving on from amendment No. 1, but I shall make what I hope is a helpful point. Mediation can start a lot earlier than the start of court proceedings, and the Law Society’s very good family law protocol says that where out-of-court independent mediation is readily available, solicitors should consider referring clients to such mediation   before issuing an application at the court. That shows that the pressure is on for people to consider mediation first.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

My hon. Friend is right. To the extent that such matters can be prevented from coming before the court as highly difficult and contested cases, that can only be entirely good for the parties concerned and the children involved. I concur with my hon. Friend: parties certainly should not wait until they get to the door of the court before they consider mediation, and there are various forums in which mediation can be sought earlier. I do not think that anybody on the Committee would suggest that encouraging that would be a bad thing.

On new clause 2, I was trying to say a little bit about our concerns about giving courts or parents the impression that they should try to adhere to templates. Obviously, it is a basic fact that the court must be allowed to consider what is best for the child in a particular case, in accordance with the paramountcy principle, and to order accordingly. It would not be helpful for us to create the perception that people are being pushed in a certain direction or that the circumstances pertaining to individuals’ cases will not be given due consideration because some multiple choice between a set of potential orders will be ticked by the relevant judge at the relevant time.

It would look a bit odd if the Executive laid down what the judiciary should do, which would be the consequence were the Secretary of State to produce guidance in the way suggested. That is a minor constitutional point, but none the less, it would look a little odd. That said, we recognise how important and critical it is that parents in difficulty do not feel that they are on their own and do feel there is support for them.

Parenting plans, which have been available for a number of years, have been produced and updated following extensive consultation, not only with parents, but with young people and stakeholder groups. Copies of the updated version are available from the Library and have been for a number of weeks. They contain case study examples of the kind of orders that might be made for certain, frequently occurring, situations. However, they do not attempt to impose a standard approach or suggest that parents in one situation ought to go for an X order, or if in a different situation, a Y order. Instead, they offer helpful advice by highlighting a range of issues that may be considered when contact arrangements are made and, we hope, agreement and conciliation are reached in order to make those arrangements.

As I said, parenting plans showcase examples and provide a comprehensive set of contact details of advice agencies, should parents want to seek additional help. That is a more constructive and non-coercive way of providing the kind of assistance that I am happy to accept lies behind the amendment proposed by the hon. Member for Basingstoke.

New clause 13 would make mediation compulsory before the court makes a contact order in cases in which safety is not an issue. It would also, somewhat oddly, require the president of the family division to   regulate the mediation profession. I am not sure whether he would be interested in doing that, or whether the profession would be interested in having him do it. None the less, the new clause requires the court to direct parties to attend a meeting with a mediator before making a contact order when safety is not an issue

Clearly, there is an option for parents trying to get a contact order to have mediation. I think that everybody on the Committee would encourage them to do so. The Bill gives the court the power to require attendance at a meeting with a mediator through a contact activity direction, and we have taken steps elsewhere to offer the strongest possible encouragement to mediation. However, there is an issue about whether compulsory mediation is possible or desirable. Subsection (8) of the new clause suggests that a party’s failure to attend mediation—making the mediation compulsory—would be recorded in the court file and form part of the case evidence.

That raises some serious human rights issues, because it is established in case law that penalising a party for refusing to attend mediation, as the new clause suggests, is contrary to the right of access to the courts. We would be concerned about going that far, although it is of course normal practice for courts to consider the history of a case when deciding what order to make, including whether the parties were able to mediate. However, to formalise mediation as evidence in such a way would raise additional human rights concerns about access to the courts.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Notwithstanding what the European Court of Human Rights has to say, does the Minister agree that the system, as it stands, gives no real incentive for a partner to agree to mediation? One partner might come full of good will and say, “Yes, I am prepared to go to mediation”, while the other might say, “Under no circumstances will I go down the mediation route”. That would scupper the whole thing. Does she agree that there should be some system by which the partner who has shown good will to try to progress a solution should be advantaged by some recognition in the court system, while the other, who has frustrated it, should not come out on an equal basis?

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I understand the hon. Gentleman’s point, but I am not convinced that it is helpful in extremely difficult cases specifically to advantage or disadvantage someone who does not agree to mediation. Mediation by its very nature requires both parties to accept responsibility to attempt to come to an agreement. We hope that that would be the case in many instances, and indeed it is, but to penalise a party for not accepting mediation is a different issue with other implications.

There are two strong objections to compulsory mediation. There will always be some contact cases in which mediation is unlikely to be of benefit. That might be because the parties are implacably opposed or in considerable conflict to such a degree that it will   just never work, however long it is tried. In such cases, it would just be another way in which the battle goes on. In such circumstances, the compulsory requirement for mediation would simply lead to delay because it would not deal with the real issues or take into account the reality that there would not be working mediation.

There are slightly more subtle cases, where one party feels bullied or oppressed in some way, or pressurised by the other party. People must be given the choice of whether they want to sit in a room with another person to reach agreement on the issues, or whether they prefer to go to court. At the end of the day, that choice must be theirs, which is one serious objection to the compulsion included in the new clause.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I still think that the Minister is avoiding the subject. We all agree that mediation is a preferable route. We have all based our arguments on the foundation that if partners are willing to go to mediation and meaningful mediation takes place, it must be in the best interest of the partners and the children as well as expediting the time taken. The alternative is a long, drawn-out court case. If we recognise that mediation is the preferred option, which is why the Government have included such clauses in the Bill, then, in the scenario I cited, we must give some recognition to the partner who agrees to go along with it. If one partner is not prepared to go along with it, he or she will have to have a good reason why, which should be attached to the reporting mechanism and taken into account by the court.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

We are talking in the context of a new clause and amendments that deal with compulsory mediation, and the hon. Gentleman seems to be saying that there ought to be punishment for not complying properly with that. That may well be his view, but the court is there to sort out contact arrangements in the best interests of the child, not to get sidelined into dealing with the dispute between the parties in the way implied by what he suggests.

The hon. Gentleman may not like to accept it, but there is an issue about the right of access to the court, which is set out in article 6 of the European convention. People need to be able to access the court, and if we are saying that one cannot do so without mediation, or that one must first go through a certain process that will delay results, we must consider such factors in respect of whether mediation should be compulsory. I agree with the hon. Gentleman that we all say that mediation is a good thing, but we are talking about whether it should be compulsory and whether parties should be compelled to mediate regardless of whether they want to.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough 6:15, 14 March 2006

I am puzzled by the perverse line the Minister is taking in setting her face against our amendment, given that she is coming up with anecdotal evidence, while my hon. Friend the Member for Basingstoke is looking at real studies undertaken internationally.

I also think that the Minister is not considering the context. We are dealing with the 10 per cent. worst, most difficult and intractable cases before the family courts. On that basis, my party believes that it is important to consider the whole of the issue of mediation. I finish by noting that the voluntary situation demonstrably failed when it was tested in the family resolutions project.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I cannot remember the beginning of the hon. Gentleman’s remarks, as they were so long.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

We will not get him to repeat them.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

No, I would not want to encourage him to do that.

The issue is whether mediation should be compulsory. It is an important but narrow point. The hon. Gentleman thinks that compulsory mediation would work, but I have grave doubts about that. Perhaps it would assist him if I were to explain that there are some incentives in that direction. For example, parties who are publicly funded—60 per cent. of parties to contact disputes are so funded—must comply with the mediation requirements of the funding code to get funding. That prevents public funding from being granted until a mediator has assessed whether mediation is suitable, and, if so, engaged the parties in a course of mediation. That is not quite compulsory mediation, but it is an incentive and a push in the direction that the hon. Gentleman recommends.

When the parties issue an application for a contact order, they are highly likely to undergo in-court conciliation. Some parties may have already attended voluntary mediation at an earlier stage. Perhaps their solicitor sent them on a course before he issued the writ in the court; that is certainly what some of them would do. Forcing every party to contact proceedings to undergo yet another series of meetings would, in many cases, simply add to the delay and frustration caused in such disputes.

The most intractable cases are likely to be unsuitable for mediation and least likely to benefit from compulsory mediation, as they are much more likely to fail. We would get into the situation of punishing parties instead of trying to deal with sorting out the contact in the best interests of the child.

There is no consideration in the amendment for applications for contact orders when the parents have already agreed arrangements negotiated by their solicitors and simply want the court to make the consent order legally binding. It would seem daft to order mediation for such people, who would no receive no benefit at all.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The Minister is generous in taking interventions. Is she not in effect backing our point by saying that the most acrimonious 10 per cent. of cases are the most acrimonious because the two partners have not engaged in any sort of reasonable mediation process earlier on? They are the most inexperienced in the advantages that a mediation process may bring to them and are therefore the ones who need to be   compelled to a greater degree to take the mediation route, often for the first time. Such people would benefit from mediation the most, not the least.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

The hon. Gentleman uses the word “acrimonious”. The key point is that acrimonious is a somewhat mild description of some of these cases. There is a question as to whether acrimony at that level can be dealt with by forcing parties to do something that one or other of them does not want to do. It could make things worse.

We have a slight difference of opinion, although there is no difference of opinion about the fact that mediation is a much better way forward than contested court proceedings, if it can be made to work.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Does the Minister not think that there is a chicken and egg situation here? If the process does not set the right tone, people approach it in a more acrimonious way, whereas if we were to change the process and evolve to make it more conciliatory from the outset, those intractable mindsets—the acrimony that the Minister referred to—would in some way be abated.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

The hon. Lady is probably right. There probably are a chicken and an egg somewhere, but I am not quite sure where. We do not seem able to agree on whether mediation, which we all agree is good, should be made compulsory or even whether it can be made compulsory because it requires some engagement by the parties. I suspect that it is not worth my trying further to convince Opposition Members that they are wrong and that I am right.

Photo of Ann Coffey Ann Coffey PPS (Rt Hon Alistair Darling, Secretary of State), Scotland Office, PPS (Rt Hon Alistair Darling, Secretary of State), Department for Transport

I was trying to think how mediation might work and imagining that the Conservative party had members who hated each other, which made their party dysfunctional, so they decided to force them into mediation. I invite Opposition Members to consider how effective that would be. Does my hon. Friend agree that there is a serious misunderstanding about the basis on which mediation can progress? There has to be a willingness at the start to mediate and to engage in order for it to be successful.

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I agree. I will not be drawn to speculate which members of the Conservative party my hon. Friend is thinking of. There is a difference of opinion and I hope—

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

May I help? I can think of mediation that has been successful. We went through a mediation process that was called the leadership election; everyone was very happy with the result. The Minister’s party does not seem to have taken that route.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

Rather than chicken and egg, the metaphor of taking a horse to water is more appropriate to the debate on whether compulsory mediation would work and the horse could be made to drink. I agree with   the Minister in that respect. The evaluation of the family resolutions pilot project has some sad conclusions and is very disappointing. It mentions such things as therapeutic mediation and scene setting. Will it not be crucial to give strong leadership and guidance on the importance of mediation?

Photo of Maria Eagle Maria Eagle Parliamentary Under-Secretary (Department for Education and Skills) (Children and Families)

I agree with the hon. Lady. There is probably no disagreement in the Committee about the importance of trying to facilitate mediation when that is possible. The only disagreement is whether making it compulsory will work and whether it is possible, given the situations that we are discussing.

I will wait to see whether I have convinced Conservative Members. I suspect that the hon. Member for Basingstoke will say that I have not done so.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I am rather disappointed with the Minister’s response to the amendments, which were tabled to be helpful and to try to improve a process that clearly is not working. She talked through the situation as it is, but I feel that our role is to look at the situation as it should be. Our aspiration should be to improve the situation, not just to accept that things will continue as they are.

The Bill sets the tone for the way in which all the processes are dealt with. To ensure the best outcomes for children we should adhere to the objective of maximising the welfare of children, and try to improve things. We must have a higher aspiration than merely accepting the way things are.

We need to focus on the children and do as much as we can to stop these cases coming to court; the amendments, especially amendment No. 1, were tabled to try to achieve that. It may be a pedantic argument, but we are talking not about compulsory mediation but about routine mediation that becomes part of the process and is accepted practice, which may well take the sting out of the tail of some of the acrimonious discussions. There is ample evidence to show that where mediation is in place we can achieve a change in mindset. I simply do not accept the Minister’s thinking that a mindset cannot be changed.

I was also rather concerned that the Minister felt that, in many instances, we could prejudge the appropriateness of mediation. Just because two individuals are apparently at loggerheads or finding it difficult to resolve issues does not mean that ways forward cannot be found with a skilled mediator. It would be tragic if we did not do all that we could to find a more productive way forward. Therefore, I am not minded to withdraw the amendment; I would like to press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Division number 1 Nimrod Review — Statement — Clause 1 - Contact activity directions and conditions

Aye: 3 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Amendment proposed: No. 2, in page 4, line 4, at end insert—

‘( )Before making such an order, the court must consider the time by when the specified contact activity can be provided by the person proposed as the provider and shall specify the period over which the contact activity is to be provided.’.—[Tim Loughton.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division number 2 Nimrod Review — Statement — Clause 1 - Contact activity directions and conditions

Aye: 4 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.