Clause 4 - Enforcement orders

Children and Adoption Bill [Lords] – in a Public Bill Committee at 9:00 am on 16 March 2006.

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Photo of Margaret Moran Margaret Moran Labour, Luton South 9:00, 16 March 2006

I beg to move amendment No. 34, in clause 4, page 7, line 22, at end insert—

‘(3A)In deciding whether a person had reasonable excuse for failing to comply with a contact order, the court shall consider

(a)any objections from the child about the contact arrangements, and

(b)the behaviour of the contact parent.

(3B)No court may make an enforcement order as regards a person in breach of a contact order unless,

(a)it has considered an assessment of the risk to the child concerned and of any person with whom the child has his home, and

(b)it is satisfied that the safety of the child of any person with who the child has his home will not be compromised by making an enforcement order.’.

May I say how pleased we are to be here at this early hour and under your firm guidance, Mr. Hancock?

It might be useful to remind ourselves that the context in which we are discussing enforcement orders is based on reports rather than anecdotes. According to a report by Her Majesty’s inspectorate of court administration, the evidence shows that there is such a strong presumption of contact with both parents that concerns about safety and risk to the child are overridden in practice. It is therefore important to ensure that the Bill makes the safety of the child   paramount throughout the Bill. I welcome the statements by Ministers on Second Reading to that effect.

However, there are concerns that the paramountcy principle in clauses 4 and 5 is not sufficient and needs to be reinforced. We also know from research evidence that the point of separation and the point of enforcement of contact are the most dangerous times for both parent and child. Therefore, it is incumbent on us to ensure that we safeguard children at those points in the separation proceedings. The amendment would ensure that when the courts consider reasonable excuse, they take into account the risk to the child and others, the behaviour of the parent and, most importantly, the views of the child.

The Government stated in “Parental Separation: Children’s Needs and Parents’ Responsibilities”, produced by the Department for Education and Skills and the Department of Trade and Industry, that contact arrangements that put the safety of the child or the resident parent at risk should not be put in place. The amendment aims to express the Government’s intention in legislation, bearing in mind that children have been killed by violent parents—fathers predominantly—as a result of contact arrangements ordered by the courts in England and Wales.

Sturge and Glaser, who provided expert advice on child contact and domestic violence for the Court of Appeal in re L, V, M and H 2000, emphasised that children should be listened to and taken seriously. Indeed, that view was reflected in the Adoption and Children Act 2002. The relevant clause in that Act has not so far been enforced. The issue is particularly important if the child is frightened and does not want to see a violent or abusive parent. To enforce contact in such circumstances could itself be regarded as a form of abuse to the child.

The amendment would also require the court to take account of the behaviour of the contact parent, including any risk they present to the safety of the child or the other parent. As I said, during the contact period and the point of the enforcement order, the child or parent is most at risk of violence. In the Government’s reply to the report from the Joint Committee that scrutinised the Bill, they stated that reasonable excuse

“could of course include genuine concerns about safety, either of the child or of the parent”.

The amendment aims to express that intention in legislation and to ensure that contact is not enforced in cases where domestic violence is likely to endanger the child, the non-abusing parent or any other family member.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

One of the main provisions of the Bill is to increase the power of enforcement, which we all agree is important within the overall context of ensuring children’s safety, but we should also always consider children’s welfare, which is a broader issue.

Proposed new subsection (3A) deals with what constitutes a reasonable excuse. Opposition Members are concerned about whether the court should be given directions on what might constitute such an excuse.   Paragraph (a) of the proposed subsection would involve children in that consideration, but if the court has to look to them to endorse an excuse made by a parent, they may be put at risk or in a difficult situation. We question whether that is in line with the paramount welfare of the child. Is it in the child’s best interests to be in that situation?

Paragraph (b) proposes that the courts should take the behaviour of the parent into consideration, but that is a broad requirement. How will the court do it? Will the expression on the face of a parent be taken into consideration as behaviour? Must the behaviour be toward the child or someone else in court? We think that it is probably best for the court to define what is a reasonable excuse, in the normal way.

Proposed new subsection (3B) suggests that there should be a risk assessment if a court order has been breached and enforcement is required. However, there is a tautology in the amendment. Lord Adonis pointed out in the other place that, in making the original contact order, the court will have undertaken a thorough evaluation of what is in the paramount interests of the child, and in that evaluation safety would be an important issue. Risk assessments are already undertaken if, at any time, a Children and Family Court Advisory and Support Service officer has cause to suspect risk of harm to a child.

The hon. Member for Luton, South (Margaret Moran) will say whether I am wrong, but the amendment assumes that when an enforcement order is needed, child safety is always the overwhelming concern. That does not seem to be borne out by the facts, as we have already fully debated. We all agree that the welfare of the child is of paramount importance, and within that safety is a vital element, but a speedy resolution of problems is also in the child’s best interests. It is important that contact with a non-resident parent is put in place speedily when an enforcement order is made; we should not build in delays, as the amendment may do.

Clause 7 already contains adequate provisions on safety, and our view is that the amendment may cause enforcement of contact orders to be erroneously delayed without good reason, which is not in the best interests of the child. For that reason, we do not support the amendment.

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

I am disappointed with the Opposition’s response, because it is vital not to lose focus on the paramount importance of children’s welfare as soon as there is a problem between parents. As a result of the way in which the Bill is drawn, the court might take a lesser interest in the welfare of the children when focusing on the behaviour of the parents. It is vital that we do not let the notion of children’s welfare as the paramount consideration become eroded. That is why I support the amendment very strongly.

Photo of Maria Miller Maria Miller Shadow Minister (Education) 9:15, 16 March 2006

Perhaps the hon. Gentleman could give a little more detail on how he thinks the Bill erodes the safety of the child. I do not follow his argument.

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

Certainly. In any section of the Children Act 1989, and anywhere in the Bill except clauses 4 and 5, the welfare of the child is paramount. If there is any risk of harm to the child, the court should be alert to that and take steps to protect the child. It may suddenly be faced with an enforcement problem because, for example, a mother who does not live with the child demands contact and has a court order saying there should be contact. She may complain that the dad has not allowed the contact, and she will want the order enforced.

I am concerned that in such cases the Bill says that the welfare of the child is a consideration, but not the paramount one. I am worried that people will focus on whether dad was reasonable on the day when he did not allow contact, or whether he should be punished by ensuring that there is contact. There is an amendment to be considered later about compensatory contact, as if contact were a matter of reward for an innocent parent against a guilty one. That is absolutely the wrong approach.

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

When the subject was discussed in the Committee that considered the draft Bill, I was slightly confused. My understanding of an enforcement order is that a court decides whether to make the parent do a period of unpaid work or to send them to jail. When we discussed that, we considered the way in which magistrates interpret the law. For example, the paramountcy of the child cannot be the major consideration at that time, otherwise no parent of any child would ever be sentenced. I remain slightly confused.

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

I recognise my hon. Friend’s concern; it is one about which I feel very strongly. The courts are reluctant to impose either of the existing enforcement powers—fines or going to prison for contempt of court—because they foresee a harm to the child. If they take away the caring parents’ money, the child’s care suffers. If the parents are taken away to prison, the child suffers. We politicians have been casting around for another punishment that the courts can apply to ensure compliance.

I very much support the idea of unpaid work. It is a really neat way of bringing home to people that they must obey court orders. I am all for standing up for the authority of court orders, and children should be brought up to believe that we should all obey court orders. It is not in a child’s best interests for a parent to say, “I am breaking court orders because I’m putting my interests before yours.”

I am all for unpaid work, but enforcement should not be about making contact take place—after all, we are talking about enforcement of the court order, however the punishment or the means of making the parent take account of it is phrased—so that the court order is effected. I am concerned about forcing contact between a child and a parent when issues regarding that child’s safety may have arisen during the proceedings which were missed by risk assessment on day one of the court case, and a parent, or the child themselves, has made them known to people in connection with the case.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The hon. Gentleman is surely aware that a concern about a child’s safety can be raised and will be investigated under other clauses. Perhaps he is concerned that the child’s safety is not adequately dealt with in contact orders. I was not aware of that before; it is something that is considered in great detail when contact orders are initially put in place. If further concerns come to light after the contact order is put in place, CAFCASS officers may be informed, and a risk assessment undertaken, which can then be taken into consideration. I am still striving to find where the problem is in the process.

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

I return to the same point: the court order has been made at some point in the past, there is a dispute about whether it has been complied with, and enforcement proceedings take place to make a parent comply. That does not imply any further application to change the existing order so that the child’s welfare becomes the paramount consideration again, unless we amend the Bill to ensure that it is clear that the child’s interests are paramount even at the enforcement stage. If we leave the Bill as it is, there may not be another opportunity before something terrible happens.

In any other situation, the child’s interests would be paramount. I have mentioned the UN convention on the rights of the child. Article 3 says:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The court proceedings relate to a child, and the child’s interest should be paramount. Contrary to what the hon. Member for Basingstoke (Mrs. Miller) said, it is perfectly reasonable for the court to have regard for the wishes, views and expressions of interest of children who are the subject of enforcement proceedings.

There is a very good briefing, which I hope we have all received, from National Family Mediation. It makes clear that seeking children’s views is a core activity of its mediators, and that it does not imply any harm to or difficulty for children. Although some people go further than I would—perhaps a bit too far, by saying that in any such proceedings, children should be separately represented in court—we should expect the children’s interest to be ascertained by someone. It might be the CAFCASS officer, a child’s advocate—a citizen’s advocate, not a lawyer—who represents them in proceedings, or a lawyer by separate representation in the proceedings. All those options could be considered to find the right one with which to proceed.

In moving the amendment, my hon. Friend the Member for Luton, South mentioned the Government’s response to the Joint Committee’s report on the draft Bill. She mentioned the first part of the Government’s response in paragraph 14 on page 4, which says that an excuse for not complying with a court order

“could of course include genuine concerns ... either of the child or of the parent.”

That was the quotation. However, the next sentence says:

“In response to the concerns raised, we acknowledge that a more explicit signal of this is needed, and will consider how best to ensure that this is clearly understood.”

I look to my right hon. Friend the Minister to give a more explicit signal of what is needed.

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

I support the general principles behind the amendment. Proposed new subsection (3A)(a) is right to ensure that we ascertain the views of the child—obviously in proportion to age and maturity. We must establish best practice for the way in which the wishes and feelings of the child are ascertained. There might be the fear that one parent was manipulating the child to give a particular view, and the caveat that we must develop best practice is vital. It is ridiculous to enforce something that distresses the child come what may. If there is manipulation, we still need to get behind what is distressing the child to try to address it in some other way. It is important to work towards that with the amendment.

On proposed new subsection (3B)(a), we must ensure that the Bill has the right balance and checks. In a recent constituency case, of which I shall not give full details, contact was allowed some time ago, within the mother’s premises. I have heard only one side of the story, but I do not doubt that the mother is terrified about the contact and what is going to happen. There has been an enormous time lag in getting the matter back to court, and the concern is either that the risk might not have been ascertained properly, and would not have been even with the new provision in clause 7, or that the domestic violence may occur during the stressful time after the break-up. I do not accept that the problem is always one of child safety. I just want to ensure that there are sufficient checks because harm could come to the child who witnesses violent behaviour while waiting months and months for the case to return to court. I want to get the right balance.

I am concerned about game-playing, with children being piggy in the middle and mothers or fathers being deprived of seeing their children. In the case that I mentioned, I could imagine the child being seriously injured mentally, if not physically. The amendment is important and contains important principles.

Photo of Margaret Moran Margaret Moran Labour, Luton South

I am disappointed with the response of the hon. Member for Basingstoke, but not with that of the hon. Member for Mid-Dorset and North Poole (Annette Brooke), who was supportive. I fear that the hon. Member for Basingstoke is wrong on two counts. The paramountcy principle is reduced in clauses 4 and 5, and the courts are required to take into account only those things that pertain to risks to the child, not to enforcement. If the paramountcy principle is important, we must ensure that it runs throughout the Bill.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

The hon. Member for Luton, South indicated that she wanted to come back on that point and I thought that she wanted to clarify the position to make it easier for the Committee to understand. I hope that the Committee accepts that. She will, of course, have a chance to wind up after the Minister has spoken. I hope the Committee accepts that the hon. Member is trying to be helpful.

Photo of Margaret Moran Margaret Moran Labour, Luton South

I was going to be brief because the Minister wants to respond.

I want to clarify two points. First, the paramountcy principle does not run throughout the Bill. Secondly, the hon. Member for Basingstoke referred to the potential danger to the child of giving evidence at that point. That issue was dealt with in previous legislation when we introduced protection for vulnerable witnesses. The principle that children are able to give evidence and to give voice to their concerns has also been accepted in the Adoption and Children Act 2002.

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 know that my hon. Friend always tries to help the Committee and that she has done a great deal to ensure that safeguarding children, particularly in situations of domestic violence, is taken seriously by the Government when formulating legislation and policy. She is very knowledgeable on that matter.

We have had a good debate in which the concerns on both sides of the argument have been aired in one way or another. The purpose of the amendment is to ensure that the court takes full account of safety considerations for both the child and anyone with whom the child is living when making an enforcement order. When determining whether a person has reasonable excuse for failing to comply with a contact order, it would require the court to consider any objections the child may make to the contact arrangements and the behaviour of the non-resident parent. The amendment would prevent the court from making an enforcement order unless it has considered a risk assessment in respect of the child and any person with whom the child lives, and is satisfied that the safety of the child and any person with whom the child lives will not be compromised by such an order.

The amendment raises the question of at what point the court must consider those serious issues relating to contact. The aim of the enforcement provisions is to ensure that the contact that the court has already judged to be in the best interests of the child takes place. Clause 1 requires the court to take into account the child’s ascertainable wishes and feelings and any harm that they are at risk of suffering before it makes a contact order. As well as the new provisions to enable risk assessments to take place, additional measures, such as the new gateway forms and the case law requirement that courts hold finding-of-fact hearings if there are allegations of harm, will ensure that safety can be addressed at any point before contact is ordered. The main problem with the amendment is that it would reopen the welfare issues that will have been fully considered when the contact order was made.

There are numerous ways in which the views of the child may come before the court. When the contact order is made, the court will have ample opportunity to address the wishes and feelings of the child and any safety concerns. We expect that contact orders will fully take into account all those issues. The question then becomes what happens if the court’s carefully considered and constructed contact order, which was decided in the best interests of the child’s welfare, is breached. At that point, it would not be right automatically to open up some of the issues that the court will already have addressed in making the contact order, which is what the amendment would do.

Notwithstanding that, and as a safety measure, the Bill provides that an enforcement order may be made, but only if there was no reasonable excuse for breaching the contact order. The amendment would impose on the court specific factors that it must consider when deciding whether there was a reasonable excuse. As I said, the child’s wishes and feelings about contact will already have been addressed. The behaviour of the non-resident parent may or may not be relevant to the case. If it is relevant, the court will consider it, but it will not be relevant in many cases. For example, the resident parent could argue that the car broke down, or that the child was ill and could not attend, and would have a reasonable excuse, but such excuses would not have anything to do with safety issues. Therefore, it is unnecessary to require the court to consider the behaviour of the non-resident parent in every circumstance.

Proposed new subsection (3B) would require the court always to consider a risk assessment before making an enforcement order, and to be satisfied that the enforcement order would not compromise the safety of the child. However, it would be too onerous on the court and would constitute considerable delay to require a risk assessment every time the court seeks to make an enforcement order, as many contact orders will be breached for reasons that have nothing to do with the safety implications of the order.

The Bill provides sufficient protection for those cases where safety issues arise. First, the requirement that the court cannot make an enforcement order if there is a reasonable excuse for breaching the contact order means that the court is bound to take into account the resident parent’s concerns for her safety or the safety of the child.

Secondly, the court is required to consider the likely effect of an enforcement order on the person against whom it is made, including considerations of that person’s safety. Thirdly, the court must ensure that the enforcement order is proportionate to the seriousness of the breach and that it will make contact work. Those requirements would not be met if the enforcement order forced one parent, or the child, into a dangerous situation.

Fourthly, the court must take into account the welfare of the child when making an enforcement order. My hon. Friends the Members for Luton, South   and for Stafford (Mr. Kidney) believe that at this point the welfare of the child should be of paramount importance, whereas in case law judges have taken the position that the welfare of the child is a material consideration but should not be paramount. I cannot explain the reason for that better than my hon. Friend the Member for Stockport (Ann Coffey) did. The issue for the court is to make enforcement work.

Everyone is agreed that the orders give the courts a range of responses to non-compliance short of those available through contempt that they are more likely to be able to use, because fines and imprisonment are not used routinely but for good and understandable reasons. There is a danger that if we make the welfare principle paramount in relation to a child’s short-term distress, for example—a matter raised by my hon. Friend the Member for Stockport—the courts might feel constrained in implementing the very orders that we want to be at their disposal.

My hon. Friend the Member for Stafford said that the welfare of the child is paramount in all parts of the Children Act 1989, and it is certainly the pervading principle of that Act, but it actually states that welfare is paramount in any question relating to the child’s upbringing. The clause is concerned about the enforcement of contact that the court has said is in the child’s interests, but it is not predominantly and in a paramount way about upbringing.

Finally, and most importantly, the effect of clause 7, which was added to the Bill in the other place, places a duty on CAFCASS to undertake a risk assessment whenever it has cause to suspect that the child concerned is at risk of harm. That duty must be exercised at any point in the process, including when enforcement orders are under consideration.

My hon. Friend the Member for Luton, South referred to section 122 of the Adoption and Children Act 2002, which provides for the representation of children in public law proceedings. I appreciate that there is a strong wish for the rules to be made under that rule-making power. We intend to proceed in that direction but we need to consider the outcome of research into the operation of rule 9.5 of the family proceedings laws to inform our consideration.

I hope that I have reassured my hon. Friend that I do not dismiss the serious matters she has raised. However, at this point in the process it is important, first, to allow enforcement orders to proceed, and, secondly, to ensure that there are sufficient levers in the provision for the court to consider safety considerations fully at that point if necessary. I therefore hope that my hon. Friend will ask leave to withdraw the amendment.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs 9:30, 16 March 2006

I quoted from the Government’s response to the Joint Committee report, which stated that they believe that concern about the safety of a child could be a reasonable excuse and that they

“acknowledge that a more explicit signal of this is needed.”

Is my right hon. Friend’s speech the additional signal or will there be something else?

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 apologise to my hon. Friend; perhaps my response to his question should have been clearer. We have considered the matter carefully and, as I said, we feel that the provision for CAFCASS to undertake a risk assessment at any time is satisfactory. The Bill is clear that if issues of domestic violence were to arise at that stage they can be a reasonable excuse. I am happy to state that in Committee and I hope that it is sufficient for my hon. Friend.

Photo of Margaret Moran Margaret Moran Labour, Luton South

I thank the Minister for her comprehensive reply, especially her response in respect of domestic violence. However, I am rather disappointed that she does not think that there is a need for further clarification in clauses 4 and 5 that the risk to the child should be of great importance to the court. Although the inclusion of clause 7 in the other place and the reference to the court’s need to take into account the risk to the child was important, we want to strengthen the intention so that that risk should be taken into account at all stages of the proceedings.

The hon. Member for Mid-Dorset and North Poole said that it is possible that, although a risk assessment has been carried out at the outset, at that stage for a variety of reasons issues of domestic violence have not been brought into the proceedings or domestic violence has not occurred. Domestic violence may well occur during the long period between the initial risk assessment and the point at which contact is enforced. As has been described, the problems in the separation process may come to a head during the contact proceedings. Domestic violence may occur at that point and pose a risk to the child.

It seems strange and somewhat perverse that we are not reinforcing the message that at the point of most danger to the parent and child, according to all the research, the courts should seek to carry out a further risk assessment. As has been said, the processes that we are discussing can take a long time. After the initial point at which the court hears the risk assessment, it can be a very long time before contact is enforced. It is therefore possible that the risk to the child will become greater during that period. It would be helpful for the courts to carry out a further review of the risk to the child at the point of enforcement.

However, I accept the assurances given by the Minister. We hope that, in the course of the research that we have been told will be carried out in the Department, this issue particularly is reviewed, so that we can, if necessary, assure ourselves that the procedures in the Bill will ensure the safety of the child throughout the contact proceedings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move amendment No. 49, in page 7, line 25, at end insert—

‘(4A)When considering whether to make an enforcement order, the Court shall have regard to the principle that, subject to the welfare of the child, the court acts on the presumption that a child’s welfare is best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss the following: New clause 8—Presumption in favour of co-parenting—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child’s welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”’.

New clause 11—Reasonable contact—

‘In section 8(1) of the Children Act 1989 (c. 41), for the definition of “a contact order”, substitute—

““a contact order” means an order requiring the person with whom a child lives, or is to live, to have reasonable contact with the person named in the order in the absence of good reason to the contrary and subject to section 1(1A) of this Act.”’.

New clause 12—Reasonable contact: no order principle—

‘After section 1(5) of the Children Act 1989 (c. 41) insert—

“(6)The “no order” principle in section 1(5) shall be construed subject to section 1(1A) of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”’.

New clause 18—Provision as to family assistance orders—

‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child’s interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

New clause 19—Presumption of reasonable contact—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child’s interest are best served through reasonable contact with both his parents in the absence of good reason to the contrary.”’.

New clause 20—Reasonable contact: welfare checklist—

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

“(h)the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.”’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I am tempted to call “Bingo”, given the number of different amendments and new clauses that we are lumping together at this point. They are on a general theme. As I suggested in our proceedings on Tuesday, this group deals with many of the principles at the heart of the Bill with which we argue.

The initial point about clause 4, which relates to enforcement orders, is that it is slightly bizarre that, rather than seeking to make the system for contact work, because as we know it does not in too many cases, the Government are seeking to introduce punitive sanctions for its not working.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs) 9:45, 16 March 2006

The hon. Gentleman mentioned that there has been too many cases. It has been bothering me throughout that although we are in the process of reconsidering the law and coming to the point at which we have the new law, we do not have   facts; we are still waiting for the research. Does he know that there are vast numbers of cases in which there have been problems?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I shall cite the figures for the number of contact applications and how that has mushroomed. In 1992, there were 17,470 contact applications; in 2004, that figure went up to 70,169. That is an enormous increase in the number of contact applications, reflecting an increase not in the population or in the number of people getting married and having children but in disputes in families splitting up over what happens to their children. Almost a quarter of those cases were repeat applications, one third of which were the result of enforcement issues. The figures show that people are having to come back to court several times because contact arrangements are not working. Many people are going to court in the first place because they cannot agree.

We are often told that only 10 per cent. of cases go to court, and that the other 90 per cent. of separating families are therefore quite happy and their arrangements are working perfectly well. That is not the case. Many arrangements do not work very well, but a lot of parents are frightened off going through the court system because of the nightmares, horror stories and long, drawn-out processes. In many cases they therefore have to take a less equitable settlement than they would have been minded to, and as a result see their children less. I do not buy the argument that the system fails to work in only 10 per cent. of cases. It has a lot of problems that warn people off going for what they see as an equitable settlement in the best interests of their children’s welfare.

The amendment and new clauses apply to different parts of the Bill, and some of them would amend the Children Act 1989, but they share the common theme that, as we have said all along and as all members of the Committee agree, the child’s welfare should be paramount. Most of them would insert the word “reasonable,” as we tried to do in even more instances. Through your wisdom and innovative way of selecting amendments, Mr. Hancock, we were not permitted to do so. Several of these comprehensive new clauses contain the phrase “reasonable contact”, because reasonableness is at the heart of the problem. Nobody can deny that contact takes place, but whether that contact is reasonable and meaningful is a major bone of contention.

We recognise in the amendment and new clauses that wherever it is possible without compromising a child’s safety, his welfare is best served by maximising contact with both the resident and non-resident parent, and through

“both of them being as fully and equally involved in his parenting as possible.”

That is laid out explicitly in new clause 8. In new clause 19 we seek to pre-empt the welfare checklist in section 1 of the Children Act 1989.

Other new clauses deal with compensatory contact. New clause 6 could have been considered in this group or under clause 5, which deals with financial   compensation, but will instead be taken at the end of our considerations. I hope that we can reach those new clauses, particularly new clause 6. It is absolutely pertinent to our discussions on this group and on the next clause, so I hope that some time will be left for the Committee to consider our new clauses.

The Under-Secretary of State for Education and Skills, the hon. Member for Liverpool, Garston (Maria Eagle), who is confined to her bed, made the extraordinary statement last week that courts are always reasonable. That could be argued if courts always gave out reasonable judgments.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Quite right, there would be very poor lawyers indeed, and we would not want that, would we?

If courts always made reasonable judgments, we would not need the present Bill and there would not be an awful lot of disaffected non-resident parents for whom the system is clearly not working. That is why enforcement measures are needed. Although we think that we can address the system rather better, we agree that, if we cannot fix the system, enforcement measures must work better.

I have just set out the figures and the scale of the problem. What also goes to the heart of the matter, which many people find devastating, is that one does not need to have done anything wrong or to be a bad parent to be denied reasonable contact. It is enough to be a non-resident parent who happens to have fallen foul of a ruling at the instigation of a parent with custody who is seeking to carve the non-resident parent out of the family arrangement. Many people are perplexed, to put it mildly, about contact arrangements that are ended almost at the drop of a hat—however good a parent the non-resident parent is desperately trying to be, and however good their record of keeping meaningful, quality contact with their children.

All the research says that it is not just the amount of contact that is important, but the quality of it, and whether the non-resident is engaging in a proper, loving, meaningful relationship with the child during the limited contact time that has been granted. The best relationship is one in which the two parents play an active role, preferably both in a residential setting, and otherwise where one has custody and one does not. These matters are rarely, if ever, the fault of the child of a family breakdown, and the child must not be penalised if things have happened that are out of his control.

The principle behind the new clauses has been endorsed by the Government. In the first deliberations on the Bill in another place, Lord Adonis said

”We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, so long as it is safe”.—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 251.]

Likewise, the Green Paper said:

”After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society.”

I wholeheartedly endorse that.

As I mentioned on Second Reading, all the studies show how a child can benefit from greater integration with a non-resident father—in the vast majority of cases it is the father who is the non-resident parent. Fathers’ roles have changed quite dramatically over the past 20 years or so. Men spend eight times more time with their children than 30 years ago and fathers now carry out one third of parental care in families where women work.

Research has highlighted that children whose fathers had been actively involved in their lives achieved more academically, had more satisfying relationships in their own adult lives, and were less likely to get into trouble with the police. If fathers are involved, children are less likely to have a criminal record by the age of 21. Pre-school children who spend more time playing with their dads are often more sociable when they enter nursery school. Fathers who are involved with their children early and comprehensively usually stay involved, which promotes the health of the infant. Children’s health and behaviour is connected to the involvement of the father in the family. Fathers’ involvement promotes involvement by mothers and involved fathers are likely to support their children financially. Children who are close to their fathers are more likely to have resilience. On all those measures and on any research, it must be in the interests of the children that we do everything we can to maintain meaningful, reasonable contact with both parents. That is what we are trying to put in the Bill.

As I said on Second Reading, our suggestion is neither rocket science nor unique to this country. It is certainly the way that the law operates in some states in the US and in Australia. It is also the way that the new Canadian Government are seeking to make their law work. Most recently, the laws passed in Italy make the joint custody of children the norm when families split up. This is the way that the tide is going. Moreover it is nothing terribly new for this country.

The previous Conservative Government were considering amending the law along those lines in the Family Law Act 1996. Section 11(4) of that Act states:

“(c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—

(i) his having regular contact with those who have parental responsibility for him and with other members of his family; and

(ii) the maintenance of as good a continuing relationship with his parents as is possible”.

That is what we are saying here; it is nothing new. The Government have had 10 years to mull this over but have come up with something that singularly fails to address the problem of achieving reasonable contact, which needs to be set out in the Bill.

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

Just for clarification, will the hon. Gentleman confirm that the provision that he just cited was never commenced and still is not in law today?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

That is right. It was set out in 1996, and we know how events then overtook us. The Bill never became law and was not picked up by the Labour Government after that. We are trying to do   something that should have happened 10 years ago, if not before. There was certainly a good head of steam behind making the changes at that time—had the Government been able to carry on what they had set out to do in that proposed new law.

In attempting to make contact work and in the context of enforcement orders, the clause deals with the symptoms rather than the underlying problem—we will come on to discuss what forms of penalties can be imposed for those parents who continue to breach contact orders—yet our fear is that the measures are completely toothless. They are not criminal measures. In too many cases, if the resident parent is not in a position to pay financial compensation, it will not be paid. Worse still, it will be to the detriment of the children with the resident parent if the money is diverted away from their care. Maintenance money from the non-resident parent that is aimed at the children will simply be recycled as fines, having taken up an awful lot of commission for court fees and various other things along the way. That cannot be satisfactory. As hon. Members have said, the only penalty under the law as it stands is contempt of court, which courts are reluctant to use.

What we have is a system where contact need not mean reasonable contact. It can amount to a birthday card and a Christmas card, or an afternoon snatched on a wet Saturday in a windy coastal resort. In extreme examples it can be in contact centres if it is deemed that the contact needs to be supervised, and they are not the most family friendly or uplifting places, as we know. That is why we think that placing in the Bill the need for reasonable contact would not just amend but improve and enhance the welfare checklist, recognising that decisions should be made on the basis that a child’s welfare, development and well-being are best served by maximising contact with both parents—hence the wording of new clause 8 to have the parents involved

“as fully and equally in the parenting as possible.”

We are looking to turn the law on its head. In too many cases, a non-resident parent has almost to argue for his or her right—and I do not like talking about parents’ rights—to contact with the child. It should be the other way around: the child should automatically have a right of maximum reasonable contact with each of his parents, unless the case can be argued against it. It is incumbent on the parent who has custody to put his or her case and to have it properly scrutinised and tested. If the case is made, it should reflect the amount of contact, if any. If the case is not made, we should return to the default position whereby the child has the maximum reasonable contact with both parents.

We are always told by the Government, and by some of the jobbing lawyers who populate the Labour Back Benches in Committee—

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I attach no term of indignation to that at all; I purely comment that there are an awful lot of lawyers on the Labour Back Benches. They seem to suggest that it is the norm for courts both to assume   that it is in the interests of the child to have contact with both parents and to issue directions for reasonable contact. If that is the case, which I doubt, what is the problem with putting “reasonable contact” in the Bill, so that reasonable contact—rather than a vague reference to contact, which can be interpreted in a range of ways—becomes the default?

We are not asking for an artificial 50:50 split of time, with a stopwatch running, so that the minute little Johnny leaves the house with mum, the stopwatch for the father starts ticking, and vice versa. It would be wholly impractical and a completely artificial reflection of what happens in households where parents are still together. Much to my regret, the amount of time that I am able to spend with my children is rather less than the amount that my wife can spend with them, simply because of our lifestyles. I am sure that that is true of most, if not all hon. Members. It is highly regrettable, but it is a fact of life.

In what I hope are the unlikely circumstances of my wife and I parting, although with the pressures of this job one never knows, it would be crazy and completely artificial to try to impose a 50:50 split that was never reflected in our married life. My colleagues and I are not trying to do that. We are using “reasonable contact” to make matters as flexible as possible, so that people would not have to argue to obtain contact with their children, but to respond to arguments against their having such contact. That is the way it should be. One is innocent until proven guilty. One is a good parent entitled to have maximum contact with one’s child until and unless it is proven not to be the case.

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

So that I may reassure the hon. Gentleman that he is opposed not simply by jobbing lawyers on the Government Back Benches, will he confirm that the university of Oxford briefing, from which he quoted the Family Law Act 1996, concludes by arguing against introducing to the Bill the presumption in favour of contact, saying that we would be better off concentrating our efforts on post-separation parenting?

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Yes; it is actually a very good briefing, which raises some good points and is a perfectly well argued paper. I disagree with its conclusions, but that does not detract from some of the points that it raises, which reinforce our case. The pre-legislative scrutiny Committee, of which the hon. Member for Stockport was a member, made a recommendation about amending the welfare checklist. On page 31 of its report it said:

“We endorse the recommendation of the Constitutional Affairs Committee”— which had also taken this subject on board—

“that an amendment should be made to the welfare checklist in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and the non-resident parent.”

That is absolutely right and reflects what our amendments would do.

To return to statistics, a CAFCASS study advised that only 0.8 per cent. of fathers were prevented from seeing their children by way of a court order, although that is still quite a significant figure given the hundreds of thousands of people who go through the court system. Is not the implication that there is no reason why the other 99.2 per cent. of fathers should not have reasonable contact with their children? That should be the default position. The 0.8 per cent. of fathers whom the court deemed a problem are those who must be argued against, but it should be assumed that all other fathers are reasonable fathers who should be allowed reasonable contact with their children. That is in the children’s best interest.

It can also be argued that a better, equitable division of contact that is based on reasonable contact is much better for the custody parent, and the mother in particular. It takes the pressure off them, because they do not have to go back constantly to argue the toss in court. If the non-resident father is happy that the situation is equitable, that is less stressful for him, less stressful for the children and must, therefore, be less stressful for the custodial mother.

Through this long string of amendments, we are trying to achieve something that is fundamental to our view of the Bill and to the divisions between us and the Government. The Government claim, and often pronounce, that they seek to achieve what we seek to achieve, but they lack the commitment to include the wording and key measures in the Bill that are fundamental to achieving those aims.

Our aims would clearly set out for a separating mother and father what the norm will be, what will be expected of them and what will happen to them if they do not respect the judgments made. It is as simple as the principle that one is innocent until proven guilty: someone is a good parent until it is proven reasonably that they are not. In the absence of that, we would establish the principle that it is the norm that reasonable contact should be assumed after a split by adding it to the welfare checklist, thus improving it. It should be the norm because it is in the best interests of the child to maximise their contact with parents who have split. Surely, therefore, the Committee should take our amendments on board.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

To give hon. Members a gentle reminder, we can only get to the clauses further on that the hon. Gentleman alluded to with the co-operation of the Committee. At this rate, I do not think that we will get there.

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

I start by reiterating my concern that five years after the start of the consultation we do not have the Government’s research. Being able to debate with the facts—how many contact orders involved only a birthday card, and why—would have been very helpful. I really would like those facts, but in their absence, and as a non-lawyer, I will proceed. As an economist I am interested in prevention, in investing money and in saving the enormous costs that distress places on the state and on families. The hon. Member for Stafford referred to post-separation   parenting, which should be part of family support and relationship education at an early age in order to change the culture.

As I said, I am not a lawyer, and I want to pick up on the word “reasonable”. I cannot believe that a court knowingly makes an unreasonable decision. That seems logical to me, so if we are saying, “But the court always makes reasonable decisions”, we are unfortunately in the realms of value judgments, with people coming at the matter from different perspectives. I therefore understand why the Minister keeps saying that there is no point in including the word “reasonable” because it means different things to different people.

I agree with the hon. Member for East Worthing and Shoreham (Tim Loughton) about article 9 of the United Nations convention on the rights of the child, which clearly states that in most circumstances the child should have contact with both parents. I am very committed to that principle and I want it to be stated in the Bill. I do not know how we will get the hang of what is reasonable unless it is there. However, there is a “but”—the interests of the child should be paramount.

I struggled through the Hansard report of the Bill’s proceedings in the other place, where first order and second order presumptions were discussed at great length, and read the evidence given at various stages to the Select Committee on Constitutional Affairs, when much was said about whether there could be first and second order presumptions, and the conclusion seemed to be that there is a real danger that however “presumption” is expressed in certain parts of the Bill, there will be a tendency to weigh up those references up equally. That point was made very clearly on Second Reading by the hon. and learned Member for Redcar (Vera Baird), who, as ever, made a powerful speech, which I found very convincing.

As I have mentioned many times, I was struck by the fact that, in written evidence submitted well before the final report of the Constitutional Affairs Committee, Resolution, which was then the Solicitors Family Law Association, stated that there could be a first order and second order presumption. However, subsequent oral evidence given by a member of the association changed that view. That is highly significant. As a non-lawyer who does not want risks to be taken with children, all I can do is rely on the evidence, which seems compelling. I want some provision in the Bill, but I want it to be framed in such a way that there is no risk to the child, which means putting something in the welfare checklist. That is the answer.

There are clearly first order and second order presumptions; it is rather like yesterday’s debate on the admissions code in the Education and Inspections Bill. The Government began by proposing that there be “regard to” the admissions code, and that was stiffened to “in accord”. We need “regard to” in this Bill, and if the best place to put that phrase is in the welfare checklist, I would wholeheartedly support it.

I am sure that the amendment was selected carefully so that we can all have another go at the issue later. As I would like to speak on new clauses that I tabled in an attempt to make some amendments to the welfare checklist, I shall not go into too much detail now.

The amendments are family-oriented. I know that the shape of the family will change over time. To that end, I am committed to putting in as much support as possible for people throughout their lifetime. It comes back to changing the culture and understanding what is reasonable, rather than risking the safety of the child. Somehow we must change the culture.

I support the idea of amending the checklist. There is a problem with the wording, and I do not think that we will necessarily get it right now. I shall listen carefully to the Minister. We cannot risk having two presumptions, which most of the amendments seem to have. The risk is just too high.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth 10:15, 16 March 2006

I endorse what my hon. Friend the Member for East Worthing and Shoreham said when he outlined the reasons for the amendments and want to take another of his comments further. My first concern is whether a presumption of reasonable contact is in some way in opposition to the principle of the paramountcy of the welfare of the child. Fundamentally, it is not. Indeed, I would argue that the presumption of reasonable contact enhances the paramountcy of the welfare of the child.

As my hon. Friend said, the evidence is clear that good, reasonable or meaningful contact—whatever one chooses to call it—is very much in the interests of almost all children. Therefore, the presumption should be, in the interests of the welfare of that child, that reasonable contact should play its part. There is no conflict; indeed, quite the reverse. What we propose will enhance the welfare of the child.

I wish to assist the hon. Member for Mid-Dorset and North Poole if I can. I understand that I am in a vulnerable position on this Committee, having been a jobbing lawyer.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

The hon. Member for East Worthing and Shoreham was not looking at you.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Yes, my hon. Friend was very kind not to lay a party affiliation on what he said, but I am sure that the criticism applies equally to me.

To assist the hon. Lady, one of the advantages in the construction of legislation is not that we assume that the court will not make sensible decisions, but rather that the legislature can direct the mind of the court in a particular way. The intention of the amendments is to persuade the courts to think about contact in the context of reasonable contact rather than just any contact at all. It is exactly the same in the criminal law when we talk about concepts such as reasonable force. The idea is to persuade the courts to think about reasonable force instead of any force at all on precisely that basis.

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 am not a lawyer, but could the hon. Gentleman explain something to me? If we have a presumption of reasonable contact when the court is making contact orders, but at the same time we have a principle of the paramountcy of the welfare of the child, and if those things are in conflict, having been given the same weight in the Bill, where does that leave the principle of the welfare of the child being paramount?

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I simply do not accept that those things would be in conflict.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I have already pleaded guilty to that.

The inclusion of reasonable contact in the welfare checklist puts those concepts together to ensure that there is no conflict. That is the whole point of the amendments. I hope that the hon. Lady will consider them again and accept that there is no conflict, or intention to create a conflict, between the two concepts—quite the reverse. We are trying to enhance the welfare of the child by including the concept in the amendments.

My last point is simply to underline what my hon. Friend said about reasonableness, which is a concept beloved of jobbing lawyers. It is beloved for a good reason, and that is that it cuts in all directions. Reasonable contact does not mean just reasonable contact for the absent parent. It also means contact that is reasonable for the resident parent and the child. All members of the Committee should be heartily in favour of that concept.

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)

This debate goes to one of the core differences—perhaps the core difference—between the positions adopted by the Opposition and the Government. We all want to ensure that, whenever it is appropriate in the interest of children and can be done in a way that supports them practically, both parents—resident and non-resident—have good contact so that they have a meaningful relationship with their children if the parents separate. We are all united to the same end and I feel strongly that children need both parents, including fathers. In my ministerial position I have taken a strong line in promoting that.

It seems from the points made by the hon. Member for East Worthing and Shoreham that we have a significant difference on the measures that need to be introduced to make contact work for both parents. He started with a basic premise about contact at the   moment. He led us to believe that contact was not working in many cases and said that the Government’s response is punitive enforcement rather than making contact work. He cited an increase in applications for contact orders as testimony that contact is not working. However, I do not accept either the logic of his argument or the remedies that he is suggesting to make contact work better, although I support that objective.

It is true that there has been an increase in the number of applications for contact orders, but it also true that more than 99 per cent. of those applications are granted. It is also true that many of those applications are repeat applications and many are for enforcement. That leads us to our diagnosis of the problem and what needs to be addressed. We do not yet know what the fundamental problem is, which is why we are instituting the research. However, it may not be that the courts are ordering too little contact for the resident parent, but rather that the contact that is being ordered is not being complied with. Parents may come back for enforcement orders to get the resident parent to comply with orders that have already been made. That supports the Government’s diagnosis and remedy. Enforcement is the key issue. I strongly refute at the outset the hon. Gentleman’s two contentions.

This group of amendments tries in a raft of different ways to address the problem of reasonable contact by placing a presumption at the heart of the Children Act 1989.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Much of what the Minister has said merely repeats the statistics that I gave her. [Interruption.] I think we agree about the statistics because we used the same sources, but why are more people flouting contact orders?

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)

No, I did not say “more”. I said that it is accepted that too many parents need to return to court to enforce orders that the courts have already decided on. That suggests to me that the important problem that we need to address is not necessarily that the courts are ordering too little contact in those orders, which was the conclusion that the hon. Gentleman came to from his analysis—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.