Clause 4 - Enforcement orders

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

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Amendment proposed [this day]: 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.’.—[Tim Loughton.]

Question again proposed, That the amendment be made.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

I remind the Committee that with this we are discussing 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 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)

As I was saying, all these amendments attempt in one way or another to introduce the concept of reasonable contact in various parts of the Children Act 1989 and the Bill. The hon. Member for East Worthing and Shoreham (Tim Loughton) had been arguing that the Government’s analysis is flawed and that the real issue underpinning all of the amendments is that the courts need to award more contact. I was attempting to point out that his analysis is flawed.

The evidence we have is not that the courts do not order sufficient contact in the first place, but that parents are seeking to address the failure of one parent to comply with the contact order that has been issued. The Government have introduced the enforcement measures in the Bill because of evidence that that is where the main problems lie. I do not agree with the hon. Gentleman’s analysis and therefore I do not agree that the measures he suggests address what the evidence suggests is the main problem. Moreover, his proposals would have consequences that we could not support. I have two concerns, which other hon. Members raised on Second Reading.

First, a presumption in statute can be rebutted only in exceptional circumstances. The courts would need strong evidence before deciding not to order contact. Ongoing contact with both parents would often be a good outcome for the child, but in a minority of cases—perhaps a significant minority, especially where domestic violence is involved—it would not. My central concern is the principle. The Children Act 1989 is based firmly on the principle that the child’s welfare is paramount. To qualify that clear statement and instruction to the court with any kind of presumption would mean that the court would start not from the consideration of what is best for each child but on the presumption that a certain thing would be best. The parties involved would have to persuade the court of any other position.

Such a presumption, independent of the evidence, is quite wrong and is not focused on putting the child’s needs first. Any presumption in law, which is what we would be talking about, would have to be taken into account by the courts. As such it would need to be balanced against the paramountcy principle. That means that the central achievement of the Children Act, which is the unqualified principle that the child’s welfare is the court’s paramount consideration, and irrespective of our views on preferred models of contact or whatever, would be undermined.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I am listening to the right hon. Lady carefully. I wonder why, if what she says is completely correct, the paramountcy principle is not explicit and is merely implicit in clauses 4 and 5.

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)

The Bill is based on the principles in the Children Act; it refers to the Children Act throughout. As the hon. Gentleman knows, the paramountcy principle is enshrined in that Act and therefore that is the principle on which the measures in the Bill are predicated. As the hon. Member for East Worthing and Shoreham admitted, perhaps inadvertently, the amendments would pre-empt the welfare principle. That is precisely what they would do.

Tim Loughtonindicated dissent.

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 will see what the official record says. If I have misquoted him, I will apologise.

The hon. Member for Rugby and Kenilworth (Jeremy Wright) tried to argue that the presumption enhances paramountcy because reasonable contact is good. I do not think that that is true. His statement is based on the presumption that contact would be good in every case. In fact, there will be cases where contact would not be good and would not serve the welfare of the child. The argument that the presumption would enhance paramountcy is flawed.

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 will just finish the explanation. If the hon. Gentleman will wait a moment then he may be more informed. If I may say to him gently, presumption would be a bad thing for some children, which is why it cannot be introduced into the welfare checklist. There are other reasons, which I will come to in a moment.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I say to the Minister equally gently that the point about a presumption of reasonable contact is that it is rebuttable; it is not assumed that it will automatically happen. She is right that there will be some cases in which contact is not appropriate, but a presumption of reasonable contact does not prevent the court from ruling out contact in those cases.

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)

It is rebuttable, but as I said, having a presumption would change the way in which cases would have to be discussed in court. The courts would have to hear arguments why contact would be a bad thing rather than arguments in support of it. I think that that would significantly compromise the paramountcy principle.

I am also concerned by the argument that it is necessary to insert the word “reasonable” into the checklist or elsewhere in the Bill. The hon. Member for East Worthing and Shoreham referred this morning to comments that my hon. Friend the Under-Secretary made in an earlier sitting. He paraphrased her as saying that courts are always reasonable. I do not think that she said precisely that. She said what the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said in her intervention: courts, as is patently obvious, will always behave in ways that they believe to be reasonable. That is why the introduction of the word “reasonable” is unnecessary and superfluous. As I believe the hon. Lady said, no court would knowingly make an order that it believed to be   unreasonable. Telling courts to be reasonable would therefore add nothing to the process. The Bill gives genuine new powers to facilitate contact and enforcement orders.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

May I take the Minister back to the issue of the presumption? She says that it would not add anything, but does she not accept that there is a difference between a presumption of contact and a presumption of reasonable contact in the consideration that a court gives to a case? One simply says that the court must consider the merits of giving the absent parent some contact; the other relates to the degree and extent of that contact. Whether or not she agrees with us that the latter is a good idea, does she not accept that there is a difference between contact and reasonable contact?

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)

There is a question as to whether the issue of contact—whether or not it is qualified by defining it as “reasonable”—needs to be in the welfare checklist. If the hon. Gentleman will wait a moment, I will shortly reach the subject of what the welfare checklist is fundamentally about and why inserting contact would introduce a qualitatively different issue for the interests of the child.

Amendment No. 49 would apply a presumption of reasonable contact to the specific issue of enforcement orders, requiring courts to have regard to such a principle subject to the welfare of the child when determining whether to make such orders. That would be rather odd in a context where the pointed issue is the failure of adults to comply with a contact order. The court will certainly have to have regard to the child’s welfare before making an enforcement order, as it may have an impact on a child, but this is not the place for presumptions of what level of contact might be best for the child’s welfare. The court will already have decided on that when making the order, as we discussed at some length on the amendment tabled by my hon. Friend the Member for Luton, South (Margaret Moran). I find it odd that, having agreed with the Government on amendment No. 34 that the welfare of the child should be material but not paramount at enforcement, the Opposition are arguing that there should be a presumption of reasonable contact on the grounds of the child’s welfare.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

In order to help the right hon. Lady—[Interruption.]

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Thank you, Mr. Hancock. May I give the right hon. Lady a real-life example and ask her how the welfare of a child is compromised by a contact order that prevents grandparents from putting “granddad” and “grandma” on a Christmas card? In labouring the issue of reasonableness, we are making a clear distinction, as there is in the real world though not necessarily in the Bill, between contact and reasonable contact.

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)

The hon. Gentleman has a strange idea of helpfulness. He raises an idiosyncratic example, though I cannot say that it would never occur in   practice. The basic point is that when a decision is made on contact, the issues will be decided by the court on the basis of the individual circumstances and the interests of the child. Beyond that basic premise we do not agree with anything that would limit the court or require it to think in a certain way, because we do not want to constrain the paramountcy principle.

New clause 8 is slightly different. It, too, would explicitly qualify the paramountcy principle by stating that, in the absence of contrary evidence, the court must presume that a certain arrangement, namely co-parenting, would be best for all children. I assume that co-parenting means the nearest that is possible to equal involvement of both parents. I recognise the good intentions behind the proposal and I have great sympathy with it as a parent myself. I want fathers to be much more involved in the bringing up of their children, whether or not they are separated. However, saying that that is what we believe, and recognising it in case law—as the courts have done—is quite different from writing it into statute. If we write it into statute we are telling the courts to make orders in line with that presumption in all except very exceptional circumstances, which is quite different from saying that they should order what is best in the interests of the child.

If adopted, the amendment could lead to wrong decisions. To take an example that may oversimplify but which I shall give none the less, if a court believed that a split of a child’s time, say 80:20, between parents would be best, but could not find strong evidence to back that, it would still have to issue an order as close as possible to 50:50. That rather extreme example serves to illustrate—[Interruption.] It serves to illustrate the bizarre considerations that the court would have to get into.

New clause 12 would put a caveat on the “no order” principle, which is a principle in the Children Act that courts should not make orders with respect to children unless they are satisfied that to make an order would be better than not to do so. That seems to me to be commonsensical. Again, I understand the motivation behind the new clause, but it would require courts to make orders for reasonable contact even if they did not believe that to do so would be better for the child. That seems a perverse proposition.

Similarly, new clause 18 would require CAFCASS officers, and, in Wales, Welsh family proceedings officers, to act on a principle of reasonable contact when responding to family assistance orders.

As hon. Members know, such orders direct the CAFCASS officer to advise, assist and befriend the person named in the order and are intended to support families in difficult circumstances at any point in the process. In fulfilling that role, it is not for CAFCASS officers to second-guess whatever orders the court may have made about contact. Having said that, the CAFCASS officer has to consider what is in the best   interests of the child, but I do not believe that it is right for us to tell them to make presumptions about what that might be.

New clause 19 would create an explicit presumption of reasonable contact in the Children Act 1989. I made it clear, as I have done several times, what difficulties I anticipate arising were we to do that. It would qualify and, in effect, conflict with the approach intended for the courts through the paramountcy principle. The 1989 Act is carefully designed to direct the court to put the children’s needs first with no qualification. For the court to start with presumptions, only to row back from them on the basis of the strongly argued evidence that would be required, is incompatible with such an approach.

New clause 20 would add a provision to the welfare checklist stating that the court should have regard to

“the desirability of reasonable contact between the child and the non-resident parent”.

That was recommended by the Joint Committee that considered the draft Bill, and we considered that recommendation carefully. However, it is not what the checklist is for. It lists a number of aspects of a child’s development that a court should consider in making its decisions, but they are not factors that prejudge what sort of decisions should be made, only factors that should be sensibly kept in mind.

In response to the point made by the hon. Member for Rugby and Kenilworth, I would make that distinction in this case. The checklist contains a list of factors, but it is for the judge to decide in each case what circumstances will meet the needs of a child best in relation to those factors. The reasonable contact inclusion would tell the judge, “We think that in almost all circumstances, to be changed only on rebuttal, contact is always beneficial.” Clearly, there are cases where that would not be so.

New clause 11, like a number of other proposed changes we have examined, was considered in the other place and was voted against by a significant majority. The new clause would alter the definition of a contact order so as to refer to reasonable contact taking place

“in the absence of good reason to the contrary”.

As I said in relation to the other proposed changes, we have made it clear why we cannot support that suggestion.

I have set out at some length why the amendments and new clauses are immensely undesirable. They are focused on the needs of adults, not children. They would compromise the paramountcy principle that lies at the heart of the 1989 Act and would lead to orders being made when even the court making them did not believe they were the best thing for the child.

Photo of Maria Miller Maria Miller Shadow Minister (Education) 1:15, 16 March 2006

I want to press the Minister on something she said about the welfare checklist. She rightly said it dealt with factors in the child’s development. Is she truly telling me that the role of a parent is not an important factor in a child’s development? There is an awful lot of evidence suggesting that the role of a parent is of absolutely fundamental importance in the development of a child, and I cannot really understand her argument.

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 obviously did not make myself very clear. The welfare checklist deals with things that the court needs to consider which contribute to the welfare of a child: physical, emotional and educational needs, background and how capable each parent, or any other relevant person, is of meeting those needs. The latter factor in particular refers to parents. However, the checklist does not prejudge whether a particular circumstance relating to any one of those factors is beneficial or not. The court has to make that judgment, so it will consider an individual child and decide in relation to all prevailing circumstances whether, for example, contact will contribute to the emotional well-being of a child.

By inserting “contact” and “reasonable contact” on the checklist, the court would have to make an a priori assumption in the case of every child that contact would contribute beneficially to emotional development. There will be children for whom that is not true and for whom contact would be undesirable. [Interruption.] We have a fundamental difference of position about whether that is the right way to go about things. The inclusion of “contact” would introduce to the checklist a qualitatively different factor from those that are included already, because it would force the court to assume that in terms of the factors on the checklist, a certain outcome is a priori beneficial. We do not agree with that.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Returning to the statistics and figures that I quoted earlier, on the basis that 99.2 per cent. of parents are deemed suitable to have contact with their non-resident children, for whom contact will be beneficial, why does the Minister base her entire argument on the 0.8 per cent. who are deemed not to be?

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)

As I pointed out to the hon. Gentleman, there is already a recognition that the court must make a judgment in relation to the welfare checklist about how capable each parent is of meeting the needs of the child as defined by other factors on the checklist. It does not matter that he quotes those statistics; the fact is that there will be some children for whom contact will not be beneficial. In any case, in relation to the welfare checklist and the post-separation arrangements, the court must take into account every child’s unique set of circumstances. It would be neither right nor in the interests of children generally for the court to have the paramountcy principle of the interest of the child as the sole parameter against which it must make its decision.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I do not know the right hon. Lady’s circumstances, but she says that she has children. If, like me, she is married with children, does she think that without going through any contact disputes with her partner, she should be subject to the welfare checklist for her children now, or that I should be subject to the welfare checklist for my children now? If not, why do the circumstances change the minute she or I separate from our partners?

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, it is not entirely right. Parents go voluntarily to court because when they have separated they cannot agree about what should happen. Of course, there is no question of intervening either in situations in which parents are not separated, or, if they are, in situations in which they can agree between themselves and carry out what is in the best interests of their children.

We are discussing the small number of high conflict situations in which parents cannot agree, and we must give the courts a clear framework and a set of principles about the parameters for the decisions that parents ask the courts to make in the best interests of their child. Parents go voluntarily to the courts for them to make that decision, and the welfare checklist that has been enshrined for a long time in the 1989 Act is the right principle. It should have paramountcy over all other factors and over often strong arguments in those situations.

Photo of Margaret Moran Margaret Moran Labour, Luton South

Is my right hon. Friend aware—I am sure that she is—that 29 children have been killed as a result of contact arrangements, and that the serious case reviews taken recently indicate that five of the 13 families involved were cases in which the court had ordered contact? In other words, children’s lives are being lost because courts are ordering contact. Does she believe, as I do, that the proposals that Opposition Members are putting forward would increase the likelihood of children being killed and abused? [Interruption.] The hon. Member for East Worthing and Shoreham makes a dismissive noise, but those are the facts.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

Hon. Members should bear in mind that, due to the number of amendments on the agenda, interventions should be short and sharp.

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 simply say to my hon. Friend that I do not want to be drawn beyond saying that anything that constrains the court at the point at which it makes decisions may result in decisions that are not in the best interests of the child. I have already made that point. I am aware of the cases that she cited, and that Lord Justice Wall is conducting an internal review on them. We may not yet have the full facts.

I want to end on a positive note. While I cannot accept the amendments for the reasons that I have outlined, I think that the issue is important to parents and that the Bill will make a big difference to the problems that parents find in getting compliance from their former partners. I therefore hope that hon. Members will not push the amendment to a Division.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The right hon. Lady will hope in vain. Her performance both before and after lunch was exceedingly frustrating but highly illuminating. Before lunch, she seemed to be hurtling head first into the great crevasse of her own argument. She seemed to say, if I understood her clearly—that is quite a tall order, because there was a lot of legalese—that she agreed   that the number of contact orders has increased substantially. Her case, with which I do not disagree, was that that increase, particularly repeat contact cases, was because contact orders had been breached, and that the problem was therefore with enforcement rather than with the way in which the courts operate in the first place. However, when I asked her why she thought contact orders were being breached, we had a rather circular argument. The reason is surely that one side does not regard the order as reasonable. That is why it is so essential that a test of reasonableness be inserted into the steer that we are trying to give the courts. She cannot have it both ways, which is why I began by saying that the Government’s solution has been to come up with penalties for the system not working rather than to try to get it working. We believe that the amendment and new clauses address that fundamental problem.

I think that at one stage the right hon. Lady grasped what we were trying to do, but she accused us of wanting to turn the system upside down. That is exactly what I was proposing, because we should be addressing the system and tailoring it to deal with the 99.2 per cent. of parents who are deemed worthy of continued contact with children. Whether that figure is 99.2 per cent., 99.1 per cent. or whatever, the presumption is that the vast majority of parents are capable of continued contact and that their children would benefit from it. For goodness’ sake, let us ensure that it is reasonable contact rather than judge everybody on the basis that they are a potential threat as represented by the 0.8 per cent. That is why it was absolutely pertinent when I challenged the Minister. If we are to apply the welfare checklist, it should be applied to parents who are in a relationship, too. Why do we metamorphose into potentially bad parents the minute that we split from a partner? I just do not see why that happens.

For some people there is some sort of metamorphosis, but the vast majority are still good parents after splitting—they still want to play as active a part as possible in their children’s upbringing. I repeat the point that I made this morning: family breakdown is not the children’s fault in most, if not all, cases. However, the Minister seems to take the view that the minute a couple break up, the non-resident parent loses his status as an obviously decent parent. We are trying to preserve that status quo: the vast majority of parents are decent parents and the vast majority of children do best when they are brought up by both their parents. That should be fundamental to the law as it stands.

That is not contradictory to the paramountcy principle. Every time that this challenge arises you can bet your bottom dollar that the usual twaddle will come back, “Oh but that this will undermine the paramountcy of the welfare of the child.” Of course it does not. The welfare of the child is augmented and   enhanced, unless there is a case proven to the contrary, by reasonable contact, maximised as much as possible, with both parents, one with custody and one without.

Photo of Sally Keeble Sally Keeble Labour, Northampton North 1:30, 16 March 2006

The hon. Gentleman is misrepresenting my right hon. Friend’s position. Does he not accept that what people do in their own homes is down to them? If they continue to agree, it is down to them. What my right hon. Friend has said is that where they disagree and the matter comes to court, the parents have put it in the public domain and there then has to be a test that takes into account the best interests of the child. Such cases account for a small percentage of cases, as he said, but they might be the ones in which there is a risk to the children, and that has to be assessed. But it is the parents who put it in the domain of the court. It is not right for the state to trawl through people’s houses.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

What parents do with their children in the privacy of their own home is indeed their own business until those children are abused. Why should what that single parent might do with that child in the privacy of his or her own home change after they get divorced? Why must it follow that when the parent is divorced there is a bigger threat of that parent becoming abusive towards that child? The figures do not warrant such an assertion—there is no evidence to back up the case that I think the hon. Lady is making.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I will in a minute. We know that the vast majority of the children in this country who die at the hands of their carers or parents do so when those parents or carers are together. Fewer than 3 per cent. of children who die, which is 3 per cent. too many—the figure is 29 against 800—die at the hands of carers in contact situations. That is too many, but let us put it into perspective.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

The hon. Gentleman is misrepresenting the position. It is wrong to draw the analogy with child abuse. Clearly, those cases are tragedies. Where the state has information that a child is being abused it rightly intervenes, but the state should not intervene in people’s homes. However, if the parents do not agree and they put the matter into the courts, the courts are obliged to carry out an assessment in the same way as when there are serious concerns about the child’s welfare in its own home. It is quite wrong for the hon. Gentleman to present the case as he has. It gives the wrong information to the outside world and it completely misrepresents the position that my right hon. Friend the Minister set out.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

That is the other line: when we start to challenge the dodgy figures that are presented to us and the absurd assumptions that we are in some way trying to compromise the welfare of children, we are said to be misrepresenting the case. I have made the point to the hon. Lady entirely clearly that I believe the state has no place sticking its nose into people’s homes unless or until there is a child abuse problem. We would all agree with that. Why should it be any   different when a parent who becomes non-resident has to set up home and seeks to entertain his or her children through contact orders?

In the vast majority of cases there should be no difference in the way in which we treat parents’ capacity and suitability to continue to be a loving parent. However, as the legislation is framed, there will be an automatic assumption that the minute a separation takes place, one’s authority to be a decent parent must be questioned. That is why we want a presumption of reasonable contact, which stems from a presumption that most parents want to do the best thing for their children and are capable of continuing to do so, both while they are together with the other parent and afterwards. That is paramount.

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 intervene to help to clarify the matter, as I am sure that other members of the Committee is getting confused by the hon. Gentleman’s increasingly circular arguments. He asked in an intervention on me whether the same factors should apply to his role as a parent, and mine, and that of any other person. I gave the same reply that my hon. Friend the Member for Northampton, North (Ms Keeble) just gave. The welfare checklist applies in cases that come to court through the public law system in which parents have been not treating their children well or abusing them. The principle of paramountcy applies equally in public law and in private law cases.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

New clause 20 neatly addresses the point made by the hon. Member for Stockport (Ann Coffey) when she came out with the usual mantra of, “This will undermine paramountcy.” All that we need to do is put into the welfare checklist the desirability of reasonable contact—desirable to promote the welfare of the child, not desirable to accommodate parents. That is what we seek to do in new clause 20. If that were added, the court need not be bound if it thinks that there is a contradiction with the welfare checklist.

As the Minister has rightly been at pains to point out, it is up to judges and courts to interpret the law and apply judgments as they see fit in individual circumstances, guided by the paramountcy principle, the welfare checklist and everything else. Our suggestions are intended not to give greater powers to parents but to protect and enhance the welfare of the child even more by avoiding the messy disputes between parents that arise because of the way in which courts operate. People cannot trust the judgments that are made in some cases, because they do not think that they are reasonable. The amendments address the criticisms that Labour Members are making.

We need a higher-scale response. The amendments are not based on the convenience of lawyers—I am not concerned about accommodating lawyers in the family court system. We are here not for the convenience of lawyers but to promote the welfare of the children whom they are there to safeguard. However anybody who proposes such perfectly sound amendments is faced with the retort that we will undermine children’s welfare—that argument was made on Second Reading and in another place and it is being made in Committee. We will not; the welfare of children is   absolutely paramount. We put that in the Children’s Act 1989, which is a flagship Act that remains as relevant today as it was when the Conservatives came up with it. As we have been at pains constantly to point out, nothing that we have said on the Bill seeks to do anything that would undermine the principle of the paramountcy of the welfare of the child. If we thought that it would, we would not do it, so the underlying argument must be thrown out straight away.

Then we hear the misrepresentation argument, which is advanced when we challenge the premise on which Labour Members oppose our perfectly reasonable views. The Minister completed the trilogy by saying that we were being confusing. Well, I am not confused and neither are many family groups outside this place. They know that what is needed in the courts is greater clarity of recognition that at least 99.2 per cent. of parents, if we want to quote a figure, are just as capable of continuing as reasonable parents to offer loving care and support to their children after they are divorced or separated as they were when they were in a relationship with the other parent of their children.

The addition of “reasonable” before “contact”, which underlies the amendments, would enhance the law and prevent so many cases having to return to court because of breaches of contact orders. If it is clear what reasonable contact means, if it is clear that the court system recognises that a mother and a father have an equal entitlement to share in the upbringing of that child unless it can be proved to the contrary, and if it is clear to everybody and clear in the law that the child benefits most and his welfare is advantaged most of all by maximising contact with both parents, many acrimonious, long drawn-out legal proceedings that are in the interests of nobody except the lawyers themselves will be stopped.

The duty of the House is to make laws that give a clear steer to the judiciary. It is then up to the judiciary to interpret those laws as they apply to individual cases. We have a duty to make those laws clear and to ensure that they are clearly explained to people who will use the legal system to settle their disputes. The law is not clear at present, and there has been an enormous increase in contact disputes leading to long, drawn-out legal action. That cannot be right; it is not in anyone’s interests. The amendments are perfectly reasonable; they set out a much clearer course of action so that parents can avoid going to court, know what they are likely to be able to enjoy as the result of a court direction, and know fundamentally what their children are entitled to.

I fear that we will not agree on the amendment. I wish that was because of the weight of the arguments to counter mine, because I see no downside in the amendments becoming law. I do not understand how they will so harm the system that the Government can dismiss them out of hand without any offer to compromise or to redraft them in a fashion that might prove acceptable and would be beneficial. Conservative Members are therefore determined to divide the Committee on the amendments.

Question put: That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Division number 3 Nimrod Review — Statement — Clause 4 - Enforcement orders

Aye: 3 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss the following amendments: No. 65, in clause 4, page 7, line 35, leave out subsections (6) and (7).

No. 51, in clause 5, page 10, line 26, leave out subsections (7) and (8).

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

The amendments relate to the same thing in clauses 4 and 5, which list a number of categories of people who are permitted under the Bill to make application to the court for either an enforcement order in relation to a contact order or an order for financial compensation arising from breach of the contact order.

These are probing amendments, and I hope that the Government will consider them; we shall listen with care to their response. They relate to the inclusion of the child concerned in the case in the list of permitted persons. There are subsequent paragraphs in each of the clauses that qualify the right of the child to participate in proceedings, but the substance of our objection is the inclusion of the child concerned in the permitted persons list. In passing, I should say that our probing amendments should have probed a little further, because they should also have included the proposed section 11O(6)(d), which likewise relates to “the child concerned”.

Our objection to the current wording is that including “the child concerned” seems to create some difficulties within the context of the debate. The Committee has agreed throughout that the paramountcy principle—that the welfare of the child is all-important—should be sustained in each aspect of the Bill. If we proceed on the basis that children should be encouraged, by their inclusion in the list of permitted persons, to participate in the process and act in connection with either financial compensation for breach of contact orders or enforcement orders for breach of contact, we shall be involving them in proceedings in an undesirable way that is not in their best interests and not in accordance with their welfare.

I invite the Government to reflect on including “the child concerned”, and consider whether it is in their interests. If we look at the other categories of persons   who can participate in the process and bring a claim for financial compensation for breach of contact or for an enforcement order, it is clear that there are few cases in which those categories of persons, not including the child concerned, could not make an application and the court could not make a decision. So why involve the child? That question is at the root of the amendments. I would welcome the Government’s response

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 am grateful to the hon. Gentleman for clarifying that there was an unintentional flaw in one of the amendments. As they stand, their intentions appear to be contradictory for no discernable reason, but I shall reply to him on the basis that he has tabled the correct amendments and try to explain why in both clauses we have included the ability of children themselves, through the courts, to apply for either one of the orders.

One of the main arguments is that our approach is consistent with the whole of the 1989 Act and the legislation that frames the arrangements. That Act allows children, with the leave of the court, to bring all section 8 proceedings, including contact applications. That being the case—nobody has argued that it should be repealed, and it would be a fundamental thing to row back from—we believe that children should also have the ability, again with the leave of the court, which is an important safeguard, to apply for an enforcement of the order that they have sought or for the financial compensation in the circumstances outlined in clause 5.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I wonder how the right hon. Lady’s advocacy of this part of the clause sits with the failure to put into practice section 122 of the Adoption and Children Act 2002. The matter came up on Second Reading and was a slight flashpoint between the hon. and learned Member for Redcar (Vera Baird) and me, but remained unresolved when Ministers summed up.

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 do not think that the hon. Gentleman was here this morning. [Hon. Members: “Yes, he was.”] I beg his pardon. I explained that section 122 remained a commitment, but we need to see the results of the review of rule 9.5 in relation to separate representation of children before we can finalise the process of deciding what the rule-making power under section 122 should produce.

The hon. Member for Rugby and Kenilworth recalled the welfare principle. It is right that the central tenet of the 1989 Act is the paramountcy of children’s welfare. Contact is to be child centred and contact activities are designed to improve parenting skills so that the child’s experience of contact is the best it can be. Enforcement orders are designed to ensure that that contact is complied with in the best interests of the child. I do not expect that there will be many cases of children making an application for an enforcement order, for reasons that will be obvious to the Committee. As the principle that children can apply for contact orders is already enshrined in law, they should have the right to follow through on the Bill’s powers on enforcement and financial compensation if orders are not complied with.

I have made inquiries as to how exceptional it is for children to apply for contact orders. It is not very frequent, but there are a number of cases in which, for example, siblings apply to a court for contact with each other if they are in different situations—for example, if one is in care and one with a parent, or if they are with separate parents. Cases have not been regular, but they have been frequent enough for us to be clear there it is an important right for children to have.

Many judges and practitioners think that the children’s rights argument is important, albeit that it is used only in special circumstances, such as the one that I outlined. That is a reason for such rights to be in statute, along with rights on the enforcement orders and financial compensation that are directly linked to the contact order that they might have applied for in the first place. The safeguard of seeking leave to apply to the court is important and will ensure that in appropriate circumstances a court will hear a case.

I hope that that explanation, which links back to the children themselves, means that the hon. Gentleman is prepared to withdraw his amendment.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I am grateful to the Minister for her reassurance. I accept what she says about the qualifications in succeeding subsections, following the inclusion of a child on the list. That is why I made no argument that we might see cases of children suing their parents over any little thing. I entirely follow what she says about that.

My concerns have been somewhat assuaged, but remain to an extent. I suggest to the Minister that the involvement of a child in the making of a contact order is different to his involvement in potentially acrimonious proceedings over whether contact is being followed through in the way in which the court intended. We have been concerned to ensure that children do not find themselves an integral part of such proceedings when they do not need to be. However, I made clear at the outset that these are probing amendments. With the reassurance that the Minister has given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 26, in clause 4, page 8, line 15, at end insert—

‘(14)In considering whether to make an enforcement of a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss the following: Amendment No. 29, in clause 4, page 8, line 46, at end insert—

‘(1A)In considering whether to make an enforcement order the court shall take into account the need for separate representation of the child and his interests.’.

Amendment No. 39, in clause 4, page 9, leave out lines 18 to 20 and insert—

‘(7)In making an enforcement order in relation to a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 40, in clause 5, page 10, leave out lines 43 to 44 and insert—

‘(14)In exercising its powers under this section, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 30, in clause 7, page 12, line 17, at end insert—

‘(2A)Upon receiving a risk assessment the court shall consider the need for separate representation of the child and his interests within proceedings.’.

New clause 14—Welfare of the child: contact with parents—

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

“(h)the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”’.

New clause 16—UN Convention on the Rights of the Child

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

“(h)Article 9 of the UN Convention on the Rights of the Child.”’.

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

We rehearsed some of the arguments on the amendments this morning, so I will endeavour to be brief. I hope that others will follow my good example.

Amendment No. 26 and amendments Nos. 39 and 40, tabled by the hon. Member for Luton, South, address the same issue. I want to touch upon it again without going through all of the arguments. There is a genuine concern that the paramountcy principle of the child should be part of the Bill. There is also concern that clauses 4 and 5 do not even involve consideration of the standard welfare checklist. We made the point that circumstances can change. We can probably accept that the amendment that we discussed this morning would have put quite a burden on every case, but ensuring that the paramountcy principle is in the Bill would mean that if a contact order had been given and the circumstances then changed, the situation would need to be re-evaluated with the child at the centre. That is so important. Having listened this morning, I can see that the amendment we discussed then went a little too far, but this amendment reiterates what we are told is fundamental and runs through everything in the 1989 Act.

Amendments Nos. 29 and 30 address something very dear to my heart: the fact that we should do our utmost in all circumstances to ascertain the wishes and feelings of children. My hon. Friend the Member for Ceredigion (Mark Williams) will address that in detail, but the reason for continually asking for that is because it not only recognises the importance of the children, but, as the evidence shows, recognises that the separate representation of children and their interests in proceedings often helps to resolve the most intractable cases of parents disputing contact. That is important. If allowing children to make their views known helps to heal relationships, it must be a positive move.

I openly confess that I have plagiarised in new clause 14 and I hope that everyone recognises where the words come from—

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

I have not made any money out of that.

I plagiarised because it is difficult to write an amendment without falling into some awful trap by using the wrong word. Throughout Second Reading and previous debates in Committee, I desperately wanted, as a family-based person, to change the culture of the courts to ensure that in the majority of cases children have good contact with both parents. As that is clearly stated in article 9 of the United Nations convention on the rights of the child, it should be our starting point. I have already been through my arguments for believing that any change is probably safer in the welfare checklist and I suppose that the one flaw that the Minister will come up with is that it is not normal to refer to that convention in legislation.

I shall explain briefly why I specifically included article 9 in new clause 16. I have studied carefully what the Government said at each step of the way and I shall quote from their response to the scrutiny Committee. They said:

“The question, then, is about whether we should codify that case law in primary legislation. We are considering this carefully, and can see that, while it is not strictly necessary, there may be some merit in sending a positive signal to the courts.”

That statement cannot have been made that long ago, so the Government have recognised that there ought to be a positive signal, even though they may not agree that the welfare checklist is the correct place for such a provision, not least because of the checklist’s wider application to public law cases. That was the reasoning behind putting a reference to the whole of article 9 in the welfare checklist, because it covers both public and private law.

I fear that the Minister will say that the convention on the rights of the child cannot be mentioned in the Bill, but it would not be impossible to find some wording to cover private and public law and to put that in the Bill, in a place where it is safe to do so, so that we do not have this argument between the two presumptions and to send a message that there is a need to change something. What is happening out there is not right. Something needs to give and the Government have said that they can see some merit in the argument.

If the amendment is rejected, my challenge to the Minister is to put forward an amendment to cover exactly what the Government said in their reply to the scrutiny Committee. With that I rest my case, leaving the other amendments to be addressed by my hon. Friend.

Photo of Margaret Moran Margaret Moran Labour, Luton South

I will follow the hon. Lady’s lead and be extremely brief.

Most of the arguments in the debate were rehearsed in our previous discussion and it remains to me to reinforce our concern that the paramountcy principle is not strong enough in clauses 4 and 5; indeed, it does not appear in them. I will ask leave to withdraw the amendment but in doing so I endorse the hon. Lady’s comments and add that I hope that the Minister will view the amendments sympathetically and consider   whether there are further ways in which the paramountcy principle can be strengthened, perhaps via the welfare checklist.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Following the example set by other members of the Committee, I will be brief.

Amendments Nos. 26 and 39 represent an enormous missed opportunity. At the risk of repeating the excellent arguments advanced by my hon. Friend the Member for East Worthing and Shoreham, I add that we need to remember that as legislators it is our role to guide the court and not to let the court guide us. It is fundamental that we do that and I am therefore disappointed at the Government’s attitude to the matter. I understand why the amendments were tabled, as there is some inconsistency in the language used, and I hope that the Minister will explain why that inconsistency exists.

Amendment No. 40 addresses the same inconsistency in relation to compensation for financial loss, but it reminds me, and causes me great concern, that the penalty would have very few teeth as a result of needing to ensure that whenever penalties are imposed the welfare of the child must be paramount. That is why we tabled new clause 6, which I hope we will be able to discuss in the compensatory time.

Amendments Nos. 29 and 30 refer to separate representation. In the vast majority of cases it is not felt appropriate to have separate representation for children, and as we discussed, rule 9.5 describes when children should have separate representation. In April 2005 the president of the family division went further and issued directions on when separate representation is appropriate; it is mostly when the parents are adversarial and hostile and in entrenched and protracted cases.

I was interested to read some research undertaken by the National Youth Advocacy Service on separate representation and when that is most likely to take place. It is during intractable and difficult cases that go on for many years and involve long-standing and continuing hostility between the various parties. It is important to have access to separate representation—I entirely agree with the hon. Member for Mid-Dorset and North Poole in that respect—but only in a very small number of cases. The hon. Lady said that perhaps we should consider separate representation in all sorts of circumstances, although I may have misunderstood her. It is important that when separate representation would be appropriate should be tightly defined and it is entirely right that the person who considers that should be the judge, who will have the best interests of the child in mind.

I apologise to the Minister for being out of the room when she mentioned the Adoption and Children Act 2002 and the fact that the statutory right to separate representation, which was due to be implemented in December 2005, has not been implemented. I will read the Hansard report of the Minister’s comments, because it was unclear why that implementation had been indefinitely delayed.

I was quite surprised when the hon. Member for Mid-Dorset and North Poole and her hon. Friend the Member for Ceredigion decided to vote against the   amendment that I had tabled concerning the importance of both parents being involved in bringing up their child. It appears to me that new clause 14 is entirely consistent with the arguments put forward by my hon. Friend the Member for East Worthing and Shoreham. I would be interested to hear from the hon. Member for Mid-Dorset and North Poole why she feels that there is any difference between what my hon. Friend talked about and what she believes that she would gain from the new clause.

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

My teaching background comes in when I say that I am not convinced that the hon. Lady was listening when I spoke earlier. If one uses few words, it is good when they are listened to. I explained very clearly that my party is not prepared to vote for anything that puts the child’s safety at risk. We had a pretty clear discussion to the effect that many Members regard putting two presumptions in the Bill as taking us down that route. We will not go down that route.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

Order. The hon. Lady will have another opportunity to speak at the end of the debate should she so wish.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I assure the hon. Lady that we are as one with her in not wanting to put any child at risk, but we shall just have to draw a line under things and agree to differ.

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 wonder whether the Minister, in responding, will clarify whether I have correctly understood what we are talking about. When the court makes a contact order, or any variation in a contact order, the paramountcy principle is its main consideration. If, eventually, a court makes an enforcement order, it is basically punishing a parent for failure to comply with a contact order. Because the welfare of the child is a material consideration, the courts are unwilling to send parents to jail, so into enforcement orders came another range of powers for the court, including directing parents to do unpaid work or community service. Effectively, however, those are punishments for breaking a contact order which the resident parent is undermining.

If we again include a provision that the court has to consider the child’s welfare as paramount, and consider representations by the child, no enforcement order could ever be made. It is never in the interests of a child that they are separated from their caring parent. Parents who have offended in some way come before the court every day—if they have committed burglary or assaulted people, or been drunk and disorderly. If the paramountcy principle were applied in those situations, we would never punish a parent in this country for anything, because the child’s welfare would be affected.

Part of the problem is that the words are somewhat misleading, because however we dress it up, an enforcement order is a penalty. The courts can apply that penalty to somebody who is breaking a court instruction after every stage, taking regard of the interests of the child and doing a risk assessment. That is how I understand the situation.

On Second Reading, the hon. Member for Mid-Dorset and North Poole alluded to an interesting point. She said that some parents might regard contact activities as punishments. Parents are being asked to abide by a range or spectrum of contact activities and enforcement orders, with the object, at the end of the day, of getting them to be reasonable about contact with their children.

The Joint Committee suggested the introduction of a time and place order which in fact falls along that spectrum. A time and place order could direct a parent to stay in the house while the non-resident parent had contact with their child somewhere else, to prevent the resident parent from undermining that contact. That would give the courts a spectrum of contact activities that they could order a parent to do in order to get the message home that they have to abide by the court’s decision.

My problem with putting the paramountcy principle into the enforcement order is that there must come a time when parents must accept that they must decide whether to obey the court’s decision—or not and thus putting the welfare of their child on the line. There comes a time when that line must be drawn. The fact that someone’s behaviour affects their family cannot be taken into account just by the court—it is their responsibility.

Photo of Mark Williams Mark Williams Shadow Minister (Wales) 2:15, 16 March 2006

May I say, as a new-comer to the realms of Standing Committees, how pleased I am to be serving under your chairmanship, Mr. Hancock? I look forward to your charitable treatment of new Members—or perhaps those who have come to these proceedings a little late in the day. Perhaps the Minister will bear that in mind as well.

Having worked with young children for the past 12 years, I am unashamedly child-centred in my enthusiasm for amendments Nos. 29 and 30, in the name of my hon. Friend the Member for Mid-Dorset and North Poole, which explicitly direct the courts to consider “where appropriate”. That addresses some of the concerns raised by the hon. Member for Stockport—the need for separate representation of children in proceedings where an enforcement order is under consideration, in clause 4, and following a risk assessment by a CAFCASS adviser, in clause 7.

We contend that when an enforcement order is being considered, separate representation of the child’s wishes and feelings provides valuable information. Indeed that may be fundamental in helping the courts decide what is in the best interests of the child’s safety. That was noted by CAFCASS in its last annual report, which stated that separate representation proved

“an effective measure in resolving ... some of our most complex private law cases.”

That is supported by the National Society for the Prevention of Cruelty to Children, which sees the measure as a means of avoiding the distressing   involvement of children in what it described as the “revolving door” of continual, perhaps long-running, proceedings.

We have talked a lot about research and reviews, and I know that the Minister will refer to section 122 of the Adoption and Children Act. Research undertaken by the National Youth Advocacy Service has revealed that some 52 per cent. of cases have been before the courts for more than three years, and some 16 per cent. for between seven and 10 years. I shall reiterate the words of my hon. Friend the Member for Mid-Dorset and North Poole: conceivably, children can have a central role in acting as a meaningful catalyst for the resolution of long-standing disputes in a way that could prove effective for the families and children concerned. Furthermore, although I am slightly reticent about using the argument, it is a cost-effective means of ending court proceedings. NYAS also cited that in 86 per cent. of cases, future contact arrangements were made, and in 95 per cent., representation of the child’s wishes and feelings had a significant impact on decision making.

I appreciate that much of the debate about section 122 of the 2002 Act took place this morning, but I make the point again that that section was due to be implemented some time ago. That implementation seems constantly to be delayed, and I reiterate the concern among Liberal Democrat Members and our healthy impatience to see action on that in the Bill. I appreciate the rather grudging support that the hon. Member for Basingstoke (Mrs. Miller) has given the amendments and I hope that the Minister will respond positively to what we have said.

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 have here a complex group of amendments that deal with issues that we have already rehearsed to some extent, as the hon. Member for Mid-Dorset and North Poole indicated. The group deals with issues in three categories: the paramountcy principle, the separate representation of children, and provisions in the UN convention on the rights of the child. Without taking overly long, as we have raised some of the issues before, I shall try to address them.

Amendments Nos. 26, 39 and 40 would make the welfare of the child the court’s paramount consideration in deciding whether to make an enforcement order or an order for financial compensation. As I said earlier, we believe that in enforcement matters the welfare of a child should be a material consideration rather than the paramount consideration, for the reasons outlined so ably by my hon. Friend the Member for Stockport. As I said this morning, the welfare of the child is a paramount consideration when the original contact order is considered and decided on. That is right, because it is then that the best interests of the child and the place that contact will have in that are considered by the court.

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

Perhaps I should not have kept quiet when my right hon. Friend said that this morning. I think that that is fine when we are   talking about dividing a house or a CD collection, but the relationship between two parents and a child will develop and change long after the court order has been made. Surely there should be some flexibility to change circumstances later.

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)

There is that flexibility. We have included specific considerations that the court can take into account in enforcement proceedings, one of which is the welfare of the child. It is not the paramount consideration, but it is a material consideration that the court is required to consider. Through that route, the court can take into account any claimed change in the circumstances of the child or the adult and the contribution that a parent can make to the welfare of a child.

As my hon. Friend the Member for Stockport pointed out, one of our concerns was that, were we to make welfare paramount, it would place a very high hurdle for the courts to overcome before the new powers in the Bill could ensure compliance with the very contact orders that the court had made. We and the courts want those powers in place, because those currently available to them are hardly ever mobilised for reasons that we all understand. As a result of amendments such as those before us, the courts might find it even more difficult to use the new powers than they do the existing powers of contempt. I say to the hon. Member for Mid-Dorset and North Poole that I have sympathy with the sentiments behind her amendments, but the right place for a child’s welfare to be paramount is in the consideration of contact orders, as it currently is. When considering non-compliance with those orders and enforcement, the welfare of the child, while important, should not be the paramount consideration.

Amendments Nos. 29 and 30 would require the court to consider separate representation of a child when considering whether to make an enforcement order and whenever it receives a risk assessment conducted by CAFCASS under clause 7. Rule 9.5 of the Family Proceedings Rules 1991 allows the court to appoint a guardian for the child if that appears to be in the child’s best interests, and for him or her to be made a party to the proceedings. If the court considers the child to be of sufficient age and understanding, he or she can be made a party to the case under rule 4.7, and can instruct their own solicitor directly.

There are difficulties with the amendments, because they would require the court to consider representation in certain circumstances, but it already has the power to do so. In April 2004, the president of the family division issued a practice direction outlining the circumstances in which the court should consider making the child a party to the proceedings under rule 9.5, such as during intractable disputes. Since then, the use of rule 9.5 appointments has doubled. By their very nature, cases in which enforcement orders are sought often fall into that category. I hope that that reassures the hon. Lady that the situation that she seeks to cover with her amendment is already being dealt with.

The rule-making power in section 122 of the 2002 Act has been mentioned. The hon. Member for Basingstoke said that I said that its implementation   was indefinitely delayed. It is not indefinitely delayed. When the report that reviews the rule 9.5 arrangements to which I have just referred has been considered, we will be able to bring forward the rules that the section 122 powers enable us to make.

New clauses 14 and 16 would add new factors to the welfare checklist in the Children Act. The new clauses express a principle that both sides of the House would support, but—we rehearsed some of the arguments this morning—their inclusion in the welfare checklist would be inappropriate.

On the proposed UN convention insertion, factors in the welfare checklist are expressed not in the form of the child’s rights, but as a list of issues to which the court must have regard, such as the child’s physical, emotional and educational needs, and what the child needs for their welfare and well-being to be protected and maximised. By their nature, such considerations must be weighed, sometimes against each other, and taken into account. In contrast, new clause 14 is phrased to state that a child has a right to contact. If that amendment were made, it would be equivalent to a presumption about contact. For all the reasons that I have outlined today, that would have the unintended—I think—consequence of challenging and compromising the paramountcy principle.

Opposition Members commented that legislation needs to be framed so as to guide judges in their decisions. I return to a point that I made this morning: there is an assumption that the real problem is that judges are not including sufficient contact in contact orders. No evidence to that effect was produced, but that is the basis of many of the amendments proposed by Opposition Members.

If Members consider judgments and the pronouncements of judges who are leading judicial opinion in this area, they should be assured that judges are convinced of the need for contact, and that that is in the best interests of many children. In 1993, in the now well-known case, re T, the court said:

“It is the general proposition, underpinned undoubtedly by the Children Act 1989 that it is in the best interests of a child to retain contact with the parent with whom the child does not reside. The courts generally set their face against depriving a child of such contact and urge reluctant caretaking parents to make contact work, however difficult it may be for that parent who very often does not understand the importance of that continuing contact.”

In a more recent case in 2004, Mr. Justice Wall, as he then was, said:

“The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court’s task, imposed by Parliament in section 1 of the Children Act 1989, in every case, is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of the child to the best of its ability.”

Sitting suspended for a Division in the House.

On resuming—

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)

Mr. Justice Wall went on to say:

“Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative.”

While it may be the case that legislation should give a guiding light to judges, those comments underline the fact that they need no convincing of the importance of non-resident parents, particularly fathers, to the well-being of their children, and they will have those thoughts uppermost in their minds when contact orders are made.

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

On that very point, bearing in mind that the Government considered putting something in the Bill, and in the light of their comments and the judges’ statements, surely there is something, somewhere that could be included and would be perfectly safe. My second point relates to the welfare checklist, which I understand is a secondary consideration. Does the Minister concur that something within the welfare checklist would not conflict with the overall paramountcy?

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 coming to that. The Government said that we would examine the merit of sending an explicit signal to the courts. We considered what changes could and should be made. My noble Friend Baroness Ashton said in the other place that we had considered it and could find no phrasing that we felt would not compromise the paramountcy principle. I am afraid that that is our conclusion.

I cannot give the hon. Lady any comfort on that, but I hope that I have been able to explain, in the context of the amendments, the difficulties that they pose and to offer some reassurance about how we envisage the Bill working in practice.

In regard to the welfare of the child in relation to enforcement orders, it is true that it is not paramount, for the reasons I have outlined, but it is not true to say, as she just did, that it is secondary. The welfare of the child is one of the factors that the court must consider when it is making an enforcement order; it is a material but not a paramount consideration. I hope with those reassurances that she will feel able to withdraw her amendment.

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

At this stage, I will seek to withdraw the amendment, but I should like to revisit the matter. On the paramountcy principle, when we considered an amendment that related to clause 4(1)(3), we discussed the concept of a reasonable excuse for failing to comply with a contact order. The paramountcy principle should be restated on that. It would allow for changed circumstances. The point about the paramountcy principle being applied at the application of the contact order has been made clearly by the Minister. I understand it entirely. In a small number of cases, contact may be been withheld because of a fear of domestic violence. I accept that the wording would have to be careful so as to not cause the problems that the hon. Member for Stockport mentioned, which I listened to carefully, but the paramountcy principle would need to apply in a small   number of casesthat need re-evaluation because of changed circumstances. However, it is a case of considering the amendment again.

As far as taking on board wishes, feelings and representations regarding children’s views, I draw the Minister’s attention to the fact that the amendments were written fairly carefully. Amendment No. 29 says:

“the court shall take into account the need”,

and amendment No. 30 says:

“the court shall consider the need for separate representation”.

Perhaps we need to consider that wording a little more carefully. I feel that the Minister has conceded that there are certain instances where it is important to seek the views of children. We should be exploring that further. If it is accepted along the grounds that she has explained and has been applied in particular cases, something could be included in the Bill. However, I am prepared to accept that the wording might not be quite right.

I was tempted to push one of the new clauses to a vote, but it is a matter of reflecting on the wording. The welfare checklist is the most likely place where we could safely include something. I am sad that the Government have concluded that that is impossible. It is not true to say that everything is perfect at the moment; it is not. However, perhaps the package of measures will improve things. As a cultural change is needed, the need to explore some wording along those lines should be a live concern.

I hope that in the run-up to Report, all hon. Members, Labour Members included, can work on what is desirable. It would not be a bad thing to scrutinise carefully what we are advancing each time, to ensure that we have not undermined the paramountcy principle, while reflecting on and still working towards an end that most people in this country want. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I beg to move amendment No. 3, in clause 4, page 8, line 30, leave out ‘18’ and insert ‘16’.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

With this it will be convenient to discuss amendment No. 4, in clause 5, page 11, line 17, leave out ‘18’ and insert ‘16’.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

The amendments deal with the same point in relation to clauses 4 and 5 and would change the position in relation to the current state of the Bill, indicating that in respect of a breach of an enforcement order or an order requiring an individual to pay compensation as a result of a failure to comply with a contact order, the court is currently prohibited from considering any act leading to a breach that has been committed before the individual concerned was 18.

Our amendments would change that age limit to 16. In other words, breaches by 16 and 17-year-olds could also be considered by the courts. We must consider the background. Parents are increasingly getting younger and younger. The Government recognise that. It is possible not only to make a contact order for a 16 and   17-year-old parent, but a contact activity direction or contact activity condition. However, the Bill does not permit the court to pass any form of enforcement measure should those contact orders be breached. That seems incongruous and should be remedied.

A contact order can be made in respect of a 16 or 17-year-old. Indeed, the Bill specifically refers to the possibility that a contact activity direction or condition can be made in respect of someone who is a child—someone who is younger than 16. Again, the position seems anomalous as no form of enforcement procedure can be taken against anyone who is under the age of 18, or at least such procedures cannot be taken for acts committed by the person involved when they were under the age of 18. If those who have a contact order made in respect of them commit a breach of that order when they are 16 or 17, it cannot be right that they can do so without fear of any penalty.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

How would the hon. Gentleman realistically deal with such an enforcement action against someone who, under other legislation, is still vulnerable as a child? It does not sit properly with children’s policy and the proper way to deal with extremely vulnerable people.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I do not agree, for two reasons. First, an enforcement order under the provisions of the Bill would allow the court to impose a requirement of unpaid work on the parent who breached the contact order. That is similar to, for example, a community punishment order, which can be imposed on a 16 or 17-year-old. There is no material difference.

Secondly, as far as an order for financial compensation is concerned, 16 or 17-year-olds earn money. As we know, they pay tax. They are in a position in some cases to pay financial compensation. There is no logical reason why a 16 or 17-year-old should be in a different position to an 18-year-old in either clause, against the background of the perfectly proper conditions in each that prevent the court from making either of the two orders in inappropriate circumstances.

The anomaly in the Bill should be remedied. There is no material difference between the position of a 16 or 17-year-old, with the right safeguards, and that of an 18-year-old. That is why we invite the Government to consider the amendments and put the anomaly right.

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

I think that this will form the basis of an interesting debate. I could think my way into almost following that line of argument, but my instincts are that a 16-year-old mother or father is a vulnerable person. I am not sure that any punishment is the right course to follow. In other circumstances, we already punish 16-year-olds, lock them up and do terrible things to them. We are talking about another group of vulnerable teenagers. Although I can follow the line of argument—I often argue for an age of 16 majority—the vulnerability of the child and the importance of their having a meaningful relationship with their parents are what concern me.

I hope that the Minister will reassure us. In particular, I hope that she will reassure us that the contact activities, if anything, will be an appropriate form of enforcement. Maybe they would need to be quite extensive.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

My reading of the Bill, although I may be wrong, is that were a contact order condition to be breached it would constitute a breach of the contact order. My point was that there would be no consequences for someone who is 16 or 17 were they to breach that order.

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

We will look to the Minister to answer that. I am concerned that the amendment introduces a punishment rather than the support mechanisms that we are discussing.

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) 3:00, 16 March 2006

The hon. Member for Rugby and Kenilworth started by saying that there are more and more younger parents now than ever before. I must correct him on that point. In recent figures, as a result of the Government’s efforts, rightly, to reduce the incidence of teenage pregnancy—I know that the hon. Gentleman will support those efforts, because it is a serious matter—we have seen the under-16 rate come down by more than 15 per cent since 1998 and the under-18 rate by 11.2 per cent.

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)

The hon. Gentleman makes a sedentary intervention, selectively doing what the Daily Mail did by picking out one small group. The overall figures are coming down significantly and are the lowest for decades. We have had a significant problem, compared to other European countries, and not recently, but going back 40 years or more. The Government take the issue very seriously.

Tim Loughtonrose—

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

Order. We must bear it in mind that the age of teenage pregnancies is not part of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Quite so, Mr. Hancock. I am not going down that route because we will have a debate on that subject, but my hon. Friend the Member for Rugby and Kenilworth made the point that parents had become younger. In response to the Minister’s statistics, may I say that the number of teenage pregnancies among younger girls, under 14, is going up, and alarmingly so, and the Government have failed dismally in that area?

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)

They are not going up. The rate is going down. None the less, there is a serious problem, and the Government, unlike the previous one, are trying to do something about. As the hon. Member for Mid-Dorset and North Poole said, young parents were, by and large, the most multiply-deprived and disadvantaged children and come from disadvantaged communities. They suffer a multiplicity of problems, often dropping out of education and coming from low   socio-economic groups. That serial disadvantage results, in part, in their becoming pregnant and fathering and mothering children at a young age.

Our thinking behind the choice of age limit is as it is for two reasons. First, in a point my hon. Friend the Member for Northampton, North touched on, the Bill adds to the Children Act, which, along with family proceedings in general, defines a child as being a person under 18. We felt it right, therefore, that the enforcement of financial provisions should fit with the principles set out in that Act.

Secondly, there are the reasons to which I just alluded. The young people involved are likely to be very disadvantaged, and, because of that and their youth, they are likely to be less equipped as parents than older people are. We feel that our priority, where young people have parented children early, is not to subject them to unpaid work but to keep them, as far as we can, in education, training or employment. The danger, particularly for young girls, who are generally the parent looking after a child, is that having a child at that age means that they drop out of all possibilities for themselves, as they have the baby and do not get back into education, training or work for many years.

Our policy has therefore been, by holding them to account as well as giving them support, to try to make sure that they can stay in training or education or get a job. That will improve not just their prospects but, crucially, the prospects for their babies. Those babies born in such circumstances largely also do not fare well for reasons that will be obvious.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I do not disagree, but does the Minister acknowledge that the chances of a young man who becomes a father before the age of 17 retaining contact with his child within nine months of the birth is put at 2 per cent.? That is not down entirely to young men scarpering.

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 do not think that we understand enough about why that is the case. I agree that it is a matter of concern, and I want to see how the Government can enable young men to accept their fathering responsibilities when they parent a child at a young age. I do not think that that the answer is to force the mother to undertake unpaid work through an enforcement order, but I agree that we must examine such issues.

As the hon. Member for Mid-Dorset and North Poole said, we must look to the courts to use the Bill’s contact activity provisions Bill to address the issues that will prevail in many such circumstances, notwithstanding contact. I am talking about parenting and the fact that we must ensure, through contact activity orders, that the young mother will be able, through the order of the court, to undertake activities that will promote contact and her understanding of the need for continued contact with the father and, more generally, to improve the parenting ability that she is otherwise likely to have.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Will the Minister deal with the point that I drew to the attention of the hon. Member for Mid-Dorset and North Poole? Let us consider contact activity conditions under the Bill. Perhaps the right   hon. Lady can tell me whether I am right on this, but I understand that a person who breaches a contact activity condition breaches a contact order. The court would not make a contact activity condition unless it believed it necessary to assist in the provision of contact. If the people on whom the order is made know that there is no effective sanction when they breach the contact activity condition, what is the worth of the condition?

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)

The contact activity order would be considered by the court only when the case had come to court because the other parent was seeking contact. When considering breaches of orders, the court must consider the feasibility of someone undertaking the contact activity and the proportionality of that. If a young man was seeking contact with his child and was being met with some resistance from the mother, the court would want to try out contact activity orders. It might think about a family assistance order, on which CAFCASS would work with the young parents, especially the young woman, to make the contact activity order work and move them both towards contact.

With such young people, more than in other circumstances, it would be a case of trying to work with them, so that they understood that it would be important to facilitate contact, not to resist it. I cannot honestly see the value of the enforcement order in such circumstances when other public policy imperatives around the need to reduce the cycle of disadvantage, which occur in many cases when young women have babies prematurely, seem the right way to go. We must understand that in such circumstances the young woman would be a child herself under the law. Obviously, the baby would be a child, and the young father may also be a child under the law. The court will want to work in a careful direction in such circumstances, using all its resources to require and facilitate compliance, but also to support the young people and bring them to the point of understanding and to facilitate contact.

The hon. Member for Rugby and Kenilworth has presented some cogent arguments from the point of view of parallel measures in parts of the criminal justice system. I understand his comparison and analogy. He argued that there really was no difference and asked why we do not reduce to 16 the age at which enforcement can be required through orders. The difference is that a baby is being parented by a very young child.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

To clarify, I said that in terms of the expectation on the 16-year-old, there is no difference between an enforcement order expecting unpaid work and, for example, a community punishment order. That was the only comparison I sought to draw.

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 understand the logic of that comparison, but the other ingredient is a baby born to a very young person. The constellation of factors and the vulnerability of both the baby and the parents, because of their status as children themselves, and, by   and large, as disadvantaged children themselves, mean that we would seek objectives other than requiring the parents to spend their time doing unpaid work. We would rather see them in education, training or employment, because in the long run, that will improve not only their life chances, but the baby’s. Although I understand the logic of the hon. Gentleman’s argument, I hope that I have convinced him on such special and difficult circumstances.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

There is an air of unreality about this issue. If one parent is under 16, the police might be interested in the other parent for quite a different reason, because of the legal restriction on sexual activity. After that, we are talking about somebody wanting contact, there being a disagreement about it, their going to court, their getting a contact order, its not being complied with, and then an enforcement order being made. How would we get through that in the space of just two years, which is what the Bill asks for? It is unreal to expect an enforcement order on a 16-year-old.

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)

My hon. Friend makes her points very well, and I think that she concurs with what I am saying. I am not sure that I have convinced the hon. Member for Rugby and Kenilworth. There are two ways of considering the issue. I understand his argument and comparison, but on balance, because of the complex situation and the vulnerability of all parties concerned, we would not want young people to do unpaid work. We would rather they were in circumstances that would help their life chances and those of their child. I hope that he has been convinced and will agree to withdraw the amendment.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I am grateful to the Minister for her efforts to persuade me. She has not quite answered the point I put to her about contact activity conditions, but with the reservation that we shall perhaps return to the issue on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 4 ordered to stand part of the Bill.