New Clause 6 - Compensatory contact

Children and Adoption Bill [Lords] – in a Public Bill Committee at on 21 March 2006.

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‘After section 11P of the Children Act 1989 insert— “11QCompensatory contact (1)This section applies if a contact order with respect to a child has been made. (2)If the court is satisfied that— (a)an individual has failed to comply with the contact order, and (b)a person falling within subsection (6) has been deprived of contact time by reason of the breach,

“11QCompensatory contact

(1)This section applies if a contact order with respect to a child has been made.

(2)If the court is satisfied that—

(a)an individual has failed to comply with the contact order, and

it may make an order granting additional contact time between the person and the child concerned with a view to mitigating the effect of the breach.

(3)The court may not make an order under subsection (2) if it is satisfied that the individual in breach had a reasonable excuse for failing to comply with the contact order.

(4)The burden of proof as to the matter mentioned in subsection (3) lies on the individual claiming to have had a reasonable excuse.

(5)An order under subsection (2) may be made only on an application by the person who claims to have been deprived of contact time.

(6)A person falls within this subsection if he is—

(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live,

(b)the person whose contact with the child concerned is provided for in the contact order,

(c)an individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order, or

(d)the child concerned.

(7)Where the person proposing to apply for an order under subsection (2) is the child concerned, the child must obtain the leave of the court before making such an application.

(8)The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.

(9)Subsection (2) has effect subject to the restrictions in section 11S.

(10)Proceedings in which any question of making an order under subsection (2) arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.

(11)In exercising its powers under this section, a court must treat as paramount the interests of the child concerned.”’.—[Tim Loughton.]

Brought up, and read the First time.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move, That the clause be read a Second time.

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

With this it will be convenient to discuss new clause 7—Orders under section 11(2): further provision—

‘After section 11R of the Children Act 1989 insert—

“11ROrders under section 11Q: further provision

(1)A court may not make an order under section 11Q(2) granting additional contact time between a person and the child concerned following the failure by an individual to comply with a contact order unless it is satisfied that before the failure occurred the individual had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—

(a)in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order proceeding the failure in question, and

(b)in any other case, a notice under section 11I relating to the contact order.

(2)A court may make an order under section 11Q(2) in pursuance of a failure by an individual to comply with a contact order where the failure occurred before the individual attained the age of 18.

(3)A court may not make an order under section 11Q(2) in respect of a failure by an individual to comply with a contact order that is an excepted order (within the meaning given in section 11B(4)).”’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

We are on the final leg of this Bill and many of us will miss our regular slots in this Committee room, discussing very important and weighty matters—[Interruption.] I am sorry that the Minister does not take it quite as seriously as Opposition Members.

Although new clause 6 comes at the end of our deliberations, it is a significant and serious proposal in the spirit of making practical suggestions to try to give the Bill some teeth. For people who breach contact orders, particularly on a regular basis, the threat or perception of penalties becoming a reality is far too weak.

As I said this morning, there is a problem with lack of research on the failure of contact orders to work in too many cases. I think that all hon. Members will have received papers produced by the university of Oxford department of social policy and social work. They have some interesting things to say about the reasons for breaking contact orders. They refer to the situational power of the resident parent, meaning that the parent who lives with the child is in a strong position if he or she is minded not to comply with contact orders. Although legal remedies are available, fathers can all too often be discouraged by the costs of returning to court, deterred by legal advice on the prospects of success and disadvantaged by having to represent themselves, often against a legally aided partner with custody. The slow legal system allows a status quo to be established that it is hard to overturn.

The Government have recognised that there is a problem regarding parents who have custody not abiding with contact orders. If they had not recognised that problem, the Bill would not exist. The Government’s attempts to insert an enforcement process in the current law are welcome, but they only go halfway, if that. As it stands, the only real penalty available to a court against a serial breacher of contact arrangements is to put them in contempt of court. Most judges are reluctant to go down that route, because pursued to its ultimate conclusion, it could result in a custodial sentence for the offending parent. Obviously, that would not be in the best interests of the   children concerned, and the welfare of the child must be paramount throughout. Therefore, when the Government published their original proposals, which suggested community orders and tagging, at least they were going in the right direction in establishing a graded series of penalties that were practical and did not disadvantage children, who must be protected.

The trouble is that much of the Bill refers to financial compensation and financial penalties, which are effectively fines. As Opposition Members have mentioned, if a non-resident father is paying maintenance to the parent who has custody and the parent with custody is required to pay a fine for breaching the terms of the contact order, the money is simply recycled back to the non-resident parent. In many cases, that could disadvantage the children whom the money was supposed to support.

If a parent with custody wants to proceed with a breach of contact, the financial penalty for doing so may disadvantage the children. If that parent is living on benefits and is in a fairly impoverished state, they will not be able to pay money back, in which case they are in a Catch-22 situation. Then we are looking at some form of community service, which I believe has possible applications in limited circumstances, but again will not be appropriate for some people. What then happens is that the penalties run out. I believe that the perception, particularly in the eyes of the serial breacher of contact orders, will be “What’s the worst that can happen to me? At the very worst I might have to do some community work, but it is highly unlikely that that would ever be laid at my door.”

If we are serious about the Bill and about addressing the problem that too many people still breach contact orders, we must create a scale of penalties that are appropriate to the breach. Above all, they should not detrimentally affect the child, and it should be commonly perceived that they will be enforced if somebody continues to breach contact orders without good reason and in spite of all the checks and balances, with all the damage that that causes to the non-resident parent’s agreed access to his or her children. I also believe that ultimately there should be a mechanism whereby, if it is appropriate and the parents are willing, in respect of the most serious serial breachers of contact orders the custody of the children could be switched to the non-resident parent. However, there is a shortage of research into the real cause of breaches of contact orders in this country.

Some of those whom I quoted this morning in relation to the early interventions project said that we could learn a great deal from overseas countries, but that for some reason, we had failed to do so. I want to quote again from the Oxford university paper, which gives examples of different forms of penalties that can be brought against a breacher of contact orders. For example, in the Netherlands it is possible to suspend child support temporarily and to terminate adult maintenance. In some US states, occupational, driving or sports licences can be suspended. In other countries such as Germany a non-complying parent can lose their right to manage contact arrangements, which will then pass to a court-appointed contact guardian. In   Greenlee county in Arizona, a third party handles all the mechanics of contact. That makes it more difficult for somebody to breach the contact order and much more obvious to an independent person acting as a go-between when they have done so. The third party can then notify the court and take the matter to another level to get something done about it.

We want to see an additional, appropriate level of penalty, which is not financially so penal that the welfare of the children is affected and which can be inserted on the scale between somebody getting a warning for a breach of contact order initially and, ultimately, in the extreme nuclear option, losing custody. We therefore believe that in this case, the principle of compensatory contact is appropriate and measured. The hon. Member for Stafford (Mr. Kidney) said that he had some sympathy with that view when the subject was broached on Second Reading.

Under new clause 6, after the initial mediation, parenting plans and so on that we propose, if a court is satisfied that an individual has failed to comply with a contact order and deems it appropriate, it has the authority to decide to award more contact time to the aggrieved non-resident parent as the penalty for the parent with custody not complying with an earlier contact order. People may ask whether that is in the best interests of the child, but there are checks and balances in the proposal whereby if the parent with custody thinks that there is a danger to the child, the burden of proof will be on that parent. If they have a case they will be permitted to present it, not punished for having breached the contact order. The new clause contains all the checks and balances in respect of domestic violence and other matters, but the burden of proof must be on the person who has not complied with a court order to prove that they had good cause not to do so.

If the parent with custody is concerned that spending more time with the non-resident parent is bad for their child, it will be a big disincentive for them to breach the contact order, because the implication will be that the child will then spend even more time with the other parent. If there is no danger and it is what the child wants to do, the parent with custody will have to make a value judgment of what is better for the child.

What we propose is a sensible, appropriate, practical and workable addition to the scale of penalties in the system, when too many contact orders are still being breached. It does not mean imposing a financial penalty that it may be inappropriate to impose on a resident parent with custody, or that the parent may be sent to jail, but it does ensure that if someone continues to frustrate a contact order, there will be a danger that the child whom they are trying to keep away from the other parent will have more time with that parent. The proposal is not meant as a reward to the other parent; it is meant to achieve a more equitable balance in the time that each parent spends with the child and, above all, to reinforce the principle that the parents should respect the terms of the contact order that the court has set down. If,   having gone through the due processes of law, a person does not respect those terms, they need to be made to do so and ultimately to be penalised if they continue not to respect them.

The proposal would be a valuable addition to the Bill, as the scale of penalties would make it clear that the measure has teeth. I fear that too many people will look at the Bill as drafted and think, “Well, it’s never going to happen to me.” They will think that they can play the system and take matters right to the brink without anything happening to them. In the meantime, they will have frustrated the right of the other parent to have a contact order respected, extra court costs will have been incurred and the child will have spent more time away from the non-resident parent, from whom he or she may become alienated. New clause 6 would therefore be a helpful addition to the Bill.

New clause 7 speaks for itself. If additional contact time with the child is to be granted to a non-resident parent following failure by an individual to comply with the contact order, the court needs to be satisfied that the parent who has breached the contact order has been properly notified of his or her entitlement and of the ramifications of not complying with a court order. They can therefore have no excuse for saying that they did not know or did not realise what was happening. The new clause would tighten up the grounds on which a penalty for the breach of a contact order is imposed or varied to give the non-resident parent more time with his or her child.

The new clauses are practical and workable measures that would enhance the Bill and go some way toward giving it the teeth that I fear are lacking in too many parts. That is why, if the Bill is left in its present state, it will be an enormously wasted opportunity to remedy the situation that we know exists.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth 4:15, 21 March 2006

I support the new clauses. I shall address an argument that the Minister has made and, for all I know, will make against them—an argument based on the principle of the paramountcy of the welfare of the child that the new clauses are for use by parents as weapons in a war using contact as the point of argument between them. That is not at all what the new clauses are about.

As my hon. Friend said, the clauses are not about whether one parent has the right to see their child for a particular length of time. They are substantially about the right of the child to have the contact with both parents that the court has decided is appropriate and has ordered in the original contact order. Far from moving away from the principle of the paramountcy of the welfare of the child, the new clauses underline it. The contact order made in the first place will have meaning and the child will be able to take advantage of the degree and level of contact that the court originally thought appropriate only if the courts can make an order for compensatory contact.

I refer Committee members to the wording of new clause 6, particularly subsection (2)(b), which says that the court

“may make an order granting additional contact time between the person and the child concerned with a view to mitigating the effect of the breach.”

That is the whole point of the new clauses, which is why they should have the Committee’s support.

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

I understand the points made by the hon. Member for East Worthing and Shoreham (Tim Loughton) respecting new clauses 6 and 7. New clause 6 would insert a new section 11Q into the Children Act 1989 giving courts the power to make an order for compensatory contact where there has been a breach of a contact order resulting in a person with whom the child lives, someone who has been granted contact, an individual subject to the condition of the order, or the child being deprived—that is the word—of contact time. Such an order would grant additional contact time to the person so deprived. New clause 6 makes various other provisions, which are clearly set out, and new clause 7 is a technical provision replicating what is already in clauses 3 and 4—sensible provision ensuring that warning notices are placed on contact orders and enforcement orders.

The new clauses propose that an additional sanction be made available to courts for dealing with breaches of contact orders. The hon. Member for East Worthing and Shoreham made it clear that that is precisely what they are intended to do The new clauses call it compensatory contact. Where contact has been ordered by the court, the terms of the order should of course be adhered to. That is what the Bill is about, and it is one thing on which the whole Committee can agree. Whether the order is as effective as all Members would like is the subject of many Committee debates, but there is no doubt that the aim of the Bill is to ensure that contact orders are adhered to, because the court has decided that it is in the child’s best interests that the order be made.

When a contact order is breached and a child loses substantial time with one of his or her parents or relatives subject to the order, the courts can and do vary contact orders to allow the child to have that time. As long as it has determined that it is best, the court already has and uses the power to provide compensatory contact. It might not be called that, but that is in fact what the courts do. It is right that that is done as a variation of a contact order governed by the paramountcy principle. Everybody has stressed the importance of the paramountcy principle, but not packaged as a form of punishment directed at an adult. That is where I am concerned about the new clause: it sets out clearly that an increased or decreased level of contact with the child should be parcelled out as a form of punishment for the behaviour of the adults concerned. That is not the primary purpose of contact orders. Contact should be ordered with the interests of the child at heart, not to compensate adults in an ongoing argument between separating couples.

The hon. Member for Rugby and Kenilworth (Jeremy Wright) kindly read out part of the new clause, so I do not need to read it out as well, which refers to parties who have been “deprived of contact time”, but the contact arrangements set out in a contact order are for the benefit of the child. The rights of the adult parties are not the court’s primary concern when considering contact orders.

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

I will when I have finished my point. The court’s primary purpose is not to make a contact order that punishes one of the parties for a breach of an order that has already been made. We are not seeking to ensure that the rights of the adult parties are preserved. Contact is for the benefit of the child, and if a court is going to make an order it must be firmly and always in its mind that it is supposed to consider the rights of the child.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

The proposed new subsection 2(b), to which the Minister was referring, states that,

“a person falling within subsection (6) has been deprived of contact time by reason of the breach”.

I am sure that she is fair-minded enough to accept that one of the people listed in subsection (6) is the child concerned, so it is perfectly feasible for us to be concerned about the child being deprived of contact time as much as the parent.

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

Yes, that is true, and there is provision also for the child to apply for compensatory contact. I accept that children are one of the groups of people referred to in the list of those to whom the new clause might apply. However, they are not the only people. It is too easy for us to see compensatory contact, as the new clause calls it, as something that one party must get if the other party has misbehaved. Indeed, it is presented as a sanction. During the introduction to and the advocacy for the new clause by hon. Member for Rugby and Kenilworth, it was stated that compensatory contact should be one of a range of graduated—I think he said—punishments that may be meted out if the resident parent is not adhering to the court order. I am concerned that some of the child’s contact with one of its parents is then seen as a form of punishment of the other parent. In that respect, the new clause gives cause for concern. That is unlikely to be accepted by Opposition Members, but that concern is why I find it difficult to accept the new clause.

I have explained that the new clause is unnecessary because if a court order is breached or needs variation, the court already has the power to make a new order or to vary an existing order to whatever degree it thinks is best for the child in the individual set of circumstances. It is perfectly within the existing powers of the court to order that the resident parent makes the child available for contact for additional time, if time has been missed. Indeed, courts do that.

The hon. Member for East Worthing and Shoreham said that the court needs to have a scale of penalties, but I suggest to him—he might not agree—that that is exactly what the Bill does. If the Bill becomes law and there is a breach of a court order, the court will have a   set of sanctions and orders available to it. For example, it could add a contact activities condition to the existing contact order, or it could make an enforcement order, which would mean unpaid work. I was not clear, from what the hon. Gentleman said, about whether the Opposition favour tagging.

Tim Loughtonindicated dissent.

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

They do not. So the hon. Gentleman has accepted that that is probably inappropriate. The enforcement order for unpaid work is an order that is not currently available to the court. If it is appropriate, the court can order financial compensation—I know that the hon. Gentleman is concerned about that—and there will be circumstances where that will act as a deterrent to poor behaviour and not complying with a court order on the part of a resident parent.

The court can also, in extreme situations, where it has tried other measures that have failed, use its existing powers to impose a fine and commit the person in breach to prison. That happens occasionally now, although none of us want it to happen often. Where there is a greater range of potential penal orders, none of which work, the court will be clearer in its determination, if it wishes to continue to enforce an order—which it will—because there are no alternatives. It may assist the court if it has a wider range of opportunities for enforcement at its disposal.

Of course, in extreme circumstances the court can and does—rarely, admittedly—reverse residence. That has been done and it is within the powers of the court to do it.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I understand the Minister’s point about Bill allowing the courts to impose enforcement orders, contact activity directions, compensation orders, or various other things. Surely, however, she would accept that all those things are, in effect, punishments of the absent parent for failing to comply with court-ordered contact. Only compensatory contact gives effect to the original contact order. Although I understand her reservations about appearing to punish one parent rather than another within a contact situation, surely everything in the Bill does that, whereas an order for compensatory contact gives effect to the original contact order.

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

The court already has the power in effect to order compensatory contact, although it may not call it that. It uses its sensible good judgment within its powers and on the basis of the individual circumstances of the case. I am concerned about packaging that as a sanction or punishment, with the non-resident parent getting to see the child more. I am not complaining about the fact that the court may wish to order some compensatory contact if the non-resident parent has been deprived of that by the actions of the misbehaving resident parent and, as a consequence, the court-ordered contact has not happened. Courts can and already do that.

The hon. Member for East Worthing and Shoreham suggested that there was a lack of research. I have some sympathy with what he said about why contact breaks down. I can tell him that Jan Hunt’s compendium of   research into contact cites several studies. Although conflict with, or discouragement or obstruction by, the ex-partner was the factor most often cited, there are other reasons for losing contact, including practical difficulties, such as distance, finance, work schedule, the children’s refusal, legal injunctions, an early pattern of no contact, lethargy, lack of attachment, preoccupation with a new life, pressure from new commitments and new relationships, being halfway into a child’s life being too painful for the parent, feeling shut out of the child’s life, concern about the impact of contact on the child. All those reasons are cited in what research there is. Although I accept the hon. Gentleman’s point that we could always have more research, I do not accept that there is no evidence.

I suspect that we will never agree on these points, but I do not believe that there is a huge distance between us, in the sense that the court can already use its powers effectively to order more contact in appropriate places, but by considering cases individually and case by case in the context of the paramountcy principle. I am going to disappoint the hon. Gentleman by saying that, again, I will not accept his proposed new clause, but I hope he will not be too disappointed, even though a pattern has emerged during the Committee.

At least I have been able to explain why we object to the new clause. It is not that we are opposed in practice to courts having the option to respond to breaches of contact by ensuring that some of that contact is made up. We are simply concerned about doing that as a sanction or punishment for the misbehaving resident parent in this instance. On those grounds I cannot accept the proposed new clause and I hope that, with my explanation, the hon. Gentleman feels able to withdraw it.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 4:30, 21 March 2006

Disappointment butters no parsnips, as they say in Peterborough, and the Minister has disappointed consistently throughout the Committee—although, at one stage, she was almost arguing our point. The problem is a fundamental misunderstanding of the difference between a penalty and a deterrent. If the system that the new clause would impose were working properly, it would not have to be used, because it is a deterrent. We do not want the courts to have to award compensatory contact to a non-resident parent, but we do want the threat of its imposition to be sufficient—a clear and present perceived threat—to prevent a potential breacher of the contact order from breaching it. That is a deterrent. It is not about throwing an arbitrary penalty at a person who breaches an order. It is about trying to prevent him from doing it in the first place. That is where we disagree.

The Minister said that the court already has the power to award compensatory contact, so what is the   problem with including it in the Bill? That would make it clearer and a more obvious, practical and immediate deterrent to a parent who might think about messing around with a contact order for no good reason. The measure is not compulsory; it is not directing or straitjacketing the court. The amendment merely says, in proposed new subsection (2), that if various conditions are satisfied, the court “may make” an order granting additional contact time. The court will not have to do so; it will view each case on its merits.

The court might consider a financial penalty to be appropriate in terms of what is set out in the Bill, or that a community time order, during which time the child might spend time with the other parent, is more suitable. However, it might consider the order of magnitude of the breach of contact to be so great that compensatory contact should be awarded. The decision is left to the court. We are not trying to straitjacket the court; we merely want to make it explicit to a potential breacher of contact what will happen if he or she proceeds with that course of action.

The Minister spoke in terms of the rights of parents. Like all hon. Members on this side of the Committee, I have been very careful throughout our deliberations to talk in terms not of the rights of parents but of the rights of the child. I said so on Second Reading, much to the pooh-poohing of the ever present, if not always physically, hon. and learned Member for Redcar (Vera Baird) who suggested that that was some kind of contrived formulation of law. I do not think that it is. We take the view that a child has a right to maximum contact with both of his parents unless there is a case proven that that should not happen and would be detrimental to his welfare. That is fundamental to what we believe. That is what is in the interests of the child. We are not talking about using the child as some kind of bargaining chip to take away from an offending parent as a penalty. Our purpose is to safeguard the right of the child to have a contact order that has been decreed on his or her behalf abided by by both parents. That should be an entitlement that a child can expect.

The Minister has argued the case that we tried to make, but has fundamentally misunderstood why we are trying to make it, and has completely confused the concepts of deterrent and of penalty. Without the new clause, the Bill will be infinitely weaker. The Government’s failure to take that on board reinforces my view that they are not really serious about the Bill. That is why it lacks teeth. I have called it all along a toothless fudge. That is an appalling contradiction in metaphors, because no fudge that I have ever known has had teeth, but that is what the Bill will be—a limp, tokenistic measure, which will not address a problem that we have all acknowledged. It will fail to put in place proper deterrents to make it clear to any potential offender that such behaviour will not go unchallenged and that it is not in the interests of their child to allow it go unchallenged, which is one of the best deterrents to ensure that they do what the court has decided is in the best interests of the child.

I am sorry that we have to end Committee on an antagonistic note, but the point is so fundamental that I should like to press new clause 6 to a vote to reinforce how strongly we feel about it and to find out the views of all parties.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 4, Noes 10.

Division number 4 Nimrod Review — Statement — New Clause 6 - Compensatory contact

Aye: 3 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

The Chairman: We now come to the conclusion of the Bill.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

On a point of order, Mr. Hood. I believe that we are supposed to vote on new clause 8. We reserved the right to return to it the other day.

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

I was not advised of that, but I accept the hon. Gentleman’s point.