Children and Adoption Bill [HL]

My Lords, I shall speak to Amendment Nos. 11 and 12 in my name in this group. First, I will not be in a position to support the amendments of the official Opposition in this group today. That is not because I do not think it is highly desirable to have a sensible and clear definition in statute of the fact that children should have reasonable contact with both their parents. It is a good idea to have something very clear. If a couple go into their solicitor’s office and say, ““What does the law say about this?””, the solicitor will not be able to easily demonstrate what the law says about it if he has to refer to half a dozen law books and pull down several cases, which is what the noble Lord, Lord Adonis, appeared to be suggesting in Committee. It is much better if we have a clear statute so that people can understand what the law says. The very fact that you have case law does not preclude putting something clear in statute. After all, there was an offence of theft long before theft was clearly defined in statute. Unfortunately, we do not live in an ideal world. In an ideal world I would be able to support amendments like my own and vote on them, and like some of those of the official Opposition today. But we do not live in an ideal world and in real politics one sometimes has to prioritise. Unfortunately, the issues about child safety will be debated further later today. My priority is the welfare of the child—to protect and make sure children are safe. My second priority is to get dissenting couples out of the courts and agreeing with each other; to fulfil their responsibility as parents together by agreement; and to remember that they may not be married any longer but that they are still parents and the child’s interests must come first. That is my second priority and that is why I shall be promoting our amendments on mediation very strongly. My third priority is to get something into statute, which does not have the danger of overcoming the presumption that the child’s welfare has to have absolute primacy. So, I will not support Amendment No. 1, even though about a year ago in the House of Commons, my honourable friends in another place were able to support an amendment to the Children Bill. Unfortunately, a very paltry amount of time was given to that amendment, as so often happens in another place. My honourable friend, the Member for Somerton and Frome, said:"““It is a great shame that we do not have sufficient time to explore the issue properly but in stating clearly that the child’s welfare is paramount—the honourable Gentleman [Mr Dominic Grieve] has done so without equivocation, for which I am grateful—and in putting forward a proposal that one doubts will take us further than case law in terms of its effect.—[Official Report, Commons, 2/11/04; col. 233.]" On 13 December 2004, Members of the House of Commons were able to debate at greater length another amendment put forward by the official Opposition. Again, my honourable friend, the Member for Somerton and Frome said:"““The timing of this debate is unfortunate, as we have not yet had responses to the Green Paper, which is a serious piece of work and deserves our proper attention, and because the Select Committee on Constitutional Affairs, so ably chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), is even now taking an abundance of evidence and is yet to reach conclusions. His plea to both sides of the Chamber not to close down options until that process was complete was entirely appropriate. Sadly, it went unheard by those on both Front Benches.—[Official Report, Commons, 13/12/04; col. 1471.]" My honourable friend went on to say that he agreed with many things in the Official Opposition’s Motion. He also criticised a great many things. Ultimately, he advised his honourable friends to support it. He said:"““I will advise my right hon. and hon. Friends to support the Conservative motion today because there is more in it that we support than we reject, notwithstanding my trenchant criticisms of some aspects of it. I will reject the Government motion because it smacks of self-congratulation and I do not believe that they have got it right””.—[Official Report, Commons, 13/12/04; col. 1476.]" My honourable friend was so hesitant because the Constitutional Affairs Select Committee was taking evidence at that time. One rather significant thing happened: the Solicitors’ Family Law Association changed its position between its written evidence and its subsequent oral evidence. That was reflected in the Select Committee report published on 2 March. It stated:"““We also received evidence from witnesses who pointed out the risks inherent in forcing separating couples to share contact in all cases, because of the prevalence of domestic violence and the risks to children””." Initially, a statutory presumption appeared to have the backing of the Solicitors’ Family Law Association, which had commented in its written evidence that it believed that there should be a statutory presumption that children should have contact with both parents post-separation unless there are reasons that militate against that, such as safety concerns. During our oral evidence session with the judiciary, difficulties were identified with that proposal. A potential compromise was identified. Dame Elizabeth Butler-Sloss commented:"““we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which one takes precedence?””." I have very much taken to heart the words of Dame Elizabeth Butler-Sloss. The amendments to which I shall speak in a moment are, I hope, worded in such a way that they do not take precedence over the primacy of the welfare of the child. The Select Committee’s report continues:"““In oral evidence from the legal profession it emerged that this compromise had support. Mr Christopher Goulden who appeared on behalf of the SFLA stated that:""‘I have to deviate slightly from the SFLA line on [the proposal for a statutory presumption]. We have had subsequent discussions about that. I do not think that that is as well put as it might have been, with all due respect to my organisation. I think a better way would be perhaps to follow what the President said which is to have it as part of the welfare check-list and then it would get over that problem of there being, as it were, two conflicting presumptions. There is nothing wrong with having a presumption which is rebuttable, as was the recommendation in our written evidence, but as long as it came in perhaps by means of being part of the welfare check-list’””." We will come to the welfare check-list later. I cannot support the amendment proposed by the Official Opposition because I believe that it is too prescriptive. My honourable friends in another place agree that our position has moved on, given the evidence and the report of the Select Committee and given what I have heard during our debates on the Bill from many concerned organisations. In an ideal world, court systems would be robust enough to protect every child. It would then be safe to put a rebuttable presumption of reasonable contact into statute. It is an absolute disgrace that we are not able to do the right thing today because the Government have not given proper resources to CAFCASS and have not ensured that statute on the protection of the child is as robust as it should be. I hope that noble Lords will listen carefully to the suggestions on that front to be made by the noble Baroness, Lady Thornton. The second reason why we cannot support Amendment No. 1 and would prefer our amendments is that we think that they are better. For example, a statutory presumption regarding the exercise of parental rights, as set out in Amendment No. 11, raises a presumption for all separating parents that they should make arrangements that enable the child to spend time and have a continuing relationship with both parents unless there is evidence that that would be contrary to the child’s best interest. I ask noble Lords to notice that our amendment is rebuttable if there is evidence to the contrary. That would apply whether they agree arrangements privately, invoke mediation or go to court, but there will always be cases where the parties do not agree and end up in court. In those circumstances, it is important that the strong message from research that the welfare of children is best served by continuing to have a relationship with both parents is well understood. It has been well established in case law. The amendment strives to send that clear message in primary legislation so that it is not just embedded in case law and, as I said, inaccessible to the majority of litigants. The law would reinforce the message that parents should find a way to enable each other to remain involved with the child. Members in all parts of the House want to ensure that that happens. On that, I agree with the noble Baroness, Lady Morris of Bolton. Of course, it has to be subject to any safety considerations. The effect of my amendment would be that those who are negotiating in the shadow of the law, whether on their own, in mediation or through negotiations with solicitors, will be clearly aware of the principle that the court will apply if they cannot reach agreement and have to invoke the jurisdiction of the court. That principle in primary legislation will also underpin the suggestions made in the guide, What to do if you can’t agree, which accompanies the parenting plan and gives examples of how other parents have resolved differences in typical scenarios that arise on separation. However, the amendment does not attempt the impossible task of being prescriptive about what arrangements the court will order if it has to become involved because they necessarily vary according to the circumstances of each case, as the noble Lord, Lord Adonis, pointed out to us several times in Committee. I am aware that it is heresy to talk about amending Section 1 of the Children Act. However, it is not a question of amending the substance of the paramountcy principle. I would not have tabled an amendment to do that. Rather, it is a question of amplifying how the Government and the courts view child welfare when parents separate. The Act has been amended before in respect of issues that needed to be considered in relation to a child being placed for adoption, for example, by Section 1(4)(f) of the Adoption and Children Act 1989. That is why I had the temerity to suggest it today. Amendment No. 12 is somewhat different. It is about parental responsibility. The current publicity from fathers’ groups about 50:50 parenting raises important issues. As we try to do the right thing—all noble Lords in the House are trying to do that today—those issues need to be addressed. However, in our view, the solutions are not what fathers’ groups would want. It is clear that the power dynamic between the parties is frequently defined by which parent has ““got”” the children. It is often, but not always, the mother. If the parties have been separated for some time, the status quo of the arrangements made immediately after separation has become entrenched, which makes it difficult for parties to change the arrangements without causing further disruption to the children. None of us wants to do that. In some, but not all, cases, that can create a power imbalance between the parties when it comes to renegotiating the arrangements. Following the recent amendment of the Children Act 1989 by Section 111 of the Adoption and Children Act 2002, most parents will have parental responsibility for their children, but the law needs to define in statute how that parental responsibility should be exercised post-separation, so that the law encourages co-operative parenting—hence Amendment No. 12. It is inadequate to leave it to case law to define parental responsibility and how it should be exercised post-separation. The law should be clear and unambiguous to separating parents so that one cannot act unilaterally on big questions concerning the raising of the child, unless he or she is authorised to do so by the court. Those are the reasons why we think our approach is better. It is less prescriptive, and it allows the courts to have their prerogative of looking at the circumstances of a case. I do not intend to vote on the amendments today, because my priority is to look at what we can do to strengthen the Bill. I hope that the Government are listening carefully to the concerns that have come from all sides. The safety of the child must come first, but we must strengthen the arrangements for couples to mediate, to do it effectively and to do it before they go anywhere near the doors of the court.