Children and Adoption Bill [HL]

My Lords, I was very sorry not to be able to participate in our discussions in Committee, and I apologise to the noble Baroness for giving her so much reading. Of course the upside for her is that, having given it to her, I had to read it all as well. I am sure she will agree that it was well worth the effort to ensure that we understood all of the background. I am also grateful to all noble Lords who have discussed the issued raised here with me and my noble friend Lord Adonis outside your Lordships’ House. I join all those who have spoken in saying I completely understand the motivation behind the amendments, and salute everyone who has spoken for the passion with which they have declared the desire to see our court system work to the best effect for children and their families. I remind your Lordships where we started from with the Bill. In this part of the Bill we were seeking to deal with an injustice to children, who, despite the courts saying that it was in their best interests to have the attention of both parents, found that for whatever reason they were denied access. All the anecdotal evidence, and evidence of which noble Lords are aware, suggest that fathers, in particular, are affected. We know that the judiciary was frustrated that it could not deal with this matter as effectively as it might. We have sought to achieve two things: first, to increase the speed with which cases can return to court and, secondly, to create sanctions that would work. Fathers’ groups in particular pointed out that when things went wrong it took so long to return to court that, effectively, a new status quo was in place, which could not be overturned easily and they found that they could not have what they had been told was in the best interests of their child, with which they had concurred. As noble Lords will appreciate, it is difficult to find a sanction that does not, in effect, create even more tension in the relationship between the child, the resident parent and the non-resident parent. That is what we have sought to do. The Bill should be seen in the context of a whole raft of work that is taking place to try to ensure that the system works more effectively, more efficiently and quicker for parents and children. We have recognised a fundamental point about the way in which our courts work. I do not presume that anyone is trying to undermine that, but it is at the heart of why I cannot accept the amendments. The more I look back at what happened in 1989, the more remarkable it appears. We did something that is now being copied in over 12 jurisdictions across the world and for which the noble Lord, Lord Laming, among others—he could not be with us today—spent 20 years of his life campaigning. At the heart of our court system is the fact that a child’s interests come first; in other words, a child has rights—the paramountcy principle, much debated in your Lordships’ House. It is important to reflect on how critical a development that was. It has been heralded across the world. We do not want people to end up in court and we are delighted that 90 per cent do not. We shall do more and more. Perhaps as the afternoon develops I shall talk about the work we are undertaking on mediation, for which I, as a Minister, am responsible. However, we do not want people to go to court, but sometimes matters become so difficult, so intractable that people end up in court, and sometimes, as the evidence suggests, couples come to court because they want the reassurance of a court order. Above all else, what is best for children? The courts act on behalf of our society asking what we should do when things are difficult, times are tough and the parents cannot agree. We look at the innocent, at the person who does not have a voice. We ask what is in the child’s best interests. Almost invariably it is contact with both parents, but that contact will vary. Sometimes, unfortunately, there will not be contact in the short term—perhaps not in the long term—but that is a fact. The evidence that we have gained, particularly from the University of Leeds, from the work of Carol Smart, Vanessa May and others, is that when parents go to court, their concerns for their children are not fabricated, but they are not necessarily the driving force behind the conflict. Everything else that has gone wrong drives the parents’ anger with each other. As the courts do not deal with such matters, parents channel their hostility into issues that they can take to a judge—issues of residency and contact. Researchers call it the parenting contest. There are very high stakes. Is she a decent mother? Is he a good father? In the context of trying to channel all that anger and hostility, many of the disputes take place. It is very important to remember that when the courts are confronted with that, they begin from a very different starting point. They have before them—not necessarily physically, but in their minds—children who need the best possible outcome which will make their lives as good as possible. As research indicates, we find parents who are at odds with each other but at the same time we see a competing set of values and ideas about child rearing. The noble Baronesses, Lady Howarth and Lady Pitkeathley, referred to their experience with CAFCASS and families with multiple problems. We also see children who have clear feelings about their parents, extended families who have very strong views and, above everything else, we see huge amounts of distress. I believe that we all agree in your Lordships’ House that in that context it is very important to be clear that the interests of these children come first. I believe that we have developed the right approach in what are always difficult circumstances. I understand that it is not the desire of noble Lords to overturn that paramountcy principle by their amendments. However, we have a problem in that that is precisely what would happen. One amendment that I rather hoped would be tabled in your Lordships’ House—perhaps this is an invitation to the noble Baroness, Lady Walmsley, more than anyone, and she will know instantly why that is so—concerns a matter that we have not dealt with very well and need to deal with better, and that is listening to the voice of the child. We need to ensure that what children feel and think is taken more seriously. We know that when confronted with a certain degree of parental conflict and distress, children say that they would rather not see the parent at all than put up with that. That tells us an awful lot about what more we have to do to stop people reaching that point of great conflict. We need to recognise that these children are caught in impossible situations. We must look after them above and beyond anything else. That does not mean that I do not respect and admire what noble Lords have sought to do with their amendments and their translation of the strength of feeling of different organisations which have met the noble Baroness, Lady Morris, the noble Earl, Lord Howe, the noble Baroness, Lady Walmsley, and ourselves. I recognise that not everything is perfect and that we have more to do. However, I want to be clear that I cannot go down the route proposed in these amendments as they would rub against the paramountcy principle, and I cannot afford to do that. The amendment on co-parenting, tabled by the noble Baroness, Lady Morris, has a laudable aim. The trouble is that in the end it would invite more litigation because we would have to sort out what takes precedence in a world where we have the paramountcy principle and the idea that co-parenting somehow runs alongside that. There are many good reasons why children’s lives do not allow for parenting to be equal or for it to be the way one would like it if the parents were together. It may be a matter of geographical distance apart from anything else. It may be the nature of the child’s life. It is very important that we ensure that we do not go back to having things done to the child rather than the child being involved. It is very important that we do not pass amendments that would permit more litigation in that a case would have to go to the Court of Appeal and ultimately to the House of Lords to determine what takes precedence and what is meant by the Bill’s intentions. I accept that there are safety issues on the frequent and continuing contact amendment. I completely accept that no noble Lord is suggesting for one minute that where safety issues are involved, we should do other than put those top of the queue. However, the courts take other matters into account. They take into account the wishes and feelings of the child. They also take into account social welfare issues. One needs to define what is meant by ““continuing and frequent”” as one person’s frequency is someone else’s infrequency. It is difficult to define. We know that the courts are already required to deal with appropriate arrangements. Therefore, I am not sure what we would add by the measure except the potential to create confusion and, of course, more litigation—which we all wish to avoid. As children grow older their needs and desires for contact with their parents change. I call it turning into a taxi service, from my experience. We need to ensure that we do not accidentally create a measure which says, ““It always has to be like this””. It might be great when children are five but it would be hopeless when they are 15 and their lives have moved on. Spending time with parents at that age is not as cool as it used to be, when they could spend it with their friends. The real problem is that we define quantity and regularity from the perspective of the parent, not the child. A whole body of research was looked at by the University of Oxford, and we know that it is the nature and the quality of parenting that is critical, not necessarily the quantity. Parents know that, too. It is not how much time you spend with your children, but what happens when you do. We need to hang on to that as well. I have a problem with frequency as it implies quantity, not quality of parental perspective, and it does not give the flexibility that we need. Children are trapped in these situations, which is the difficult part of it. The noble Baroness, Lady Walmsley, has done a lot of work on her amendment, but my problem is that it still leads us into some kind of presumption. I have looked carefully to see whether there is a way of putting some provision into statute without detracting from the welfare provision, but I cannot find it. The noble Baroness will know that I try hard to achieve that when I see the point of something. The difficulty is including in the Bill a provision that needs to be interpreted. The judiciary will rightly ask why we have added something new when Parliament is asking for something different. That is the difficulty, but we shall continue to talk about it. I see the aim of Amendment No. 12—consulting each other about decisions on bringing up children. The problem with the amendment, which I am not sure the noble Baroness realises, is that it covers all parents, including those who have never come near the court at all. I am not keen. The ““nanny state””Daily Mail headline would run riot on that point. I am not keen to get into the business of instructing parents in that way. It is also difficult to define an important decision, especially at times of parental conflict. Parents will claim that a particular decision is important, such as, for example, whether the child goes on a school trip; goes for tea at somebody’s house, and so on. They will claim that such decisions are important because it suits them to do so at a time of enormous conflict. I am sure that the noble Baroness and I would agree on what we thought was important, but it is difficult without a list being defined. Sadly, as the noble Baroness, Lady Pitkeathley, said, there will be cases when co-operative decisions cannot be reached. There may be fear of violence, intimidation or bullying, which tragically happens in some relationships, or sometimes parents just cannot stand each other. Decisions cannot be made co-operatively in those circumstances. We cannot generalise about that. There are also difficulties with phrases, such as ““brought up by””. It will be a happy time for lawyers trying to define such phrases, but I am fearful of ending up with more litigation, however much I understand and share the objectives. The objective of extending the family welfare checklist is fine, but there is a problem with putting it here in this way. The checklist is factual—trying to establish facts about what is happening, which is important. In winding up on this group of amendments, my theme on this part of the Bill is that I completely accept the ambition to do two things. The first is to be clear about parental responsibility. The noble Lord, Lord Northbourne, reminds us of this in every Bill with which I have ever been involved around this subject. You cannot walk away from your children, and you should take responsibility for them seriously. That includes financial and emotional support, as well as good quality time. Children should not be ignored and abandoned. We need to consider what we should do about those issues. Secondly, we need to consider parental rights. They want to be involved with their children; they love them and want to prevent them being harmed. They do not want to be cast out of their lives. Those issues are important, but they are not for this part of the Bill, which is about trying to do something different. But they are relevant to the programme of work that we should be considering. I have tried to set out a series of measures to ensure that we develop a better system. I talked about mediation, for which I have grand plans, but we shall discuss it in later amendments. I have much time for the work that needs to be done on getting information out to parents much earlier—even before they think of separating, but certainly at the point they do—through all the organisations, websites, and so on, that they can consult about what to expect. We need to look carefully to ensure that we understand what happens in our court system, and I shall be happy to discuss that further. I have two final points. A number of things have been said about other jurisdictions that are based on presumptions. Noble Lords know that legal systems are different and the profile of the populations using the courts is different. We have found little evidence from across the world to explain what happens. Making changes here on the basis of no evidence from other jurisdictions is making bad law. We need to be clear about our evidence base. I know that the noble Baroness, Lady Morris, is particularly interested in Australia, which is not adopting any presumption about contact. Rather it is saying that the court will regard the best interests of the child as a paramount consideration. I promised to check that for the noble Baroness, and I have done so. To move away from the principle that the child needs to be the basis on which the court makes its decision would be a travesty of justice for some of the most vulnerable people in our society. In 1989, in a sense we led the world in making it absolutely clear that when it came to those moments of real dispute our interests would lie with the child. People fought very hard to put children at the centre; we must not change that. It would be wrong to do so. I hope that noble Lords will not push the amendments but rather that they will work with us to ensure that everything that I volunteered to do will make sure that children get the best that they possibly can from the justice system. We want parents to understand their roles and responsibilities, and we want to right the wrongs where parents have not been able to see their children, not because the courts have not ordered it but because it has not worked out that way because of the other parent. All that we are trying to do in the Bill is ensure that children get the best possible deal, and within that to make sure that those family members who want to be with their children get to do so. I hope on that basis that noble Lords will not press their amendments.