Children and Adoption Bill [HL]

moved Amendment No. 2:"Before Clause 1, insert the following new clause—" ““REASONABLE CONTACT In section 8(1) of the Children Act 1989 (c. 41) (residence, contact and other orders with respect to children), for the definition of ““a contact order”” there is substituted— a contact order”” means an order requiring the person with whom a child lives, or is to live, to allow the child to have reasonable contact with the person named in the order in the absence of good reason to the contrary””.”” The noble Earl said: My Lords, nearly a generation ago this House met to debate and to pass the Children Act. It was a measure which, as the noble Baroness said, was by any standards groundbreaking in defining the way that our society and our legal system should treat children. The Children Act 1989 has rightly been held up as a model of excellence in legislation, which other countries have sought to copy. It established for the first time in statute the paramountcy principle, to which we have already referred; that is, the test that says that in all decisions taken by the courts and by public authorities involving a child’s welfare, it is the child’s best interests which must be considered paramount. No one argues with that principle, least of all me. It is generally agreed that the Children Act has worked well, even though, over the years, it has been amended in various ways for very good reasons by successive governments. There is, however, one aspect which has not delivered all that we hoped that it would; namely, the provisions which relate to the way in which contact between a child and his parents is maintained following separation or divorce. The whole purpose and rationale of the Children Act was to ensure that the law recognised and promoted the best interests of children. Throughout recorded history, civilised societies have taken it as axiomatic that it was in a child’s best interests to experience the love and influence of both parents; that that love and influence was every person’s birthright; and that, therefore, unless there is good reason to the contrary, the state has no business to sever the parent/child bond. That is most decidedly my belief. I like to think, having read the Government’s Green Paper, that it is the belief of Ministers as well. The opening paragraphs of the Green Paper state:"““We believe that in most cases it is very much in the interests of the child to have an on-going relationship with both parents and so we hope that through improving the system, more non-resident parents will enjoy meaningful on-going relationships with their children. After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe . . . It is in the interests of the child to have a meaningful ongoing relationship with both parents””." Amen to all of that. In effect, the Green Paper is saying that a child’s best interests are served by a presumptive right of meaningful contact with both his parents, with that right being denied to him only if it is unsafe to exercise it. The whole of the Green Paper is suffused and shot through with that idea. You cannot read it and emerge at the end believing anything other than that, in the view of the Government, children and parents have a natural right of reasonable contact; that all too often the legal system as it currently stands fails to deliver reasonable contact; and that, therefore, the way in which the courts intervene in disputed contact cases requires radical amendment. In Grand Committee, we debated the significance of case law in that area. Case law has established the principle that, in the absence of good reason to the contrary, both parents, upon separation or divorce, have a right of contact with their child and vice-versa. It is important to understand what that means. The right of contact is not the same as the right of reasonable contact or meaningful contact. What do we mean by a meaningful relationship or meaningful contact? If you ask most non-resident parents what they mean by it, they would say that they mean doing those ordinary little things which parents and children in undivided households take for granted—tucking a child up in bed, reading the child a bedtime story, cooking a child’s supper, eating a meal at home together or taking a child to the supermarket. It is through those ordinary, but deeply important, acts that a child has a life in his parents and the parents have a life in the child. That simple truth was reflected in the words of the Green Paper. On page 22, it speaks of the need for arrangements which,"““result in children feeling comfortable in both parents’ homes. A typical arrangement might be for a child to live at one parent’s home and to spend alternate weekends, a mid-week visit, alternate special or festive occasions and extended time during the school holidays with the other parent””." Many of us took tremendous heart from that, because it demonstrates the Government’s recognition that a meaningful relationship between a child and a non-resident parent cannot be achieved without them being allowed to enjoy each other’s company in unforced surroundings for a goodly period of time. It is stated in terms in the Green Paper that an approach that incorporates shared parenting arrangements in this broad sense promotes the interests of the child. In Committee, the noble Lord, Lord Adonis, told us that cases in which the courts denied a request for contact from a non-resident parent were extremely rare. He said:"““we note that all but 1 per cent of requests for contact lead to the making of contact orders””.—[Official Report, 17/10/05; col. GC 157.]" The noble Baroness, Lady Howarth, said something similar: in fact, on 11 October, she said less than 1 per cent. The accuracy of both those assertions has been completely and utterly demolished by the publication last month of a survey by Napo, the trade union representing family court and probation staff. The Napo survey provides us with the first ever ray of light to fall on the decisions that are being taken day in, day out in our family courts. Of 864 cases sampled, no fewer than 5.2 per cent resulted in a no contact order. A further 8.2 per cent resulted in an order for indirect contact only. For those of your Lordships who are unfamiliar with the term, indirect contact means that you are allowed to communicate with your child in some pre-agreed way, but you may not actually see or be with him. A further 5.7 per cent of cases resulted in an order for contact on condition that any meeting between parent and child is supervised by someone else, typically in institutional surroundings, such as a contact centre. If we put those figures together and ask ourselves what they mean, the answer is this: of the 864 cases in this sample, a not insignificant number, just short of 20 per cent, resulted in an order of the court that prevents the non-resident parent from being alone in the same room as his child. In other words, the key figure is not less than 1 per cent; virtually a fifth of contact decisions make it impossible for the parent/child bond to be meaningfully nurtured. They allow no bedtime stories, no tucking into bed, no sharing a meal around the kitchen table, no pushing a trolley around the supermarket. I do not for a moment seek to play down or belittle the significance of domestic violence as a factor in some of these cases, but 20 per cent is a very substantial figure. It is a figure that excludes all those court decisions where direct contact is granted to the non-resident parent, but only at minimal levels: one afternoon a month for two hours and that sort of thing. We do not know what the percentage of such court orders is, so we cannot say much about them, beyond the fact that, anecdotally at least, they occur very regularly. In Grand Committee on 17 October the noble Lord, Lord Adonis, said that there was no evidence that the courts are not making reasonable contact arrangements. I say to him that in the Napo figures we have the first glimpse of such evidence and, indeed, the first real glimpse of what CAFCASS is doing. I cannot say that I like what I see. It may well be, as the noble Baroness, Lady Howarth, said in Committee, that CAFCASS is successful in promoting contact where no contact existed before, but, judged on this evidence, we cannot deliver a verdict on the ability of CAFCASS to promote reasonable, meaningful contact. The difference between a presumption of contact and a presumption of reasonable contact is this: if as a non-resident parent you enter the family court with a presumption of contact, and no more than that, you can expect the courts to award you at least minimal contact with your child in the absence of good reason to the contrary. At the same time the onus is on you to argue to the court why it would be in the child’s interests to have a more substantial quantum of contact. By contrast, if you were to enter the court with a presumption of reasonable contact, the onus would be on others to show why contact arrangements which afforded the prospect of a meaningful relationship between you and your child were unreasonable. That is the difference. They would need to produce a good reason, such as domestic violence, to deny the parent and child a reasonable or meaningful degree of contact. At present, the absence of a presumption of reasonable contact means that material contact between a parent and child can be brought to an end for no good reason; in other words, for trivial or immaterial reasons. That means that the slightest blemish on the track record of the non-resident parent can be enough for him or her to be damned in the eyes of CAFCASS and the court as a ““bad parent”” and therefore unfit to look after the child. ““He lost a sock””. ““He fed the child inappropriate food””. ““He fell asleep while reading a bedtime story””. Those are the sorts of trivial immaterial reasons that are produced to demonstrate somebody’s unfitness to look after a child. By the same token, the slightest plea from the resident parent that a proposed contact arrangement is inconvenient for one reason or another can carry weight far beyond what most would regard as reasonable. To the casual observer it may appear that two parents in a contact dispute have equal rights before the courts, but in practice, because the law is as it is, the scales in contact cases are weighted heavily in favour of the resident parent. In that respect the Children Act has failed children and parents. That is the reason I propose these amendments. They would ensure that, provided there was no good reason to the contrary, the court would have a duty to make contact arrangements that were reasonable. The definition of what is ““reasonable”” or ““meaningful”” would be arrived at in two ways—through guidelines issued by the courts and, in time, by case law. The guidelines would take the form of approximate allocations of time which, in the court’s judgment, were applicable to different circumstances—all other things being equal. We see a model for this in other jurisdictions such as Florida, a number of other US states, Scandinavia and New Zealand. There are those who maintain that a presumption of reasonable contact and the existence of guidelines would serve to place children at greater risk of harm. I respectfully disagree. A presumption of reasonable contact will not of itself increase the risk of harm to a child because, as now, any suggestion of genuine risk to the child’s well-being would count as a good reason not to grant meaningful contact or, indeed, any contact at all. If the worry is that genuine risks to the child’s well-being are not being picked up, the answer is not to perpetuate a system that denies meaningful contact, even when there is no hint of a good reason to do so, but to improve the protocols for establishing whether an allegation of violence or child abuse has real substance and then proceed from there. We shall be debating later some separate amendments designed to work towards that end. In those jurisdictions where there is a legal presumption of reasonable contact, backed by court guidelines, contact disputes have fallen to extremely low levels with, if anything, less risk to children than before, because the system provides for very swift intervention by the courts when violence or abuse is an issue. I believe that my proposals are wholly at one with both the substance and the spirit of the Government’s Green Paper and with numerous public utterances by a number of Ministers over many months about the benefits of dual parenting. It is a mystery to me why the Government should now oppose them. The noble Lord, Lord Adonis, said in Committee that the amendments would amount to a qualification of the paramountcy principle. That would certainly be true if I were proposing that the paramountcy principle and the presumption of reasonable contact should carry equal weight in the eyes of the court. I am not proposing that. I am saying that the courts are perfectly capable of operating on the basis of an overarching principle that the child’s best interests should be paramount; and, beneath that, the subsidiary principle that, in the absence of good reason to the contrary, both parents should have reasonable, meaningful contact with their own child. I come back to the point with which I began. No one in 1989 can have intended to pass a law, and surely no one can now support a law, which provides that all material contact—the very measure that we agree is in the best interests of children—can be stopped even if there is no good reason to stop it. Surely no one can have intended the law to allow that the parent/child bond can be set aside lightly. Yet this is what the law allows and what happens every day in our courts. I am afraid that the Government are trying to tinker at the edges of a system that, in their own words, does not work well. I do not believe that we will succeed in doing justice to children and non-resident parents without a complete change of approach. I beg to move.