Children and Adoption Bill [Lords]

I fear that the consensus that we have achieved so far today might be about to come to an end. The hon. Member for East Worthing and Shoreham (Tim Loughton) put some statistics on record, so I thought that I would kick off by doing the same. He might not entirely agree with the figures, but they come from the Office for National Statistics. About three quarters of non-resident parents have some direct contact. Around three quarters of non-resident parents have either direct or indirect contact at least once a week, and less than 10 per cent. of non-resident parents have no contact with their children at all. It is also worth saying that less than 1 per cent. of applications for contact are refused by the courts. Those statistics give some of the context for the debate that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) wanted to put on record. The new clauses and new schedule in the large and varied group are united by a desire to promote contact between children and both their parents, or other relatives, following parental separation. Some of the measures raise specific points to which I will turn in due course, but there are fundamental points of principle that run through all of them. First, I make it absolutely clear that it is our view that children will nearly always benefit from a continued and meaningful relationship with both parents following separation, so long as that is safe and in their best interest. I believe that we can all agree on that, and the debates in Committee made it clear that hon. Members on both sides of the House are united behind that position. Our view is that the legislative framework that we have in place, which is centred on the excellent Children Act 1989, is the right one. The paramountcy principle is clearly laid out in that Act, which says clearly and without qualification that when deciding any question affecting a child’s upbringing, the welfare of the child should be the court’s paramount consideration. I do not think that there is any disagreement about that either. The worry that hon. Members on both sides of the House have expressed is about what is happening in practice. We all regularly hear sad stories from our constituents in our surgeries. Such cases are the motivation behind many of the measures in this group of new clauses. The vast majority of the measures would insert provisions into the Children Act 1989 to direct the courts to promote, or presume that there should be, contact with both parents, but that causes us much concern. We have examined the matter closely, but, quite simply, we cannot find a form of words that would send such a signal to the courts without moving the focus of legislation away from the fundamental principle that the welfare of the child is paramount. Any shift in favour of a presumption would be a move towards a legal model under which a court would have to start by assuming the specific position that as much contact as possible is in a child’s best interest. It would have to take that position independently of considering the facts of a particular case and move away from it only in exceptional circumstances. Such an approach would very different from starting by considering an individual child and ordering what is best for that child, which is the legal position that we have at present. I believe that that position is right. However, that is not to say that everything is perfect—that is something on which I agree with the hon. Member for East Worthing and Shoreham. We share the concern that there might be a need for a change in practice and a shift towards better support for families to help to ensure that both parents remain involved in parenting. Such an approach would require a shift that was more cultural than legislative. I hope that I have explained not only our general concerns about the measures, but our sympathy for the intentions behind them. Some of the measures raise specific difficulties that I shall now address. The aim of several of the measures is to try to avert cases from going to the courts by giving parents an idea in advance of what a court would be likely to order. The problem of trying to do that is illustrated graphically by new schedule 1, which new clause 25 would insert in the Bill, in which the hon. Member for Mid-Dorset and North Poole has made a valiant attempt to set out what default contact arrangements might look like. As hon. Members will have noted, new schedule 1 is extremely detailed. I am sure that the hon. Lady accepts that it is easy to imagine the objections that would come in from parents about reasons why the arrangements would not be appropriate in their individual case. Even more concerning is the fact that the new schedule would apply to people who had never been anywhere near a court, so it would represent a rather inappropriate intrusion by the state into the lives of private individuals who have not turned to the courts at all. Although new clause 9 is essentially about a presumption of contact, it would have the very odd effect of changing the no order principle in the Children Act 1989. That principle, as it stands, says that a court should not make an order unless it is satisfied that doing so is better for the child than making no order at all. That is self-evidently a sensible position, but new clause 9 would drive a coach and horses through it by saying, in effect, that a court should make an order for ““reasonable contact””, even in the absence of any evidence that doing so would be better for the child than making no order. New clause 11 would require the Children and Family Court Advisory and Support Service and local authority officers to proceed on a presumption of reasonable contact when carrying out family assistance orders. Such a requirement would be odd in the context of orders that are intended to support children and families. The role of an officer carrying out such an order is to ““advise, assist, and befriend””, usually in the context of directions given by a court, not to make assumptions about what may or may not be in those people’s best interests. New clauses 12 and 17 would insert presumptions of contact into the welfare checklist. I am impressed by the innovation of the hon. Member for East Worthing and Shoreham because he seems to have come at the Bill from every angle to try to find a way of getting his point across. Such measures would be an especially inappropriate way of proceeding. As was explained in Committee, the welfare checklist is a list of things to which courts must have regard when making their decisions. It includes matters such as any harm that the child may have suffered, the ascertainable wishes and feelings of a child and the capacity of a child’s parents to look after the child. All those factors are relevant, but do not direct the court one way or another about what it should decide. There is thus a clear and stark difference between the approaches. A presumption of contact would be a very strange addition to the checklist in this context. A further problem would be that the welfare checklist applies in public law cases, such as care proceedings, although I do not believe that the hon. Gentleman would wish such cases to be covered by new clause 12. New clauses 13, 4, and 24 express in different ways a simple presumption of contact. I have said already that we are concerned that all the new clauses would move away from the paramountcy principle as the centre of children’s law, which we would consider to be deeply undesirable. New clause 24 makes some attempts to explain what ““reasonable contact”” means, including the worthy sentence that it should facilitate"““a positive and fulfilling relationship””" We can all agree with that as a goal, but I do not believe that a statutory presumption is the best way forward. New clause 16 extends the principle of a presumption to the extended family. I know that it reflects the concerns of grandparents in particular, something to which I shall return in a moment. Grandparents are sometimes tragically excluded from their children’s lives as a result of a conflict between parents. That is unjust and it can have a terrible side effect, given the pain that individuals feel at the end of a relationship. It is, however, not something that can be solved by a presumption that would serve only to weaken the paramountcy principle. New clause 18 comes at the problem from yet another perspective. I have discussed the clause—we had a discussion outside the Chamber—with my hon. Friend the Member for Stafford (Mr. Kidney), who was a little downhearted earlier on because he did not see me giving in on this issue. I know that my hon. Friend’s aim is to find a way through the difficulties that I have set out, namely avoiding conflict with the paramountcy principle. He does so by setting out, instead of a presumption, a set of objectives that the court should have in mind when making provision about contact with the child. These are worthy objectives, including reducing the risk of harm to the child and promoting contact between the child and the child’s parents and other family members. Unfortunately, as I said to my hon. Friend when we met, the new clause does not avoid the danger of upsetting the paramountcy principle. It would effectively alter the starting point of the court, away from whatever is best for an individual child and towards making orders that would fit with the objectives set out in new clause 18. Finally, there is new clause 19.