Children and Adoption Bill [Lords]

New clause 21 deals with compensatory contact, a subject that we raised in Committee. It deals with what I would call serial breaches of contact orders, and with how enforcement should be made against them. We have all acknowledged the lack of research on the failure of contact orders to work in too many cases. We know that about 70,000 contact orders are granted each year, and we know how many result in a revisit to the court because one of the two parties involved has not adhered to the order. Several hon. Members referred to the Oxford university research paper today. It underlines what it calls the ““situational power”” of the resident parent, the cost of returning to court—often against a legally aided partner—and the slowness of the legal system. It also highlights the fact that a parent can fall out of touch with a child if he or she is denied the opportunity to see them over an extended period because of pending court action. The father or, less usually, the mother would subsequently become unfamiliar to the child. The child, particularly if young and impressionable, might then be less willing to see the non-resident parent. Those examples are cited by Oxford university as reasons why a parent with residency is in a much stronger position. If such a parent were minded to play the system, he or she could use it to restrict the opportunities of the non-resident parent to maintain meaningful contact with the children. The problem is that the only real penalty that the courts have against someone who breaches a contact order is to levy a charge of contempt of court, and that is rarely done. The courts are reluctant to take that course of action because it could result in charges being brought against the parent, and that is regarded as the nuclear option. We do not know the extent of the problem. I recently tabled a parliamentary question to the Minister of State, Department for Constitutional Affairs, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), asking how many people had breached child contact orders in the past few years. She replied that"““it is not possible to identify the number of cases in which failure to comply with a contact order leads to the matter being dealt with as a contempt of court…This information is not held centrally””.—[Official Report, 15 May 2006; Vol. 446, c. 731W.]" So we do not know much the sanction of contempt of court is used, but we hear anecdotally from the courts that it is rarely brought to bear. Effectively, therefore, a lot of articulate people in the know are able to play the system to frustrate contact by a former partner on the basis that there is a strong chance that no penalty will be brought to bear against them. A judge can say, ““Don’t breach the contact order, or I’ll haul you back before the court and tell you not to breach the contact order again.”” That is as punchy as it gets. Such a judge would have all the force of an unarmed, one-legged policeman shouting ““Stop, or I’ll shout ‘stop’ again”” at a fleeing criminal. I am afraid that that is just not good enough. It has given rise to many complaints, and to a perception that the system does not work in favour of a non-resident parent who happens to be at loggerheads with the parent who has custody and who is determined to use, in extreme cases, the children as pawns to fight battles with his or her partner rather than acting in the best interest of the children. As has been said today, in most cases what is in their best interest is maximum contact with both parents. Let me give the Government their due. They recognise the problem, which is why the Bill exists and why they have added the enforcement orders provisions in clause 4. The clause requires breachers of contact orders to undertake unpaid work if no good reason for the breach is given, and to instigate compensation for financial loss. That may involve travel costs, or a holiday booked by a non-resident parent which becomes impossible when the parent with custody decides to take the children to the other end of the country. The provision is good as far as it goes, but it lacks real teeth. Conservative Members are pleased that the Government dropped some of the more draconian measures, such as the tagging of errant parents with custody, which would not have been a fitting penalty in such sensitive cases. However, if—say—a mother with custody is fined, the fine will often be paid from the maintenance paid by her ex-husband. The money will be recycled, and those who lost out most will be the children who can no longer enjoy the benefit of funds intended for their upkeep. Those who are determined to flout contact orders will ask ““What is the worst that can happen to me?”” At present, the answer is ““Not a lot.”” We tabled new clause 21 because we think that what is needed is a proper, recognisable, easily understood sliding scale of penalties, the award of custody against the resident parent being the ultimate sanction against the serial breacher of contact orders who simply will not come into line with what the court has decided. If a non-resident parent is deemed fit to share in the upbringing of his or her child, he or she should have the opportunity to do a better job than the parent who has frustrated contact orders, which surely cannot be in the child’s best interest if the court has deemed that the child should have contact with both parents. We consider that the compensatory contact time proposed in new clause 21 represents an appropriate and proportionate middle way. It would make the parent at fault think twice. If he or she genuinely thinks that it is harmful for the child to spend more time with the non-resident parent, surely he or she will not risk the award of additional compensatory contact time with the non-resident parent. Other countries impose a range of penalties. The Government of the Netherlands have power to suspend child support payments temporarily when a parent has frustrated contact arrangements. In the United States, an occupational driving or sports licence can be suspended. In the state of Arizona, an independent court official is appointed as a go-between to supervise the way in which contact works. Much of the power to frustrate orders is removed from parents. In Germany, non-complying parents can lose their right to manage contact arrangements, which then pass to a court-appointed contact guardian. That is similar to the system in Arizona. Surely the middle way suggested in new clause 21 is a more balanced, relevant and proportionate response to the problem with which we are dealing. It would still be subject to checks and balances connected with possible risks to the welfare of the child, which are important features of other parts of the Bill. The burden of proof, however, must fall on the person who has not complied with a court order. It must be for that person to prove that he or she had good cause not to do so. We consider the new clause to be sensible, practical, proportionate and workable. It should be seen not as a reward for an aggrieved parent, but as an effective disincentive to the breacher of a contact order who has ignored the judgment of the court. Amendment No. 11 would make the enforcement order subject to the principle that the child’s best interests are served through reasonable contact with both parents, in the absence of safety considerations. I shall not rehearse the arguments that have already been presented about reasonable contact. Amendment No. 10 deals with the provisions requiring children making applications to obtain the leave of the court. My hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) may touch on that later. I am sure that the hon. Member for Luton, South (Margaret Moran) will shortly speak on her amendment No. 21, which states that decisions on whether there was a reasonable excuse for failing to comply with an order must take account of the wishes and safety of the child. We believe that that will be implicit in the thinking anyway. As I have been at pains to stress, the paramountcy of the child’s welfare and of considerations about the child’s safety must be taken into account in all our proposals. The hon. Lady also tabled amendment No. 16, which concerns the separate representation of a child in court. The amendment has an interesting distinction: until yesterday, one of the signatories was a Minister. I note that she has removed her name; it would have been rather interesting if the Government had declined to accept it. Amendment No. 18, tabled by the Liberal Democrats, states that the child’s welfare must be paramount when the court considers whether a person has a reasonable excuse. We shall hear what others have to say about the amendments that they have tabled, but we think that our new clause would beef up the Bill and give it real, workable teeth. In its current form, it is a good try, but we do not think that it will work. We believe that new clause 21 will make what the Government want to achieve practicable.