Children and Adoption Bill [Lords]

My purpose is to ensure that the paramountcy of the child’s interests, which we have discussed repeatedly in Committee and today, is made clear in the Bill. I believe that some of the proposals advanced by, in particular, Opposition Members undermine that paramountcy principle. Amendment No. 21 would introduce important safeguards to enforcement proceedings. I believe that while not constituting a bar to the effective enforcement sought by the hon. Member for East Worthing and Shoreham (Tim Loughton), it would require courts to consider first the ascertainable views of the child and secondly—and most important—any risk of harm to the child or any member of the family when deciding whether a party had a reasonable excuse for breaching an order. The Government have limited the extent of provisions relating to children in clause 4, arguing that breach of contact orders, and their enforcement, are about parents. With my amendment, I am arguing that they should be about children and their welfare. As I understand it, the Government argument is that concerns about the child are dealt with when the original contact order is decided by the court. As a result, the principle of the paramountcy of the child’s welfare appears, in effect, to have been removed from the clause, as has the standard child’s welfare checklist that the Children Act 1989 requires the court to use in all other proceedings. In other words, the clause contains less emphasis on the importance and paramountcy of the child’s welfare than any other in the Bill. However, children frequently say that the enforcement stage is the most frightening period. The available research shows that the points of contact and enforcement are the most dangerous ones for separating partners, especially women, and for children. Evidence from children’s charities suggests that children find the stage of the process when they are in effect being torn between two parents frightening, and that anxiety and other welfare repercussions ensue. Research by the Department for Constitutional Affairs into children’s wishes and feelings about contact found that children"““imagined the courts to be ‘scary places’ with judges who have the capacity to ‘punish’ their parents. Some children worried that one or other of their parents could be sent to prison for behaviour for which they themselves felt responsible, such as refusing to go on a contact visit.””" In other words, children internalise the conflict going on around them in the court, often after repeated court visits. That must have a damaging effect, and we know from other legislation that cognisance must be taken of the damage inflicted on a child who witnesses such conflict. That is especially true in situations involving domestic violence, but account must be taken of the fact that a child is also damaged who is pulled between parents in the course of repeated court cases about contact. We believe that, in order to address such concerns, the stage of the proceedings covered by clause 4 needs a much stronger focus on children. The focus on parents rather than children in clause 4 also fails to acknowledge that the circumstances of a child’s safety and welfare may change substantially by the time that the enforcement stage is reached. In many cases, that may be a year or more after the court hearing in respect of the original contact order. Many things can happen in such a long time: the conflict between the parents can escalate, as can the risk to the child, who might be damaged or even abused in that period. It is therefore essential that we reassess the risk to the child at that point. As it stands, the Bill assumes that the child’s safety and welfare is addressed when the original contact order is made, and that another check is unnecessary. That is badly thought through, however: children are put at greater risk because there is a long gap after the original contact order is made, and also because there is the potential for conflict in repeated court appearances. To refocus the clause onto children rather than parents, an amendment was moved in the other place requiring the courts to consider the views of children and any risk of harm. The Minister in the other place agreed with the content of the amendment, and said that the Government were ““entirely sympathetic”” with its objective. However, the amendment was rejected, with the Minister claiming that the standard welfare checklist of the Children Act 1989 applied and that the amendment was therefore unnecessary. However, I am advised by children’s charities, and especially the National Society for the Prevention of Cruelty to Children, that the standard welfare checklist does not apply. It is therefore essential that the safeguards are reintroduced into clause 4, to minimise the risks to children. That is the purpose of amendment No. 21. I turn now to amendment No. 16, which deals with the separate representation of the child in contact order proceedings. The National Youth Advocacy Service published a review of 52 cases involving 95 children whom it represented in family proceedings. It found that, when children are represented, the outcome—for the child and for both parents—is infinitely better than when there is the sort of longstanding conflict that inevitably arises, and which we have discussed already. We talked about the need to find a middle way through the conflict between parents. Amendment No. 16 would facilitate that by focusing on the views and needs of the child, and taking the debate away from the tussle—the tug of war or the tug of love—that goes on between parents over their children. It would put the child’s views at the centre of decisions made by Parliament and the courts in respect of these terrible cases. In their research, NYAS caseworkers studied cases involving intractable disputes—the toughest cases coming before the courts, which form 98 per cent. of the organisation’s work load. Of those cases, 52 per cent. had been before the courts for more than three years, and 16 per cent. for between seven and 10 years. It is hard to imagine the impact that repeated court hearings over such a long period about where a child is to reside must have on the people involved. What conflicts would emerge for the child? What feelings would those children have during such a protracted period? The NYAS research found that ascertaining the wishes and feelings of the children concerned and actively and safely representing them to the parents could act as a catalyst for the resolution of longstanding, acrimonious and intractable disputes in ways that were effective both for the families and the children. Moreover, they were cost effective too, as they put an end to interminable court proceedings. The NYAS research found that future contact arrangements were made successfully in 86 per cent. of cases, and that in 95 per cent. of cases the representation of the child’s wishes and feelings had a significant positive effect on decision making. In 89 per cent. of cases, the NYAS report on the child’s wishes and feelings coincided with the outcome of the proceedings. That shows that the court listened to the NYAS representations, and that they led to a satisfactory outcome. That experience shows that representing the wishes and feelings of the child can have a very beneficial effect in resolving intractable disputes between parents. Parents can be brought to realise and acknowledge the true feelings that their child is enduring, with the result that both find it much easier to give up their entrenched positions. They are less likely to be locked into a battle of, ““He said, she said””, and interminable arguments about the rights and wrongs of each party, perhaps going back over many years, with the digging up of old disputes and bitterness that inevitably occurs in such proceedings. All those things, which can go on for years in such cases, can be resolved because there is a focus on the needs of the child and their experience, giving parents the opportunity to step back from conflict. At the end of the process, they feel that a satisfactory arrangement has been achieved because the child was at the centre of the proceedings. That approach also provides a more constructive foundation for future co-parenting. Relationships between the parents are much better after that type of process than if an ordinary conflictual court hearing had taken its usual course. There are beneficial effects all round as well as benefits for the future parenting of the child. The results in the report were not a one-off; they were replicated by the mediation centre in Stafford and CAFCASS recently carried out a review of the outcomes of approximately 100 cases in which children had been similarly represented and which also reported positive outcomes. At the time of the review not one of those 100 cases had come back to court. The system was efficient and effective and enabled the achievement of good outcomes for all parties. The research shows a growing body of evidence indicating that instead of children’s representation being seen as an expensive add-on to court proceedings it could and should be seen as having the potential to bring long-running and distressing disputes about residence and contact to an end in ways that are fair to parents and are in the child’s best interests. In addition, by stopping the revolving door of proceedings that we see in case after case, such measures can make the court process much more cost-effective. To summarise the beneficial effects: cases where children were caught in intractable and long-running disputes would be brought to earlier resolution; the distress and harm suffered by children involved in the revolving door of continual proceedings would be limited; there would be a reduction in the potential for disputes between parents to become increasingly acrimonious—as it does over time—and in cases where there are questions about safety, separate representation of the child’s wishes and feelings provides information that is invaluable in helping the court to decide what is safe in the long term and what is in the child’s best interests. That representation provides objective information, rather than the hearsay that is sometimes expressed in court, which will distinguish the non-resident parent who poses no threat to their child from the minority who may pose such a risk. Those outcomes are in the interests of both parents. By shortening contact disputes and by helping in the assessment of allegations about safety, they could also address some of the concerns from fathers groups, which were expressed earlier, that false allegations are being made. The emphasis is being put back on to the child’s welfare rather than on the grievances of father against mother or vice versa. The debate will be taken out of that battlefield. The system would be cost-effective. Disputes can run for a long time and cases regularly return to court to incur significant financial and emotional costs to several parties. The cost of such court processes is prohibitive and when we add the costs incurred by other agencies—social services, children’s services, CAFCASS and so on—to support parents and children suffering from the dispute, we see that such cases cost a huge amount not only in emotional disturbance to child but also to the public purse. The savings gained from minimising such costs would offset the cost of providing separate representation for the child. I am not proposing that all children be separately represented in proceedings, which is one argument that has been made against the proposal. I am asking that section 122 of the Adoption and Children Act 2002 be implemented, thus giving children a potential right to be represented. That right can be exercised at the discretion of the court in circumstances specified by the court rules and guidance in the legislation, which could act as a filter for the number of cases using separate representation of the child. The NSPCC, a key advocate of the proposal, expects that no more than 1,500 to 2,000 cases a year will be separately represented. We know, from the Government’s research, especially the research recently commissioned by the DCA, that they believe that separate representation can be effective. The DCA report, published in March, recommended an amendment to the Bill to ensure that children are separately represented in enforcement proceedings. That is the aim of the amendment. We are working in accordance with the DCA research and its specific recommendation for such a provision. Time after time in the debate, we have observed that there is a lack of research and evidence on many aspects of the Bill, and I welcome the commitment given by Ministers in Committee to carry out further research. However, separate representation is one area where we have a clear steer, because research has been carried out, so it would be perverse to ignore what little research there is when it gives us the positive recommendation that representation of the views and feelings of the child can have a beneficial effect. It is also essential that we give judges a consistent message about our views on representation of the child. Section 122 of the 2002 Act is an essential part of the framework of provisions available to the courts, but without a clear statutory provision for separate representation of the child’s interests other parts of the Bill will be undermined; for example, it is no good making accurate risk assessments if there is no one to put the child’s case in court. Ambiguity about the implementation of section 122 and the way in which separate representations are dealt with in the Bill means that we risk sending confusing messages to judges. The amendment therefore seeks to enhance the compliance, consistency and effectiveness of decisions on the representation of the child’s views. We have a long history of legislating for the separate representation of children but, sadly, we do not have such a good history of implementing that legislation. Separate representation provision was incorporated in section 64 of the Family Law Act 1996, but it was shelved. In 2002, Parliament made the case for the separate representation of children in the Adoption and Children Act but, again, implementation has been delayed and perhaps postponed indefinitely. When are we going to do what we have repeatedly said we want to do in legislation and implement the representation of the child? The amendment benefits all parties, and it proves our determination to represent children’s views in such proceedings, so I commend it to the House.