Children and Adoption Bill [HL]

My Lords, I, too, would like to join the noble Baroness, Lady Morris, in thanking the noble Lord, Lord Adonis, for his excellent introduction to this Bill. I would also like to thank the noble Baroness, Lady Ashton, for a very useful meeting at which we discussed the main tenets of the Bill. We on these Benches are broadly supportive of the Government in what they are trying to achieve in this Bill. As the noble Lord, Lord Adonis, explained in his   introduction, 25 per cent—some 3 million out of 12   million children in this country—are now brought up with parents who are separated or have never been together. In 90 per cent of those cases, the issue of child contact is settled amicably or at least with mutual agreement. It is in only 10 per cent of cases that that is not so. Research from the University of East Anglia and a lot of other research indicates that among these 10   per cent of cases the parents are often very young, poorly educated and on low incomes with extremely young children. Partly because of their lack of education, they often find it difficult to communicate, not only with each other but also with those who try to help them. There may be a deep lack of trust between the parents, often a history of violence and very low-level parenting skills. Frequently in these cases there is already worry about the vulnerability of the children. In other words, the 10 per cent of cases that reach the courts are ones in which the families frequently need   sustained support and help with problem solving. It is from that 10 per cent that the 40,000 annual applications to the courts over child contact come, and the 70,000 breaches of child contact orders. The sad part about the current situation is that the only recourse for enforcement of those orders is through contempt of court, and the remedy comes through fines and imprisonment, which does nobody any good, let alone the children involved. As the Minister stressed, this Bill represents the Government’s attempt to find a different way in which to resolve these issues. We welcome that. We agree with them that if possible the issues should be resolved through mediation, but we also agree that mediation cannot be made compulsory. We welcome the acceptance since the draft Bill that the welfare of the child should be the court’s paramount consideration. That is now written into Clause 1. However, we regret that Clause 4, on contact orders, and Clause 5, on financial arrangements, does not make children’s welfare paramount but only directs the courts to take it into account. We welcome, too, the dropping of any suggestion that curfews or electronic tagging are appropriate. In relation to compulsory mediation, we agree with the conclusion in paragraph 94 of the fourth report of the House of Commons Select Committee on Constitutional Affairs, published earlier this year, on family justice. The report said:"““Where it is safe to do so””—" and I want to come back to the concept of when it is safe to do so—"““(and subject to the court’s discretion) we believe all parties should be required to attend a preliminary meeting with a mediator””." In other words, they should be given the opportunity to explore mediation but not forced into it. On that matter we depart from the views of the Official Opposition. We do not believe that mediation can be made compulsory, nor do we believe that we can legislate for how much contact time should be given to each parent. The noble Baroness, Lady Morris, talked about reasonable contact time but did not define what she meant by ““reasonable””. Presumably, that will be something that we shall explore in greater detail in later stages of the Bill. Since many of these families have little concept of what mediation is and need, as indicated, help with problem solving, we also agree that the move towards mediation should be supplemented, and, indeed, often preceded, by compulsory referral to programmes which provide information about the services available and counselling about the range of issues, from parenting skills to anger management, including perpetrator programmes in cases where there is violence. They should have help and advice about how best to tackle the issues that confront them. Linked with that aspect is the proposal that when contact orders are breached community service is a more appropriate ““punishment”” than fines or imprisonment, especially if that community service helps to promote better social and parenting skills. Again, we support the proposals. We think it unfortunate that the preliminary results of the family resolution pilot project, initiated last September in three areas—Brighton, London and Sunderland—have been leaked. As the Minister explained, it seems that they are not really appropriate as comparisons because there was no element of compulsion. There may have been a very low take-up, but there was no compulsion to participate in the programmes provided. There is a major difference between the pilots and what is being proposed in the Bill, where there is both compulsion to attend these programmes and an element of compulsion to participate in preliminaries to mediation, while not pushing them into mediation as such. As I say, although broadly speaking we support the aims and the process proposed in the Bill we have a number of reservations about Part 1. First, as regards contact and the safety of children, given the frequent history of violence in those cases that come to court—CAFCASS indicated at a recent conference that violence was an issue in about 60 per cent of the cases with which it dealt—we feel very strongly that any contact activity should be subject to careful and separate risk assessment to minimise possible risk, especially to the children involved but also to the individuals themselves, particularly women. We are concerned that the Bill as it stands contains no measures to require the courts to assess risk and ensure   that contact is safe. The Joint Committee recommended in paragraphs 45 and 101 that before making contact or enforcement orders the court should explicitly be required to consider the safety implications of making such an order both for the child and for the parent. Moreover, the safety issue needs to be revisited over time because for many families the situation is not static. New partners often emerge on both sides and the situation may well need to be reassessed regularly to take account of such developments. The issue of safety needs to be considered at the outset and revisited. At later stages of the Bill we shall put forward amendments to cover both those points. Secondly, the need to have regard to the child’s own wishes and feelings should be included in the Bill. In view of the prominence given to that issue in the Children Act that we considered last year and in the Education Act that we passed in the spring, it is unfortunate that that issue is not mentioned in this Bill. We shall put forward amendments to ensure that those considerations are included within the scope of the Bill, if possible. My third and final point on Part 1 concerns resources. I understand that if the proposed procedures succeed in cutting dramatically the number of court cases the saving could be substantial given the size of legal fees these days. However, both committees that considered the Bill in draft form, the Select Committee on Constitutional Affairs and the Joint Committee on the draft Bill, commented with disbelief on the Government’s firm conviction that the proposals would not require more resources, at least in the first instance. The Government are placing much emphasis on the role of the staff of CAFCASS, on the National Offender Management Service—formerly the Probation Service—and on local authority social services. Indeed, the LGA has said that if the contact enforcement orders that are proposed involve a great deal more work for its own staff—it cannot see that they can avoid doing so—it will need more resources. As Relate, one of the voluntary organisations involved, states in its briefing in relation to those who are involved in contact activity,"““these people need to be highly qualified therapeutic professionals able to work with a range of emotional responses that will be evident during the programme. The risk of not providing this level of professional staffing is enormous””." But as we all know, these people are scarce. We need programmes of training to ensure that there are sufficient people coming through the system to implement the proposals in the Bill. Certainly we welcome it, but people and resources are very real issues. Finally, I should like to say a few words about Part   2 of the Bill, the international adoption element, with which my noble friend Lady Barker will be dealing at much greater length. Again, broadly speaking, we support the Government. It is essential that any adoptions made across borders accord with the standards that we set for ourselves nationally. Above all, it is vital that we safeguard potential adopters and adoptees from any element of child trafficking. It is rather sad that, as with the Children Act, the Government seem so reluctant to state in the Bill their adherence to the United Nations Convention on the Rights of the Child. It would be good to see us pledge to uphold those standards in the context of the legislation. Once again, it seems that the Government cannot quite bring themselves to do so.