Children and Adoption Bill [HL]

My Lords, I was privileged to be a member of the joint scrutiny committee that considered the draft Children (Contact) and Adoption Bill. However, in my remarks, I want to concentrate purely on Part 1 of the Bill. It would be fair to say that the majority of witnesses who appeared before the scrutiny committee welcomed the Bill in principle, even though a number of witnesses felt that aspects of it needed further consideration. There   is no denying that the implementation of the Bill will make a real difference to children and families experiencing parental separation. It is obviously desirable that children have the right to regular contact with both parents following separation. No one would argue against that principle. The circumstances for that contact must be safe and secure, however. Direct contact has to be in the best interests of the child, with every possible measure taken to guarantee the safety of the child when the courts are considering the granting of residence and contact orders. The system still fails to protect children adequately from abusers who are known to them. The Green Paper, Parental Separation: Children’s Needs and Parents’ Responsibilities, recognised that there are concerns about children’s safety in at least 35 per cent of the 10 per cent of cases that get to court. The links between child abuse and domestic violence are well established, and domestic violence does not stop when parents separate. Over a third of all domestic violence occurs post separation. My noble friend Lady Thornton and I have raised this issue on a number of occasions in your Lordships’ House. We have done so because contact is a particular danger point. The survey carried out in Bristol in 1999 found that 76 per cent of the children of 130 abused parents were said to have experienced abuse during contact visits ordered by the courts, yet 39 per cent of those women had been threatened with imprisonment for refusing to comply with the contact order. So we must identify any   risk at the earliest possible opportunity in the proceedings and the risk assessment should be taken whenever necessary throughout those proceedings. The House of Commons Constitutional Affairs Select Committee and the joint scrutiny committee both recommended that there should be an extension of the welfare checklist in the Children Act 1989. Although that proposal was not included in the Bill, it is encouraging that the Government are prepared to consider the recommendation further by sending a positive signal to the courts that children generally benefit from a meaningful relationship with both parents after separation, so long as it is safe and in their   best interests. However, the welfare checklist does not give weight to the child’s wishes, views and experiences. Would it not be possible for mechanisms to be put in place for the courts directly to hear the views of the child or children involved? The courts’ ability to impose contact activities—be they voluntary mediation, information sessions, counselling or guidance sessions—when there are breaches of contact orders by either parent are of course welcome. Particularly welcome is the Government’s acceptance that such activity could include perpetrator programmes aimed at those who have been violent towards their partners. However, the courts need to exercise caution regarding the degree of change expected from attendance at such programmes. Whatever provision is made by the courts, there must be a guarantee that the arrangements are immediately available. It is no good if the courts take a decision and someone has to wait some months before he can begin the contact activity. That might mean the provision of extra resources for the organisations concerned. There were also differing views from witnesses at the joint scrutiny committee on whether there would be any savings from this procedure. Some felt that, as more people might feel they could obtain better results, the procedure would increase court activity. As the noble Baroness, Lady Sharp, said, the Local Government Association is concerned that if local councils are to be responsible for setting up an increased number of contact activities, they should receive extra resources to meet the cost. Extra resources need to be made available for child contact centres. I appreciate that extra assistance has been given over the past few years to the National Association of Child Contact Centres to improve standards and that centres that are members of the NACCC are being encouraged to receive accreditation. However, that does not cover those that are not members. Can my noble friend indicate what is being done to ensure that all such centres become accredited members of the association? The joint scrutiny committee spent a long time discussing the consequences of non-compliance and the action that should follow. They had two concerns: first, in respect of the type of enforcement order that could be imposed; and, secondly, on the continuing welfare of the child. On the first point, the committee was concerned about the definition of unpaid work. It is therefore helpful that the Government’s response indicates that the National Offender Management Service will be responsible for determining the nature of the community activity and that that will not involve working with children. The other concern on this aspect was the suggested curfew requirement and the possibility of electronic tagging to monitor compliance with the curfew. We were particularly concerned about the effect of such actions on the child and that it would clearly be seen as a punishment. It is encouraging, therefore, that the Government have responded by removing both curfew and tagging from the Bill. I am, however, disappointed that the Government have not responded so favourably in respect of the welfare of the child. It seems to me that the first step in any case of non-compliance should be to find out why the contact order has not been complied with, and, further, for the courts to consider whether the order in current terms is consistent with the court’s responsibility to protect the welfare of the child. The Bill states in Clause 1 that,"““the welfare of the child is paramount””," in considering whether to make a contact order. It must be right that that principle is followed throughout the whole of the proceedings. However, as the noble Baroness, Lady Sharp, said, that principle seems to have been diluted in Clause 4 by the Bill directing courts to take into account only the welfare of the child. That is not sufficient. For instance, as cited by the NSPCC, the imposition of fines, which may seem an innocuous activity, may push children and their parents into poverty, thus causing disadvantage to the child. While I appreciate that the court will be dealing with   a breach of a decision of a court, I still do not understand how, as has been suggested, making the welfare of the child paramount at that stage will fetter the court’s discretion and scope to enforce sanctions. I do not understand the logic of that argument. As the right reverend Prelate said, this is clearly a legal Bill. As I am not a lawyer, perhaps I have failed to understand something about the workings of our courts. I would appreciate clarification on why we cannot make the child’s welfare paramount throughout the Bill. That is my major concern about the Bill. Nevertheless, it is right for the Government to have introduced this   legislation to assist the 10 per cent of separating families who seek the courts’ help to settle safely the arrangements for their children. I trust that the Bill will have an easy passage through your Lordships’ House.