Children and Adoption Bill [HL]

My Lords, this has been, as I think we all expected it would be, a lively debate. I am sure that the noble Baroness, Lady Ashton, and the noble Lord, Lord Adonis, will be as grateful as I am for the many thoughtful contributions that we have heard from all   parts of the Chamber. I am sure, too, that they will have been struck by the mixed reception that the Bill has received. There was a warm welcome from some noble Lords, but a decidedly muted one from others. The criticisms are not a reflection on them personally, but they are criticisms that they will need to take seriously on board. That critical line is one which, I regret, I feel compelled to reinforce. Perhaps I may begin with a simple proposition. Legislation that is presented to Parliament, no matter what its content, should aim to do one thing—to make a world a better place, to put it in the broadest of terms. If we were to try to sum up what we wanted to do to   make the world better for those parents whose marriages were breaking up, we would say this. We want to help children continue to see and spend time with both their parents, wherever violence is not an issue. We want to help parents to see their children. And we want to help parents and children avoid the destructive, expensive and drawn-out trauma of litigation. Step one of that process—and here I agree totally with the noble Baroness, Lady Pitkeathley—is the avoidance of litigation. If we can persuade people that it is not in their interests to go to court and not in their children’s interests either, and if we can persuade them to reach a workable agreement about the way their children are cared for and to stick to it, the result is likely to prove much more beneficial for the children’s long-term emotional adjustment. The consistent theme running through all research on this issue is that when both a mother and a father play a significant role in parenting, their children will be better adjusted, do better at school, form stable relationships and stay clear of the criminal courts. Society benefits directly from fathers and mothers fulfilling their individual roles as parents. What does the law say? The clear underlying premise of the Children Act is that both parents have a shared responsibility for the upbringing of their children. All of us say ““amen”” to that. By rights, then, the Act should enable and facilitate non-resident parents to see their children. But, typically, the opposite happens. We know that 40 per cent of fathers lose touch with their children altogether within four years of separation. Most fathers do not want that to happen, but it does, despite the Children Act. The family courts are not meant to be adversarial, but in practice they are. And they are slow. In court proceedings, women are usually awarded residence. The mother resists the idea of the child having substantial contact with the father. A father wishing to contest this may secure some form of agreement at the start, but later on find that his former wife, for no good reason, reneges and shuts him out. He wants to go back to the court and he may do so once—perhaps more than once—but he is deterred by costs, by the realisation that the mother has the whip hand in being able to cut off contact, and by the simple fact of time passing. Once a status quo is established, it is that much harder for a non-resident parent to overturn it. However, that parent will find himself in a most invidious and peculiar position. Let us suppose that it is a father. However loving, warm and successful the relationship he has had with his child, he effectively has to prove to the court that contact—that is, meaningful contact—is in the child’s best interests. You have to prove that contact that has been halted by parental separation should be restarted. Frequently, that is a difficult mountain to climb. Under the Children Act, the child’s best interests are prayed in aid in a manner which typically favours the   resident parent. One hearing follows another. The most ordinary of human aspirations—to have a child stay overnight—can take several years of litigation to attain. Where it ends is often in precious little contact between non-resident parent and child. The system has well and truly failed. Against that background, if we look at what the Bill proposes, it is difficult to see how it will even begin to address the problems I have described. In fact, it is difficult to see how it will do anything that is useful or constructive. What is ““contact activity””? It is certainly not contact with children. It is, in practice, yet another barrier put in the way of a parent before the contact application can be pursued. What are these so-called classes and information programmes? If you are a normal affectionate parent, you do not have to be taught how to love your child or how to have a meaningful relationship with your child. You do not need to go to a state-imposed class in order to express your feelings about not being allowed to see your children. I say to the Minister that this is utter madness. In fact, it is worse than that. If Ministers believe in evidence-based policy, what is their evidence that the provisions in the Bill will make a hap’orth of difference to the fathers who are denied time with their children? What can Ministers tell us about the content of these classes and programmes and the people delivering them which will give us any confidence whatever that they will serve to bring about shared parenting and avoid protracted litigation? I doubt whether they can tell us anything because the evidence simply does not exist. We are supposed to applaud the fact that the Bill contains penalties for parents who breach contact orders. I am prepared to accept that they may have their place in some cases, but what real constructive good will come of them? What good will be done by making a mother serve a community penalty? Again, we need to remind ourselves of our objective. The objective is not to punish the mother for not letting her see your children. The objective is to set up a legal system, as the Government promised, which will let you see your children in the first place. Where are those changes to the legal system? They are not in these punishments. Punishments will not help fathers and they will serve only to antagonise mothers. To revise the legal system and to make it work, you have to think out of the box. We say that there are several key ingredients for doing that. One is to build into the legal framework a rebuttable presumption of meaningful shared parenting time. That would not amount to a prescriptive formula, and absolutely would not be an automatic 50/50 split. The aim of the presumption would be to deliver reasonable contact for a non-resident parent in the absence of good reason to the contrary. So, instead of a father having to prove that spending time with his child is in the child’s best interests, the burden of proof runs the other way. For shared parenting to be denied, it has to be shown that it would not serve the child’s best interests for the court to allow it. The child’s best interests would, of course, remain paramount. The second key ingredient is to devise a mechanism that will encourage warring parents to face reality before they ever reach the courtroom. If, as parents, people know in advance what order is likely to be made by the court, they should conclude that there is much less point in litigating. We shall propose in Committee that guidelines from the court should be published that would set out, in units of time, what the court regards as reasonable contact in different circumstances. The guidelines are to be there as a template, with a view to focusing the dispute between the parents and getting them to agree a parenting plan. If that does not work, then they move to compulsory mediation. This formula, together with the presumption of shared parenting, has been the main plank of dispute resolution schemes that have achieved dramatic success in other countries. It is the basis of the early intervention scheme mentioned by my noble friend. There are no endless court hearings; reasonable contact with both parents is established rapidly; and there is a reduction in parental conflict. It is a formula that in this country, despite the express backing of the High Court judiciary, child development professionals and parenting organisations, was killed off by officials in the DfES. What we have instead is a sham formula. It is a scheme that bears no relation to the promises made in the Government’s original Green Paper, and it is a scheme that, in my view, has absolutely no prospect of working. I say that not only because of what it consists of, but also because, even when it is launched, we will not see the necessary resources put into it. The Minister is not used to me being negative, but I am afraid that I am going to go on. Clause 12 is quite shameful. It gives a power to the Secretary of State to charge a fee to those seeking to adopt a child   from abroad. I ask the Minister how mean can the Government get? How mean-spirited to be saying to individuals who want to provide a loving home to a needy child that the government department processing the application is going to charge out its services. How much more proof do we want of the Government’s attitude to inter-country adoption as a thing somehow less worthy and less honourable than domestic adoption? It is yet another hurdle and yet another deterrent put in the way of prospective adopters. That was not the intention of the Adoption and Children Act 2002. Nor, I contend, is it consistent with the spirit of the Hague convention, to which this country is a party. Conservatives have always believed in cutting the cost of government, but we were never so mean as to do something like this. My noble friend Lady Morris referred to the Bill as a missed opportunity. That indeed is what it is. We are desperately sorry that the Government have not chosen to capitalise on the successful experience of other countries, or to listen to those voices of authority in the judiciary and elsewhere who view the provisions of the Bill with acute disappointment. I can only say to the Minister that if the Government finally get their Bill, it will not be for want of the most strenuous endeavours on these Benches to refashion it.