Children and Adoption Bill [HL]

I am grateful to the noble Baroness for her opening remarks and, indeed, to all of those who helped us to produce a set of measures. These we hope will significantly increase satisfaction levels for parents after the break-up of relationships. They will give them swifter redress, promote non-legal means of resolving problems and will enable contact orders to be more effectively enforced when there are disputes between the parties about their enforcement. We are very keen to see that the measure significantly promotes the welfare of children and contact with parents. We all share that goal; the question is what we believe to be the most effective means to achieve that. I seek the indulgence of the Committee, as this is my first Committee stage and I am fearful that I might do something procedurally wrong. My noble friend Lady Crawley has me on a tight leash and at any moment may tell me that I am doing something wrong and presumably impose an order on me to spend a great deal of time with the Clerk learning more procedure. However, I hope that if I speak now I am in order, and I believe that I can intervene as many times as I like on the noble Baroness, Lady Morris, and the noble Earl, Lord Howe, so I believe that we have a good discussion before us. On the issue, which goes to the heart of the debate about the position of the courts at the moment on the rights of parents to see their children, the noble Baroness, Lady Morris, asked me what the position was in existing case law. I can give her two very clear cases that set it out. First, in the case of Re O last year, Lord Justice Wall said:"““The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The courts’ task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote their welfare to the best of its ability””." The next section is crucial. It says:"““Unless there are cogent reasons against it children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative””." That seems a very clear and unambiguous statement of the attitude of the courts in such cases, and it appears absolutely consistent with the position that my noble friend set out in the letter to the noble Baroness. In a 1997 case Re B, the judge ruled similarly that,"““to deprive a father who bona fide wishes to have contact with his child of that contact is a drastic step. The court’s general policy is clear: contact between a child and its natural parent is something which should be maintained wherever this is practical””." So case law is very clear on this point. We do not believe that the changes proposed by the noble Baroness are necessary to codify case law; the question is whether one wishes to change the law as it stands at the moment, as the amendment would do. At the outset, I must say that I support what the noble Baroness, Lady Howarth, said about the actual situation. The noble Earl, Lord Howe, referred at Second Reading to a figure of 40 per cent of fathers who lost contact with their children within a few years of separation. I would welcome it if he would give us the evidence for that figure, because it is not a figure that we have come across. Indeed, our best research, which was drawn from the ONS Omnibus survey last year, showed that, of parents who had been separated between two and three years, around three-quarters of non-resident parents were still having some direct contact; around three-quarters of non-resident parents had contact at least once a week; and fewer than 10 per cent of non-resident parents had no contact with their child. I would be happy to supply the noble Earl and the noble Baroness with the full findings of that survey; it is the best research available to us at the moment and does not lead us to the conclusions to which it led the noble Earl at Second Reading. The principle at the heart of the Children Act 1989 is that the interests of the child should be the courts’ paramount consideration in deciding on issues relating to contact after separation. Set out in case law is the belief that a meaningful relationship with both parents is the right course after separation, so long as it is safe and in the children’s best interests. But the law at present is clear: we should place the needs of children above all else and not qualify that position by stating a presumption for all cases as to how the situation is best met. The noble Baroness said that she did not believe that her amendment calling for a presumption of full and equal involvement by both parents in the upbringing of their children after separation undermined the paramountcy principle. The Government’s view is simple: the only point of imposing such a qualification is that it should weigh against what would otherwise be the courts’ judgment of the paramount interests of the child. Stating a presumption, which is a very strong legal term, in statute law that there should be a set of considerations as set out in the amendment moved by the noble Baroness for full and equal involvement would weigh against the paramountcy principle. If it did not seek to do so, there would be little point in putting it in statute. Our view is that it would qualify or undermine the principles set out in the Children Act 1989. The question raised by this amendment and subsequent amendments that I believe the noble Earl will move is that if there is a concept of statutory ratio, there is then the issue of what the ratio should be. There seems to be a great deal of ambiguity on that issue, and we would welcome clarification from the noble Earl and the noble Baroness. The amendment refers to full and equal involvement. The clause would be entitled ““Co-parenting””. Despite what the noble Baroness said, the courts would be entitled to consider ““full and equal”” to mean approaching 50 per cent. A later amendment refers to a yardstick of about one-third. It would be helpful to understand what the noble Baroness and the noble Earl have in mind—a third or a half of what ““time”” they are talking about. The courts should have a clear principle for what they are expected to apply that Parliament would expect them to have regard to. There are a number of technical difficulties. The noble Baroness mentioned shared residence. At this stage, it is probably best if we focus on the central principle involved. Our view is that the principle is wrong. By qualifying existing statutory requirements that the court should have regard to the paramount interests of the child, we would be taking a retrograde step.