Children and Adoption Bill [HL]

moved Amendment No. 2: "Before Clause 1, insert the following new clause—"    ““REASONABLE CONTACT    In section 8(1) of the Children Act 1989 (c. 41) (residence, contact and other orders with respect to children), in the definition of ““a contact order””, after ““have”” insert ““reasonable””.”” The noble Earl said: The debate that we have just had serves as a satisfactory prelude to amendments to which I should now like to speak. The amendments are of great importance. They propose that in the Bill and in the related sections of the 1989 Act we should move to an explicit recognition that a child’s interests are normally best served by ““reasonable contact”” with both parents and not simply ““contact”” with both parents. What is the significance of that and what is the difference between the two? At Second Reading, the noble Lord, Lord Adonis, said:"““We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, as long as it is safe and in their best interests for that to happen””.—[Official Report, 29/6/2005; col. 251.]" My first contention to the Minister is that, quite simply, he is wrong. He is wrong to state that there is case law that establishes the principle that meaningful contact, or perhaps it would be better to say ““reasonable contact””—I will use the terms interchangeably—with both parents should be the starting point in any judicial proceedings about contact. The examples that he cited in the previous debate relate not to a presumption of reasonable contact, but to a presumption of contact, and there is a material difference. I maintain that, because there is no body of case law to demonstrate what the Minister seeks to do, the courts can and frequently do sanction contact arrangements that for practical purposes amount to almost no contact at all. Just as it is possible to share out a biscuit by giving someone else a crumb and keeping the rest for yourself, so it is possible for a contact order to permit a non-resident parent to send a postcard to his child once a year and nothing else. Within the framework of existing law, a postcard once a year is contact. However, I contend that that is not reasonable or meaningful contact as one would normally understand those terms, unless the safety of the child is a real issue. Of course, one has to take that qualification as read in every case. If we want to move to ordinary language, we would say this: there is a golden principle that most right-thinking people, including the Minister himself, support—the child/parent bond should not lightly be set aside. Because most right-thinking people support that principle, it would be unthinkable, one would suppose, for any state machinery or corpus of law to militate against it, but in practice that is precisely what has happened. The corpus of binding case law on appropriate levels of contact is confined to the general proposition that a complete absence of contact should not be an option unless there is good reason to the contrary. That means that no level of contact can be shown to be too low by reference to case law. The consequences of that situation are profound. Case law confers on good and loving parents no presumptive entitlement to meaningful contact. Their presumptive right is limited to contact at no matter how low a level, and the consequence of that is effectively a reversal of the burden of proof. A non-resident parent finds him or herself having to argue and to demonstrate why it would be in the child’s best interests for there to be meaningful or reasonable contact. By the same token, if there is no requirement for contact to be reasonable, a court is perfectly within its rights to bring meaningful or material contact to an end without there having to be good reason for doing so. That is exactly the reverse of the position implied by the Minister at Second Reading, which he repeated to me in his letter of 14 July. The natural inference from the Minister’s words is that there will always be meaningful contact unless good reason to the contrary can be shown. If only the Minister were right. That indeed is the position to which the law should aspire, but neither this Bill nor anything in existing law, whether statute or case law, delivers it. In practical, everyday terms, what is the result of the law as it stands? The result is a very steep hill for the non-resident parent. Trying to prove that taking a child for a walk or having him to stay overnight will impart a surplus of invisible benefit is exceedingly difficult to do, not least when the resident parent protests. If the resident parent insists on objecting, often the contact for a non-resident parent can start at an entry level of a two-hour visit once a fortnight, or less, even if he or she is completely blameless. Time after time after time, material contact between the child and the non-resident parent is brought to an end without good reason. I do not believe that the Minister will be able to meet my challenge to cite relevant case law. I know that he has cited some, but I do not believe that it demonstrates what he thinks. I say that not least because both he and his noble friend Lady Ashton are fond of repeating the mantra that ““every case is different””. That is why I found it surprising that the Minister should have referred to case law at all in this context. If every case really is different, it follows that no case law can be of assistance in determining whether a particular level of contact is too low. Furthermore, to be of assistance, any case law would have to be recognised by the Court of Appeal as having clear applicability to broad and recognisable categories of parents. If it did not do that, it would not count as a precedent and could not be relied upon. Therefore if, as I maintain, there are no clear-cut principles in case law that can be adduced to show that contact is too low, the non-resident parent is at sea. He or she is at sea on a raft that lacks any visible means of propulsion; it is a case of ““every non-resident parent for himself””. That is why the amendments are so significant. The concept of reasonableness is well understood by the courts. Accepting the amendments would not oblige us to depart from the notion that every case needs to be judged on its merits, but it would enable us to encapsulate in a very simple way the principle that I referred to earlier, which is that the child/parent bond should not lightly be set aside—or, put another way, the principle that, to justify bringing meaningful and material contact to an end, you have to have a good reason. At present, sad to say, the child/parent bond is often lightly set aside, and material contact is brought to an end without good reason. If, as the Minister believes, children normally benefit from a meaningful relationship with both parents following separation, as long as it is safe and in their best interests for that to happen, let us ensure that the law facilitates it. I beg to move.