Children and Adoption Bill [HL]

I do not think that there is an issue here: case law is firmly established. However, we are anxious to proceed by consensus as far as is possible. The noble Earl asked me to give him further chapter and verse: I am happy to do so. I will write to him and to other noble Lords on the Committee after this stage to set out the position clearly, so that we can then proceed by consensus. The noble Earl made a good attempt to deflect the debate from its central purpose by citing a very extreme case—the ““postcard case””, as we will now refer to it in our debates, in which contact takes the form of only one postcard a year. I doubt that any court has ever imposed that as a contact arrangement. That is an extreme case, and I think that we all recognise that it would not be a satisfactory state of affairs, if meaningful contact would have been appropriate. However, that is different from saying that that is a principle on which courts have acted in making difficult decisions about contact. The noble Earl was right to say that every case was different, but that is not the same as saying that, therefore, no general principles can guide the courts in making judgments. On the contrary, case law and statute provide an essential basis for making judgments. The difference between us is not that we think that it is impossible to establish the ground rules for making the judgments; the difference is that we believe that we have a satisfactory set of ground rules in the 1989 Act and its requirement that the courts must put the paramount interests of the child first. What the noble Earl is seeking to do is perfectly reasonable: he seeks to change that position and include other conditions that would have to be satisfied either alongside or in preference to that requirement. On the force of the statement by the courts, I thought that Lord Justice Wall’s judgment last year, which I read out, was compelling on the need not just for minimal contact but for the maximum contact that was in the interests of the child. I quote him again, to make this clear:"““Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents””." He said, ““the love and society””. That does not imply peripheral contact; it implies significant ongoing contact. He went on to say:"““In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children””." Again, that is not a reference to a peripheral relationship of what might be termed the ““postcard”” variety. The question before us is whether we believe that the action of the courts in seeking to make judgments on these very difficult cases has been unreasonable, so that we should issue a fresh set of instructions to them on how to manage such relationships in future. I do not think that we will get agreement on all sides of the Committee, so the best way forward is for me to say that I will write to the noble Earl setting out the full picture on case law as we understand it. It might be helpful to him if he were to come forward with more information about how he sees the action of the courts at the moment as being unreasonable. We would have to have some basis on which we could agree that the current situation with regard to the rights of parents involved in cases was unreasonable, rather than debating on the basis of anecdote that does not take full account of the circumstances of the case, before moving in what could be a difficult direction for the law. I will finish by reading the judgment of Dame Elizabeth Butler-Sloss, the former president of the Family Division, when questioned on the specific issue of whether there should be a change in the law from ““contact”” to ““reasonable contact””. She said that ““reasonable”” would not be appropriate in such cases, that the court would order what was in the best interests of the child, and that what a resident or non-resident parent might term ““reasonable”” would often be exactly what the dispute between the parents was about. That was her judgment after much experience in the area. She is not someone who in any way seeks to put obstacles in the path of the most effective contact arrangements that could be made.