Children and Adoption Bill [HL]

moved Amendment No. *11: "Before Clause 1, insert the following new clause—"    ““WELFARE OF THE CHILD    After section 1(1) of the Children Act 1989 (c. 41) (Welfare of the child) insert— ““(1A)   In respect of subsection (1) above the court shall, unless a good reason to the contrary be shown, act on the presumption that a child’s welfare is best served through reasonable contact with both his parents””.”” The noble Baroness said: I rise to move Amendment No. 11 and to speak to Amendments No. 12 and 13. In doing so, I return the Committee to the debate we had on Amendment No. 2. Our purpose in tabling this group of three amendments is to ensure that the law actually says what the Government think it says and does what we and the Government want it to do; that is, to give a legal basis for the proven fact that in all cases, unless there are serious welfare reasons why not, children benefit from having a meaningful relationship with both their parents. There is a limit to what the state and the law can do to ensure that a parent and a child have a meaningful and beneficial relationship. Here we differ from the noble Earl, Lord Howe. We believe that you cannot interchange the words ““meaningful”” and ““reasonable”” as he said he intended to do. All the law can do is to set up a framework within which emotions can operate, hopefully with good will and the welfare of the child at its heart, and then meaningful contact can be established. However, it is impossible for any parent to develop a meaningful and beneficial relationship with his or her child if they never or rarely meet, hence the need for ““reasonable”” contact. It is clear to me from numerous statements by government Ministers, both verbal and written, that what they would like to achieve for every child after the break-up of its parents is a good and valuable relationship with both parents. I agree. It is also clear to me that they think that that is what the current law allows for and that all they have to do in the Bill is to ensure that that is what happens; hence their concentration on enforcement. However, we believe that the Government are mistaken. We are even more convinced of that since the Bill team kindly sent us a list of references to the case law on which the Minister was relying when he told us at Second Reading, and again today, that case law supplies a legal basis for the sort of reasonable contact that will allow parent and child to develop a good relationship. Every case the Bill team quoted talked simply about ““contact””. That could mean a Christmas card; it could mean half an hour every six months. It is hardly the basis for developing a relationship that will benefit the child. In his earlier remarks, the noble Earl, Lord Howe, made what I believe was the killer argument about case law. He said that the Government say that every case is different. Therefore, you cannot rely on case law. I absolutely agree with the noble Earl. It is beautiful, simple logic. The noble Baroness, Lady Howarth, earlier asked what difference the term ““reasonable”” makes in practice. It could make the difference between 6 per cent and 60 per cent or 3 per cent and 30 per cent. If you do not have a proper legal basis then you do not have the confidence that ““reasonable”” contact is what you are going to get. The noble Baroness, Lady Pitkeathley, asked for a definition of ““reasonable””. She said that parents may not understand the word ““reasonable””. It is not a matter of what the parents either understand or believe is reasonable, it is what the courts think is reasonable, based on the facts of the particular case. We cannot necessarily improve the parents’ understanding, but we can improve the court processes through the Bill. That is what we would like to do. The problem is that this status quo—that is, that the requirements of the law are satisfied if there is any contact at all—is the reason for all the very sad stories that cross all our desks from, usually, fathers who for years have had numerous court appearances and spent thousands of pounds trying to get a proper level of contact with their children in the face of a recalcitrant parent with residence who does not want him to do so and who does not really have good reasons to prevent it. The Government’s response to this situation is to find better ways of ensuring that the court orders on contact, which are put into place in the first place, are actually carried out. Admirable and desirable as that might be—and we accept that the judiciary has been asking for improvements in this area—we on the Liberal Democrat Benches feel that this is approaching the matter from the wrong end. The position on these Benches is this: we believe that, in the first instance, the law needs to be changed to provide a presumption of ““reasonable”” contact for both parents. That does not undermine the paramountcy principle about the welfare of the child, because all the evidence and all the commentators point to the fact that ““reasonable contact”” is the only way of ensuring the welfare of the child. The two things are perfectly compatible. Secondly, we believe that the parties should be steered away from litigation and towards mediation and a settlement that both can own, if at all possible. Such a settlement has a much better chance of being carried out than any court-imposed order and will save a lot of angst and court time in the future. Thirdly, the court processes need to be rigorous to enable the court to reach safe, workable and sensible conclusions about the contact that is to happen. Then there needs to be some support for the parents, at least in the early stages of separation and contact arrangements. Finally, there needs to be some monitoring of whether the arrangements put in place are actually working out in the interests of the child, and some research about the success of the arrangements. I shall talk more about that issue later when we reach Amendment No. 32. Amendments Nos. 11, 12 and 13 insert into the Children Act 1989 three new clauses. Amendments Nos. 11 and 12 require the court to act on the presumption that a child’s welfare is best served through reasonable contact with both his parents unless there is a good reason why not. Amendment No. 13 states that,"““it shall be presumed that making an order for . . . contact . . . is . . . better for the child than making no order at all””," unless of course there are good and substantiated reasons to the contrary. Members of the Committee will notice that the presumption in all three amendments is rebuttable. In making such orders today, the courts already operate under an informal but well understood set of standards relating to the age of the child and its capacity to understand the circumstances of the parents—where they live, and so on. However, as the noble Baroness, Lady Gould, told us a few minutes ago, they do not always get it right. There are no formal guidelines in operation despite the fact that the Association of Family Court Welfare Officers prepared a paper containing such guidelines back in 1997. It seems amazing to me that the profession can be operating without such guidelines. How on earth can they be trained without them? The Government will say that every case is different; and to some extent of course we agree. However, there have been about one million cases since the Children Act 1989 and surely they cannot be saying that there were no common elements among them. Of course the courts should have considerable discretion to vary what might be considered to be the norm in the light of the particular circumstances, but it must be within a normative framework devised by the best qualified professionals in the field. Our approach therefore is somewhat different from that of the Conservative Members of this Committee. We would be less prescriptive than they are, but we would like to see the principle of reasonable contact, which we all know to be in the best interests of the child, enshrined in law. We do not believe that it is at the moment. We can then all work forward from there to address matters of court processes, mediation, support, resources and monitoring. Without that presumption, we are trying to build and enforce a mountain made of jelly, a skyscraper with no foundations or a broken family with no splints. There is a lot the state should be doing to support families with problems to try to prevent family break-up in the first place. But when break-up has happened, we at least should be taking the opportunity the Bill gives us to ensure a firm foundation in the law, which actually reflects what we all—the Government, both opposition parties and independent Peers—want to achieve for children. I hope that the Minister has listened most seriously to what we have had to say on this matter and is not wearied by the fact that we have been talking about the issue for several hours already. We were advised on it by some of the country’s leading experts in family law who really know what they are talking about. What convinced me, coming as I do from a position of promoting the rights of the child, was the statement that if parents do not have a right, enshrined in law, to have reasonable contact with their children, then children do not have the right to reasonable contact with their parents. This is breaking their rights under the UN Convention on the Rights of the Child. That was the killer argument for me. I look forward to the Minister’s response. I beg to move.