Children and Adoption Bill [HL]

I begin by recognising complete defeat. The noble Earl has scored a great victory in persuading the noble Baroness that there is an absolutely brilliant underlying point which completely invalidates the argument we seek to make in respect of the difference of individual cases. We accept of course that each case is unique and different. The point I was trying to make in response is that that does not mean that there should not be, and, indeed, there are not, underlying principles and statutory requirements that govern the actions of the court in respect of those cases. The fact that every case is different does not mean that therefore you cannot have a consistent approach by courts in dealing with them. The issue at stake, to which we return, having started with it this afternoon, is not whether there should be such an underlying presumption and set of principles that govern the action of the courts in this regard, because there is. There are the opening sections of the Children Act 1989—the interests of the child shall be paramount as interpreted by the courts and as established in case law since. The question to which we return again is whether we should change that presumption. If the purpose of inserting the word ““reasonable”” is not to change the presumption, then it is not clear to us why we should introduce the amendment in the first place. I detected from the remarks of the noble Baroness that she is uncertain at the moment whether the presumption should be changed. She said that she was ““deeply troubled”” by examples where she thinks that the contact awarded by the courts is too little. So I was not sure whether she took that view. We will of course continue to reflect on the points made in the debate. However, our judgment—which has not changed in response to the debate so far—is on whether this might lead to a change in the attitude of the courts, since there is no reason to think on the basis of the evidence that the courts are not as conscientiously as they can seeking to ensure that contact is that which is appropriate to the safety of the child, giving effect to the desirability of the children having a relationship with the parents. If it is indeed not the intention to change the presumption, then there can only be a risk in introducing a new presumption in the statute. I cited a case that I will copy to Members of the Committee, the fuller response on which I was given in respect of case law, which did not indicate at all a minimalist attitude on the part of the courts to contact arrangements in respect of both parents. Lord Justice Woolf in that case said that 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. That strikes me as a strong interpretation of the requirement on the courts in respect of contact. That is how I put the interpretation. The noble Baroness completely shares our concerns not to raise issues that would start to get us into concerns about the safety and judgments on the part of courts, which, because of a new statutory presumption put on the face of legislation, would lead them to downplay the paramount interests of the child in making these judgments. We need to reflect further on the interpretation of case law, and whether the noble Baroness still believes that there is a serious concern, when we have reflected on that. These are deeply difficult and often traumatic cases, but underlining the point that the noble Baroness, Lady Howarth, made about the report published today by Her Majesty’s Inspectorate of Court Administration, on domestic violence, safety and family proceedings. Some of that report makes very concerning reading. Frankly, I accept that it makes concerning reading for the Government, CAFCASS and all those of us who are engaged in ensuring adequate protection. I am in danger of significantly solidifying the case made by my noble friend Lady Gould by reading some of it out, but she will get hold of it quite soon anyway, so there is no danger of my unduly bolstering her case. But if Members of the Committee read—they may not have had a chance to see it yet, as it was only published today—sections 3.8, 3.9, 3.10, 3.11, 3.12 and 3.13 on pages 28 to 30 of that report, it would lead them to have concerns about anything that gave courts an incentive to downplay the paramount interests of the child. The evidence collected by the inspectors in producing the report says:"““Practitioners and managers told inspectors that, whilst they might not always agree with it, private law practice is driven by what is known as ‘the presumption of contact’””." Paragraph 3.9 of the report says that presumption of contact,"““was evident in all the practice sessions observed during this inspection and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases. Inspectors were told by practitioners that ‘the presumption of contact is so strong. It makes it difficult to challenge and we don’t give adequate attention to the continuing impact of the abuse on the child’. The presumption of contact drives and constrains practice””." We believe that the legal processes in place for protecting children and for safety are adequate. But reading that report would not lead one to think that the courts were biased against making contact orders which lean against the rights of parents, as far as they believe is consistent with safety and the other concerns about the paramount interest of the child. On the contrary, on reading that report, one’s concerns would be on the other side; that is, whether the paramount interests of the child we are seeking to protect are always adequately reflected in judgments that are made.