Children and Adoption Bill [HL]

I hope that I have not been guilty of unduly pointing out technical deficiencies in amendments although I have substantial briefing on that. As regards the presumption of one-third contact, the technical deficiencies are so great that it is difficult to see how the amendment could get past first base in its current form. However, in the other cases, I have not pointed out technical deficiencies but have sought to engage with the substance of the amendments. The issues cogently raised by the noble Baroness are substantially the same as those raised by my noble friend Lady Gould. My response is substantially the same, which is that we do not believe that the law needs to be changed. However, we are extremely mindful of the issues that have been raised, and we will engage further with the matter, taking full account of the views expressed this afternoon, including those in the speech that the noble Baroness has just made. We do not have a closed mind on the possibility of tabling amendments on Report, depending on further discussions that take place. That is also the position of CAFCASS, which is keen to engage fully in the matter. We all share the concern that in making the interests of the child paramount there should be no greater consideration than safety and the child’s welfare. I said that I would not go into technical issues, but a matter has been raised with regard to safety. Unless a consistent wording is used in amendments to the 1989 Act, safety might appear to be given greater priority in some parts of the Act than in others. The lawyers consider that that would have serious consequences. Those are the sorts of issues that we need to discuss as we debate the best way forward. It is important to reiterate that, so far as statute is concerned, the 1989 Act is about as powerful as it could be. Not only does it state at the beginning that the child’s welfare shall be the court’s paramount consideration, but the welfare checklist that immediately follows puts, as one of its key items, that the courts shall have a particular regard to any harm that the child has suffered or is at risk of suffering in any decision on the upbringing of a child. We believe that the law is clear and robust at the moment, but we will seriously examine the issues that have been raised and will engage in discussions to determine whether further changes might be desirable. There is a large number of amendments, with which I shall deal briefly so that we will have our response on the record, which then can be discussed further. Amendment No. 15 would prevent a court from making a contact activity direction in any case where it is not satisfied that the safety of the child is not an issue. Our view is that for the Act to work properly and for the benefits to a child of contact with both parents to be met, the court has to balance the acknowledged benefits to a child of contact with both parents with concerns that it may have over the safety of such contact. There is a range of options to which a court can allow contact while maintaining the safety of the child, even where domestic violence is an issue; for example, through supervised or indirect contact. The court must have the ability to make contact orders that are safe, even where there has been a history of harm or potential harm. Contact activity directions will provide the court with another way of addressing safety issues before a contact order is made, as well as being a valuable tool for helping parents to focus on the needs of their children. Amendment No. 15 gives too little discretion to the court on how best to reconcile the needs of safety with the desire to promote contact that is safe. Amendments Nos. 18, 53, 58, 62 and 66 would all place explicit references to safety or domestic violence in the Bill, including Amendment No. 58 concerning repeated patterns of domestic violence, to which the noble Baroness particularly referred in her remarks. As I said, our concern about the amendments, which we would need to discuss further because of the potential impact, is the risk associated with introducing safety in some parts of the Bill amending the 1989 Act, but not in others. If the 1989 Act, as amended by the Bill, were to contain some explicit references to safety, it would be possible that the courts would read that as meaning that safety should be considered only where it is specifically mentioned. That would be a downplaying of safety considerations currently in statute. Our concern is about the impact of referring to safety in some places in statute and not others. We would wish to see how any change could be reconciled with that concern. Amendment No. 21 would make it absolutely clear to the courts that contact activities could include activities designed to address violent behaviour or behaviour likely to cause harm. We have always intended that the objective of contact activities should be to help the person directed or ordered to undertake the activity to come to a point where safe and positive contact can be established, maintained and improved, to the benefit of the child. As the noble Baroness is aware, as long as a programme does not involve medical or psychiatric examination, assessment or treatment, it can constitute a contact activity. We have already made it clear that we envisage, for instance, that some domestic violence perpetrator programmes could be contact activities. So we share the concern behind the amendment, but our reservation is whether an amendment to promote safe contact in that way should extend to any other person other than the child concerned. We are concerned that the reference to the safety of the parent in the Bill, which we assume would mean the resident parent, would dilute the child focus of the Children Act 1989. Amendment No. 30 would require a court, in considering whether safety is an issue, to direct the relevant authorities to assess the potential risk to the child or the individual concerned incurred as a result of the directed contact or contact activity. As I said in response to the amendment of a similar nature moved by my noble friend Lady Gould, we believe that that principle already runs through the Children Act 1989. Therefore, it would be superfluous to state it again. But we recognise that the noble Baroness would like to see more explicit references to safety, and we will consider that issue further. Amendment No. 75 would require the court to direct a person to a perpetrator programme if it was satisfied that a contact order had been breached as a result of domestic violence or abuse by that person and that the violence had constituted a reasonable excuse for the breach. We fully accept that domestic violence or abuse may represent a reasonable excuse for failure to comply with a contact order. If the court was satisfied that domestic violence or abuse had taken place or that there was a well-founded fear of domestic violence or abuse, it would be at liberty to find that there was a reasonable excuse for breaching the contact order and, therefore, not to make an enforcement order. As I have already said in relation to earlier amendments, the Government support the use of domestic violence perpetrator programmes. Referral to such programmes is already included in the scope of contact activities in the Bill, and the court can direct people to attend them. If it is shown that there is a reasonable excuse for failure to comply with a contact order, the court will have to decide how best to proceed for the benefit of the child or children in the case in question. The court would consider the use of a contact activity direction to a domestic violence perpetrator programme if it considered that to be appropriate. However, that would be an issue for the court to decide. Finally, Amendment No. 76 would require the court to suspend the contact order if it was satisfied that there was a reasonable excuse for a breach of that contact order as a result of domestic violence or abuse. As I said earlier on Amendment No. 15, we do not believe that potential safety issues should, in and of themselves, mean that a contact order that has been previously judged to be in the child’s best interests should be automatically suspended. The court may well be of the view that the contact order should be varied or replaced with an order for no contact, but we do not wish to fetter the discretion of the court when it already has mechanisms by which to alter the terms of contact in accordance with the best interests of the child, as, of course, demonstrated by events subsequent to the making of the original order. The court has to balance the acknowledged benefits to a child of contact with both parents with concerns that it may have over the safety of such contact. The Bill already ensures that, if the court is satisfied that there was a reasonable excuse to breach a contact order, the court may vary the contact order of its own motion or as a response to an application for it to be varied. In deciding whether to vary the contact order, the court would be bound by the principle that the child’s welfare is paramount. It must also take into account any harm that the child may suffer or has suffered. As I said earlier, the definition of harm has been clarified to expressly include the impairment of development by witnessing the ill treatment of another person. The issues raised by the noble Baroness are of great moment. I am not raising technical deficiencies in the amendments. It is simply the belief that existing law is adequate to meet the concerns and that the Bill gives security in respect of safety and safe contact that she seeks to promote. However, as I said at the outset and in response to my noble friend Lady Gould, we will study with care all the comments that have been made in Committee today to see whether it is appropriate to bring further changes forward on Report.