Children and Adoption Bill [HL]

I thank all noble Lords who took part in that short but thoughtful debate. I too shall break my silence late in the day. The thought of the noble Baroness, Lady Barker, and I being Trappists is not a notion I warm to. All the amendments in this group relate to the use of medical, psychiatric and psychological assessment as contact activities. I accept that the amendments are probing in nature and I hope that I can be helpful in setting out the Government’s approach. I shall turn first to Amendments Nos. 26 and 23. Amendment No. 26 would omit from the Bill the subsection that excludes medical and psychiatric examination, assessment and treatment as contact activities, while Amendment No. 23 would specifically state that psychological assessment or treatment could be a contact activity. I understand the concern of the noble Baronesses in proposing these amendments to ensure that contact activities can encompass a wide range of programmes, classes and sessions. Noble Lords may well be motivated by the fact that some forms of specialist risk assessment or perpetrator programmes may involve medical or, more particularly, psychiatric and psychological examination. However, such assessments and programmes have been excluded from the Bill for what I should say are very valid reasons. I hope that I shall be able to convince noble Lords that they are valid. I am of course aware that the report of the Children Act Sub-Committee recommended that the courts were given the powers to refer people to a psychiatrist or psychologist. Courts do not have the power to make such referrals, largely due to the issue of patient consent, a point raised very appropriately by the noble Earl, Lord Howe. To compel individuals to undergo clinical examinations, assessments or treatments against their will may breach their rights in respect of their private and family life under Article 8 of the European Convention on Human Rights. I believe that there may be a concern that Section 11A(6)(a) might prevent a court indicating to a party that it had serious concerns about his or her mental health and would like them to seek assessment or examination. This is something that currently happens in court, and I understand that there would be a concern if noble Lords felt that the Bill would prevent it. However, I am happy to tell noble Lords that the Bill will not affect this practice. If the party did not seek such help, the court may take that into account. I would also point out that Section 11A(6)(a) does not prevent a thorough risk assessment being conducted if the court has concerns about the safety of a child in respect of a contact order that it is considering, as long as that assessment does not involve medical or psychiatric examination, assessment or treatment of an adult. If a risk assessment brings to light serious issues relating to the safety of the child or others involved in the contact order, the court may make an order for supervised or indirect contact, or may make an order for no contact as appropriate. The court may also refer a person to a perpetrator programme that does not involve psychiatric examination, assessment or treatment, where such a programme would seem helpful. In addition, the court has at its disposal a number of mechanisms for dealing with safety issues that have already been outlined in relation to earlier amendments. I hope that I have explained why it is very important that we retain the provision, and that I have been able to reassure Members of the Committee that the Bill provides ample mechanisms for dealing with cases that may give rise to safety concerns. Turning now to Amendments Nos. 24 and 25A tabled by the noble Earl, Lord Listowel, I agree that some non-resident parents pose a serious risk to the safety of their children and that awareness by a child of conflict between his parents can seriously impede his development. There is no doubt about that. So we agree that it is right for the court to be able to suggest that the child or another party receives therapy. I believe that in actual fact the courts at present frequently refer children and parents to experts such as psychiatrists for the purposes of compiling evidence to assist in the determination of a case, but this has a different purpose to the purpose of contact activity directions and conditions, which seek to help people overcome any hurdles they may face in making contact work for them. My concern with this amendment, as it was with the amendments tabled by the noble Baronesses, is the element of compulsion that making therapy a contact activity entails. That compulsory element is unacceptable to the Government. Therapy has a range of possible meanings, some of which are definitely medical, and I have already explained that compelling individuals to undergo clinical examinations, assessments or treatments against their wishes may have ECHR repercussions. Clearly if a particular form of child psychotherapy, family therapy or other therapeutic intervention does not involve medical or psychiatric examination, assessment or treatment, the court could consider it as a contact activity. The noble Earl asked specifically about the issue of guidance. I shall take that point away to see whether we can be of further help to him. He also asked the status of the Family Resolution pilot. I understand that the department is currently evaluating it and that the completed evaluation will of course be made available to noble Lords. The final amendment tabled by the noble Earl, Lord Listowel, Amendment No. 116 deals with the same set of issues, giving as it does power to the court to order parties to be assessed by a mental healthcare professional before a contact order is made, with specific regard to whether initiation of contact is detrimental to the child. The court would have the power to order that the recommendations made by the mental healthcare professional be carried out before contact took place. We object not only to the compulsion in such medical cases, but to the delay that this amendment would cause. Section 1(2) of the Children Act 1989 states that:"““In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child””." So we cannot accept this amendment because it is not consistent with the existing legislation. In conclusion, I agree strongly with the caution expressed by the noble Earl, Lord Howe, in the matter of compulsion and I hope that I have been able to explain why the element of compulsion in medical cases, including the assessment of mental health, is not appropriate. Courts at present are free to recommend assessment and treatment, and many use their discretion to do so. I would therefore ask the noble Baroness to withdraw her amendment.