Children and Adoption Bill [HL]

I very much support the sentiments behind the amendment. It is not my desire to pour cold water on the provisions of Clause 4, because I believe that in certain circumstances enforcement orders will have some utility, and I am well aware that members of the judiciary believe that. The possibility of an enforcement order may have some deterrent value. But what I equally think is that enforcement orders will not be the salvation that many fathers’ groups, for example, have imagined that they will be. New Clause 11J(2) says that the court has to be satisfied beyond reasonable doubt that there was a breach of the contact order in the first place. We should be clear that that is a very high hurdle to surmount. With many domestic events there is no evidence. It is true that if a breach occurs on a Saturday, it is still clear on the following Monday what happened; but if, as the aggrieved parent, you apply to the court to have an enforcement order determined, you will probably have to wait four to six weeks for a hearing. Usually an order is not determined at that juncture. The court will often order that there should be another hearing in another six weeks’ time, when the application will be heard. So you end up presenting your complaint to the court some three months after the event itself took place—but it can be longer than that. At that point, the original breach is many weeks, if not months, in the past, and the truth of what happened on a Saturday three months ago has been obscured by lies and fibs. It is one person’s word against another’s. No one has any proof of what actually happened and such first-hand evidence as there is is contradicted by the defending party. It is very difficult to resolve that sort of impasse. The defending party may be lying their head off but you cannot prove it. You cannot product photographic evidence that someone failed to show up at a rendezvous when they were supposed to have done, yet the resident parent can often brazenly maintain, ““I was there waiting, where were you?”” Reasonable doubt is difficult to establish in those circumstances. As a generality, the family courts are not really geared up to determining issues of fact. If these orders are to work at all, the courts will need to adjust their procedures in some way, because at the moment, issues of fact tend to become the subject of a separate hearing, which is very cumbersome. The matter does not end with one disagreement. If we imagine a court hearing three months down the track from a breach of a contact order, the original breach may by that time have been overlaid by numerous subsequent breaches. Emboldened by the first breach, the resident parent is able to dream up all manner of ways to evade the strict terms of the order, whether by telling lies or by genuine excuses. You will hear things such as, ““I never got the message””, ““I thought the arrangements had been changed”” or ““The car broke down””. Not infrequently, when the non-resident parent gets to court, he will be contemplating a whole series of missed meetings and a lengthy period of non-contact. It is difficult for him to counter the excuses and the reasons put forward. And what does the resident parent do? She argues—I am assuming it is the mother—to the judge that there have been one or two missed appointments which she could not help because of this or that, but Johnny has been so much better in himself recently, ever since his life has not been disrupted by visits to his father. In that way, it is established in the mind of the court that there is a new status quo, one which the court cannot ignore. In those circumstances, a judge may well find that the excuses have been proven on the balance of probabilities, as the Bill says, which is not a high hurdle. Furthermore, in the interests of the child, an order confirming the original level of contact looks quite difficult to justify. Under the current system, time and again, a resident parent will argue to the court that contact should be reduced for the benefit of the child. Very often this is precisely what the court orders. I see nothing in the Bill to prevent such a pattern being perpetuated. That raises all sorts of questions. Has any provision been made to ensure that hearings about alleged breaches of contact orders are expedited more speedily than they are at present? If so, what has been done? Since the original proposals for enforcement orders were made, whom have the Government consulted about the practical implications of what is contained in the clause? What do lawyers think about the practical consequences of the provisions? Those to whom I have spoken have said that this is an inbuilt incentive to litigate and a recipe for clogging up the courts. If the Minister does not think that that is likely to happen, perhaps he can tell us why. This may not be the reassurance that the noble Baroness wanted, but in my judgment it is in part precisely because the paramountcy of the child has not been affected in any way by Clause 4 that it will be all too easy for a parent to argue their way out of having an enforcement order imposed upon them. Assisting the parent towards that end will be the inbuilt delays in the legal process and the two thresholds of proof specified in subsections (2) and (4).