Children and Adoption Bill [HL]

I can answer some but not all of the noble Earl’s questions. Those I cannot answer I will write to him about. I am informed that new Clause 11J(2) sets a ““beyond reasonable doubt”” test because it must comply with Article 6 of the European Convention on Human Rights, which is the right to a fair trial. The penalties provided in this clause for breaches of enforcement orders are of a criminal type—that is, the unpaid work requirements—and a criminal standard of proof is therefore required. It would not be in accordance with the convention if we did not provide for a reasonable doubt test. On the further measures that will enable the courts to cut through the evasion of judicial jurisdiction and the kind of defiance the noble Earl was describing, the capacity of the courts to offer ““salvation””, as he put it, is always limited, as salvation is not to be sought by any judicial remedy and probably not by any other remedy either. However, the monitoring arrangements that we discussed last week in Grand Committee are much more extensive than those provided before. They include the power for CAFCASS to bring cases back to court, the power for the court to extend monitoring arrangements for longer than a year if it regards that as a useful or, in some cases, essential tool in order to police the enforcement or oversight of contact orders. We believe that that regime will improve the capacity of the courts to judge what is going on and to react more swiftly than has been the case in the past when dealing with the observation of contact orders. I cannot give the noble Earl a direct response now on what we are doing to ensure that hearings of fact are expedited more speedily or on who we have consulted on these practical issues. I will do so after the Grand Committee. The noble Baroness, Lady Walmsley, raised the wider issue underpinning this clause; that is, whether the interests of the child should be a material consideration or paramount. This is a difficult and complex issue that my noble friend Lady Ashton and I have spent a good deal of time grappling with. On the face of it, the case made by the noble Baroness and others is compelling. If the interests of the child are paramount when a contact order is made and any issue to do with the child should correspond to that principle, then, on the face of it, it should be right and reasonable that the same principle should apply when deciding any issues to do with enforcement orders and we should not have a lesser principle. However, we have given this significant consideration and we believe that the position as set out in the Bill is right: that the court should have regard to the welfare of the child, rather than it being of paramount importance in the specific case of enforcement orders. The first point is clear: an enforcement order may be made only if a contact order has previously been made and breached. Therefore, the courts will already have been through the process of evaluating the paramount interests of the child when deciding whether to make an initial contact order. Later, when faced with a case where a contact order has been breached, the primary question before the court is whether, and what, action should be taken against the adult in breach of the order if the contact order is to be made to work. At this second enforcement stage, the child’s welfare remains a central consideration, but the strong judicial advice given to us and to the Joint Select Committee that looked at the Bill in draft was that we should separate the paramount interests of the child, which govern the contact regime as a whole, from the specific short-term effects of enforcing compliance with an enforcement order that may involve some difficulty or disruption for the child, but only to a degree that the court judges to be acceptable and proportionate to re-establish the overall contact regime which is still judged by the court to be in the child’s paramount interest. In evidence to the Joint Committee on the draft Bill, Anthony Kirk QC, deputy chairman of the Family Law Bar Association, when asked if there was a clash between the Bill’s provisions for enforcement orders and the paramountcy principle, said:"““I do not think there is. Of course, you take into account the child’s welfare, but, at the end of the day, if you have made a contact order which is not being obeyed . . . if that contact is going to be frustrated, it has to be sorted out and put right””." Indeed, I thought from what the noble Earl was saying that he thought that, in some respects, these provisions were not strong enough. But the judiciary is certainly saying that it needs to have the powers necessary to ensure compliance with the orders of court. In giving evidence to the same committee, Mrs   Justice Bracewell said that when considering enforcement orders, the courts should not have the child’s welfare as the paramount consideration because,"““there is a public policy element. Once an order has been made, then the court has a public interest in seeing that that order is enforced. Obviously, you do take into account the welfare of the child, but not to be paramount, and there are many occasions, many other applications in which welfare is not the paramount consideration””." Dame Elizabeth Butler-Sloss agreed with that position and stated:"““We really cannot allow breaches of court orders just to be disregarded””." Those views reflect the position established by case law in the Court of Appeal judgment in the case of A v N in 1997, which related to contempt of court proceedings leading to imprisonment for flagrant and repeated breaches of a contact order by a mother, denying the child the right to see his father. In that case, Lord Justice Ward said:"““when considering whether to commit a mother to prison for flagrant breach of court orders requiring a child to have contact with the father, the welfare of the child was a material consideration but not the paramount consideration””." The reasoning behind that is clear and, we believe, justifiable. While there might be a short-term negative impact on the child’s welfare associated with their mother being imprisoned for contempt, this could reasonably be judged by a court to be outweighed by the impact of the breach of the contact order on the child’s paramount interests in maintaining a close relationship with both parents, which the court had already established in making the original order. Members of the Committee would say immediately that imprisonment would be used only in the most extreme and exceptional cases anyway. We entirely agree, which is why the Bill, in Clause 4, in response to the concerns of the judiciary, makes available a far wider range of enforcement powers short of imprisonment. An enforcement order requiring unpaid work, as in the Bill, is much less likely to impact adversely on a child’s welfare than committal to prison for contempt, which is why we are proposing it as an alternative set of enforcement measures. However, even in the case of requiring unpaid work, taking one of the parents out of the home for a period could still impact adversely on the immediate position of the child. The courts will need to make case-by-case judgments about how this is best handled and how the welfare of the child is to be safeguarded—hence the distinction between the paramount interests in Section 7 of the Children Act 1989 and the requirements that take account of the interests of the child in this clause. It cannot be stressed too much that the courts will of course need to think carefully, as they do in contempt proceedings, about the effect of an enforcement order on the child, and the two judges who I have quoted have recognised that fact. This will also be an issue for CAFCASS and the other agencies associated with a court in their dealings with the families concerned. Furthermore, the court does not have the power simply to enforce or not enforce in such cases. The court can exercise its power to vary a contact order if it believes that that is the best way forward in respect of the children. In this case, in any consideration of varying a contact order, the paramount interests of the child once again become the test to be taken into account, not simply the welfare of the child. I hope that I have been able to explain clearly our reasoning in this difficult area. I make no secret that this was a finely balanced decision by Ministers. There was much consideration over whether we should have the same test in both cases. It was on the strong advice of the judiciary about what would ensure a proper regime to secure compliance with contact orders that we reached our judgments.