Children and Adoption Bill [HL]

The Government have set quite a lot of store on the provisions in this clause, so it is appropriate that we take a couple of minutes to look at it in the round before moving on. The big question is whether it will make a real difference to the number of resident parents who defy    contact orders with impunity. Undoubtedly enforcement orders will have their place, but I have already explained why I believe that they will not be the panacea that many aggrieved parents suppose they will be. For a non-resident parent, the hurdle of proving that there has been a breach of a contact order is a high one: it is the hurdle of ““beyond reasonable doubt””. If it is proved, the hurdle for the resident parent of proving that his or her excuse is reasonable is a low one. It is low because, in particular, these kinds of situations will be characterised by a lack of hard evidence and the difficulty of deciding between one person’s word and another’s on the balance of probabilities. Even in a case where someone does not succeed in demonstrating to a judge that his or her excuse was reasonable, there are all kinds of get-outs. In the main, these are contained in new Section 11L. One is that the court must consider what effect an enforcement order is likely to have on the person on whom it is imposed. But more importantly perhaps, the effect of the enforcement order on the person must be proportionate to the seriousness of the breach of the contact order. The whole feel of this clause is of a cumbersome process, with plenty of opportunity for the defending parent to argue his or her way out of having to endure anything too draconian. I cannot resist pointing out to the Minister the irony in some of the wording. The other day, he chided me for not having proposed a definition of the word ““reasonable”” and he resisted the incorporation of that word into the definition of ““contact order””. Yet here we have the word ““reasonable”” in new Section 11J(3) qualifying the word ““excuse”” without any further explanation. I have no problem with the term ““reasonable excuse”” sitting there by itself but, after all that the Minister has said, I am surprised that the Government do not. The other day, I asked the Minister why the Bill did not reflect the requirement for proportionality contained in the EU convention on contact. If the Bill goes through amended, it will contain no requirement for proportionality whenever an order is made divesting a child of almost all contact with a parent. But when we come to consider applying penalties for breaching contact orders, suddenly there is a requirement for the penalty to be proportional. Again, I am perfectly happy with the idea of proportionality when sentencing any kind of offender, and I have no problem with it here. But it would seem that the Government are resisting the idea of it when a contact order is being decided in the first instance. At the risk of repeating myself too often, they are effectively saying that, because in a private law dispute a father has sent toys back dirty in a bag or has cooked cheese sauce for a child when the child does not like it, it is apparently all right to take the child away from him. We are back to where we were the other day when I stressed the fact that, under current law, all material contact can be brought to an end for no material reason. I ask what good enforcement orders will do in many cases. I wonder whether they will not ultimately prove to be a self-defeating mechanism. To require mothers to undertake unpaid work will do nothing to help fathers—apart from engendering a sense of Schadenfreude—and it will serve only to alienate mothers. The net result will be more heat, less light and more polarisation. More polarisation is decidedly not what we want to bring about. Warring parents are polarised enough already without it being made worse. I think back somewhat wistfully to the Government’s Green Paper, which spoke on page 2 about,"““minimising conflict and supporting good outcomes both for children and their parents, preferably without recourse to the courts””." I believe that those good and worthy intentions are undermined in a number of ways by the Bill, but not least, I fear, by Clause 4.