Children and Adoption Bill [HL]

I rise to speak to Amendment No. 124A, which should be read with Amendments Nos. 11, 12 and 13, which we tabled earlier, as they are a sort of package. I remind the Committee that those amendments sought to insert a presumption of reasonable contact, which was rebuttable unless there was a good reason why not. Our proposals would amend the Children Act 1989, which some might consider heresy; but, of course, it would not be the first time that that had been done, as it was done by the Children and Adoption Act. If there are good reasons, why not amend it—and I believe that there are good reasons. We find support for our position in the Family Law Act 1996, which has not been implemented, although it is still on the statute book. Section 11(4)(c) of that Act referred to,"““the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—"" (i) his having regular contact with those who have parental responsibility for him and with other members of his family; and"" (ii) the maintenance of as good a continuing relationship with his parents as is possible””." We believe that reasonable contact will achieve all those ends, which clearly the Government the day believed in. In responding to our Amendments Nos. 11, 12 and 13, the Minister asked us what was ““reasonable”” and said that we could not have ““reasonable”” in the Children Act 1989 if we did not define it. Well, I do not believe that that is really the case, because currently there is no definition of ““contact””—and that is what the law says at the moment. So if it is not necessary to define the law as it stands at the moment—that is, simply in terms of contact—why should it be necessary to define ““reasonable””? It is actually for the courts to do that, in the circumstances of the particular case; and of course we all know that all cases are different. However, given that our proposal is not strictly necessary, is it helpful? I believe that it is, which is why we have tabled this amendment, which bears some similarities to that moved by the noble Baroness, Lady Morris of Bolton. We feel that it is helpful to lay down the process by which the Secretary of State will devise a normative framework, within which the sort of contact orders that it is considering will be devised. From that framework, the courts in their discretion can move in one or another direction, according to the circumstances of the family in question, but always under the primacy of the welfare and best interests of the child. That applies to our amendment, as it does to many other amendments tabled before the Committee. Our amendment relates to the process of devising that normative framework and guidance for the courts—which, as we all know, operates informally anyway. We have said that this is guidance for the courts, and undoubtedly it would be communicated to the parents by anyone working with them at the time, such as CAFCASS officers or even the court itself. Where we differ from the noble Baroness, Lady Morris, is that we believe that when the Secretary of State has consulted all the appropriate people, as mentioned in subsection (3) of our amendment—the child development experts, the family courts, and any other person who appears to the Secretary of State to have an interest or expertise in the issue—and when the guidelines have been put before Parliament for discussion, they are not necessarily set in tablets of stone. The Secretary of State can amend them later, if necessary, subject to the same consultations as he undertook when he devised the guidelines in the first place. Our proposals would lower the emotional temperature of the discussions between the parents, because when they went into court—if they insisted on going to court and could not mediate or work things out for themselves, which we all know is far preferable—they would know what the court was likely to say to them at the end of the process, given the age, level of understanding of the child, circumstances with regard to geographical separation of the family, and all the other factors that the court rightly takes into account. We want to set up the process in statute and it will be for the courts to operate it thereafter, as has been the case in every other Bill with which I have been involved. The process we are proposing today is not unusual; we come across it in many Bills that come before the House which involve criminal offences, the penalties for criminal offences and the setting up of guidelines within which the court must abide when coming to its conclusions. It has at its heart the primacy of the welfare of the child. I find support for that in the Family Law Act 1996, which I have just cited to the Grand Committee, a statute which already exists. It states that it is to the benefit of the child to have proper contact with both its parents for the maintenance of as good a continuing relationship with its parents as possible. I hope the Minister will consider both amendments—in particular that of the Liberal Democrats—very seriously and see this as a whole package, together with the amendments that we discussed last week about the rebuttal presumption of reasonable contact.