Children and Adoption Bill [HL]

Because we do not agree with it. We believe that it sets up a countervailing set of assumptions to those established in the Children Act 1989. As to the issues in regard to the guidance, both the noble Baronesses, Lady Morris and Lady Walmsley, are seeking to introduce—in a different way to the earlier amendments on Clause 1—a duty to issue statutory guidance setting out specific arrangements which the courts are likely to observe when deciding on contact disputes. The points I would make are essentially the same as the ones I made last week. I know a weekend is a long time in politics but the Committee will be glad to hear that we have not changed our mind in this short period of time. As I said, we will reflect on the points that have been made in the debate today. I shall boil down the arguments why we do not believe that it would improve the status quo to three. First, we believe that the statutory position as set out in Section 1 of the Children Act 1989 is the right one, requiring that decisions on the allocation of time should be taken according to the paramount interests of the child. We remain concerned that any qualification of that principle will subordinate the interests of the child to the preferences of their parents. That would be wrong, and could possibly be dangerous, as the noble Baroness, Lady Howarth, said in our debates last week. Secondly, we believe that the courts seek to apply the principle of the Children Act 1989 conscientiously across the huge variety of different specific cases with which they have to deal. They have established a position in case law that appears to us to be right—that children normally benefit from a meaningful relationship with both parents following separation, provided that it is safe and in their best interests to do so. No evidence was offered to the Committee last week, or today, that the courts are not making reasonable contact arrangements in accordance with case law developed under the Children Act 1989. On the contrary, we note that all but 1 per cent of requests for contact lead to the making of contact orders, and we would need evidence that the current system is not achieving what Parliament intended to justify a change in the law. Thirdly, the judiciary is not calling for the change proposed, even though those who work in family law courts regard the promotion of the best possible contact arrangements consistent with the safety and wellbeing of the child as their main concern. On the contrary, the judges are specifically warning us against it. What the judiciary is calling for are two crucial changes that are made in the Bill: namely, the new contact activities and the better means to enforce contact orders so that the contact decided by the court happens. So the question is how statutory guidance as proposed in the amendments would make things better. We look forward to any further views and evidence that the noble Baronesses, Lady Morris and Lady Walmsley, can provide us with. We see this as a dialogue that we are prepared to continue before we come to Report. But every time we look at this issue, we still come up against the same two basic points. First, if the intention behind this amendment—inserting guidance in the preparation of parenting plans as to the likely decision the court would make in certain circumstances in the allocation of time between parents—is simply to tell the courts to do what they are doing now in how they approach decisions on allocation of time, what is to be gained? It is simply a reinforcement of the status quo with the huge difficulty—if not impossibility, given the very large range of circumstances that we are dealing with—of clarifying what are described in the amendment before us as,"““the kind of orders the court is likely to impose in a range of circumstances””." Whatever the intention, such attempt at an a priori codification of units of time could well have the effect of subordinating the paramount interest of the child to those rigid categories. Secondly, if the intention is to change the presumption—as was clearly the drift of the comments made by the noble Baroness, Lady Morris, and the noble Earl, Lord Howe, last week, when we considered amendments proposing a minimum contact period of one-third as being the norm, and some implied that that should be higher still—how are we to square that with the safety of the child and with his best interests, which is the paramount consideration set out in Clause 1 of the 1989 Act? We are not attracted to this new approach, but we are always keen to be constructive. If the noble Baronesses, Lady Morris and Lady Walmsley, want to give us more evidence of the respects in which they regard the current system as unsatisfactory and which are likely to be met in a way that does not compromise the paramount interests of the child, we will consider it further.