Children and Adoption Bill

Thank you, Mr. Deputy Speaker, for allowing me to participate in this vital debate, which has been marked by good sense, clarity and shared principles, as exemplified by the speech of the hon. Member for Stockport (Ann Coffey), who clearly knows what she is talking about. For the record, I will confine my remarks to part 1, concentrating on contact orders and the operation of family courts. Other hon. Members may wish to debate the more thorny subject of inter-country adoptions. I believe that there is a consensus across the House for us to achieve an outcome that is not only practical and pragmatic, but fair and compassionate, with the paramount consideration being the welfare of children, both in theory and practice in statute. I am pleased to say that there is a political will on both sides of the House to put aside party differences and focus on getting the legislation right. We are, of course, dealing not with dry, arcane academic case law, but with people’s lives and the future of our children, whose lives may be fractured or broken by the raw emotion and hurt engendered by the disintegration of their families and the growing phenomenon of divorce and separation. As has been mentioned, the trauma and stress of that affects about 200,000 children each year. I see that the annunciator says that I am ““Nick Herbert, Arundel and South Downs””, Mr. Deputy Speaker. I am sure that Hansard will amend that. Two thirds of those children are under 10 years of age. As my hon. Friend the Member for Basingstoke (Mrs. Miller) mentioned, 40 per cent. of children lose contact with the non-resident parents, often as the result of bitter and protracted disputes following separation and divorce. We agree on much in the Bill. In particular, I welcome the Government’s commitment on risk assessments in clause 7, which is supported by hon. Members on both sides of the House. There is a demonstrable need for a more effective method of enforcing contact orders. In so far as Parliament can legislate to change people’s lives for the better—as Disraeli may have said in another context, ““The elevation of the people””—that is what we are trying to do today. It may not be Catholic emancipation or the abolition of slavery, but we are trying to improve people’s lives and to give adults and children a better future, to ameliorate the tragedy of family disintegration. We agree that, as legislators, we have a duty and responsibility to balance the best of what has gone before, best practice and an evidence-based analysis of the current system with a realisation that there are significant flaws in what passes for the practice of family law today, which is sometimes perceived as ineffectual and certainly perceived by many people as unfair. I welcome much of the Bill. I support the insertion of the domestic violence perpetrator programme into the Bill and the introduction of risk assessments, especially given the points made eloquently by the hon. Member for Luton, South (Margaret Moran) about circumstances where allegations or proof of abuse are involved. It is right to reform the Children Act 1989 and I am glad that there is recognition that the principle of children maintaining contact with both parents after divorce and separation should be enunciated, even though I might think that is not expressed sufficiently robustly in the Bill. The recognition that contact orders are meaningless in their practical application without legal sanction is also welcome. Non-compliance cannot and should not be allowed to be tolerated by the courts with impunity. If it is, we risk undermining the whole discharge of family law. The Bill’s proposals establish a marker that creates a disincentive for those who would otherwise flout the will of the court. They restore balance to an area hitherto considered wholly biased against the non-resident parent. As has already been said by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), giving the court a range of options, such as the early intervention projects, is realistic and sensible. Most importantly, it recognises that all families— parents and children—are different and that a one-size-fits-all approach is inappropriate in this particularly sensitive area. It goes without saying that I welcome the fact that Ministers have supported the decision not to proceed with tagging, which would have been a grotesque and gratuitous overreaction. The failure—or, if I am being charitable, the non-success—of the family resolution pilots, which were launched and discontinued at a hugely disproportionate cost and which involved low take-up and a lack of compulsion, should not prevent Ministers from being imaginative, especially when reviewing the efficacy of mediation in the package of measures. However, voluntary measures will once again fail. As I mentioned when I intervened on the hon. Member for Mid-Dorset and North Poole (Annette Brooke), only a legal obligation enacted by the courts will have the desired effect. Academic evidence from Norway, the United States and other countries has shown that that is the case. I hope that that matter will be debated in Committee at length and in detail. The wider range of options available to the courts, the improvement in the monitoring of contact and—I agree with the hon. Member for Stockport—the enactment of family assistance orders are positive steps. The idea of a legal presumption to promote contact has attracted wide support across parties. I want to focus on a reasonably small number of areas that concern me and which remain unresolved in the Bill. At the outset I have to say—this may be controversial—that I believe that there is no contradiction between the presumption of co-parenting and the safety of the child or children subject to a contact order. I do not believe that the case has been sufficiently made that a legal presumption is, in general, in any way at odds with the interests of the child or children. I regret that the Government have not sought to strengthen the Children Act 1989 to give legal power to reasonable contact. I will come back to the word ““reasonable”” later. Common sense indicates that children desire successful co-parenting after divorce and separation, and are happier and healthier as a result of it. Those children mostly go on to be settled, responsible and decent adults and to be good parents themselves. That is borne out by research by the National Council for One Parent Families in a study by J. Hunt in 2003. We are attempting to establish, where practicable, a strong and loving relationship between a child and both parents. Noble lords and ladies in the other place debated at length—I believe in relation to amendment No. 2—the word ““reasonable””, which is enshrined in section 34 of the 1989 Act. I would also add ““meaningful”” as a given. I am glad that the Minister acknowledged in her comments to the Joint Committee the use of the word ““meaningful””. ““Substantial”” was mentioned by my colleague, Baroness Morris of Bolton in the other place. The positions taken by organisations such as Families Need Fathers and children’s charities such as Barnardo’s and the National Society for the Prevention of Cruelty to Children, notwithstanding its ill-judged and intemperate comments in its briefing notes, need not be irreconcilable. The presumption is an instrument that gives flexibility to the courts to tailor their decisions accordingly. Evidence shows that it would only formalise the current situation, where very few contact orders are not granted. That in no way invalidates the paramountcy principle in respect of the welfare and interests of the child. A corollary of this practical approach that the Government have not yet fully acknowledged is the strong argument in favour of a greater role for the child’s voice to be heard in court, an argument that some Labour Members have advanced. It is one of the issues in the NSPCC briefing paper with which I agree, so it does not get everything wrong. Perhaps the Minister will touch on why section 122 of the Adoption and Children Act 2002, which provides for children to have a legal and discrete right to be participants and to have separate representation in court, remains unimplemented. I shall make some tangential comments. There has been consensus but the partisan comments of the hon. and learned Member for Redcar (Vera Baird) obscure the issue. We all want children’s voices to be taken into account. If an important piece of legislation has been on the statute book for three years and an important section of it remains unenacted, it is surely reasonable for us to ask why that is so.