My Lords, the noble and learned Baroness says that the judges would cope with Section 1 of the 1989 Act being amended by this but I do not think we want to wait for a judicial review as to exactly what would be meant if the new words were inserted in Section 1. If they were inserted in the form that we have in Clause 11, we would have Section 1(1) saying that welfare shall be the court’s paramount consideration—if that is not a presumption, I am even more concerned about it; then Section 1(2) saying that in dealing with delay the court shall have regard to that general principle; and then proposed new subsection 2A referring to presumption unless the contrary is shown.
I have never practised in this area so maybe it does not matter, but I am very unclear as to how weighty the contrary needs to be. To put it in different terms, are we talking about the contrary shown on a balance of probabilities or beyond reasonable doubt? The noble and learned Baroness has those words in her amendment, to which I and my noble friend Lady Walmsley, who is not in her place, have added our names. I do not think they would have the same difficulty when tied to having particular regard as they would to a presumption. I become more and more confused as to what Clause 11 means by a presumption unless the contrary is shown. A presumption is a presumption.