My Lords, on a slightly different subject, Amendments 58 and 59 deal with child arrangements orders and their potential impact internationally.
We very much welcome the basic intent of Clause 12 to move away from terminology which implies that there are winners or losers in disputes concerning children, by introducing new child arrangements orders. However, we are concerned that the move away from one parent having custody may create additional difficulty in retrieving children from other jurisdictions internationally. Noble Lords will know that this can already be a legal minefield and a source of considerable distress, which is why we have tabled the amendments.
These amendments aim to make the contents of the new child arrangements orders clearer, and set out more explicitly that the person with whom the child is to live has rights of custody for the purposes of the Hague convention and other international family law treaties. The amendments are similar to those we tabled in the Commons, and emanate from concerns expressed by, among others, the Justice Select Committee, the Family Law Bar Association and the Children’s Commissioner for England.
The key issue here is in relation to rights of custody, which are an important concept in international law, in particular the Hague convention, and apply particularly to child kidnapping. When the Justice Select Committee considered this issue, it said:
“There are also concerns amongst our witnesses that the draft clause could cause confusion and delay in cross-jurisdiction cases … It is important that CAOs do not change how international law relating to children operates. A central concept in the relevant Hague … and EU legislation … is that of ‘rights of custody’”.
It went on to say:
“There is however a risk that the change in terms … may be hard to interpret in other jurisdictions”.
This issue was raised at Second Reading and the Minister subsequently wrote to say:
“For international understanding, it is the content of the order that is important, not its name. A child arrangements order should make clear with whom a child is to live, and this will enable a state to determine whether a person has rights of custody in a child abduction case”.
I am grateful to the Minister for trying to address that point. However, his response misses the point that by changing the name and the terminology we risk inadvertently making difficult international custody battles even more fraught.
While we cannot claim that our amendments are a panacea, and it may well be that the amendments tabled by the noble and learned Baroness, Lady Butler-Sloss, are clearer in law, we believe they go some way to providing further legal clarification that will help parents and overseas jurisdictions to understand our intent in the law. Since the Justice Committee and others continue to be concerned, I hope the Minister will feel able to take these amendments away and to reconsider the Government’s opposition to what is meant to be a simple and helpful set of changes.
We also support the amendment proposed by the Government which deals with some of the consequential impacts of child arrangements orders on the Children Act 1989.
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