Children and Adoption Bill [Lords]

Public Bill Committee, 16 March 2006.

Children and Adoption Bill [Lords - Standing Committee B

Children and Adoption Bill [Lords]

Mike Hancock (Liberal Democrat, Portsmouth South)

Before we begin, on behalf of the Committee I send kind thoughts and hopes for a speedy recovery to Maria Eagle. I am sorry that she is not with us today.

Beverley Hughes (Labour, Stretford and Urmston)

Me too.

Mike Hancock (Liberal Democrat, Portsmouth South)

The Minister agrees with that sentiment wholeheartedly. I understand that she wishes to move an amendment to the programme order. Copies of the motion are available in the room. It is debatable for up to half an hour. However, under the terms of Standing Order No. 83C(10), if any Member signals his objection the motion will lapse.

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move,

That the Order of the Committee of 13th March 2006 be amended by—

(a)the insertion after paragraph (1)(b) of—

“(c)at 10.30 a.m. and 4.00 p.m. on Tuesday 21st March;”,

and

(b)the substitution in paragraph (3) of “7.00 p.m. on Tuesday 21st March” for “4.00 p.m. on Thursday 16th March”.

As you say, Mr. Hancock, members of the Committee are aware of the intention behind the motion.

Clause 3 - Contact orders: warning notices

Tim Loughton (Conservative, East Worthing and Shoreham)

I echo the comments about the Under-Secretary. I hope that it is not the forthrightness of our arguments on Tuesday that has confined her to her bed. She stoically battled through our proceedings, and we wish her a speedy recovery.

The clause is short and deals with warning notices attached to contact orders. The contact orders should include a warning about the implication of not complying with them. That is crucial, and we will go on to discuss enforcement orders that have penalties for breaching contact orders. There is no detail in the clause, and we want to know what form a warning notice will take and how detailed it will be. Will it set out a tariff of penalties that could befall those breaching a contact order, or will it be just a general warning, as one might get on a unit trust product saying that its value might go up as well as down? How serious will the warning be? Will it be a cigarette packet-type warning, or will it have some punch, as we would like to see?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman will know that the report on the pre-legislative scrutiny of the Bill recommended that an order issued by the courts should include a clear warning that breaching its requirement would lead to an enforcement order being made involving unpaid work, a fine or imprisonment. The warning should set out in full not only the possible consequences of breaching an enforcement order but the possibility, although we know that it is not used very often, of contempt and the possible consequences of that. The warning should give a full account of the possible consequences to the person receiving an order.

It is also important—we intend to ensure this—that the warning is embodied within the order itself. It will not be a piece of paper attached with a paper clip; we will reprint and redesign the orders so that they include the warning. There can therefore be no possibility that people have not seen it. I hope that that satisfies the hon. Gentleman.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful for that. I was hoping for the indication that the warning will not be an add-on but will set out clearly the implications of not complying. On that basis, we are happy with the clause.

Clause 4 - Enforcement orders

Margaret Moran (Labour, Luton South)

I beg to move amendment No. 34, in clause 4, page 7, line 22, at end insert—

‘(3A)In deciding whether a person had reasonable excuse for failing to comply with a contact order, the court shall consider

(a)any objections from the child about the contact arrangements, and

(b)the behaviour of the contact parent.

(3B)No court may make an enforcement order as regards a person in breach of a contact order unless,

(a)it has considered an assessment of the risk to the child concerned and of any person with whom the child has his home, and

(b)it is satisfied that the safety of the child of any person with who the child has his home will not be compromised by making an enforcement order.’.

May I say how pleased we are to be here at this early hour and under your firm guidance, Mr. Hancock?

It might be useful to remind ourselves that the context in which we are discussing enforcement orders is based on reports rather than anecdotes. According to a report by Her Majesty’s inspectorate of court administration, the evidence shows that there is such a strong presumption of contact with both parents that concerns about safety and risk to the child are overridden in practice. It is therefore important to ensure that the Bill makes the safety of the child paramount throughout the Bill. I welcome the statements by Ministers on Second Reading to that effect.

However, there are concerns that the paramountcy principle in clauses 4 and 5 is not sufficient and needs to be reinforced. We also know from research evidence that the point of separation and the point of enforcement of contact are the most dangerous times for both parent and child. Therefore, it is incumbent on us to ensure that we safeguard children at those points in the separation proceedings. The amendment would ensure that when the courts consider reasonable excuse, they take into account the risk to the child and others, the behaviour of the parent and, most importantly, the views of the child.

The Government stated in “Parental Separation: Children’s Needs and Parents’ Responsibilities”, produced by the Department for Education and Skills and the Department of Trade and Industry, that contact arrangements that put the safety of the child or the resident parent at risk should not be put in place. The amendment aims to express the Government’s intention in legislation, bearing in mind that children have been killed by violent parents—fathers predominantly—as a result of contact arrangements ordered by the courts in England and Wales.

Sturge and Glaser, who provided expert advice on child contact and domestic violence for the Court of Appeal in re L, V, M and H 2000, emphasised that children should be listened to and taken seriously. Indeed, that view was reflected in the Adoption and Children Act 2002. The relevant clause in that Act has not so far been enforced. The issue is particularly important if the child is frightened and does not want to see a violent or abusive parent. To enforce contact in such circumstances could itself be regarded as a form of abuse to the child.

The amendment would also require the court to take account of the behaviour of the contact parent, including any risk they present to the safety of the child or the other parent. As I said, during the contact period and the point of the enforcement order, the child or parent is most at risk of violence. In the Government’s reply to the report from the Joint Committee that scrutinised the Bill, they stated that reasonable excuse

“could of course include genuine concerns about safety, either of the child or of the parent”.

The amendment aims to express that intention in legislation and to ensure that contact is not enforced in cases where domestic violence is likely to endanger the child, the non-abusing parent or any other family member.

Maria Miller (Conservative, Basingstoke)

One of the main provisions of the Bill is to increase the power of enforcement, which we all agree is important within the overall context of ensuring children’s safety, but we should also always consider children’s welfare, which is a broader issue.

Proposed new subsection (3A) deals with what constitutes a reasonable excuse. Opposition Members are concerned about whether the court should be given directions on what might constitute such an excuse. Paragraph (a) of the proposed subsection would involve children in that consideration, but if the court has to look to them to endorse an excuse made by a parent, they may be put at risk or in a difficult situation. We question whether that is in line with the paramount welfare of the child. Is it in the child’s best interests to be in that situation?

Paragraph (b) proposes that the courts should take the behaviour of the parent into consideration, but that is a broad requirement. How will the court do it? Will the expression on the face of a parent be taken into consideration as behaviour? Must the behaviour be toward the child or someone else in court? We think that it is probably best for the court to define what is a reasonable excuse, in the normal way.

Proposed new subsection (3B) suggests that there should be a risk assessment if a court order has been breached and enforcement is required. However, there is a tautology in the amendment. Lord Adonis pointed out in the other place that, in making the original contact order, the court will have undertaken a thorough evaluation of what is in the paramount interests of the child, and in that evaluation safety would be an important issue. Risk assessments are already undertaken if, at any time, a Children and Family Court Advisory and Support Service officer has cause to suspect risk of harm to a child.

The hon. Member for Luton, South (Margaret Moran) will say whether I am wrong, but the amendment assumes that when an enforcement order is needed, child safety is always the overwhelming concern. That does not seem to be borne out by the facts, as we have already fully debated. We all agree that the welfare of the child is of paramount importance, and within that safety is a vital element, but a speedy resolution of problems is also in the child’s best interests. It is important that contact with a non-resident parent is put in place speedily when an enforcement order is made; we should not build in delays, as the amendment may do.

Clause 7 already contains adequate provisions on safety, and our view is that the amendment may cause enforcement of contact orders to be erroneously delayed without good reason, which is not in the best interests of the child. For that reason, we do not support the amendment.

David Kidney (Labour, Stafford)

I am disappointed with the Opposition’s response, because it is vital not to lose focus on the paramount importance of children’s welfare as soon as there is a problem between parents. As a result of the way in which the Bill is drawn, the court might take a lesser interest in the welfare of the children when focusing on the behaviour of the parents. It is vital that we do not let the notion of children’s welfare as the paramount consideration become eroded. That is why I support the amendment very strongly.

Maria Miller (Conservative, Basingstoke)

Perhaps the hon. Gentleman could give a little more detail on how he thinks the Bill erodes the safety of the child. I do not follow his argument.

David Kidney (Labour, Stafford)

Certainly. In any section of the Children Act 1989, and anywhere in the Bill except clauses 4 and 5, the welfare of the child is paramount. If there is any risk of harm to the child, the court should be alert to that and take steps to protect the child. It may suddenly be faced with an enforcement problem because, for example, a mother who does not live with the child demands contact and has a court order saying there should be contact. She may complain that the dad has not allowed the contact, and she will want the order enforced.

I am concerned that in such cases the Bill says that the welfare of the child is a consideration, but not the paramount one. I am worried that people will focus on whether dad was reasonable on the day when he did not allow contact, or whether he should be punished by ensuring that there is contact. There is an amendment to be considered later about compensatory contact, as if contact were a matter of reward for an innocent parent against a guilty one. That is absolutely the wrong approach.

Ann Coffey (Labour, Stockport)

When the subject was discussed in the Committee that considered the draft Bill, I was slightly confused. My understanding of an enforcement order is that a court decides whether to make the parent do a period of unpaid work or to send them to jail. When we discussed that, we considered the way in which magistrates interpret the law. For example, the paramountcy of the child cannot be the major consideration at that time, otherwise no parent of any child would ever be sentenced. I remain slightly confused.

David Kidney (Labour, Stafford)

I recognise my hon. Friend’s concern; it is one about which I feel very strongly. The courts are reluctant to impose either of the existing enforcement powers—fines or going to prison for contempt of court—because they foresee a harm to the child. If they take away the caring parents’ money, the child’s care suffers. If the parents are taken away to prison, the child suffers. We politicians have been casting around for another punishment that the courts can apply to ensure compliance.

I very much support the idea of unpaid work. It is a really neat way of bringing home to people that they must obey court orders. I am all for standing up for the authority of court orders, and children should be brought up to believe that we should all obey court orders. It is not in a child’s best interests for a parent to say, “I am breaking court orders because I’m putting my interests before yours.”

I am all for unpaid work, but enforcement should not be about making contact take place—after all, we are talking about enforcement of the court order, however the punishment or the means of making the parent take account of it is phrased—so that the court order is effected. I am concerned about forcing contact between a child and a parent when issues regarding that child’s safety may have arisen during the proceedings which were missed by risk assessment on day one of the court case, and a parent, or the child themselves, has made them known to people in connection with the case.

Maria Miller (Conservative, Basingstoke)

The hon. Gentleman is surely aware that a concern about a child’s safety can be raised and will be investigated under other clauses. Perhaps he is concerned that the child’s safety is not adequately dealt with in contact orders. I was not aware of that before; it is something that is considered in great detail when contact orders are initially put in place. If further concerns come to light after the contact order is put in place, CAFCASS officers may be informed, and a risk assessment undertaken, which can then be taken into consideration. I am still striving to find where the problem is in the process.

David Kidney (Labour, Stafford)

I return to the same point: the court order has been made at some point in the past, there is a dispute about whether it has been complied with, and enforcement proceedings take place to make a parent comply. That does not imply any further application to change the existing order so that the child’s welfare becomes the paramount consideration again, unless we amend the Bill to ensure that it is clear that the child’s interests are paramount even at the enforcement stage. If we leave the Bill as it is, there may not be another opportunity before something terrible happens.

In any other situation, the child’s interests would be paramount. I have mentioned the UN convention on the rights of the child. Article 3 says:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The court proceedings relate to a child, and the child’s interest should be paramount. Contrary to what the hon. Member for Basingstoke (Mrs. Miller) said, it is perfectly reasonable for the court to have regard for the wishes, views and expressions of interest of children who are the subject of enforcement proceedings.

There is a very good briefing, which I hope we have all received, from National Family Mediation. It makes clear that seeking children’s views is a core activity of its mediators, and that it does not imply any harm to or difficulty for children. Although some people go further than I would—perhaps a bit too far, by saying that in any such proceedings, children should be separately represented in court—we should expect the children’s interest to be ascertained by someone. It might be the CAFCASS officer, a child’s advocate—a citizen’s advocate, not a lawyer—who represents them in proceedings, or a lawyer by separate representation in the proceedings. All those options could be considered to find the right one with which to proceed.

In moving the amendment, my hon. Friend the Member for Luton, South mentioned the Government’s response to the Joint Committee’s report on the draft Bill. She mentioned the first part of the Government’s response in paragraph 14 on page 4, which says that an excuse for not complying with a court order

“could of course include genuine concerns ... either of the child or of the parent.”

That was the quotation. However, the next sentence says:

“In response to the concerns raised, we acknowledge that a more explicit signal of this is needed, and will consider how best to ensure that this is clearly understood.”

I look to my right hon. Friend the Minister to give a more explicit signal of what is needed.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I support the general principles behind the amendment. Proposed new subsection (3A)(a) is right to ensure that we ascertain the views of the child—obviously in proportion to age and maturity. We must establish best practice for the way in which the wishes and feelings of the child are ascertained. There might be the fear that one parent was manipulating the child to give a particular view, and the caveat that we must develop best practice is vital. It is ridiculous to enforce something that distresses the child come what may. If there is manipulation, we still need to get behind what is distressing the child to try to address it in some other way. It is important to work towards that with the amendment.

On proposed new subsection (3B)(a), we must ensure that the Bill has the right balance and checks. In a recent constituency case, of which I shall not give full details, contact was allowed some time ago, within the mother’s premises. I have heard only one side of the story, but I do not doubt that the mother is terrified about the contact and what is going to happen. There has been an enormous time lag in getting the matter back to court, and the concern is either that the risk might not have been ascertained properly, and would not have been even with the new provision in clause 7, or that the domestic violence may occur during the stressful time after the break-up. I do not accept that the problem is always one of child safety. I just want to ensure that there are sufficient checks because harm could come to the child who witnesses violent behaviour while waiting months and months for the case to return to court. I want to get the right balance.

I am concerned about game-playing, with children being piggy in the middle and mothers or fathers being deprived of seeing their children. In the case that I mentioned, I could imagine the child being seriously injured mentally, if not physically. The amendment is important and contains important principles.

Margaret Moran (Labour, Luton South)

I am disappointed with the response of the hon. Member for Basingstoke, but not with that of the hon. Member for Mid-Dorset and North Poole (Annette Brooke), who was supportive. I fear that the hon. Member for Basingstoke is wrong on two counts. The paramountcy principle is reduced in clauses 4 and 5, and the courts are required to take into account only those things that pertain to risks to the child, not to enforcement. If the paramountcy principle is important, we must ensure that it runs throughout the Bill.

David Kidney (Labour, Stafford)

Is my hon. Friend winding up for the defence?

Mike Hancock (Liberal Democrat, Portsmouth South)

The hon. Member for Luton, South indicated that she wanted to come back on that point and I thought that she wanted to clarify the position to make it easier for the Committee to understand. I hope that the Committee accepts that. She will, of course, have a chance to wind up after the Minister has spoken. I hope the Committee accepts that the hon. Member is trying to be helpful.

Margaret Moran (Labour, Luton South)

I was going to be brief because the Minister wants to respond.

I want to clarify two points. First, the paramountcy principle does not run throughout the Bill. Secondly, the hon. Member for Basingstoke referred to the potential danger to the child of giving evidence at that point. That issue was dealt with in previous legislation when we introduced protection for vulnerable witnesses. The principle that children are able to give evidence and to give voice to their concerns has also been accepted in the Adoption and Children Act 2002.

Mike Hancock (Liberal Democrat, Portsmouth South)

I hope that that was helpful.

Beverley Hughes (Labour, Stretford and Urmston)

I know that my hon. Friend always tries to help the Committee and that she has done a great deal to ensure that safeguarding children, particularly in situations of domestic violence, is taken seriously by the Government when formulating legislation and policy. She is very knowledgeable on that matter.

We have had a good debate in which the concerns on both sides of the argument have been aired in one way or another. The purpose of the amendment is to ensure that the court takes full account of safety considerations for both the child and anyone with whom the child is living when making an enforcement order. When determining whether a person has reasonable excuse for failing to comply with a contact order, it would require the court to consider any objections the child may make to the contact arrangements and the behaviour of the non-resident parent. The amendment would prevent the court from making an enforcement order unless it has considered a risk assessment in respect of the child and any person with whom the child lives, and is satisfied that the safety of the child and any person with whom the child lives will not be compromised by such an order.

The amendment raises the question of at what point the court must consider those serious issues relating to contact. The aim of the enforcement provisions is to ensure that the contact that the court has already judged to be in the best interests of the child takes place. Clause 1 requires the court to take into account the child’s ascertainable wishes and feelings and any harm that they are at risk of suffering before it makes a contact order. As well as the new provisions to enable risk assessments to take place, additional measures, such as the new gateway forms and the case law requirement that courts hold finding-of-fact hearings if there are allegations of harm, will ensure that safety can be addressed at any point before contact is ordered. The main problem with the amendment is that it would reopen the welfare issues that will have been fully considered when the contact order was made.

There are numerous ways in which the views of the child may come before the court. When the contact order is made, the court will have ample opportunity to address the wishes and feelings of the child and any safety concerns. We expect that contact orders will fully take into account all those issues. The question then becomes what happens if the court’s carefully considered and constructed contact order, which was decided in the best interests of the child’s welfare, is breached. At that point, it would not be right automatically to open up some of the issues that the court will already have addressed in making the contact order, which is what the amendment would do.

Notwithstanding that, and as a safety measure, the Bill provides that an enforcement order may be made, but only if there was no reasonable excuse for breaching the contact order. The amendment would impose on the court specific factors that it must consider when deciding whether there was a reasonable excuse. As I said, the child’s wishes and feelings about contact will already have been addressed. The behaviour of the non-resident parent may or may not be relevant to the case. If it is relevant, the court will consider it, but it will not be relevant in many cases. For example, the resident parent could argue that the car broke down, or that the child was ill and could not attend, and would have a reasonable excuse, but such excuses would not have anything to do with safety issues. Therefore, it is unnecessary to require the court to consider the behaviour of the non-resident parent in every circumstance.

Proposed new subsection (3B) would require the court always to consider a risk assessment before making an enforcement order, and to be satisfied that the enforcement order would not compromise the safety of the child. However, it would be too onerous on the court and would constitute considerable delay to require a risk assessment every time the court seeks to make an enforcement order, as many contact orders will be breached for reasons that have nothing to do with the safety implications of the order.

The Bill provides sufficient protection for those cases where safety issues arise. First, the requirement that the court cannot make an enforcement order if there is a reasonable excuse for breaching the contact order means that the court is bound to take into account the resident parent’s concerns for her safety or the safety of the child.

Secondly, the court is required to consider the likely effect of an enforcement order on the person against whom it is made, including considerations of that person’s safety. Thirdly, the court must ensure that the enforcement order is proportionate to the seriousness of the breach and that it will make contact work. Those requirements would not be met if the enforcement order forced one parent, or the child, into a dangerous situation.

Fourthly, the court must take into account the welfare of the child when making an enforcement order. My hon. Friends the Members for Luton, South and for Stafford (Mr. Kidney) believe that at this point the welfare of the child should be of paramount importance, whereas in case law judges have taken the position that the welfare of the child is a material consideration but should not be paramount. I cannot explain the reason for that better than my hon. Friend the Member for Stockport (Ann Coffey) did. The issue for the court is to make enforcement work.

Everyone is agreed that the orders give the courts a range of responses to non-compliance short of those available through contempt that they are more likely to be able to use, because fines and imprisonment are not used routinely but for good and understandable reasons. There is a danger that if we make the welfare principle paramount in relation to a child’s short-term distress, for example—a matter raised by my hon. Friend the Member for Stockport—the courts might feel constrained in implementing the very orders that we want to be at their disposal.

My hon. Friend the Member for Stafford said that the welfare of the child is paramount in all parts of the Children Act 1989, and it is certainly the pervading principle of that Act, but it actually states that welfare is paramount in any question relating to the child’s upbringing. The clause is concerned about the enforcement of contact that the court has said is in the child’s interests, but it is not predominantly and in a paramount way about upbringing.

Finally, and most importantly, the effect of clause 7, which was added to the Bill in the other place, places a duty on CAFCASS to undertake a risk assessment whenever it has cause to suspect that the child concerned is at risk of harm. That duty must be exercised at any point in the process, including when enforcement orders are under consideration.

My hon. Friend the Member for Luton, South referred to section 122 of the Adoption and Children Act 2002, which provides for the representation of children in public law proceedings. I appreciate that there is a strong wish for the rules to be made under that rule-making power. We intend to proceed in that direction but we need to consider the outcome of research into the operation of rule 9.5 of the family proceedings laws to inform our consideration.

I hope that I have reassured my hon. Friend that I do not dismiss the serious matters she has raised. However, at this point in the process it is important, first, to allow enforcement orders to proceed, and, secondly, to ensure that there are sufficient levers in the provision for the court to consider safety considerations fully at that point if necessary. I therefore hope that my hon. Friend will ask leave to withdraw the amendment.

David Kidney (Labour, Stafford)

I quoted from the Government’s response to the Joint Committee report, which stated that they believe that concern about the safety of a child could be a reasonable excuse and that they

“acknowledge that a more explicit signal of this is needed.”

Is my right hon. Friend’s speech the additional signal or will there be something else?

Beverley Hughes (Labour, Stretford and Urmston)

I apologise to my hon. Friend; perhaps my response to his question should have been clearer. We have considered the matter carefully and, as I said, we feel that the provision for CAFCASS to undertake a risk assessment at any time is satisfactory. The Bill is clear that if issues of domestic violence were to arise at that stage they can be a reasonable excuse. I am happy to state that in Committee and I hope that it is sufficient for my hon. Friend.

Margaret Moran (Labour, Luton South)

I thank the Minister for her comprehensive reply, especially her response in respect of domestic violence. However, I am rather disappointed that she does not think that there is a need for further clarification in clauses 4 and 5 that the risk to the child should be of great importance to the court. Although the inclusion of clause 7 in the other place and the reference to the court’s need to take into account the risk to the child was important, we want to strengthen the intention so that that risk should be taken into account at all stages of the proceedings.

The hon. Member for Mid-Dorset and North Poole said that it is possible that, although a risk assessment has been carried out at the outset, at that stage for a variety of reasons issues of domestic violence have not been brought into the proceedings or domestic violence has not occurred. Domestic violence may well occur during the long period between the initial risk assessment and the point at which contact is enforced. As has been described, the problems in the separation process may come to a head during the contact proceedings. Domestic violence may occur at that point and pose a risk to the child.

It seems strange and somewhat perverse that we are not reinforcing the message that at the point of most danger to the parent and child, according to all the research, the courts should seek to carry out a further risk assessment. As has been said, the processes that we are discussing can take a long time. After the initial point at which the court hears the risk assessment, it can be a very long time before contact is enforced. It is therefore possible that the risk to the child will become greater during that period. It would be helpful for the courts to carry out a further review of the risk to the child at the point of enforcement.

However, I accept the assurances given by the Minister. We hope that, in the course of the research that we have been told will be carried out in the Department, this issue particularly is reviewed, so that we can, if necessary, assure ourselves that the procedures in the Bill will ensure the safety of the child throughout the contact proceedings. I beg to ask leave to withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 49, in page 7, line 25, at end insert—

‘(4A)When considering whether to make an enforcement order, the Court shall have regard to the principle that, subject to the welfare of the child, the court acts on the presumption that a child’s welfare is best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

Mike Hancock (Liberal Democrat, Portsmouth South)

With this it will be convenient to discuss the following: New clause 8—Presumption in favour of co-parenting—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child’s welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”’.

New clause 11—Reasonable contact—

‘In section 8(1) of the Children Act 1989 (c. 41), for the definition of “a contact order”, substitute—

““a contact order” means an order requiring the person with whom a child lives, or is to live, to have reasonable contact with the person named in the order in the absence of good reason to the contrary and subject to section 1(1A) of this Act.”’.

New clause 12—Reasonable contact: no order principle—

‘After section 1(5) of the Children Act 1989 (c. 41) insert—

“(6)The “no order” principle in section 1(5) shall be construed subject to section 1(1A) of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”’.

New clause 18—Provision as to family assistance orders—

‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child’s interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

New clause 19—Presumption of reasonable contact—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child’s interest are best served through reasonable contact with both his parents in the absence of good reason to the contrary.”’.

New clause 20—Reasonable contact: welfare checklist—

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

“(h)the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.”’.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am tempted to call “Bingo”, given the number of different amendments and new clauses that we are lumping together at this point. They are on a general theme. As I suggested in our proceedings on Tuesday, this group deals with many of the principles at the heart of the Bill with which we argue.

The initial point about clause 4, which relates to enforcement orders, is that it is slightly bizarre that, rather than seeking to make the system for contact work, because as we know it does not in too many cases, the Government are seeking to introduce punitive sanctions for its not working.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

The hon. Gentleman mentioned that there has been too many cases. It has been bothering me throughout that although we are in the process of reconsidering the law and coming to the point at which we have the new law, we do not have facts; we are still waiting for the research. Does he know that there are vast numbers of cases in which there have been problems?

Tim Loughton (Conservative, East Worthing and Shoreham)

I shall cite the figures for the number of contact applications and how that has mushroomed. In 1992, there were 17,470 contact applications; in 2004, that figure went up to 70,169. That is an enormous increase in the number of contact applications, reflecting an increase not in the population or in the number of people getting married and having children but in disputes in families splitting up over what happens to their children. Almost a quarter of those cases were repeat applications, one third of which were the result of enforcement issues. The figures show that people are having to come back to court several times because contact arrangements are not working. Many people are going to court in the first place because they cannot agree.

We are often told that only 10 per cent. of cases go to court, and that the other 90 per cent. of separating families are therefore quite happy and their arrangements are working perfectly well. That is not the case. Many arrangements do not work very well, but a lot of parents are frightened off going through the court system because of the nightmares, horror stories and long, drawn-out processes. In many cases they therefore have to take a less equitable settlement than they would have been minded to, and as a result see their children less. I do not buy the argument that the system fails to work in only 10 per cent. of cases. It has a lot of problems that warn people off going for what they see as an equitable settlement in the best interests of their children’s welfare.

The amendment and new clauses apply to different parts of the Bill, and some of them would amend the Children Act 1989, but they share the common theme that, as we have said all along and as all members of the Committee agree, the child’s welfare should be paramount. Most of them would insert the word “reasonable,” as we tried to do in even more instances. Through your wisdom and innovative way of selecting amendments, Mr. Hancock, we were not permitted to do so. Several of these comprehensive new clauses contain the phrase “reasonable contact”, because reasonableness is at the heart of the problem. Nobody can deny that contact takes place, but whether that contact is reasonable and meaningful is a major bone of contention.

We recognise in the amendment and new clauses that wherever it is possible without compromising a child’s safety, his welfare is best served by maximising contact with both the resident and non-resident parent, and through

“both of them being as fully and equally involved in his parenting as possible.”

That is laid out explicitly in new clause 8. In new clause 19 we seek to pre-empt the welfare checklist in section 1 of the Children Act 1989.

Other new clauses deal with compensatory contact. New clause 6 could have been considered in this group or under clause 5, which deals with financial compensation, but will instead be taken at the end of our considerations. I hope that we can reach those new clauses, particularly new clause 6. It is absolutely pertinent to our discussions on this group and on the next clause, so I hope that some time will be left for the Committee to consider our new clauses.

The Under-Secretary of State for Education and Skills, the hon. Member for Liverpool, Garston (Maria Eagle), who is confined to her bed, made the extraordinary statement last week that courts are always reasonable. That could be argued if courts always gave out reasonable judgments.

Ann Coffey (Labour, Stockport)

There would be poor lawyers.

Tim Loughton (Conservative, East Worthing and Shoreham)

Quite right, there would be very poor lawyers indeed, and we would not want that, would we?

If courts always made reasonable judgments, we would not need the present Bill and there would not be an awful lot of disaffected non-resident parents for whom the system is clearly not working. That is why enforcement measures are needed. Although we think that we can address the system rather better, we agree that, if we cannot fix the system, enforcement measures must work better.

I have just set out the figures and the scale of the problem. What also goes to the heart of the matter, which many people find devastating, is that one does not need to have done anything wrong or to be a bad parent to be denied reasonable contact. It is enough to be a non-resident parent who happens to have fallen foul of a ruling at the instigation of a parent with custody who is seeking to carve the non-resident parent out of the family arrangement. Many people are perplexed, to put it mildly, about contact arrangements that are ended almost at the drop of a hat—however good a parent the non-resident parent is desperately trying to be, and however good their record of keeping meaningful, quality contact with their children.

All the research says that it is not just the amount of contact that is important, but the quality of it, and whether the non-resident is engaging in a proper, loving, meaningful relationship with the child during the limited contact time that has been granted. The best relationship is one in which the two parents play an active role, preferably both in a residential setting, and otherwise where one has custody and one does not. These matters are rarely, if ever, the fault of the child of a family breakdown, and the child must not be penalised if things have happened that are out of his control.

The principle behind the new clauses has been endorsed by the Government. In the first deliberations on the Bill in another place, Lord Adonis said

”We fully support the position established in case law that children normally benefit from a meaningful relationship with both parents following separation, so long as it is safe”.—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 251.]

Likewise, the Green Paper said:

”After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society.”

I wholeheartedly endorse that.

As I mentioned on Second Reading, all the studies show how a child can benefit from greater integration with a non-resident father—in the vast majority of cases it is the father who is the non-resident parent. Fathers’ roles have changed quite dramatically over the past 20 years or so. Men spend eight times more time with their children than 30 years ago and fathers now carry out one third of parental care in families where women work.

Research has highlighted that children whose fathers had been actively involved in their lives achieved more academically, had more satisfying relationships in their own adult lives, and were less likely to get into trouble with the police. If fathers are involved, children are less likely to have a criminal record by the age of 21. Pre-school children who spend more time playing with their dads are often more sociable when they enter nursery school. Fathers who are involved with their children early and comprehensively usually stay involved, which promotes the health of the infant. Children’s health and behaviour is connected to the involvement of the father in the family. Fathers’ involvement promotes involvement by mothers and involved fathers are likely to support their children financially. Children who are close to their fathers are more likely to have resilience. On all those measures and on any research, it must be in the interests of the children that we do everything we can to maintain meaningful, reasonable contact with both parents. That is what we are trying to put in the Bill.

As I said on Second Reading, our suggestion is neither rocket science nor unique to this country. It is certainly the way that the law operates in some states in the US and in Australia. It is also the way that the new Canadian Government are seeking to make their law work. Most recently, the laws passed in Italy make the joint custody of children the norm when families split up. This is the way that the tide is going. Moreover it is nothing terribly new for this country.

The previous Conservative Government were considering amending the law along those lines in the Family Law Act 1996. Section 11(4) of that Act states:

“(c) 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”.

That is what we are saying here; it is nothing new. The Government have had 10 years to mull this over but have come up with something that singularly fails to address the problem of achieving reasonable contact, which needs to be set out in the Bill.

David Kidney (Labour, Stafford)

Just for clarification, will the hon. Gentleman confirm that the provision that he just cited was never commenced and still is not in law today?

Tim Loughton (Conservative, East Worthing and Shoreham)

That is right. It was set out in 1996, and we know how events then overtook us. The Bill never became law and was not picked up by the Labour Government after that. We are trying to do something that should have happened 10 years ago, if not before. There was certainly a good head of steam behind making the changes at that time—had the Government been able to carry on what they had set out to do in that proposed new law.

In attempting to make contact work and in the context of enforcement orders, the clause deals with the symptoms rather than the underlying problem—we will come on to discuss what forms of penalties can be imposed for those parents who continue to breach contact orders—yet our fear is that the measures are completely toothless. They are not criminal measures. In too many cases, if the resident parent is not in a position to pay financial compensation, it will not be paid. Worse still, it will be to the detriment of the children with the resident parent if the money is diverted away from their care. Maintenance money from the non-resident parent that is aimed at the children will simply be recycled as fines, having taken up an awful lot of commission for court fees and various other things along the way. That cannot be satisfactory. As hon. Members have said, the only penalty under the law as it stands is contempt of court, which courts are reluctant to use.

What we have is a system where contact need not mean reasonable contact. It can amount to a birthday card and a Christmas card, or an afternoon snatched on a wet Saturday in a windy coastal resort. In extreme examples it can be in contact centres if it is deemed that the contact needs to be supervised, and they are not the most family friendly or uplifting places, as we know. That is why we think that placing in the Bill the need for reasonable contact would not just amend but improve and enhance the welfare checklist, recognising that decisions should be made on the basis that a child’s welfare, development and well-being are best served by maximising contact with both parents—hence the wording of new clause 8 to have the parents involved

“as fully and equally in the parenting as possible.”

We are looking to turn the law on its head. In too many cases, a non-resident parent has almost to argue for his or her right—and I do not like talking about parents’ rights—to contact with the child. It should be the other way around: the child should automatically have a right of maximum reasonable contact with each of his parents, unless the case can be argued against it. It is incumbent on the parent who has custody to put his or her case and to have it properly scrutinised and tested. If the case is made, it should reflect the amount of contact, if any. If the case is not made, we should return to the default position whereby the child has the maximum reasonable contact with both parents.

We are always told by the Government, and by some of the jobbing lawyers who populate the Labour Back Benches in Committee—

David Kidney (Labour, Stafford)

Who’s that then?

Tim Loughton (Conservative, East Worthing and Shoreham)

I attach no term of indignation to that at all; I purely comment that there are an awful lot of lawyers on the Labour Back Benches. They seem to suggest that it is the norm for courts both to assume that it is in the interests of the child to have contact with both parents and to issue directions for reasonable contact. If that is the case, which I doubt, what is the problem with putting “reasonable contact” in the Bill, so that reasonable contact—rather than a vague reference to contact, which can be interpreted in a range of ways—becomes the default?

We are not asking for an artificial 50:50 split of time, with a stopwatch running, so that the minute little Johnny leaves the house with mum, the stopwatch for the father starts ticking, and vice versa. It would be wholly impractical and a completely artificial reflection of what happens in households where parents are still together. Much to my regret, the amount of time that I am able to spend with my children is rather less than the amount that my wife can spend with them, simply because of our lifestyles. I am sure that that is true of most, if not all hon. Members. It is highly regrettable, but it is a fact of life.

In what I hope are the unlikely circumstances of my wife and I parting, although with the pressures of this job one never knows, it would be crazy and completely artificial to try to impose a 50:50 split that was never reflected in our married life. My colleagues and I are not trying to do that. We are using “reasonable contact” to make matters as flexible as possible, so that people would not have to argue to obtain contact with their children, but to respond to arguments against their having such contact. That is the way it should be. One is innocent until proven guilty. One is a good parent entitled to have maximum contact with one’s child until and unless it is proven not to be the case.

David Kidney (Labour, Stafford)

So that I may reassure the hon. Gentleman that he is opposed not simply by jobbing lawyers on the Government Back Benches, will he confirm that the university of Oxford briefing, from which he quoted the Family Law Act 1996, concludes by arguing against introducing to the Bill the presumption in favour of contact, saying that we would be better off concentrating our efforts on post-separation parenting?

Tim Loughton (Conservative, East Worthing and Shoreham)

Yes; it is actually a very good briefing, which raises some good points and is a perfectly well argued paper. I disagree with its conclusions, but that does not detract from some of the points that it raises, which reinforce our case. The pre-legislative scrutiny Committee, of which the hon. Member for Stockport was a member, made a recommendation about amending the welfare checklist. On page 31 of its report it said:

“We endorse the recommendation of the Constitutional Affairs Committee”—

which had also taken this subject on board—

“that an amendment should be made to the welfare checklist in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and the non-resident parent.”

That is absolutely right and reflects what our amendments would do.

To return to statistics, a CAFCASS study advised that only 0.8 per cent. of fathers were prevented from seeing their children by way of a court order, although that is still quite a significant figure given the hundreds of thousands of people who go through the court system. Is not the implication that there is no reason why the other 99.2 per cent. of fathers should not have reasonable contact with their children? That should be the default position. The 0.8 per cent. of fathers whom the court deemed a problem are those who must be argued against, but it should be assumed that all other fathers are reasonable fathers who should be allowed reasonable contact with their children. That is in the children’s best interest.

It can also be argued that a better, equitable division of contact that is based on reasonable contact is much better for the custody parent, and the mother in particular. It takes the pressure off them, because they do not have to go back constantly to argue the toss in court. If the non-resident father is happy that the situation is equitable, that is less stressful for him, less stressful for the children and must, therefore, be less stressful for the custodial mother.

Through this long string of amendments, we are trying to achieve something that is fundamental to our view of the Bill and to the divisions between us and the Government. The Government claim, and often pronounce, that they seek to achieve what we seek to achieve, but they lack the commitment to include the wording and key measures in the Bill that are fundamental to achieving those aims.

Our aims would clearly set out for a separating mother and father what the norm will be, what will be expected of them and what will happen to them if they do not respect the judgments made. It is as simple as the principle that one is innocent until proven guilty: someone is a good parent until it is proven reasonably that they are not. In the absence of that, we would establish the principle that it is the norm that reasonable contact should be assumed after a split by adding it to the welfare checklist, thus improving it. It should be the norm because it is in the best interests of the child to maximise their contact with parents who have split. Surely, therefore, the Committee should take our amendments on board.

Mike Hancock (Liberal Democrat, Portsmouth South)

To give hon. Members a gentle reminder, we can only get to the clauses further on that the hon. Gentleman alluded to with the co-operation of the Committee. At this rate, I do not think that we will get there.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I start by reiterating my concern that five years after the start of the consultation we do not have the Government’s research. Being able to debate with the facts—how many contact orders involved only a birthday card, and why—would have been very helpful. I really would like those facts, but in their absence, and as a non-lawyer, I will proceed. As an economist I am interested in prevention, in investing money and in saving the enormous costs that distress places on the state and on families. The hon. Member for Stafford referred to post-separation parenting, which should be part of family support and relationship education at an early age in order to change the culture.

As I said, I am not a lawyer, and I want to pick up on the word “reasonable”. I cannot believe that a court knowingly makes an unreasonable decision. That seems logical to me, so if we are saying, “But the court always makes reasonable decisions”, we are unfortunately in the realms of value judgments, with people coming at the matter from different perspectives. I therefore understand why the Minister keeps saying that there is no point in including the word “reasonable” because it means different things to different people.

I agree with the hon. Member for East Worthing and Shoreham (Tim Loughton) about article 9 of the United Nations convention on the rights of the child, which clearly states that in most circumstances the child should have contact with both parents. I am very committed to that principle and I want it to be stated in the Bill. I do not know how we will get the hang of what is reasonable unless it is there. However, there is a “but”—the interests of the child should be paramount.

I struggled through the Hansard report of the Bill’s proceedings in the other place, where first order and second order presumptions were discussed at great length, and read the evidence given at various stages to the Select Committee on Constitutional Affairs, when much was said about whether there could be first and second order presumptions, and the conclusion seemed to be that there is a real danger that however “presumption” is expressed in certain parts of the Bill, there will be a tendency to weigh up those references up equally. That point was made very clearly on Second Reading by the hon. and learned Member for Redcar (Vera Baird), who, as ever, made a powerful speech, which I found very convincing.

As I have mentioned many times, I was struck by the fact that, in written evidence submitted well before the final report of the Constitutional Affairs Committee, Resolution, which was then the Solicitors Family Law Association, stated that there could be a first order and second order presumption. However, subsequent oral evidence given by a member of the association changed that view. That is highly significant. As a non-lawyer who does not want risks to be taken with children, all I can do is rely on the evidence, which seems compelling. I want some provision in the Bill, but I want it to be framed in such a way that there is no risk to the child, which means putting something in the welfare checklist. That is the answer.

There are clearly first order and second order presumptions; it is rather like yesterday’s debate on the admissions code in the Education and Inspections Bill. The Government began by proposing that there be “regard to” the admissions code, and that was stiffened to “in accord”. We need “regard to” in this Bill, and if the best place to put that phrase is in the welfare checklist, I would wholeheartedly support it.

I am sure that the amendment was selected carefully so that we can all have another go at the issue later. As I would like to speak on new clauses that I tabled in an attempt to make some amendments to the welfare checklist, I shall not go into too much detail now.

The amendments are family-oriented. I know that the shape of the family will change over time. To that end, I am committed to putting in as much support as possible for people throughout their lifetime. It comes back to changing the culture and understanding what is reasonable, rather than risking the safety of the child. Somehow we must change the culture.

I support the idea of amending the checklist. There is a problem with the wording, and I do not think that we will necessarily get it right now. I shall listen carefully to the Minister. We cannot risk having two presumptions, which most of the amendments seem to have. The risk is just too high.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I endorse what my hon. Friend the Member for East Worthing and Shoreham said when he outlined the reasons for the amendments and want to take another of his comments further. My first concern is whether a presumption of reasonable contact is in some way in opposition to the principle of the paramountcy of the welfare of the child. Fundamentally, it is not. Indeed, I would argue that the presumption of reasonable contact enhances the paramountcy of the welfare of the child.

As my hon. Friend said, the evidence is clear that good, reasonable or meaningful contact—whatever one chooses to call it—is very much in the interests of almost all children. Therefore, the presumption should be, in the interests of the welfare of that child, that reasonable contact should play its part. There is no conflict; indeed, quite the reverse. What we propose will enhance the welfare of the child.

I wish to assist the hon. Member for Mid-Dorset and North Poole if I can. I understand that I am in a vulnerable position on this Committee, having been a jobbing lawyer.

Mike Hancock (Liberal Democrat, Portsmouth South)

The hon. Member for East Worthing and Shoreham was not looking at you.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Yes, my hon. Friend was very kind not to lay a party affiliation on what he said, but I am sure that the criticism applies equally to me.

To assist the hon. Lady, one of the advantages in the construction of legislation is not that we assume that the court will not make sensible decisions, but rather that the legislature can direct the mind of the court in a particular way. The intention of the amendments is to persuade the courts to think about contact in the context of reasonable contact rather than just any contact at all. It is exactly the same in the criminal law when we talk about concepts such as reasonable force. The idea is to persuade the courts to think about reasonable force instead of any force at all on precisely that basis.

Ann Coffey (Labour, Stockport)

I am not a lawyer, but could the hon. Gentleman explain something to me? If we have a presumption of reasonable contact when the court is making contact orders, but at the same time we have a principle of the paramountcy of the welfare of the child, and if those things are in conflict, having been given the same weight in the Bill, where does that leave the principle of the welfare of the child being paramount?

Jeremy Wright (Conservative, Rugby and Kenilworth)

I simply do not accept that those things would be in conflict.

Ann Coffey (Labour, Stockport)

The hon. Gentleman is a lawyer, is he not?

Jeremy Wright (Conservative, Rugby and Kenilworth)

I have already pleaded guilty to that.

The inclusion of reasonable contact in the welfare checklist puts those concepts together to ensure that there is no conflict. That is the whole point of the amendments. I hope that the hon. Lady will consider them again and accept that there is no conflict, or intention to create a conflict, between the two concepts—quite the reverse. We are trying to enhance the welfare of the child by including the concept in the amendments.

My last point is simply to underline what my hon. Friend said about reasonableness, which is a concept beloved of jobbing lawyers. It is beloved for a good reason, and that is that it cuts in all directions. Reasonable contact does not mean just reasonable contact for the absent parent. It also means contact that is reasonable for the resident parent and the child. All members of the Committee should be heartily in favour of that concept.

Beverley Hughes (Labour, Stretford and Urmston)

This debate goes to one of the core differences—perhaps the core difference—between the positions adopted by the Opposition and the Government. We all want to ensure that, whenever it is appropriate in the interest of children and can be done in a way that supports them practically, both parents—resident and non-resident—have good contact so that they have a meaningful relationship with their children if the parents separate. We are all united to the same end and I feel strongly that children need both parents, including fathers. In my ministerial position I have taken a strong line in promoting that.

It seems from the points made by the hon. Member for East Worthing and Shoreham that we have a significant difference on the measures that need to be introduced to make contact work for both parents. He started with a basic premise about contact at the moment. He led us to believe that contact was not working in many cases and said that the Government’s response is punitive enforcement rather than making contact work. He cited an increase in applications for contact orders as testimony that contact is not working. However, I do not accept either the logic of his argument or the remedies that he is suggesting to make contact work better, although I support that objective.

It is true that there has been an increase in the number of applications for contact orders, but it also true that more than 99 per cent. of those applications are granted. It is also true that many of those applications are repeat applications and many are for enforcement. That leads us to our diagnosis of the problem and what needs to be addressed. We do not yet know what the fundamental problem is, which is why we are instituting the research. However, it may not be that the courts are ordering too little contact for the resident parent, but rather that the contact that is being ordered is not being complied with. Parents may come back for enforcement orders to get the resident parent to comply with orders that have already been made. That supports the Government’s diagnosis and remedy. Enforcement is the key issue. I strongly refute at the outset the hon. Gentleman’s two contentions.

This group of amendments tries in a raft of different ways to address the problem of reasonable contact by placing a presumption at the heart of the Children Act 1989.

Tim Loughton (Conservative, East Worthing and Shoreham)

Much of what the Minister has said merely repeats the statistics that I gave her. [Interruption.] I think we agree about the statistics because we used the same sources, but why are more people flouting contact orders?

Beverley Hughes (Labour, Stretford and Urmston)

I do not believe that it is proven that more people are flouting contact orders—

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister just said so.

Beverley Hughes (Labour, Stretford and Urmston)

No, I did not say “more”. I said that it is accepted that too many parents need to return to court to enforce orders that the courts have already decided on. That suggests to me that the important problem that we need to address is not necessarily that the courts are ordering too little contact in those orders, which was the conclusion that the hon. Gentleman came to from his analysis—

Children and Adoption Bill [Lords - Standing Committee B

Clause 4 - Enforcement orders

Mike Hancock (Liberal Democrat, Portsmouth South)

I remind the Committee that with this we are discussing the following:

New clause 8—Presumption in favour of co-parenting—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection (1)(a) the court shall, unless a contrary reason be shown, act on the presumption that a child’s welfare is best served through residence with his parents and, if his parents are not living together, through residence with one of them and through both of them being as fully and equally involved in his parenting as possible.”’.

New clause 11—Reasonable contact—

‘In section 8(1) of the Children Act 1989 (c. 41), for the definition of “a contact order”, substitute—

““a contact order” means an order requiring the person with whom a child lives, or is to live, to have reasonable contact with the person named in the order in the absence of good reason to the contrary and subject to section 1(1A) of this Act.”’.

New clause 12—Reasonable contact: no order principle—

‘After section 1(5) of the Children Act 1989 (c. 41) insert—

“(6)The “no order” principle in section 1(5) shall be construed subject to section 1(1A) of this Act whereby it shall be presumed that making an order for reasonable contact with the parents is, in the absence of good reason to the contrary, better for the child than making no order at all.”’.

New clause 18—Provision as to family assistance orders—

‘In the circumstances where a family assistance order is made, the officer concerned will proceed on the presumption that the child’s interests are best served through reasonable contact with both his parents unless good reason to the contrary is shown.’.

New clause 19—Presumption of reasonable contact—

‘After section 1(1) of the Children Act 1989 (c. 41) insert—

“(1A)In respect of subsection 1(1) above and subject to the welfare of the child, the court shall act on the presumption that the child’s interest are best served through reasonable contact with both his parents in the absence of good reason to the contrary.”’.

New clause 20—Reasonable contact: welfare checklist—

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert— “(h)the desirability of reasonable contact between the child and the non-resident parent in the absence of good reason to the contrary.”’.

Beverley Hughes (Labour, Stretford and Urmston)

As I was saying, all these amendments attempt in one way or another to introduce the concept of reasonable contact in various parts of the Children Act 1989 and the Bill. The hon. Member for East Worthing and Shoreham (Tim Loughton) had been arguing that the Government’s analysis is flawed and that the real issue underpinning all of the amendments is that the courts need to award more contact. I was attempting to point out that his analysis is flawed.

The evidence we have is not that the courts do not order sufficient contact in the first place, but that parents are seeking to address the failure of one parent to comply with the contact order that has been issued. The Government have introduced the enforcement measures in the Bill because of evidence that that is where the main problems lie. I do not agree with the hon. Gentleman’s analysis and therefore I do not agree that the measures he suggests address what the evidence suggests is the main problem. Moreover, his proposals would have consequences that we could not support. I have two concerns, which other hon. Members raised on Second Reading.

First, a presumption in statute can be rebutted only in exceptional circumstances. The courts would need strong evidence before deciding not to order contact. Ongoing contact with both parents would often be a good outcome for the child, but in a minority of cases—perhaps a significant minority, especially where domestic violence is involved—it would not. My central concern is the principle. The Children Act 1989 is based firmly on the principle that the child’s welfare is paramount. To qualify that clear statement and instruction to the court with any kind of presumption would mean that the court would start not from the consideration of what is best for each child but on the presumption that a certain thing would be best. The parties involved would have to persuade the court of any other position.

Such a presumption, independent of the evidence, is quite wrong and is not focused on putting the child’s needs first. Any presumption in law, which is what we would be talking about, would have to be taken into account by the courts. As such it would need to be balanced against the paramountcy principle. That means that the central achievement of the Children Act, which is the unqualified principle that the child’s welfare is the court’s paramount consideration, and irrespective of our views on preferred models of contact or whatever, would be undermined.

Stewart Jackson (Conservative, Peterborough)

I am listening to the right hon. Lady carefully. I wonder why, if what she says is completely correct, the paramountcy principle is not explicit and is merely implicit in clauses 4 and 5.

Beverley Hughes (Labour, Stretford and Urmston)

The Bill is based on the principles in the Children Act; it refers to the Children Act throughout. As the hon. Gentleman knows, the paramountcy principle is enshrined in that Act and therefore that is the principle on which the measures in the Bill are predicated. As the hon. Member for East Worthing and Shoreham admitted, perhaps inadvertently, the amendments would pre-empt the welfare principle. That is precisely what they would do.

Tim Loughtonindicated dissent.

Beverley Hughes (Labour, Stretford and Urmston)

We will see what the official record says. If I have misquoted him, I will apologise.

The hon. Member for Rugby and Kenilworth (Jeremy Wright) tried to argue that the presumption enhances paramountcy because reasonable contact is good. I do not think that that is true. His statement is based on the presumption that contact would be good in every case. In fact, there will be cases where contact would not be good and would not serve the welfare of the child. The argument that the presumption would enhance paramountcy is flawed.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

I will just finish the explanation. If the hon. Gentleman will wait a moment then he may be more informed. If I may say to him gently, presumption would be a bad thing for some children, which is why it cannot be introduced into the welfare checklist. There are other reasons, which I will come to in a moment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I say to the Minister equally gently that the point about a presumption of reasonable contact is that it is rebuttable; it is not assumed that it will automatically happen. She is right that there will be some cases in which contact is not appropriate, but a presumption of reasonable contact does not prevent the court from ruling out contact in those cases.

Beverley Hughes (Labour, Stretford and Urmston)

It is rebuttable, but as I said, having a presumption would change the way in which cases would have to be discussed in court. The courts would have to hear arguments why contact would be a bad thing rather than arguments in support of it. I think that that would significantly compromise the paramountcy principle.

I am also concerned by the argument that it is necessary to insert the word “reasonable” into the checklist or elsewhere in the Bill. The hon. Member for East Worthing and Shoreham referred this morning to comments that my hon. Friend the Under-Secretary made in an earlier sitting. He paraphrased her as saying that courts are always reasonable. I do not think that she said precisely that. She said what the hon. Member for Mid-Dorset and North Poole (Annette Brooke) said in her intervention: courts, as is patently obvious, will always behave in ways that they believe to be reasonable. That is why the introduction of the word “reasonable” is unnecessary and superfluous. As I believe the hon. Lady said, no court would knowingly make an order that it believed to be unreasonable. Telling courts to be reasonable would therefore add nothing to the process. The Bill gives genuine new powers to facilitate contact and enforcement orders.

Jeremy Wright (Conservative, Rugby and Kenilworth)

May I take the Minister back to the issue of the presumption? She says that it would not add anything, but does she not accept that there is a difference between a presumption of contact and a presumption of reasonable contact in the consideration that a court gives to a case? One simply says that the court must consider the merits of giving the absent parent some contact; the other relates to the degree and extent of that contact. Whether or not she agrees with us that the latter is a good idea, does she not accept that there is a difference between contact and reasonable contact?

Beverley Hughes (Labour, Stretford and Urmston)

There is a question as to whether the issue of contact—whether or not it is qualified by defining it as “reasonable”—needs to be in the welfare checklist. If the hon. Gentleman will wait a moment, I will shortly reach the subject of what the welfare checklist is fundamentally about and why inserting contact would introduce a qualitatively different issue for the interests of the child.

Amendment No. 49 would apply a presumption of reasonable contact to the specific issue of enforcement orders, requiring courts to have regard to such a principle subject to the welfare of the child when determining whether to make such orders. That would be rather odd in a context where the pointed issue is the failure of adults to comply with a contact order. The court will certainly have to have regard to the child’s welfare before making an enforcement order, as it may have an impact on a child, but this is not the place for presumptions of what level of contact might be best for the child’s welfare. The court will already have decided on that when making the order, as we discussed at some length on the amendment tabled by my hon. Friend the Member for Luton, South (Margaret Moran). I find it odd that, having agreed with the Government on amendment No. 34 that the welfare of the child should be material but not paramount at enforcement, the Opposition are arguing that there should be a presumption of reasonable contact on the grounds of the child’s welfare.

Stewart Jackson (Conservative, Peterborough)

In order to help the right hon. Lady—[Interruption.]

Mike Hancock (Liberal Democrat, Portsmouth South)

He is trying to be helpful.

Stewart Jackson (Conservative, Peterborough)

Thank you, Mr. Hancock. May I give the right hon. Lady a real-life example and ask her how the welfare of a child is compromised by a contact order that prevents grandparents from putting “granddad” and “grandma” on a Christmas card? In labouring the issue of reasonableness, we are making a clear distinction, as there is in the real world though not necessarily in the Bill, between contact and reasonable contact.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman has a strange idea of helpfulness. He raises an idiosyncratic example, though I cannot say that it would never occur in practice. The basic point is that when a decision is made on contact, the issues will be decided by the court on the basis of the individual circumstances and the interests of the child. Beyond that basic premise we do not agree with anything that would limit the court or require it to think in a certain way, because we do not want to constrain the paramountcy principle.

New clause 8 is slightly different. It, too, would explicitly qualify the paramountcy principle by stating that, in the absence of contrary evidence, the court must presume that a certain arrangement, namely co-parenting, would be best for all children. I assume that co-parenting means the nearest that is possible to equal involvement of both parents. I recognise the good intentions behind the proposal and I have great sympathy with it as a parent myself. I want fathers to be much more involved in the bringing up of their children, whether or not they are separated. However, saying that that is what we believe, and recognising it in case law—as the courts have done—is quite different from writing it into statute. If we write it into statute we are telling the courts to make orders in line with that presumption in all except very exceptional circumstances, which is quite different from saying that they should order what is best in the interests of the child.

If adopted, the amendment could lead to wrong decisions. To take an example that may oversimplify but which I shall give none the less, if a court believed that a split of a child’s time, say 80:20, between parents would be best, but could not find strong evidence to back that, it would still have to issue an order as close as possible to 50:50. That rather extreme example serves to illustrate—[Interruption.] It serves to illustrate the bizarre considerations that the court would have to get into.

New clause 12 would put a caveat on the “no order” principle, which is a principle in the Children Act that courts should not make orders with respect to children unless they are satisfied that to make an order would be better than not to do so. That seems to me to be commonsensical. Again, I understand the motivation behind the new clause, but it would require courts to make orders for reasonable contact even if they did not believe that to do so would be better for the child. That seems a perverse proposition.

Similarly, new clause 18 would require CAFCASS officers, and, in Wales, Welsh family proceedings officers, to act on a principle of reasonable contact when responding to family assistance orders.

As hon. Members know, such orders direct the CAFCASS officer to advise, assist and befriend the person named in the order and are intended to support families in difficult circumstances at any point in the process. In fulfilling that role, it is not for CAFCASS officers to second-guess whatever orders the court may have made about contact. Having said that, the CAFCASS officer has to consider what is in the best interests of the child, but I do not believe that it is right for us to tell them to make presumptions about what that might be.

New clause 19 would create an explicit presumption of reasonable contact in the Children Act 1989. I made it clear, as I have done several times, what difficulties I anticipate arising were we to do that. It would qualify and, in effect, conflict with the approach intended for the courts through the paramountcy principle. The 1989 Act is carefully designed to direct the court to put the children’s needs first with no qualification. For the court to start with presumptions, only to row back from them on the basis of the strongly argued evidence that would be required, is incompatible with such an approach.

New clause 20 would add a provision to the welfare checklist stating that the court should have regard to

“the desirability of reasonable contact between the child and the non-resident parent”.

That was recommended by the Joint Committee that considered the draft Bill, and we considered that recommendation carefully. However, it is not what the checklist is for. It lists a number of aspects of a child’s development that a court should consider in making its decisions, but they are not factors that prejudge what sort of decisions should be made, only factors that should be sensibly kept in mind.

In response to the point made by the hon. Member for Rugby and Kenilworth, I would make that distinction in this case. The checklist contains a list of factors, but it is for the judge to decide in each case what circumstances will meet the needs of a child best in relation to those factors. The reasonable contact inclusion would tell the judge, “We think that in almost all circumstances, to be changed only on rebuttal, contact is always beneficial.” Clearly, there are cases where that would not be so.

New clause 11, like a number of other proposed changes we have examined, was considered in the other place and was voted against by a significant majority. The new clause would alter the definition of a contact order so as to refer to reasonable contact taking place

“in the absence of good reason to the contrary”.

As I said in relation to the other proposed changes, we have made it clear why we cannot support that suggestion.

I have set out at some length why the amendments and new clauses are immensely undesirable. They are focused on the needs of adults, not children. They would compromise the paramountcy principle that lies at the heart of the 1989 Act and would lead to orders being made when even the court making them did not believe they were the best thing for the child.

Maria Miller (Conservative, Basingstoke)

I want to press the Minister on something she said about the welfare checklist. She rightly said it dealt with factors in the child’s development. Is she truly telling me that the role of a parent is not an important factor in a child’s development? There is an awful lot of evidence suggesting that the role of a parent is of absolutely fundamental importance in the development of a child, and I cannot really understand her argument.

Beverley Hughes (Labour, Stretford and Urmston)

I obviously did not make myself very clear. The welfare checklist deals with things that the court needs to consider which contribute to the welfare of a child: physical, emotional and educational needs, background and how capable each parent, or any other relevant person, is of meeting those needs. The latter factor in particular refers to parents. However, the checklist does not prejudge whether a particular circumstance relating to any one of those factors is beneficial or not. The court has to make that judgment, so it will consider an individual child and decide in relation to all prevailing circumstances whether, for example, contact will contribute to the emotional well-being of a child.

By inserting “contact” and “reasonable contact” on the checklist, the court would have to make an a priori assumption in the case of every child that contact would contribute beneficially to emotional development. There will be children for whom that is not true and for whom contact would be undesirable. [Interruption.] We have a fundamental difference of position about whether that is the right way to go about things. The inclusion of “contact” would introduce to the checklist a qualitatively different factor from those that are included already, because it would force the court to assume that in terms of the factors on the checklist, a certain outcome is a priori beneficial. We do not agree with that.

Tim Loughton (Conservative, East Worthing and Shoreham)

Returning to the statistics and figures that I quoted earlier, on the basis that 99.2 per cent. of parents are deemed suitable to have contact with their non-resident children, for whom contact will be beneficial, why does the Minister base her entire argument on the 0.8 per cent. who are deemed not to be?

Beverley Hughes (Labour, Stretford and Urmston)

As I pointed out to the hon. Gentleman, there is already a recognition that the court must make a judgment in relation to the welfare checklist about how capable each parent is of meeting the needs of the child as defined by other factors on the checklist. It does not matter that he quotes those statistics; the fact is that there will be some children for whom contact will not be beneficial. In any case, in relation to the welfare checklist and the post-separation arrangements, the court must take into account every child’s unique set of circumstances. It would be neither right nor in the interests of children generally for the court to have the paramountcy principle of the interest of the child as the sole parameter against which it must make its decision.

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not know the right hon. Lady’s circumstances, but she says that she has children. If, like me, she is married with children, does she think that without going through any contact disputes with her partner, she should be subject to the welfare checklist for her children now, or that I should be subject to the welfare checklist for my children now? If not, why do the circumstances change the minute she or I separate from our partners?

Beverley Hughes (Labour, Stretford and Urmston)

With respect to the hon. Gentleman, that is not the right question to ask.

Tim Loughton (Conservative, East Worthing and Shoreham)

It is entirely right.

Beverley Hughes (Labour, Stretford and Urmston)

No, it is not entirely right. Parents go voluntarily to court because when they have separated they cannot agree about what should happen. Of course, there is no question of intervening either in situations in which parents are not separated, or, if they are, in situations in which they can agree between themselves and carry out what is in the best interests of their children.

We are discussing the small number of high conflict situations in which parents cannot agree, and we must give the courts a clear framework and a set of principles about the parameters for the decisions that parents ask the courts to make in the best interests of their child. Parents go voluntarily to the courts for them to make that decision, and the welfare checklist that has been enshrined for a long time in the 1989 Act is the right principle. It should have paramountcy over all other factors and over often strong arguments in those situations.

Margaret Moran (Labour, Luton South)

Is my right hon. Friend aware—I am sure that she is—that 29 children have been killed as a result of contact arrangements, and that the serious case reviews taken recently indicate that five of the 13 families involved were cases in which the court had ordered contact? In other words, children’s lives are being lost because courts are ordering contact. Does she believe, as I do, that the proposals that Opposition Members are putting forward would increase the likelihood of children being killed and abused? [Interruption.] The hon. Member for East Worthing and Shoreham makes a dismissive noise, but those are the facts.

Mike Hancock (Liberal Democrat, Portsmouth South)

Hon. Members should bear in mind that, due to the number of amendments on the agenda, interventions should be short and sharp.

Beverley Hughes (Labour, Stretford and Urmston)

I simply say to my hon. Friend that I do not want to be drawn beyond saying that anything that constrains the court at the point at which it makes decisions may result in decisions that are not in the best interests of the child. I have already made that point. I am aware of the cases that she cited, and that Lord Justice Wall is conducting an internal review on them. We may not yet have the full facts.

I want to end on a positive note. While I cannot accept the amendments for the reasons that I have outlined, I think that the issue is important to parents and that the Bill will make a big difference to the problems that parents find in getting compliance from their former partners. I therefore hope that hon. Members will not push the amendment to a Division.

Tim Loughton (Conservative, East Worthing and Shoreham)

The right hon. Lady will hope in vain. Her performance both before and after lunch was exceedingly frustrating but highly illuminating. Before lunch, she seemed to be hurtling head first into the great crevasse of her own argument. She seemed to say, if I understood her clearly—that is quite a tall order, because there was a lot of legalese—that she agreed that the number of contact orders has increased substantially. Her case, with which I do not disagree, was that that increase, particularly repeat contact cases, was because contact orders had been breached, and that the problem was therefore with enforcement rather than with the way in which the courts operate in the first place. However, when I asked her why she thought contact orders were being breached, we had a rather circular argument. The reason is surely that one side does not regard the order as reasonable. That is why it is so essential that a test of reasonableness be inserted into the steer that we are trying to give the courts. She cannot have it both ways, which is why I began by saying that the Government’s solution has been to come up with penalties for the system not working rather than to try to get it working. We believe that the amendment and new clauses address that fundamental problem.

I think that at one stage the right hon. Lady grasped what we were trying to do, but she accused us of wanting to turn the system upside down. That is exactly what I was proposing, because we should be addressing the system and tailoring it to deal with the 99.2 per cent. of parents who are deemed worthy of continued contact with children. Whether that figure is 99.2 per cent., 99.1 per cent. or whatever, the presumption is that the vast majority of parents are capable of continued contact and that their children would benefit from it. For goodness’ sake, let us ensure that it is reasonable contact rather than judge everybody on the basis that they are a potential threat as represented by the 0.8 per cent. That is why it was absolutely pertinent when I challenged the Minister. If we are to apply the welfare checklist, it should be applied to parents who are in a relationship, too. Why do we metamorphose into potentially bad parents the minute that we split from a partner? I just do not see why that happens.

For some people there is some sort of metamorphosis, but the vast majority are still good parents after splitting—they still want to play as active a part as possible in their children’s upbringing. I repeat the point that I made this morning: family breakdown is not the children’s fault in most, if not all, cases. However, the Minister seems to take the view that the minute a couple break up, the non-resident parent loses his status as an obviously decent parent. We are trying to preserve that status quo: the vast majority of parents are decent parents and the vast majority of children do best when they are brought up by both their parents. That should be fundamental to the law as it stands.

That is not contradictory to the paramountcy principle. Every time that this challenge arises you can bet your bottom dollar that the usual twaddle will come back, “Oh but that this will undermine the paramountcy of the welfare of the child.” Of course it does not. The welfare of the child is augmented and enhanced, unless there is a case proven to the contrary, by reasonable contact, maximised as much as possible, with both parents, one with custody and one without.

Sally Keeble (Labour, Northampton North)

The hon. Gentleman is misrepresenting my right hon. Friend’s position. Does he not accept that what people do in their own homes is down to them? If they continue to agree, it is down to them. What my right hon. Friend has said is that where they disagree and the matter comes to court, the parents have put it in the public domain and there then has to be a test that takes into account the best interests of the child. Such cases account for a small percentage of cases, as he said, but they might be the ones in which there is a risk to the children, and that has to be assessed. But it is the parents who put it in the domain of the court. It is not right for the state to trawl through people’s houses.

Tim Loughton (Conservative, East Worthing and Shoreham)

What parents do with their children in the privacy of their own home is indeed their own business until those children are abused. Why should what that single parent might do with that child in the privacy of his or her own home change after they get divorced? Why must it follow that when the parent is divorced there is a bigger threat of that parent becoming abusive towards that child? The figures do not warrant such an assertion—there is no evidence to back up the case that I think the hon. Lady is making.

Sally Keeble (Labour, Northampton North)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

I will in a minute. We know that the vast majority of the children in this country who die at the hands of their carers or parents do so when those parents or carers are together. Fewer than 3 per cent. of children who die, which is 3 per cent. too many—the figure is 29 against 800—die at the hands of carers in contact situations. That is too many, but let us put it into perspective.

Sally Keeble (Labour, Northampton North)

The hon. Gentleman is misrepresenting the position. It is wrong to draw the analogy with child abuse. Clearly, those cases are tragedies. Where the state has information that a child is being abused it rightly intervenes, but the state should not intervene in people’s homes. However, if the parents do not agree and they put the matter into the courts, the courts are obliged to carry out an assessment in the same way as when there are serious concerns about the child’s welfare in its own home. It is quite wrong for the hon. Gentleman to present the case as he has. It gives the wrong information to the outside world and it completely misrepresents the position that my right hon. Friend the Minister set out.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is the other line: when we start to challenge the dodgy figures that are presented to us and the absurd assumptions that we are in some way trying to compromise the welfare of children, we are said to be misrepresenting the case. I have made the point to the hon. Lady entirely clearly that I believe the state has no place sticking its nose into people’s homes unless or until there is a child abuse problem. We would all agree with that. Why should it be any different when a parent who becomes non-resident has to set up home and seeks to entertain his or her children through contact orders?

In the vast majority of cases there should be no difference in the way in which we treat parents’ capacity and suitability to continue to be a loving parent. However, as the legislation is framed, there will be an automatic assumption that the minute a separation takes place, one’s authority to be a decent parent must be questioned. That is why we want a presumption of reasonable contact, which stems from a presumption that most parents want to do the best thing for their children and are capable of continuing to do so, both while they are together with the other parent and afterwards. That is paramount.

Beverley Hughes (Labour, Stretford and Urmston)

I intervene to help to clarify the matter, as I am sure that other members of the Committee is getting confused by the hon. Gentleman’s increasingly circular arguments. He asked in an intervention on me whether the same factors should apply to his role as a parent, and mine, and that of any other person. I gave the same reply that my hon. Friend the Member for Northampton, North (Ms Keeble) just gave. The welfare checklist applies in cases that come to court through the public law system in which parents have been not treating their children well or abusing them. The principle of paramountcy applies equally in public law and in private law cases.

Tim Loughton (Conservative, East Worthing and Shoreham)

New clause 20 neatly addresses the point made by the hon. Member for Stockport (Ann Coffey) when she came out with the usual mantra of, “This will undermine paramountcy.” All that we need to do is put into the welfare checklist the desirability of reasonable contact—desirable to promote the welfare of the child, not desirable to accommodate parents. That is what we seek to do in new clause 20. If that were added, the court need not be bound if it thinks that there is a contradiction with the welfare checklist.

As the Minister has rightly been at pains to point out, it is up to judges and courts to interpret the law and apply judgments as they see fit in individual circumstances, guided by the paramountcy principle, the welfare checklist and everything else. Our suggestions are intended not to give greater powers to parents but to protect and enhance the welfare of the child even more by avoiding the messy disputes between parents that arise because of the way in which courts operate. People cannot trust the judgments that are made in some cases, because they do not think that they are reasonable. The amendments address the criticisms that Labour Members are making.

We need a higher-scale response. The amendments are not based on the convenience of lawyers—I am not concerned about accommodating lawyers in the family court system. We are here not for the convenience of lawyers but to promote the welfare of the children whom they are there to safeguard. However anybody who proposes such perfectly sound amendments is faced with the retort that we will undermine children’s welfare—that argument was made on Second Reading and in another place and it is being made in Committee. We will not; the welfare of children is absolutely paramount. We put that in the Children’s Act 1989, which is a flagship Act that remains as relevant today as it was when the Conservatives came up with it. As we have been at pains constantly to point out, nothing that we have said on the Bill seeks to do anything that would undermine the principle of the paramountcy of the welfare of the child. If we thought that it would, we would not do it, so the underlying argument must be thrown out straight away.

Then we hear the misrepresentation argument, which is advanced when we challenge the premise on which Labour Members oppose our perfectly reasonable views. The Minister completed the trilogy by saying that we were being confusing. Well, I am not confused and neither are many family groups outside this place. They know that what is needed in the courts is greater clarity of recognition that at least 99.2 per cent. of parents, if we want to quote a figure, are just as capable of continuing as reasonable parents to offer loving care and support to their children after they are divorced or separated as they were when they were in a relationship with the other parent of their children.

The addition of “reasonable” before “contact”, which underlies the amendments, would enhance the law and prevent so many cases having to return to court because of breaches of contact orders. If it is clear what reasonable contact means, if it is clear that the court system recognises that a mother and a father have an equal entitlement to share in the upbringing of that child unless it can be proved to the contrary, and if it is clear to everybody and clear in the law that the child benefits most and his welfare is advantaged most of all by maximising contact with both parents, many acrimonious, long drawn-out legal proceedings that are in the interests of nobody except the lawyers themselves will be stopped.

The duty of the House is to make laws that give a clear steer to the judiciary. It is then up to the judiciary to interpret those laws as they apply to individual cases. We have a duty to make those laws clear and to ensure that they are clearly explained to people who will use the legal system to settle their disputes. The law is not clear at present, and there has been an enormous increase in contact disputes leading to long, drawn-out legal action. That cannot be right; it is not in anyone’s interests. The amendments are perfectly reasonable; they set out a much clearer course of action so that parents can avoid going to court, know what they are likely to be able to enjoy as the result of a court direction, and know fundamentally what their children are entitled to.

I fear that we will not agree on the amendment. I wish that was because of the weight of the arguments to counter mine, because I see no downside in the amendments becoming law. I do not understand how they will so harm the system that the Government can dismiss them out of hand without any offer to compromise or to redraft them in a fashion that might prove acceptable and would be beneficial. Conservative Members are therefore determined to divide the Committee on the amendments.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I beg to move amendment No. 64, in clause 4, page 7, leave out line 34.

Mike Hancock (Liberal Democrat, Portsmouth South)

With this it will be convenient to discuss the following amendments: No. 65, in clause 4, page 7, line 35, leave out subsections (6) and (7).

No. 51, in clause 5, page 10, line 26, leave out subsections (7) and (8).

Jeremy Wright (Conservative, Rugby and Kenilworth)

The amendments relate to the same thing in clauses 4 and 5, which list a number of categories of people who are permitted under the Bill to make application to the court for either an enforcement order in relation to a contact order or an order for financial compensation arising from breach of the contact order.

These are probing amendments, and I hope that the Government will consider them; we shall listen with care to their response. They relate to the inclusion of the child concerned in the case in the list of permitted persons. There are subsequent paragraphs in each of the clauses that qualify the right of the child to participate in proceedings, but the substance of our objection is the inclusion of the child concerned in the permitted persons list. In passing, I should say that our probing amendments should have probed a little further, because they should also have included the proposed section 11O(6)(d), which likewise relates to “the child concerned”.

Our objection to the current wording is that including “the child concerned” seems to create some difficulties within the context of the debate. The Committee has agreed throughout that the paramountcy principle—that the welfare of the child is all-important—should be sustained in each aspect of the Bill. If we proceed on the basis that children should be encouraged, by their inclusion in the list of permitted persons, to participate in the process and act in connection with either financial compensation for breach of contact orders or enforcement orders for breach of contact, we shall be involving them in proceedings in an undesirable way that is not in their best interests and not in accordance with their welfare.

I invite the Government to reflect on including “the child concerned”, and consider whether it is in their interests. If we look at the other categories of persons who can participate in the process and bring a claim for financial compensation for breach of contact or for an enforcement order, it is clear that there are few cases in which those categories of persons, not including the child concerned, could not make an application and the court could not make a decision. So why involve the child? That question is at the root of the amendments. I would welcome the Government’s response

Beverley Hughes (Labour, Stretford and Urmston)

I am grateful to the hon. Gentleman for clarifying that there was an unintentional flaw in one of the amendments. As they stand, their intentions appear to be contradictory for no discernable reason, but I shall reply to him on the basis that he has tabled the correct amendments and try to explain why in both clauses we have included the ability of children themselves, through the courts, to apply for either one of the orders.

One of the main arguments is that our approach is consistent with the whole of the 1989 Act and the legislation that frames the arrangements. That Act allows children, with the leave of the court, to bring all section 8 proceedings, including contact applications. That being the case—nobody has argued that it should be repealed, and it would be a fundamental thing to row back from—we believe that children should also have the ability, again with the leave of the court, which is an important safeguard, to apply for an enforcement of the order that they have sought or for the financial compensation in the circumstances outlined in clause 5.

Stewart Jackson (Conservative, Peterborough)

I wonder how the right hon. Lady’s advocacy of this part of the clause sits with the failure to put into practice section 122 of the Adoption and Children Act 2002. The matter came up on Second Reading and was a slight flashpoint between the hon. and learned Member for Redcar (Vera Baird) and me, but remained unresolved when Ministers summed up.

Beverley Hughes (Labour, Stretford and Urmston)

I do not think that the hon. Gentleman was here this morning. [Hon. Members: “Yes, he was.”] I beg his pardon. I explained that section 122 remained a commitment, but we need to see the results of the review of rule 9.5 in relation to separate representation of children before we can finalise the process of deciding what the rule-making power under section 122 should produce.

The hon. Member for Rugby and Kenilworth recalled the welfare principle. It is right that the central tenet of the 1989 Act is the paramountcy of children’s welfare. Contact is to be child centred and contact activities are designed to improve parenting skills so that the child’s experience of contact is the best it can be. Enforcement orders are designed to ensure that that contact is complied with in the best interests of the child. I do not expect that there will be many cases of children making an application for an enforcement order, for reasons that will be obvious to the Committee. As the principle that children can apply for contact orders is already enshrined in law, they should have the right to follow through on the Bill’s powers on enforcement and financial compensation if orders are not complied with.

I have made inquiries as to how exceptional it is for children to apply for contact orders. It is not very frequent, but there are a number of cases in which, for example, siblings apply to a court for contact with each other if they are in different situations—for example, if one is in care and one with a parent, or if they are with separate parents. Cases have not been regular, but they have been frequent enough for us to be clear there it is an important right for children to have.

Many judges and practitioners think that the children’s rights argument is important, albeit that it is used only in special circumstances, such as the one that I outlined. That is a reason for such rights to be in statute, along with rights on the enforcement orders and financial compensation that are directly linked to the contact order that they might have applied for in the first place. The safeguard of seeking leave to apply to the court is important and will ensure that in appropriate circumstances a court will hear a case.

I hope that that explanation, which links back to the children themselves, means that the hon. Gentleman is prepared to withdraw his amendment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I am grateful to the Minister for her reassurance. I accept what she says about the qualifications in succeeding subsections, following the inclusion of a child on the list. That is why I made no argument that we might see cases of children suing their parents over any little thing. I entirely follow what she says about that.

My concerns have been somewhat assuaged, but remain to an extent. I suggest to the Minister that the involvement of a child in the making of a contact order is different to his involvement in potentially acrimonious proceedings over whether contact is being followed through in the way in which the court intended. We have been concerned to ensure that children do not find themselves an integral part of such proceedings when they do not need to be. However, I made clear at the outset that these are probing amendments. With the reassurance that the Minister has given, I beg to ask leave to withdraw the amendment.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 26, in clause 4, page 8, line 15, at end insert—

‘(14)In considering whether to make an enforcement of a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

Mike Hancock (Liberal Democrat, Portsmouth South)

With this it will be convenient to discuss the following: Amendment No. 29, in clause 4, page 8, line 46, at end insert—

‘(1A)In considering whether to make an enforcement order the court shall take into account the need for separate representation of the child and his interests.’.

Amendment No. 39, in clause 4, page 9, leave out lines 18 to 20 and insert—

‘(7)In making an enforcement order in relation to a contact order, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 40, in clause 5, page 10, leave out lines 43 to 44 and insert—

‘(14)In exercising its powers under this section, the welfare of the child concerned is to be the court’s paramount consideration.’.

Amendment No. 30, in clause 7, page 12, line 17, at end insert—

‘(2A)Upon receiving a risk assessment the court shall consider the need for separate representation of the child and his interests within proceedings.’.

New clause 14—Welfare of the child: contact with parents—

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

“(h)the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”’.

New clause 16—UN Convention on the Rights of the Child—

‘After section 1(3)(g) of the Children Act 1989 (c. 41) insert—

“(h)Article 9 of the UN Convention on the Rights of the Child.”’.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

We rehearsed some of the arguments on the amendments this morning, so I will endeavour to be brief. I hope that others will follow my good example.

Amendment No. 26 and amendments Nos. 39 and 40, tabled by the hon. Member for Luton, South, address the same issue. I want to touch upon it again without going through all of the arguments. There is a genuine concern that the paramountcy principle of the child should be part of the Bill. There is also concern that clauses 4 and 5 do not even involve consideration of the standard welfare checklist. We made the point that circumstances can change. We can probably accept that the amendment that we discussed this morning would have put quite a burden on every case, but ensuring that the paramountcy principle is in the Bill would mean that if a contact order had been given and the circumstances then changed, the situation would need to be re-evaluated with the child at the centre. That is so important. Having listened this morning, I can see that the amendment we discussed then went a little too far, but this amendment reiterates what we are told is fundamental and runs through everything in the 1989 Act.

Amendments Nos. 29 and 30 address something very dear to my heart: the fact that we should do our utmost in all circumstances to ascertain the wishes and feelings of children. My hon. Friend the Member for Ceredigion (Mark Williams) will address that in detail, but the reason for continually asking for that is because it not only recognises the importance of the children, but, as the evidence shows, recognises that the separate representation of children and their interests in proceedings often helps to resolve the most intractable cases of parents disputing contact. That is important. If allowing children to make their views known helps to heal relationships, it must be a positive move.

I openly confess that I have plagiarised in new clause 14 and I hope that everyone recognises where the words come from—

Ian Cawsey (Labour, Brigg and Goole)

“The Da Vinci Code”.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I have not made any money out of that.

I plagiarised because it is difficult to write an amendment without falling into some awful trap by using the wrong word. Throughout Second Reading and previous debates in Committee, I desperately wanted, as a family-based person, to change the culture of the courts to ensure that in the majority of cases children have good contact with both parents. As that is clearly stated in article 9 of the United Nations convention on the rights of the child, it should be our starting point. I have already been through my arguments for believing that any change is probably safer in the welfare checklist and I suppose that the one flaw that the Minister will come up with is that it is not normal to refer to that convention in legislation.

I shall explain briefly why I specifically included article 9 in new clause 16. I have studied carefully what the Government said at each step of the way and I shall quote from their response to the scrutiny Committee. They said:

“The question, then, is about whether we should codify that case law in primary legislation. We are considering this carefully, and can see that, while it is not strictly necessary, there may be some merit in sending a positive signal to the courts.”

That statement cannot have been made that long ago, so the Government have recognised that there ought to be a positive signal, even though they may not agree that the welfare checklist is the correct place for such a provision, not least because of the checklist’s wider application to public law cases. That was the reasoning behind putting a reference to the whole of article 9 in the welfare checklist, because it covers both public and private law.

I fear that the Minister will say that the convention on the rights of the child cannot be mentioned in the Bill, but it would not be impossible to find some wording to cover private and public law and to put that in the Bill, in a place where it is safe to do so, so that we do not have this argument between the two presumptions and to send a message that there is a need to change something. What is happening out there is not right. Something needs to give and the Government have said that they can see some merit in the argument.

If the amendment is rejected, my challenge to the Minister is to put forward an amendment to cover exactly what the Government said in their reply to the scrutiny Committee. With that I rest my case, leaving the other amendments to be addressed by my hon. Friend.

Margaret Moran (Labour, Luton South)

I will follow the hon. Lady’s lead and be extremely brief.

Most of the arguments in the debate were rehearsed in our previous discussion and it remains to me to reinforce our concern that the paramountcy principle is not strong enough in clauses 4 and 5; indeed, it does not appear in them. I will ask leave to withdraw the amendment but in doing so I endorse the hon. Lady’s comments and add that I hope that the Minister will view the amendments sympathetically and consider whether there are further ways in which the paramountcy principle can be strengthened, perhaps via the welfare checklist.

Maria Miller (Conservative, Basingstoke)

Following the example set by other members of the Committee, I will be brief.

Amendments Nos. 26 and 39 represent an enormous missed opportunity. At the risk of repeating the excellent arguments advanced by my hon. Friend the Member for East Worthing and Shoreham, I add that we need to remember that as legislators it is our role to guide the court and not to let the court guide us. It is fundamental that we do that and I am therefore disappointed at the Government’s attitude to the matter. I understand why the amendments were tabled, as there is some inconsistency in the language used, and I hope that the Minister will explain why that inconsistency exists.

Amendment No. 40 addresses the same inconsistency in relation to compensation for financial loss, but it reminds me, and causes me great concern, that the penalty would have very few teeth as a result of needing to ensure that whenever penalties are imposed the welfare of the child must be paramount. That is why we tabled new clause 6, which I hope we will be able to discuss in the compensatory time.

Amendments Nos. 29 and 30 refer to separate representation. In the vast majority of cases it is not felt appropriate to have separate representation for children, and as we discussed, rule 9.5 describes when children should have separate representation. In April 2005 the president of the family division went further and issued directions on when separate representation is appropriate; it is mostly when the parents are adversarial and hostile and in entrenched and protracted cases.

I was interested to read some research undertaken by the National Youth Advocacy Service on separate representation and when that is most likely to take place. It is during intractable and difficult cases that go on for many years and involve long-standing and continuing hostility between the various parties. It is important to have access to separate representation—I entirely agree with the hon. Member for Mid-Dorset and North Poole in that respect—but only in a very small number of cases. The hon. Lady said that perhaps we should consider separate representation in all sorts of circumstances, although I may have misunderstood her. It is important that when separate representation would be appropriate should be tightly defined and it is entirely right that the person who considers that should be the judge, who will have the best interests of the child in mind.

I apologise to the Minister for being out of the room when she mentioned the Adoption and Children Act 2002 and the fact that the statutory right to separate representation, which was due to be implemented in December 2005, has not been implemented. I will read the Hansard report of the Minister’s comments, because it was unclear why that implementation had been indefinitely delayed.

I was quite surprised when the hon. Member for Mid-Dorset and North Poole and her hon. Friend the Member for Ceredigion decided to vote against the amendment that I had tabled concerning the importance of both parents being involved in bringing up their child. It appears to me that new clause 14 is entirely consistent with the arguments put forward by my hon. Friend the Member for East Worthing and Shoreham. I would be interested to hear from the hon. Member for Mid-Dorset and North Poole why she feels that there is any difference between what my hon. Friend talked about and what she believes that she would gain from the new clause.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

My teaching background comes in when I say that I am not convinced that the hon. Lady was listening when I spoke earlier. If one uses few words, it is good when they are listened to. I explained very clearly that my party is not prepared to vote for anything that puts the child’s safety at risk. We had a pretty clear discussion to the effect that many Members regard putting two presumptions in the Bill as taking us down that route. We will not go down that route.

Mike Hancock (Liberal Democrat, Portsmouth South)

Order. The hon. Lady will have another opportunity to speak at the end of the debate should she so wish.

Maria Miller (Conservative, Basingstoke)

I assure the hon. Lady that we are as one with her in not wanting to put any child at risk, but we shall just have to draw a line under things and agree to differ.

Ann Coffey (Labour, Stockport)

I wonder whether the Minister, in responding, will clarify whether I have correctly understood what we are talking about. When the court makes a contact order, or any variation in a contact order, the paramountcy principle is its main consideration. If, eventually, a court makes an enforcement order, it is basically punishing a parent for failure to comply with a contact order. Because the welfare of the child is a material consideration, the courts are unwilling to send parents to jail, so into enforcement orders came another range of powers for the court, including directing parents to do unpaid work or community service. Effectively, however, those are punishments for breaking a contact order which the resident parent is undermining.

If we again include a provision that the court has to consider the child’s welfare as paramount, and consider representations by the child, no enforcement order could ever be made. It is never in the interests of a child that they are separated from their caring parent. Parents who have offended in some way come before the court every day—if they have committed burglary or assaulted people, or been drunk and disorderly. If the paramountcy principle were applied in those situations, we would never punish a parent in this country for anything, because the child’s welfare would be affected.

Part of the problem is that the words are somewhat misleading, because however we dress it up, an enforcement order is a penalty. The courts can apply that penalty to somebody who is breaking a court instruction after every stage, taking regard of the interests of the child and doing a risk assessment. That is how I understand the situation.

On Second Reading, the hon. Member for Mid-Dorset and North Poole alluded to an interesting point. She said that some parents might regard contact activities as punishments. Parents are being asked to abide by a range or spectrum of contact activities and enforcement orders, with the object, at the end of the day, of getting them to be reasonable about contact with their children.

The Joint Committee suggested the introduction of a time and place order which in fact falls along that spectrum. A time and place order could direct a parent to stay in the house while the non-resident parent had contact with their child somewhere else, to prevent the resident parent from undermining that contact. That would give the courts a spectrum of contact activities that they could order a parent to do in order to get the message home that they have to abide by the court’s decision.

My problem with putting the paramountcy principle into the enforcement order is that there must come a time when parents must accept that they must decide whether to obey the court’s decision—or not and thus putting the welfare of their child on the line. There comes a time when that line must be drawn. The fact that someone’s behaviour affects their family cannot be taken into account just by the court—it is their responsibility.

Mark Williams (Liberal Democrat, Ceredigion)

May I say, as a new-comer to the realms of Standing Committees, how pleased I am to be serving under your chairmanship, Mr. Hancock? I look forward to your charitable treatment of new Members—or perhaps those who have come to these proceedings a little late in the day. Perhaps the Minister will bear that in mind as well.

Having worked with young children for the past 12 years, I am unashamedly child-centred in my enthusiasm for amendments Nos. 29 and 30, in the name of my hon. Friend the Member for Mid-Dorset and North Poole, which explicitly direct the courts to consider “where appropriate”. That addresses some of the concerns raised by the hon. Member for Stockport—the need for separate representation of children in proceedings where an enforcement order is under consideration, in clause 4, and following a risk assessment by a CAFCASS adviser, in clause 7.

We contend that when an enforcement order is being considered, separate representation of the child’s wishes and feelings provides valuable information. Indeed that may be fundamental in helping the courts decide what is in the best interests of the child’s safety. That was noted by CAFCASS in its last annual report, which stated that separate representation proved

“an effective measure in resolving ... some of our most complex private law cases.”

That is supported by the National Society for the Prevention of Cruelty to Children, which sees the measure as a means of avoiding the distressing involvement of children in what it described as the “revolving door” of continual, perhaps long-running, proceedings.

We have talked a lot about research and reviews, and I know that the Minister will refer to section 122 of the Adoption and Children Act. Research undertaken by the National Youth Advocacy Service has revealed that some 52 per cent. of cases have been before the courts for more than three years, and some 16 per cent. for between seven and 10 years. I shall reiterate the words of my hon. Friend the Member for Mid-Dorset and North Poole: conceivably, children can have a central role in acting as a meaningful catalyst for the resolution of long-standing disputes in a way that could prove effective for the families and children concerned. Furthermore, although I am slightly reticent about using the argument, it is a cost-effective means of ending court proceedings. NYAS also cited that in 86 per cent. of cases, future contact arrangements were made, and in 95 per cent., representation of the child’s wishes and feelings had a significant impact on decision making.

I appreciate that much of the debate about section 122 of the 2002 Act took place this morning, but I make the point again that that section was due to be implemented some time ago. That implementation seems constantly to be delayed, and I reiterate the concern among Liberal Democrat Members and our healthy impatience to see action on that in the Bill. I appreciate the rather grudging support that the hon. Member for Basingstoke (Mrs. Miller) has given the amendments and I hope that the Minister will respond positively to what we have said.

Beverley Hughes (Labour, Stretford and Urmston)

We have here a complex group of amendments that deal with issues that we have already rehearsed to some extent, as the hon. Member for Mid-Dorset and North Poole indicated. The group deals with issues in three categories: the paramountcy principle, the separate representation of children, and provisions in the UN convention on the rights of the child. Without taking overly long, as we have raised some of the issues before, I shall try to address them.

Amendments Nos. 26, 39 and 40 would make the welfare of the child the court’s paramount consideration in deciding whether to make an enforcement order or an order for financial compensation. As I said earlier, we believe that in enforcement matters the welfare of a child should be a material consideration rather than the paramount consideration, for the reasons outlined so ably by my hon. Friend the Member for Stockport. As I said this morning, the welfare of the child is a paramount consideration when the original contact order is considered and decided on. That is right, because it is then that the best interests of the child and the place that contact will have in that are considered by the court.

David Kidney (Labour, Stafford)

Perhaps I should not have kept quiet when my right hon. Friend said that this morning. I think that that is fine when we are talking about dividing a house or a CD collection, but the relationship between two parents and a child will develop and change long after the court order has been made. Surely there should be some flexibility to change circumstances later.

Beverley Hughes (Labour, Stretford and Urmston)

There is that flexibility. We have included specific considerations that the court can take into account in enforcement proceedings, one of which is the welfare of the child. It is not the paramount consideration, but it is a material consideration that the court is required to consider. Through that route, the court can take into account any claimed change in the circumstances of the child or the adult and the contribution that a parent can make to the welfare of a child.

As my hon. Friend the Member for Stockport pointed out, one of our concerns was that, were we to make welfare paramount, it would place a very high hurdle for the courts to overcome before the new powers in the Bill could ensure compliance with the very contact orders that the court had made. We and the courts want those powers in place, because those currently available to them are hardly ever mobilised for reasons that we all understand. As a result of amendments such as those before us, the courts might find it even more difficult to use the new powers than they do the existing powers of contempt. I say to the hon. Member for Mid-Dorset and North Poole that I have sympathy with the sentiments behind her amendments, but the right place for a child’s welfare to be paramount is in the consideration of contact orders, as it currently is. When considering non-compliance with those orders and enforcement, the welfare of the child, while important, should not be the paramount consideration.

Amendments Nos. 29 and 30 would require the court to consider separate representation of a child when considering whether to make an enforcement order and whenever it receives a risk assessment conducted by CAFCASS under clause 7. Rule 9.5 of the Family Proceedings Rules 1991 allows the court to appoint a guardian for the child if that appears to be in the child’s best interests, and for him or her to be made a party to the proceedings. If the court considers the child to be of sufficient age and understanding, he or she can be made a party to the case under rule 4.7, and can instruct their own solicitor directly.

There are difficulties with the amendments, because they would require the court to consider representation in certain circumstances, but it already has the power to do so. In April 2004, the president of the family division issued a practice direction outlining the circumstances in which the court should consider making the child a party to the proceedings under rule 9.5, such as during intractable disputes. Since then, the use of rule 9.5 appointments has doubled. By their very nature, cases in which enforcement orders are sought often fall into that category. I hope that that reassures the hon. Lady that the situation that she seeks to cover with her amendment is already being dealt with.

The rule-making power in section 122 of the 2002 Act has been mentioned. The hon. Member for Basingstoke said that I said that its implementation was indefinitely delayed. It is not indefinitely delayed. When the report that reviews the rule 9.5 arrangements to which I have just referred has been considered, we will be able to bring forward the rules that the section 122 powers enable us to make.

New clauses 14 and 16 would add new factors to the welfare checklist in the Children Act. The new clauses express a principle that both sides of the House would support, but—we rehearsed some of the arguments this morning—their inclusion in the welfare checklist would be inappropriate.

On the proposed UN convention insertion, factors in the welfare checklist are expressed not in the form of the child’s rights, but as a list of issues to which the court must have regard, such as the child’s physical, emotional and educational needs, and what the child needs for their welfare and well-being to be protected and maximised. By their nature, such considerations must be weighed, sometimes against each other, and taken into account. In contrast, new clause 14 is phrased to state that a child has a right to contact. If that amendment were made, it would be equivalent to a presumption about contact. For all the reasons that I have outlined today, that would have the unintended—I think—consequence of challenging and compromising the paramountcy principle.

Opposition Members commented that legislation needs to be framed so as to guide judges in their decisions. I return to a point that I made this morning: there is an assumption that the real problem is that judges are not including sufficient contact in contact orders. No evidence to that effect was produced, but that is the basis of many of the amendments proposed by Opposition Members.

If Members consider judgments and the pronouncements of judges who are leading judicial opinion in this area, they should be assured that judges are convinced of the need for contact, and that that is in the best interests of many children. In 1993, in the now well-known case, re T, the court said:

“It is the general proposition, underpinned undoubtedly by the Children Act 1989 that it is in the best interests of a child to retain contact with the parent with whom the child does not reside. The courts generally set their face against depriving a child of such contact and urge reluctant caretaking parents to make contact work, however difficult it may be for that parent who very often does not understand the importance of that continuing contact.”

In a more recent case in 2004, Mr. Justice Wall, as he then was, said:

“The courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa. The court’s task, imposed by Parliament in section 1 of the Children Act 1989, in every case, is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of the child to the best of its ability.”

Beverley Hughes (Labour, Stretford and Urmston)

Mr. Justice Wall went on to say:

“Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative.”

While it may be the case that legislation should give a guiding light to judges, those comments underline the fact that they need no convincing of the importance of non-resident parents, particularly fathers, to the well-being of their children, and they will have those thoughts uppermost in their minds when contact orders are made.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

On that very point, bearing in mind that the Government considered putting something in the Bill, and in the light of their comments and the judges’ statements, surely there is something, somewhere that could be included and would be perfectly safe. My second point relates to the welfare checklist, which I understand is a secondary consideration. Does the Minister concur that something within the welfare checklist would not conflict with the overall paramountcy?

Beverley Hughes (Labour, Stretford and Urmston)

I was coming to that. The Government said that we would examine the merit of sending an explicit signal to the courts. We considered what changes could and should be made. My noble Friend Baroness Ashton said in the other place that we had considered it and could find no phrasing that we felt would not compromise the paramountcy principle. I am afraid that that is our conclusion.

I cannot give the hon. Lady any comfort on that, but I hope that I have been able to explain, in the context of the amendments, the difficulties that they pose and to offer some reassurance about how we envisage the Bill working in practice.

In regard to the welfare of the child in relation to enforcement orders, it is true that it is not paramount, for the reasons I have outlined, but it is not true to say, as she just did, that it is secondary. The welfare of the child is one of the factors that the court must consider when it is making an enforcement order; it is a material but not a paramount consideration. I hope with those reassurances that she will feel able to withdraw her amendment.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

At this stage, I will seek to withdraw the amendment, but I should like to revisit the matter. On the paramountcy principle, when we considered an amendment that related to clause 4(1)(3), we discussed the concept of a reasonable excuse for failing to comply with a contact order. The paramountcy principle should be restated on that. It would allow for changed circumstances. The point about the paramountcy principle being applied at the application of the contact order has been made clearly by the Minister. I understand it entirely. In a small number of cases, contact may be been withheld because of a fear of domestic violence. I accept that the wording would have to be careful so as to not cause the problems that the hon. Member for Stockport mentioned, which I listened to carefully, but the paramountcy principle would need to apply in a small number of casesthat need re-evaluation because of changed circumstances. However, it is a case of considering the amendment again.

As far as taking on board wishes, feelings and representations regarding children’s views, I draw the Minister’s attention to the fact that the amendments were written fairly carefully. Amendment No. 29 says:

“the court shall take into account the need”,

and amendment No. 30 says:

“the court shall consider the need for separate representation”.

Perhaps we need to consider that wording a little more carefully. I feel that the Minister has conceded that there are certain instances where it is important to seek the views of children. We should be exploring that further. If it is accepted along the grounds that she has explained and has been applied in particular cases, something could be included in the Bill. However, I am prepared to accept that the wording might not be quite right.

I was tempted to push one of the new clauses to a vote, but it is a matter of reflecting on the wording. The welfare checklist is the most likely place where we could safely include something. I am sad that the Government have concluded that that is impossible. It is not true to say that everything is perfect at the moment; it is not. However, perhaps the package of measures will improve things. As a cultural change is needed, the need to explore some wording along those lines should be a live concern.

I hope that in the run-up to Report, all hon. Members, Labour Members included, can work on what is desirable. It would not be a bad thing to scrutinise carefully what we are advancing each time, to ensure that we have not undermined the paramountcy principle, while reflecting on and still working towards an end that most people in this country want. I beg to ask leave to withdraw the amendment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I beg to move amendment No. 3, in clause 4, page 8, line 30, leave out ‘18’ and insert ‘16’.

Mike Hancock (Liberal Democrat, Portsmouth South)

With this it will be convenient to discuss amendment No. 4, in clause 5, page 11, line 17, leave out ‘18’ and insert ‘16’.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The amendments deal with the same point in relation to clauses 4 and 5 and would change the position in relation to the current state of the Bill, indicating that in respect of a breach of an enforcement order or an order requiring an individual to pay compensation as a result of a failure to comply with a contact order, the court is currently prohibited from considering any act leading to a breach that has been committed before the individual concerned was 18.

Our amendments would change that age limit to 16. In other words, breaches by 16 and 17-year-olds could also be considered by the courts. We must consider the background. Parents are increasingly getting younger and younger. The Government recognise that. It is possible not only to make a contact order for a 16 and 17-year-old parent, but a contact activity direction or contact activity condition. However, the Bill does not permit the court to pass any form of enforcement measure should those contact orders be breached. That seems incongruous and should be remedied.

A contact order can be made in respect of a 16 or 17-year-old. Indeed, the Bill specifically refers to the possibility that a contact activity direction or condition can be made in respect of someone who is a child—someone who is younger than 16. Again, the position seems anomalous as no form of enforcement procedure can be taken against anyone who is under the age of 18, or at least such procedures cannot be taken for acts committed by the person involved when they were under the age of 18. If those who have a contact order made in respect of them commit a breach of that order when they are 16 or 17, it cannot be right that they can do so without fear of any penalty.

Sally Keeble (Labour, Northampton North)

How would the hon. Gentleman realistically deal with such an enforcement action against someone who, under other legislation, is still vulnerable as a child? It does not sit properly with children’s policy and the proper way to deal with extremely vulnerable people.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I do not agree, for two reasons. First, an enforcement order under the provisions of the Bill would allow the court to impose a requirement of unpaid work on the parent who breached the contact order. That is similar to, for example, a community punishment order, which can be imposed on a 16 or 17-year-old. There is no material difference.

Secondly, as far as an order for financial compensation is concerned, 16 or 17-year-olds earn money. As we know, they pay tax. They are in a position in some cases to pay financial compensation. There is no logical reason why a 16 or 17-year-old should be in a different position to an 18-year-old in either clause, against the background of the perfectly proper conditions in each that prevent the court from making either of the two orders in inappropriate circumstances.

The anomaly in the Bill should be remedied. There is no material difference between the position of a 16 or 17-year-old, with the right safeguards, and that of an 18-year-old. That is why we invite the Government to consider the amendments and put the anomaly right.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I think that this will form the basis of an interesting debate. I could think my way into almost following that line of argument, but my instincts are that a 16-year-old mother or father is a vulnerable person. I am not sure that any punishment is the right course to follow. In other circumstances, we already punish 16-year-olds, lock them up and do terrible things to them. We are talking about another group of vulnerable teenagers. Although I can follow the line of argument—I often argue for an age of 16 majority—the vulnerability of the child and the importance of their having a meaningful relationship with their parents are what concern me.

I hope that the Minister will reassure us. In particular, I hope that she will reassure us that the contact activities, if anything, will be an appropriate form of enforcement. Maybe they would need to be quite extensive.

Jeremy Wright (Conservative, Rugby and Kenilworth)

My reading of the Bill, although I may be wrong, is that were a contact order condition to be breached it would constitute a breach of the contact order. My point was that there would be no consequences for someone who is 16 or 17 were they to breach that order.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

We will look to the Minister to answer that. I am concerned that the amendment introduces a punishment rather than the support mechanisms that we are discussing.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Member for Rugby and Kenilworth started by saying that there are more and more younger parents now than ever before. I must correct him on that point. In recent figures, as a result of the Government’s efforts, rightly, to reduce the incidence of teenage pregnancy—I know that the hon. Gentleman will support those efforts, because it is a serious matter—we have seen the under-16 rate come down by more than 15 per cent since 1998 and the under-18 rate by 11.2 per cent.

Tim Loughton (Conservative, East Worthing and Shoreham)

And the under-14 rate?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman makes a sedentary intervention, selectively doing what the Daily Mail did by picking out one small group. The overall figures are coming down significantly and are the lowest for decades. We have had a significant problem, compared to other European countries, and not recently, but going back 40 years or more. The Government take the issue very seriously.

Tim Loughtonrose—

Mike Hancock (Liberal Democrat, Portsmouth South)

Order. We must bear it in mind that the age of teenage pregnancies is not part of the Bill.

Tim Loughton (Conservative, East Worthing and Shoreham)

Quite so, Mr. Hancock. I am not going down that route because we will have a debate on that subject, but my hon. Friend the Member for Rugby and Kenilworth made the point that parents had become younger. In response to the Minister’s statistics, may I say that the number of teenage pregnancies among younger girls, under 14, is going up, and alarmingly so, and the Government have failed dismally in that area?

Beverley Hughes (Labour, Stretford and Urmston)

They are not going up. The rate is going down. None the less, there is a serious problem, and the Government, unlike the previous one, are trying to do something about. As the hon. Member for Mid-Dorset and North Poole said, young parents were, by and large, the most multiply-deprived and disadvantaged children and come from disadvantaged communities. They suffer a multiplicity of problems, often dropping out of education and coming from low socio-economic groups. That serial disadvantage results, in part, in their becoming pregnant and fathering and mothering children at a young age.

Our thinking behind the choice of age limit is as it is for two reasons. First, in a point my hon. Friend the Member for Northampton, North touched on, the Bill adds to the Children Act, which, along with family proceedings in general, defines a child as being a person under 18. We felt it right, therefore, that the enforcement of financial provisions should fit with the principles set out in that Act.

Secondly, there are the reasons to which I just alluded. The young people involved are likely to be very disadvantaged, and, because of that and their youth, they are likely to be less equipped as parents than older people are. We feel that our priority, where young people have parented children early, is not to subject them to unpaid work but to keep them, as far as we can, in education, training or employment. The danger, particularly for young girls, who are generally the parent looking after a child, is that having a child at that age means that they drop out of all possibilities for themselves, as they have the baby and do not get back into education, training or work for many years.

Our policy has therefore been, by holding them to account as well as giving them support, to try to make sure that they can stay in training or education or get a job. That will improve not just their prospects but, crucially, the prospects for their babies. Those babies born in such circumstances largely also do not fare well for reasons that will be obvious.

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not disagree, but does the Minister acknowledge that the chances of a young man who becomes a father before the age of 17 retaining contact with his child within nine months of the birth is put at 2 per cent.? That is not down entirely to young men scarpering.

Beverley Hughes (Labour, Stretford and Urmston)

I do not think that we understand enough about why that is the case. I agree that it is a matter of concern, and I want to see how the Government can enable young men to accept their fathering responsibilities when they parent a child at a young age. I do not think that that the answer is to force the mother to undertake unpaid work through an enforcement order, but I agree that we must examine such issues.

As the hon. Member for Mid-Dorset and North Poole said, we must look to the courts to use the Bill’s contact activity provisions Bill to address the issues that will prevail in many such circumstances, notwithstanding contact. I am talking about parenting and the fact that we must ensure, through contact activity orders, that the young mother will be able, through the order of the court, to undertake activities that will promote contact and her understanding of the need for continued contact with the father and, more generally, to improve the parenting ability that she is otherwise likely to have.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Will the Minister deal with the point that I drew to the attention of the hon. Member for Mid-Dorset and North Poole? Let us consider contact activity conditions under the Bill. Perhaps the right hon. Lady can tell me whether I am right on this, but I understand that a person who breaches a contact activity condition breaches a contact order. The court would not make a contact activity condition unless it believed it necessary to assist in the provision of contact. If the people on whom the order is made know that there is no effective sanction when they breach the contact activity condition, what is the worth of the condition?

Beverley Hughes (Labour, Stretford and Urmston)

The contact activity order would be considered by the court only when the case had come to court because the other parent was seeking contact. When considering breaches of orders, the court must consider the feasibility of someone undertaking the contact activity and the proportionality of that. If a young man was seeking contact with his child and was being met with some resistance from the mother, the court would want to try out contact activity orders. It might think about a family assistance order, on which CAFCASS would work with the young parents, especially the young woman, to make the contact activity order work and move them both towards contact.

With such young people, more than in other circumstances, it would be a case of trying to work with them, so that they understood that it would be important to facilitate contact, not to resist it. I cannot honestly see the value of the enforcement order in such circumstances when other public policy imperatives around the need to reduce the cycle of disadvantage, which occur in many cases when young women have babies prematurely, seem the right way to go. We must understand that in such circumstances the young woman would be a child herself under the law. Obviously, the baby would be a child, and the young father may also be a child under the law. The court will want to work in a careful direction in such circumstances, using all its resources to require and facilitate compliance, but also to support the young people and bring them to the point of understanding and to facilitate contact.

The hon. Member for Rugby and Kenilworth has presented some cogent arguments from the point of view of parallel measures in parts of the criminal justice system. I understand his comparison and analogy. He argued that there really was no difference and asked why we do not reduce to 16 the age at which enforcement can be required through orders. The difference is that a baby is being parented by a very young child.

Jeremy Wright (Conservative, Rugby and Kenilworth)

To clarify, I said that in terms of the expectation on the 16-year-old, there is no difference between an enforcement order expecting unpaid work and, for example, a community punishment order. That was the only comparison I sought to draw.

Beverley Hughes (Labour, Stretford and Urmston)

I understand the logic of that comparison, but the other ingredient is a baby born to a very young person. The constellation of factors and the vulnerability of both the baby and the parents, because of their status as children themselves, and, by and large, as disadvantaged children themselves, mean that we would seek objectives other than requiring the parents to spend their time doing unpaid work. We would rather see them in education, training or employment, because in the long run, that will improve not only their life chances, but the baby’s. Although I understand the logic of the hon. Gentleman’s argument, I hope that I have convinced him on such special and difficult circumstances.

Sally Keeble (Labour, Northampton North)

There is an air of unreality about this issue. If one parent is under 16, the police might be interested in the other parent for quite a different reason, because of the legal restriction on sexual activity. After that, we are talking about somebody wanting contact, there being a disagreement about it, their going to court, their getting a contact order, its not being complied with, and then an enforcement order being made. How would we get through that in the space of just two years, which is what the Bill asks for? It is unreal to expect an enforcement order on a 16-year-old.

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend makes her points very well, and I think that she concurs with what I am saying. I am not sure that I have convinced the hon. Member for Rugby and Kenilworth. There are two ways of considering the issue. I understand his argument and comparison, but on balance, because of the complex situation and the vulnerability of all parties concerned, we would not want young people to do unpaid work. We would rather they were in circumstances that would help their life chances and those of their child. I hope that he has been convinced and will agree to withdraw the amendment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I am grateful to the Minister for her efforts to persuade me. She has not quite answered the point I put to her about contact activity conditions, but with the reservation that we shall perhaps return to the issue on Report, I beg to ask leave to withdraw the amendment.

Schedule 1 - Enforcement orders

Stewart Jackson (Conservative, Peterborough)

Mr. Hancock, I hope that there was no link, given that just before I rose to speak, you were gently admonishing us to be consensual and not to create any conflict. I shall proceed with alacrity, not least because I have my own child care responsibilities this afternoon with my daughter’s nursery. That is why I am looking at the clock. We are not moving an amendment, so I shall talk briefly about observations rather than any criticisms per se.

The schedule seems to be a bit of a push-me, pull-you creature, because it is an unfortunate mix of inertia and rigidity. I understand the situation that the Government are in because they have had to row back from the consensus in the Joint Committee that electronic tagging was gratuitously unfair, perhaps even unenforceable, and not the appropriate remedy. Therefore, they have sought to move on, and it is a difficult area. As we funnel down through the number of cases mentioned by my hon. Friend the Member for East Worthing and Shoreham, we find that it is a relatively small number but nevertheless problematic.

It is in the best interest of children that the issues are settled quickly and there are some aspects to the schedule where that is militated against. I refer in particular to paragraph 8(3)(c), which deals with the responsible officer’s warning in respect of a breach of the order. Twelve months is a long time; there is a lack of urgency on that matter and I am concerned that things would drag on. I am also uncomfortable with the issue of a second order that would add to or substitute for the first order. A disputatious situation could get a lot worse if it were to drag on for 12 months.

I return to the points made earlier about paragraph 9(3) and the word “reasonable”. We can compare and contrast that with the comments of Lord Adonis, who used the word “meaningful”, but the Minister and others have set their faces against the word “reasonable”. I wonder whether there is that much of a logical jump between what is meaningful and what is reasonable. What is reasonable in this schedule is deemed to be anathema elsewhere in the Bill. What is reasonable in this case is defined even more loosely, and I defer to experts across the room who are lawyers, but we are talking about the balance of probabilities.

We can consider the balance of probabilities with regard to reasonableness, but we cannot do that on the presumption of co-parenting, because it would be seen to be completely at odds with the paramountcy principle. If you will indulge me, Mr. Hancock, while I go slightly off the subject, I believe that co-parenting is complementary to the paramountcy principle, not anathema to it. We are also looking at a very loose definition of “reasonable excuse” and the balance of probabilities.

I am concerned about paragraph 9(10)(b). Much has been made by the Minister and Labour Members of not seeking to fetter the discretion of the court. We have come to the end of the process dealing with enforcement orders, but there is an argument to be made about paragraph 9(10)(b), which says:

“is no more than is proportionate to the seriousness of his failures to comply with the contact order and the first order”.

That fetters the discretion of the court in a way that no other part of the Bill does. It is unduly prescriptive, particularly as Ministers have been hostile to the presumption of co-parenting.

My final point about the schedule concerns the section 111 notice and the non-receipt of a breach of enforcement. I am mindful of our debate about pressures on CAFCASS, its work load and the resources and funding issues. However, I would not want it to be used as an excuse for prevarication and further delay to the judicial process in the family court.

Beverley Hughes (Labour, Stretford and Urmston)

I do not recognise the hon. Gentleman’s description of schedule 1, which merely uses the framework of the Criminal Justice Act 2003 to make the necessary links between the Bill and that legislation. We are already drawing on that Act to make the provisions work in respect of enforcement orders. For example, the Bill makes provision for CAFCASS officers to communicate mostly with probation officers about the case, the work and the problems involved which have to be accommodated when a person undertakes unpaid work. It provides for the arrangements on breaches of enforcement orders to be consistent, as they are for breaches of probation orders, and it makes the changes that we want, such as reducing the maximum time specified in an order from 300 hours in the Criminal Justice Act to 200 for an enforcement order.

The hon. Gentleman mentioned paragraph 8(3)(c) and what he perceived in the wording to be a potential lack of urgency in acting on a breach. To clarify the matter, the reference to “within the next 12 months” does not mean that nothing would happen for 12 months but that the maximum period during which the unpaid work—for however many hours the order required—can be undertaken is a maximum of 12 months, and any further breach within that period would be acted on. Serious breaches can be referred straight back to court and we would expect that to happen.

The hon. Gentleman probably appreciates that it is not the case that there is a breach of a contact order, an enforcement order and then no further expectations in respect of compliance while that order is fulfilled. One clearly expects an enforcement order to be put in place. Because the proposal is about making contact work, we would expect compliance with the contact order to be concurrent with the unpaid work prescribed by the order.

I cannot recall the hon. Gentleman’s last point, but if he wants to intervene and remind me I will try to respond to him. The reply I have does not reflect my recollection of what he said.

Stewart Jackson (Conservative, Peterborough)

I am delighted to help the Minister. I am delighted, too, that my speech was so scintillating that she has forgotten the last part of it. I was referring to the section 111 notice in respect of the breach of an enforcement order. I hope that that gently jogs her memory.

Beverley Hughes (Labour, Stretford and Urmston)

That was a slightly more helpful intervention than some I experienced earlier. There cannot be a disproportionate response because to allow that would risk conflict with human rights and other legislation. The claim that I think the hon. Gentleman is making, that proportionality is unduly prescriptive, must be read in that context.

This is a technical schedule. It makes the necessary links between the Bill and existing legislation, and makes the changes that we want in respect of the parameters of enforcement orders. I hope that that will satisfy the hon. Gentleman.

Clause 5 - Compensation for financial loss

Stewart Jackson (Conservative, Peterborough)

I beg to move amendment No. 50, in page 10, line 7, after ‘suffered’, insert ‘significant’.

Mike Hancock (Liberal Democrat, Portsmouth South)

With this it will be convenient to discuss amendment No. 8, in page 10, line 8, at end insert

‘including the costs incurred by initiating court action if subsequently upheld,’.

Stewart Jackson (Conservative, Peterborough)

These amendments are important because of the use of the word “significant”. Before I go on to the detail, I should once again like to make the point about the paramountcy principle not being explicit. It bears repetition because that is not clear in clauses 4 and 5.

We must keep the issue in perspective. Inserting the word significant here might not seem very important in the context of the whole Bill, but we should not exacerbate a difficult situation. As the Bill stands, it has the potential to make matters a lot worse for families who are at war with each other, and going to court over compensation for loss. It is not our job to legislate to encourage such situations to become even more protracted and vexatious than they already are. The word “significant” is important because we do not want families to quarrel about how much money was spent at McDonald’s, how much each party spends on petrol, and so on. That is why we need to set the correct context, and that is why we are proposing the amendment. It is a sensible and helpful amendment, which will save a lot of angst, time and public money although, possibly, it will not be all that popular with our friends the lawyers.

The Government have missed an opportunity in respect of the concept of compensatory contact. Why should we be fixated on financial compensation? That is not an issue on which most parents who have separated or divorced focus, although it is important. What people focus on is the quality of parenting that they can give their children, and that is not taken into account in the Bill. That offends against the general consensus that we have established on the paramountcy principle. It is all about the financial arrangements between the parents and the court, and not about the children. That should be borne in mind.

As the Bill stands, it has the potential to allow for obfuscation and for delay in the resolution of situations. That is why we think that the amendment has merit and should be considered carefully by the Minister.

Beverley Hughes (Labour, Stretford and Urmston)

I appreciate the intention to be helpful that lies behind the amendments, although I shall seek to convince the hon. Gentleman that they are not necessary.

Amendment No. 50 may not be practicable, because the insertion of “significant” would cause several difficulties. First, and technically, it would contradict the model normally used in civil cases, where no lower limit is set. We would therefore be relying on the applicant to guess what might be considered significant by the court. Some applicants who might have been awarded compensation could be deterred from making an application if they had to second-guess what the threshold of significant might be and how it would be interpreted by the court.

Secondly, what is significant to one person may be insignificant to another. It would be difficult to set an absolute figure that would help members of the public guess what the threshold might be. I certainly agree with the spirit of the amendment, which is that frivolous claims should not be made, but most people will think seriously about whether to instigate legal proceedings and will not take such decisions lightly. Courts can deal with claims that are frivolous or vexatious.

I agree with the spirit of the suggestion that an application for an amount of compensation should be significant to the applicant. However, we cannot determine in advance what will be significant because people’s financial circumstances vary, particularly after a divorce or separation, when a lot of other factors have to be considered in addition to the amount of money to which someone might have access when determining their disposable income.

I do not agree with the hon. Gentleman on the question of compensatory contact, because I do not agree with the concept enshrined in it—that the child is a commodity, whose time can be used to punish one parent and reward the other. Where there has been financial loss, the compensation sought should be financial and directly in relation to that loss. The child should not be used in that way.

I know that amendment No. 8 was drafted on the basis of common sense. If someone has to apply for a compensation order because the actions of another have cost them money, it certainly seems appropriate that a court should be able to consider whether the party in breach should be asked to meet the costs of the application. However, the amendment is unnecessary, because the courts already have the power in all proceedings to award costs to one of the parties. When financial compensation orders are available, and if the courts have decided to award financial compensation, they will consider more frequently, in relation to these specific matters, whether they should also consider awarding costs.

Tim Loughton (Conservative, East Worthing and Shoreham)

I agree with the Minister, but does she acknowledge that each time the victim of a breach of contract has to initiate action, he or she is usually subject to court costs of £175, which in many cases are not awarded in that person’s favour? It can be an expensive business having to come back to court each time for repeated breaches of contact that are not the fault of the person who is suffering from it.

Beverley Hughes (Labour, Stretford and Urmston)

I agree that that is a problem. However, I was saying that the court has the power to award the costs and that it might well consider doing so specifically in relation to this measure, which is about awarding financial compensation. The court may want to consider adding financial compensation for those who have had to pay court costs. The real point is that the court already has the power. I therefore hope that the hon. Gentleman will withdraw the amendment.

Stewart Jackson (Conservative, Peterborough)

As my grandfather used to say, warm words butter no parsnips. Those words from the Minister were warm indeed, but I would make two points, if I may be so bold. The concept of compensatory contact was slightly oversimplified by the Minister and merits further debate on another occasion. I also think there is a larger issue about the onus on an individual to seek justice in family courts rather than it being the responsibility of public authorities as it is, for example, in France. No doubt we will discuss that.

On the basis of a break-out of consensus and with perhaps nine minutes to go, I beg to ask leave to withdraw the amendment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I beg to move amendment No. 63, in clause 5, page 10, line 15, after ‘excuse’, insert

‘and the standard of proof is the balance of probabilities’.

The amendment covers a simple point, which it will not take me long to explain. It deals with the provisions relating to reasonable excuse and the decision that the court must make as to whether someone has a reasonable excuse for not paying compensation for financial loss.

The provisions relating to reasonable excuse are similar to those in clause 4 relating to enforcement orders. The difference is that clause 4 makes it clear that the burden of proof in proving reasonable excuse lies on the individual claiming it and that the standard of proof is the balance of probabilities. In clause 5, the standard of proof—the balance of probabilities—is missing. I suspect that that is an error, but I do not know. I hope that the Minister’s response will be favourable because it seems self-evident to me that the standard of proof, as well as the burden of proof, should be clear in the Bill. If it is right in clause 4, it should also be right in clause 5.

Beverley Hughes (Labour, Stretford and Urmston)

I understand exactly why the hon. Gentleman has raised this matter because it does look like an omission. However, it is not one. As he may be aware, the balance of probabilities is the standard of proof normally used in family proceedings and is, therefore, the default position. We have expressly inserted it in clause 4 because we are making it clear that the standard of proof for breaches of enforcement is beyond reasonable doubt because of the penalties that may ensue. It was felt advisable to avoid any misinterpretation by stating that despite that higher standard of proof for breaches, the standard of proof for excuses would still be the default position of the balance of probabilities. It was simply to prevent any misinterpretation in clause 4 and for clarification rather than an omission in clause 5.

Throughout the Children Act 2004 and other family law, the standard of proof has been declared to be the balance of probabilities. That is what applies in clause 5, but it is not necessary to state that in the Bill. We have done so in clause 4 to avoid any misunderstanding about the standard of proof on excuses, which remains the norm, but we are going for a higher standard of proof for breaches. I hope that that satisfies the hon. Gentleman.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I am grateful for that explanation, but I am not sure that it would not be simpler to make it clear in relation to clause 5 as well as clause 4. I was going to say that I understand what the Minister said and that I was prepared to withdraw the amendment, but if she wants to persuade me otherwise, she may.

Beverley Hughes (Labour, Stretford and Urmston)

I simply want to make the position absolutely clear. If we were to do that in clause 5, we would have to do it in every clause in the Children Act 2004 and in legislation on family proceedings. The default position is the balance of probabilities, and that is why it does not normally have to appear.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I am even more grateful for that further clarification. I beg to ask leave to withdraw the amendment.