Children and Adoption Bill [Lords]

Public Bill Committee, 21 March 2006.

Children and Adoption Bill [Lords - Standing Committee B

Clause 6 - Provision as to family assistance orders

Jeremy Wright (Conservative, Rugby and Kenilworth)

I want to make several brief comments about clause 6, which deals with family assistance orders, and to raise again a concern that I raised on a preceding clause about the extra burden that it may put on the Children and Family Court Advisory and Support Service officers and their Welsh equivalents.

It is fair to point out that paragraph 72 of the explanatory notes states:

“We anticipate that there may be some resource implications associated with the reformed orders”—

meaning, family assistance orders—

“though this may be offset by a reduction in work associated with ongoing court proceedings where family assistance orders are used to facilitate and support contact arrangements.”

In other words, it appears that the Government anticipate that, where they go well, the extra family assistance orders will often pay for themselves, by enabling expensive court proceedings to be avoided. None the less, it seems to Conservative Members that some account ought to be taken of the fact that they may not always pay for themselves—indeed, in many cases they will not. It is clear from clause 6 that the intention in the Bill is that family assistance orders, rather than being an exception, should become the norm. One can see perfectly sensible reasons why that should be so, and no doubt there will be many situations in which the intervention of a family assistance order will be extremely productive. However, it is of concern that if they are to be used much more often and much more regularly, there will be substantial cost implications, given the extra work that CAFCASS and its Welsh equivalent will have to do.

It is also clear from the clause that the duration of the order will no longer be a minimum of six months but will become a minimum of 12. Again, that work load will be extended over a longer period, which is also a matter of concern.

I should be grateful for some reassurance from the Minister that consideration has been given not just to costs to CAFCASS, which may be offset by savings in court proceedings, but to what may happen if those costs are not offset and where the money is to be found given the comments that have been made about the burdens on CAFCASS officers arising from other provisions in the Bill and their existing responsibilities.

The other concern that I want to raise, and on which I invite the Minister to comment relates to the original provision dealing with family assistance orders—section 16 of the Children Act 1989, subsection (3) of which clearly indicates that family assistance orders cannot be made unless the court

“has obtained the consent of every person to be named in the order other than the child.”

I should be grateful if the Minister could confirm whether, with extensions to family assistance orders, that provision will remain. I should be grateful for reassurance.

Maria Eagle (Labour, Liverpool, Garston)

May I begin by saying what a pleasure it is to be back. I have had the opportunity to read in Hansard the proceedings that I missed. I was touched to see that good wishes were sent in my direction by the Chair and members of the Committee and I thank them for that. I feel a lot better.

As the hon. Gentleman rightly said, clause 6 amends section 16 of the Children Act 1989, which makes provision for family assistance orders requiring a CAFCASS officer, Welsh family proceedings officer or a local authority officer

“to advise, assist and (where appropriate) befriend any person named in the order.”

We are grateful to the Joint Committee on the draft Bill for considering the issue in detail and we welcome its recommendation that family assistance orders be reformed through this Bill, which is something on which I know the judiciary were keen. We agreed with the Committee that we should extend the situations in which orders could be made by removing the requirement for there to be exceptional circumstances. That was becoming the case in common law in any case, so it seemed sensible to tidy things up.

We also agreed that we should extend the order’s maximum duration—it is a maximum duration, rather than a minimum duration as the hon. Gentleman seemed to suggest—to 12 months. That is to say not that it has to be 12 months but that it can be up to 12 months. It may be that the job can be done before the 12 months are up. So extending the maximum duration does not necessarily mean that all family assistance orders will run to the new maximum duration—some may, some may not.

The measures are designed to enable family assistance orders to be used with greater effectiveness. They were introduced in recognition of the fact that more time is sometimes needed to resolve the problems that led to the making of the order in the first place and that the fact that a family’s circumstances are not exceptional should not prevent them from being included where that would be helpful.

As our response to the Joint Committee made clear, we were unable to accept its recommendation to remove the requirement to obtain consent from all those named in the order before it was made. Although we appreciate that that suggestion was intended to make family assistance orders available in more cases, we do not believe it would be constructive to make an order to advise, assist and, where appropriate, befriend somebody who was quite unwilling to be advised, assisted or befriended—consent is important. To deal with the hon. Gentleman’s final point, the requirement for the named parties’ consent remains, and the changes to section 16 of the 1989 Act will not affect that.

That section provides that the people named in the family assistance order, rather than all parties to the case, need to give consent. So where one parent withholds consent, that would not prevent the family assistance order from being made if the other party consented and if it would be useful in the view of the court for the order to be there. The changes that clause 2 made to the 1989 Act will permit the courts to require CAFCASS to monitor compliance with a contact order. That will not, of course, require the consent of the parties, but the family assistance order will.

The hon. Gentleman made some specific points about the burdens on CAFCASS. He suggested that the changes in clause 6 would make family assistance orders the norm, rather than the exception. They are the exception now, and there has been an average of 600 cases over the past three years—the figure has wavered at about that level. So family assistance orders are clearly not the norm now, and we do not believe that the changes in the Bill will make them the norm. Indeed, we do not expect them to be used an awful lot more than they currently are, although we will obviously have to keep an eye on the situation once the Bill is passed and we can see what the practical impact is. However, common law is already moving in the direction that I described, and the Bill seeks to tidy things up in relation to common law practice as it is developing.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I understand the Minister’s point, but she will accept that it is clear from the clause that removing the

“requirement that circumstances of case be exceptional”

gives the courts a clear steer that the Government want them to make family assistance orders in more cases. Is not the logical conclusion that more will be made and that the courts will find that they are a useful tool to ensure that contact takes place as it should?

Maria Eagle (Labour, Liverpool, Garston)

In removing the requirement for exceptionality, which is already being undermined by common law practice, we expect the courts to exercise their judgment and to see whether a family assistance order might prove useful in the circumstances before them. Obviously, we have to keep an eye on what happens in practice, but following our discussions with interested parties—particularly the judiciary—we do not expect there to be a huge leap in the number of cases. However, we will have to see. If there is a huge leap, that will have implications for resources, and we shall have to deal with that at the time. At present, we do not expect there to be a sudden surge in cases. We are just tidying up practice and putting the statute in line with what is developing in the common law.

The clause allows the courts to use family assistance orders more generally and flexibly to help families overcome difficulties and to improve and maintain contact. Given my answers, I hope that the Committee will feel able to allow the clause to stand part of the Bill.

Clause 7 - Risk assessments

Maria Miller (Conservative, Basingstoke)

I beg to move amendment No. 45, in clause 7, page 12, line 14, leave out ‘cause’ and insert ‘reasonable grounds’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 36, in clause 7, page 12, line 15, after ‘harm’, insert

‘at any time during proceedings,’.

No. 53, in clause 7, page 12, line 20, at end add—

‘(4)All risk assessments undertaken pursuant to subsection (2) shall proceed on the presumption that the child’s interests are best served through reasonable contact with both his parents unless a good reason to the contrary is shown.

(5)When deciding whether there is reason to suspect that a child is at risk of harm, an Officer of the Service or a Welsh proceedings officer may only make a risk assessment where he has reasonable grounds to suspect that there is a significant risk of significant harm.

(6)An officer of the service or a Welsh proceedings office may only make a risk assessment where he has reasonable grounds to suspect that the significant risk involves a risk—

(a)to the child’s physical safety, or

(b)of sexual abuse.

(7)In all other circumstances than those outlined in subsections (5) and (6), the Officer of the Service or a Welsh proceedings officer shall not undertake a risk assessment except where directed to do so by a court.

(8)In any risk assessment based upon the likelihood of recurrence of previous events or previous risks it shall be a requirement that no reliance is placed upon previous events or previous risks in the absence of a finding of fact that those events or risks actually occurred.’.

Maria Miller (Conservative, Basingstoke)

I apologise in advance for my state of disrepair this morning; the bugs are migrating from one side of the Committee to the other—although in my case I fear that a four-year-old child may have more to do with it. Perhaps we should all be very British and blame it on the weather.

The amendments deal with the inclusion of risk assessment in the Bill, an addition made, I believe, in the Lords. When the amendment was discussed in the other place, it was stressed—and I agree—that it was a useful and important addition to the Bill to ensure that domestic violence and child abuse could be properly assessed as soon as they were raised as issues during the relevant processes.

In many ways, the inclusion of the clause provides a balance to the enforcement elements of the Bill. We want to ensure that the Bill is enacted in the best interests of the child. We have already debated the role of risk assessments. When we debated amendment No. 34, the Minister for Children and Families agreed with some of our arguments that risk assessments would not always be helpful; we had asserted that risk assessments would not always be in the best interests of the child.

Amendment No. 34 was tabled so that risk assessments would be put in place whenever an enforcement order was required. In response to that amendment, the Minister said:

“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.”—[Official Report, Standing Committee B,16 March 2006; c. 95.]

Risk assessments are not always a useful tool but are they are an important tool to have at our disposal for those instances when we believe that the child is at risk.

We have to put risk assessments in place carefully because they have direct implications for the welfare of the child; delaying contact with a non-resident parent has obvious emotional consequences, so we should have to the fore of our minds the idea that risk assessments should be used only when it is in the best interests of the child. We support the amendments under discussion precisely because they have the welfare of the child at their heart.

Amendment No. 36 is simple and straightforward.

Ann Coffey (Labour, Stockport)

Before the hon. Lady moves on to the next amendment, will she tell me what she thinks the difference is between the phrases “reasonable grounds to suspect” and “given cause to suspect”?

Maria Miller (Conservative, Basingstoke)

I was going to cover that point after discussing amendment No. 36, which I think is more straightforward. Amendment No. 45 requires quite a bit of thought.

Amendment No. 36 is a useful addition; it clarifies that a child can be at risk at any point in time. As we have discussed before, it is important that the child’s welfare is of paramount concern at all times during the proceedings. Although we would never feel it appropriate to use compulsory risk assessments, which was suggested in amendment No. 34, we believe that amendment No. 36 offers a degree of clarity. Perhaps the Minister could offer her thoughts on that as well.

On amendment No. 45, as I said, the role of risk assessments is important and always—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I wonder whether the hon. Member for Stockport (Ann Coffey) would assist me in chairing the Committee by allowing me to listen to the hon. Lady moving her amendment.

Maria Miller (Conservative, Basingstoke)

Thank you, Mr. Hood.

As drafted, proposed new section 16A(2) of the 1989 Act reads:

“If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm”.

“Cause” is a vague term. We have to consider how the Bills that we debate will be implemented by those who have the practical job of implementing the law that we pass. I am not sure how helpful it would be to a CAFCASS officer or a Welsh family proceedings officer in trying to look after the best interests of the child if he has to assess whether he is given cause to feel that the child’s safety is at risk. Perhaps when the Minister responds to this discussion—it is a useful discussion, because “cause” is a vague term—she will say what the threshold is for cause. We have had long debates about the word “reasonable”, so it would be useful if the Minister could give us her thoughts on the word “cause”.

To give the Minister an idea of where I am coming from, it might be useful to explain by way of example. For instance, if a mother decided not to wash her children’s toys in disinfectant every week, it could be argued that there was cause to believe that she was putting her children at risk, as we all know that cleanliness is important, particularly for young children. Although I would not for a moment say that that was an important element in the safety of a child, it is a cause to believe that the child’s safety is at risk. Will the Minister help us to understand better how the word “cause” can be prevented from leading to some perverse outcomes when CAFCASS officers have to use it as a threshold for deciding whether a risk assessment is required?

The amendment calls for the phrase “reasonable grounds” to be inserted—I debated whether “grounds” was an important addition, but “reasonable grounds” is a term in legalese, so the amendment was tabled in that form. The most important feature is the word “reasonable”. To return to my example, it is not at all reasonable to think that a mother would be putting her child at risk if she did not disinfect her child’s toys every week, but it would be a cause to believe that the child had been put at risk. We may be putting CAFCASS officers in a difficult situation. Perhaps the Minister will help us to understand the thinking behind the use of the word “cause” rather than “reasonable grounds”, which might be clearer for all concerned.

David Kidney (Labour, Stafford)

May I suggest that there are two processes in the clause? One is the trigger for a risk assessment and the second is the risk assessment itself. Would it not be more appropriate for the reasonable grounds to be part of the risk assessment and for the trigger to be something lower?

Maria Miller (Conservative, Basingstoke)

I am not sure that I agree. I am talking about the trigger for a risk assessment. As I said, it is important that we should not put risk assessments in place when they are not required. In this instance, we might put ourselves in the shoes of the person who is charged with the safety of the child. If a vague term such as “cause” is given as the trigger or threshold in judging whether a risk assessment should be put in place, I suggest that risk assessment will be undertaken more regularly than necessary and, indeed, more regularly than would be in the best interest of the child.

Ann Coffey (Labour, Stockport)

Does the hon. Lady accept that social workers who work every day of their lives with legislation designed to protect children, and who have the principle of their welfare at heart, make judgments every day about when or when not to intervene? She is perhaps being slightly over-cautious, because in the end the decision about when to take certain action must be left to the professional judgment of the workers who are involved. We cannot legislate for each action by a social worker, and when it should happen.

Maria Miller (Conservative, Basingstoke)

I appreciate that the hon. Lady has far more practical experience than I do, and her point is right: we must leave it to people on the ground, in many instances, to use their expertise in this context. I thoroughly endorse what she says. I suppose the point I am raising, to which I hope the Minister will respond positively, is that we do not want to put those people into a difficult situation, in which they are not allowed to use their judgment because the threshold for the use of a risk assessment is set so low that they feel compelled to put one in place when it is not needed. Perhaps someone with fewer years of relevant experience than the hon. Lady would require more guidance and help.

Ann Coffey (Labour, Stockport)

I am sorry to go on about this, but there is a system in which officers’ work is overseen by more experienced officers, and it is within a body of expertise that such decisions are made. I want to reassure the hon. Lady that CAFCASS officers have the experience to enable them to take appropriate action.

Maria Miller (Conservative, Basingstoke)

I thank the hon. Lady, but it is the role of the legislature and our role as a Committee, to ensure that the threshold for a risk assessment is set at an appropriate level. My point is that the word “cause” may not be helpful in assessing that level, although I appreciate that in reality those charged with the practical implementation of the law could, in one way, put it to one side. However, I should hope that the wording would be as helpful as possible and would not be a hindrance. I want to press the Minister on that point and obtain reassurance about it.

Sally Keeble (Labour, Northampton North)

Does the hon. Lady think that her example is a trigger for a possible cause for concern; if not, what does she think might be a trigger? I am concerned that the level she has identified is a very slight one. What does she think would be a realistic trigger for cause for concern?

Maria Miller (Conservative, Basingstoke)

The provisions that we are considering are about triggers to risk assessments, and the example that I gave dealt with what would trigger an assessment. As “cause” is such a loose and general term, the example was intended to show that a situation that really posed no risk to a child could in theory trigger a risk assessment—although, as the hon. Member for Stockport said, the professional expertise of those on the ground would in practical reality come into play.

Nevertheless, I do not think that there is any room for legislation that is not tight and well thought through. The word “cause” may have been well thought through, and I am sure the Minister will elaborate on that, but to me it seems a very loose term. As to the question asked by the hon. Member for Northampton, North (Ms Keeble) about what would constitute a cause for the purposes of a risk assessment, I would always defer to those with professional expertise about what was happening on the ground in a given situation, because a risk in one situation may not be a risk in another. It is a moveable feast. We want to ensure that there is no reason for spurious reasons to be given for risk assessment to take place. That is at the core of the amendment. In maintaining the paramountcy of the welfare of the child we must strike a balance, and it would not be in the child’s best interests if risk assessments were called for too readily.

Although amendment No. 53 is in this group, I do not wish to incur the Committee’s wrath or displeasure by any further discussions on the subject because we exhausted debate on it in our deliberations last week, although the Minister was not here. Probably the discussions stand, although I reiterate that the amendment is entirely in line with the paramountcy of the welfare of the child as discussed last week. However, we have rehearsed those arguments to their fullest.

David Kidney (Labour, Stafford)

It is a pleasure to see you back in the Chair for our proceedings, Mr. Hood. My name is on amendment No. 36, together with those of my hon. Friend the Member for Luton, South (Margaret Moran) and my hon. and learned Friend the Member for Redcar (Vera Baird). I am grateful to the hon. Member for Basingstoke (Mrs. Miller) for her support for the aim behind the amendment, which is simply to make the important clarification that a risk assessment is not a single-point exercise.

I heard one of our generals in Iraq on the radio this morning saying that withdrawal from Iraq was not a singular-event process. His turn of phrase and mine are both intended to show that in some circumstances events are dynamic and change over time. It is important to keep a finger on the pulse and to see whether the change requires a new approach. There may be times in proceedings when there has been a previous risk assessment and it has been decided that no action is needed, but later in the proceedings new information or circumstances come to light that make it appropriate to carry out a further risk assessment. Alternatively, there may be a case in which there is initially nothing to suggest that there is any cause for concern—and a risk assessment has not therefore been carried out—during the course of which something comes to light that suggests that it is now appropriate to carry out a risk assessment. Therefore, in relation to the phrase in proposed new subsection (2),

“cause to suspect that the child concerned is at risk of harm”,

the cause to suspect might arise at a later stage than the beginning of the proceedings.

As the hon. Lady said, the clause was added in the House of Lords, and it is desirable to consider whether the Committee can improve the wording. Risk assessments could become an important part of court proceedings relating to family and children, if we get the design right at the beginning. It could be a significant development, so it is important to get it right. The amendment simply makes it clear that cause to suspect can arise at any time in the proceedings and not at one point somewhere near the beginning.

Mark Williams (Liberal Democrat, Ceredigion)

As I think it is customary to say, I am delighted to serve under your chairmanship, Mr. Hood. My hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) is unavoidably absent. She is in Sweden.

Stewart Jackson (Conservative, Peterborough)

Sweden is avoidable.

Mark Williams (Liberal Democrat, Ceredigion)

That is debatable.

My hon. Friend has left me holding the proverbial baby, which is not without risk itself, so we will wait to see what happens.

A poor risk assessment could be much worse than none at all. While I understand the sincere motives of the hon. Member for Basingstoke in attempting to define so tightly the situations in which a risk assessment is produced, we run the risk of placing too heavy a set of constraints on those charged with undertaking them, as the hon. Member for Stockport outlined.

I look forward to hearing what the Minister has to say on cause or reasonable grounds, but by any stretch of the imagination it is a hardening of the language, which would make it more difficult for CAFCASS to undertake such risk assessments. Although I support amendment No. 36, tabled by the hon. Member for Stafford (Mr. Kidney), I feel strongly that it should be for the trade officer to assess whether there is a risk. I see no justification for accepting amendment No. 45.

Maria Eagle (Labour, Liverpool, Garston)

I shall try to deal with some of the points raised by the hon. Member for Basingstoke.

Clause 7, which was placed in the Bill in the other place, seeks to change CAFCASS’s current power to make a risk assessment into a duty to make a risk assessment in appropriate cases. That has led to a debate on what is meant by appropriate cases. The amendments come from slightly different positions, but they all deal with that aspect. I note that she shied away from amendment No. 53, but I shall say something about the effect of the amendments on the capacity and ability of CAFCASS to undertake risk assessment in appropriate cases.

The meaning of cause in this context is reason to suspect or believe. It might be information that the officer garners from within or beyond his professional contact with the family—things that become known to the officer. The hon. Member for Basingstoke was right, as was the hon. Member for Ceredigion (Mark Williams), to suggest that the current wording presents a lower threshold on whether risk assessment might be undertaken than “reasonable grounds”, as suggested in the amendment.

The hon. Lady asked what the threshold was of cause for concern. No specific threshold can be included in the Bill. The phrasing leaves it to the professional judgment of the CAFCASS officer to come to a view, with training and appropriate guidance, on whether there is cause to suspect risk of harm. There is no doubt that a court would be pretty critical were a risk assessment to be done for no sensible cause or reason, and rightly so. However, I agree with my hon. Friend the Member for Stockport, and, to be fair, with the hon. Member for Basingstoke, that the professionals who work every day in the field obviously have a feeling for when the circumstances are right. We should not constrain them too much.

The hon. Lady expressed the fear that a trivial situation might trigger a risk assessment. Cause for concern is explicitly linked to the risk of harm. The 1989 Act specifically defines what harm means in the context of ill-treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill-treatment of another. That threshold is understood in case law, and the officer concerned will bear that in mind when making his judgment, which he will obviously do with guidance and appropriate training in professional practice.

David Kidney (Labour, Stafford)

On the question of the threshold, does my hon. Friend agree with what I said to the hon. Member for Basingstoke—that there are two thresholds, one to trigger an alert and one for the risk assessment? National Family Mediation sent us a good briefing, which says that many people might tick the gateway form to say that they fear domestic violence, but that does not mean that mediation should never take place.

Maria Eagle (Labour, Liverpool, Garston)

My hon. Friend is correct. I should have responded to his points, and I am grateful that he has reminded me to do so.

The hon. Lady’s amendment would have an impact on the intention of the clause as drafted. It would effectively undermine the power of CAFCASS officers to protect children’s best interests by raising to too high a level the hurdle for carrying out a risk assessment. In contrast, amendment No. 36 would ensure that it is clear in the Bill that risk assessments can be conducted at any point in the court process.

Amendments Nos. 45 and 53 would make it more difficult for CAFCASS to undertake risk assessments. That is different from the aim discussed in the other place, where the new clause was supported by all parties when it was explained that it would place a duty on CAFCASS to undertake a risk assessment whenever it has cause to believe that the child concerned is at risk of harm.

CAFCASS officers are professionals and experienced in picking up signs of domestic violence or abuse, and they are well qualified to judge when a risk assessment is warranted. They will not be making them in every case. The hon. Lady said that her party does not support that, and nor do the Government. If we raise the hurdle for a risk assessment and say that it can be carried out only when there are reasonable grounds, which is a higher hurdle, we are effectively saying that a court needs to assess whether there is a risk of harm before a risk assessment can be made, which is putting the cart before the horse—or, perhaps I should say, the court before the horse. It creates a danger that there may be cases of low-level or fairly well-hidden abuse that would be more likely to slip through.

Maria Miller (Conservative, Basingstoke)

In defining cause, the Minister said that it would be based on risk of harm. Perhaps she inadvertently argued against herself in saying that “reasonable grounds” would mean that a risk of harm would need to be established. Perhaps she could help me understand the difference between the two things. She said, in respect of one measure, that a risk of harm would need to be established for “reasonable grounds”, but earlier she said that in establishing cause, the risk of harm would need to be established. I think she said that the two things are similar.

Maria Eagle (Labour, Liverpool, Garston)

I misled the hon. Lady if I said that, because they are not similar. There is a clear difference between the hurdle that would be established by the use of “cause”, and the one established by “reasonable grounds”, which is a higher hurdle. Perhaps that is what she and her colleagues are aiming to create—I suspect it is—because amendment No. 53 goes even further and proposes a trigger for a risk assessment based on

“reasonable grounds to suspect that there is a significant risk of significant harm.”

She did not dwell on that for the understandable reason of not going through a load of arguments made in a previous debate. However, “significant harm” is well understood in the 1989 Act; it is the threshold that justifies compulsory intervention in family life. That is quite a high threshold, because the state does not just bust into family life as soon as there is any slight concern. The words “significant harm” provide for a significantly higher threshold.

I fear that if the wording in amendment No. 53 were put in the Bill, it would force CAFCASS officers to accept a lower level of abuse that does not noticeably impair the child’s development or is not significant. Therefore, the officer would not even be able to conduct the risk assessment and would, basically, be ignoring the provisions on risk assessment, which are meant to increase child safeguarding.

The phrase “significant risk”, which is also in amendment No. 53, is much less well understood. It implies that there is a point at which there is a risk to the child, but it is acceptable not to make an assessment of that risk because it has to be significant. Presumably, anything below that threshold could be safely ignored on the basis of the wording that the hon. Lady proposes. I do not accept that and do not believe that it would be in line with the paramountcy of the child’s welfare for those words to be included. We want a risk assessment to be made when there is any sensible professional judgment that there is a probability of the child being harmed. The clause as drafted does that.

There is another problem with amendment No. 53. Proposed subsection (6) says:

“the child’s physical safety, or”

safety from

“sexual abuse”

are to be the only grounds for risk assessment. That is a backwards step from the welfare checklist and the protections that currently exist for the child. By clarifying the definition of harm in the 1989 Act, the Adoption and Children Act 2002 recognises that it should include impairment suffered as a result of witnessing violence to another. Amendment No. 53 would remove the recognition that it constitutes harm for the purposes of deciding whether there should be a risk assessment.

Opposition Members are anxious that we should not assume parents are bad or dangerous simply because they have separated. We do not do that and we do not intend to do that, but domestic violence is raised in a significant proportion of contact disputes. It is therefore right to give CAFCASS the duty to get to the bottom of those issues and to let the court know whether fears are well founded and, if so, how they can be addressed so that parents can get on with the job of parenting.

Amendment No. 36 would place a duty on CAFCASS officers and Welsh family proceedings officers to conduct a risk assessment whenever they are involved in private law Children Act proceedings and have cause to suspect that the child concerned is at risk of harm. I have sympathy with the motivation behind the amendment. It is right that at any time during proceedings, if risk of harm is suspected, a risk assessment should be done and provided to the court.

The clause requires CAFCASS or a Welsh family proceedings officer to carry out a risk assessment if, in the course of carrying out any function in private law proceedings under the 1989 Act,

“the officer is given cause to suspect that the child concerned is at risk of harm”.

That can be at any stage of proceedings and so the amendment is not necessary because it is already covered by the clause. I hope that my hon. Friend the Member for Stafford will accept that. For those different reasons, I resist the amendments and ask the hon. Lady to withdraw the lead amendment.

Maria Miller (Conservative, Basingstoke)

I thank the Minister for taking the time to clarify the Government’s position on those aspects of the Bill. Before I address her points, I should like to say that at all points in our discussions we are all agreed that the welfare of the child is paramount.

I beg to differ with the Minister about the purpose of the amendments, particularly on setting the threshold for a risk assessment. They were intended to clarify, not to change the threshold. Clarity is vital in all legislation, but all too often it is lacking. Perhaps her comments will help those who have to interpret the Bill in practice to do so in the spirit of the Committee.

The hon. Member for Ceredigion, making his cameo appearance in Committee, said that a poor risk assessment is better than no risk assessment at all. I categorically disagree with that and perhaps we will come on to that. It is vital that risk assessments are undertaken professionally and accurately. As I said, they are not isolated from the welfare of the child, but are fundamentally linked to it.

I am glad that we have had this debate. It will be useful to those who have to implement what we are simply talking about. I beg to ask leave to withdraw the amendment.

David Kidney (Labour, Stafford)

I beg to move amendment No. 37, in clause 7, page 12, line 20, after ‘child’, insert

‘and undertaken in accordance with the Code of Practice issued under section 8B’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following: Amendment No. 38, in clause 7, page 12, line 20, at end insert—

‘(4)A court shall not make an order under section 8 until it has considered the results of the risk assessment required by subsection (1) and is satisfied that the arrangements will be safe for the child.’.

New clause 21—Risk assessments: screening—

‘(1)After section 8 of the Children Act 1989 (c. 41) insert—

“8APre-court checks

(1)On receipt of any application under section 8 of the court shall direct that the relevant pre-court checks are undertaken to screen for indicators of risk to the child’s safety and well-being.

(2)The court may ask an officer of the Service or a Welsh family proceedings officer to undertake any checks for the screening required by subsection (1).

(3)It shall be the duty of an officer of the Service or a Welsh family proceedings officer to comply with a request from the court under subsection (2).

(4)A court shall not make an order under section 8 until it has considered the results of the screening required by subsection (1) and is satisfied that the arrangements will be safe for the child.

(5)Pre-court checks to screen for indicators of risk required by subsection (1) and any subsequent risk assessments under section 16A shall be undertaken in accordance with the Code of Practice issued under section 8B.

8BCode of Practice

(1)The Secretary of State shall prepare, and from time to time revise, a Code of Practice regarding screening for indicators of risk and regarding risk assessment as required by section 16A.

(2)Before preparing the Code of Practice or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.

(3)The Secretary of State shall lay copies of the Code and of any alteration in the Code before Parliament; and if either House of Parliament passes a resolution requiring the Code or any alteration to be withdrawn the Secretary of State shall withdraw the Code, and where he withdraws the Code, shall prepare a Code in substitution for the Code which was withdrawn.

(4)No resolution shall be passed above in respect of a Code or any alteration after the expiration of the period of 40 days beginning with the day on which a copy of the Code or alteration was laid before that House; but for the purpose of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(5)The Secretary of State shall publish the Code as for the time being in force.”’.

David Kidney (Labour, Stafford)

The two amendments are in my name and those of two of my hon. Friends. New clause 21 is in my name and that of my hon. and learned Friend the Member for Redcar, who we established last week is not a member of this Committee. Amendment No. 37 would introduce into the clause the need to carry out risk assessments in accordance with a code of practice. Risk assessments will be a new formal process in the children’s and family proceedings covered by the Bill.

I am sure that CAFCASS officers and Welsh family proceedings officers and their predecessors, the court welfare officers, would tell us that they have always considered risk in the course of their duties in family proceedings. However, the Bill is introducing a new, formal requirement of risk assessment.

It is worth reminding ourselves of the October 2005 report from HM inspectorate of court administration, “Domestic Violence, Safety and Family Proceedings”, which established that the courts already operated an informal presumption of contact. Paragraph 3.9 says:

“The presumption of contact was evident in all the practice sessions observed during this inspection and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases.”

While it may be argued that we already have an informal system of risk assessments and people who are very experienced at doing them, we are now importing risk assessments formally into the law. I would not like to import with them defective risk assessments, as described in that HMI report. Establishing from the outset some standards for carrying out those risk assessments is important.

I would like to give one other illustration of why guidance would be helpful, from the latest briefing from National Family Mediation, which I mentioned to the Minister a few minutes ago. “The role of accredited mediators in risk assessments” describes how mediators already have their own, well-attested risk assessment protocol for when they are giving mediation.

My example to the Minister was this. In the context of court proceedings started before mediation was undertaken, the mediator might see the gateway form from the court with a tick in the box asking whether there were any concerns about domestic violence. The mediator would carry out a risk assessment to determine whether or not mediation should go ahead, or whether it was too dangerous for either of the parties or for any children involved. Mediators would say that they are already experienced in risk assessments. In the briefing, they ask whether the risk assessments must be carried out by CAFCASS officers alone or whether the Government intend that the expertise of relevant others can be called upon. What they are saying is that people other than CAFCASS officers have something to offer in the process, but only if somebody is going to give guidance that that may be the case.

The briefing tells us that in two recent pilots, in courts at Cambridge and Bromley, mediators worked alongside CAFCASS officers in their duties, which, in Bromley’s case, reduced the need for formal report by 60 per cent.—an enormously successful rate. We need to know whether there will be guidance—a code of practice could give that guidance—as to whether people can assist CAFCASS officers in carrying out risk assessments.

I jump next to new clause 21, because that proposal introduces the idea of a code of practice, inserting a new section 8B into the Children Act 1989 requiring the Secretary of State to prepare and from time to time revise a code of practice for carrying out such an assessment. It is an open process, involving consultation, laying the code or revision before Parliament and an ability for Parliament to vote to have the code or revision withdrawn.

In addition to those two, amendment No. 37 and the new clause, amendment No. 38 is a significant statement of what ought to be the obvious: when a risk assessment has been carried out and provided to the court, the court ought to consider the assessment before making an order.

Nothing in clause 7 says that at the moment. That is of course implied; it would be a foolish court that took no notice of a risk assessment that had been asked for or received—clause 7 does require one to be produced for the court. For completeness we ought to have a chain of a process, which starts with the spotting of the risk, then the carrying out of the risk assessment and the court taking that risk assessment into account before making an order. If we set a firm chain in place, that will make clause 7 a very effective process indeed.

Together, the two amendments and the new clause represent a strengthening of the process for risk assessment, which was first introduced into the Bill in the other place.

Maria Eagle (Labour, Liverpool, Garston)

I am grateful to my hon. Friend for his succinct and, as ever, pertinent points made in moving the amendment standing in his name and that of my hon. Friend the Member for Luton, South and my hon. and learned Friend the Member for Redcar, who is not on the Committee.

I hope that I can reassure him. Before answering his questions, I want to say a little about the combined effects of the amendments. One would be that for all applications to the court under section 8—that is, in all residence, contact, prohibited steps and specific issues cases—pre-court checks would have to be undertaken and a risk assessment carried out in line with a code of practice published by the Secretary of State. No order for contact, even indirect contact, could be made before those steps had been taken. If we went through that procedure for all section 8 cases, delays would increase because CAFCASS would have to do a lot of unnecessary work in cases where there was no issue or concern about safety or risk.

The Committee will be aware that the Bill introduces a significant new measure in clause 7, which places a specific duty on CAFCASS to undertake a risk assessment and provide its results to the court whenever it is involved in private law proceedings under the Children Act 1989 and has cause to suspect that a child is at risk of harm, or at any other stage of its involvement.

Amendment No. 38 is of particular concern because it would introduce a presumption of no contact unless it was first proven that such contact would be safe. It would exclude an order for supervised contact or even indirect contact and would require the assessment of safety, even when parents were, for example, seeking a consent order or there was absolutely no cause or reason to suspect that harm was an issue in the particular circumstances of the case.

I appreciate that my hon. Friends are concerned that we should ensure that courts not only receive risk assessments—the results of which clause 7 requires CAFCASS to give to them—but consider them when making their decision. I can offer some reassurance on that. The 1989 Act already provides in section 1(1) that when making a decision as to the child’s upbringing, the child’s welfare must be the court’s paramount consideration. In so doing, the court must consider the issues covered by the welfare checklist in section 1(3). As a result, the court would be failing in its duty if it did not consider the risk assessment provided to it by CAFCASS. That would be very strange and would amount to a court behaving unreasonably, which almost never happens.

Courts should also have regard to the Children Act sub-committee guidelines for good practice in parental contact cases when there is domestic violence. Those guidelines make it clear that the court should make an order for contact only if it is satisfied that the safety of the resident parent and the child can be secured during and after contact.

The guidelines were recently reinforced by a Court of Appeal judgment in the case re H in which Lord Justice Wall stated clearly what courts must do when faced with a contact application when domestic violence has been alleged.

I am aware that there have been arguments that CAFCASS needs greater powers to undertake standard pre-court checks—for example, to find out whether a party in a contact case has any criminal record relating to violence against children—and I agree that it is entirely right that the courts must have all the relevant information available to them when making their decisions. It is certainly the aim of CAFCASS to carry out pre-court checks in every case for which they are appropriate. I can reassure my hon. friend that CAFCASS has the power to carry out those checks as part of their functions set out in section 12 of the Criminal Justice and Court Services Act 2000. Section 13 of that Act enables CAFCASS to make arrangements with other agencies—this relates to the point that my hon. Friend the Member for Stafford made—to obtain the necessary information. There is no reason why, because the Bill places the duty on CAFCASS, it should be precluded from calling on relevant experts in fulfilling that duty, and we would expect them to do so. I hope that that reassures my hon. Friend.

New clause 21 would require the Secretary of State to produce a code of practice and to lay it before Parliament for approval. There is nothing wrong with codes of practice. The Department for Education and Skills produces reams of codes of practice and there is absolutely nothing wrong with them per se. My concerns about the new clause are more about the presumption of no contact that would flow from the arrangements taken together, to which I do not believe the Government could agree.

If we are to make changes to primary legislation, it is important that they are strictly necessary. It is normal and usual for codes of practice and good guidance to be outwith the primary legislation.

CAFCASS now has sufficient and expert guidance in its domestic violence toolkit, which is part of its strategy to improve practice in domestic violence cases. It is professional, technical guidance for all its professional staff and I hope that my hon. Friend accepts that that is an appropriate place for guidance and good practice. It is a task best handled by those with experience in the field rather than it being set in a code of practice in statute.

Ensuring that risk assessment is carried out in conformity with guidance, too, is a professional matter. Practitioners will be required to comply with risk assessment standards, which will be demonstrated under appraisal and supervision. It should be possible to ensure that standards of risk assessment and the way in which it is undertaken can be relied upon as being of the highest level.

I assure my hon. Friend that we will put in place a system to monitor adherence to that policy, and CAFCASS intends to ensure that it is properly done. I hope that I have demonstrated not only how seriously we view the risk of harm to children, but that we are not ignoring the problems that have arisen in respect of current practice. We have taken measures to deal with those issues, as has CAFCASS. We are taking further steps, but they do not all have to be included in legislation. I hope that my hon. Friend is persuaded to withdraw his amendment.

David Kidney (Labour, Stafford)

I am grateful to my hon. Friend for her powerful explanation of why amendment No. 38 could have the unintended consequence of getting in the way of contact. As for the code of practice, Parliament must always weigh up which organisations we can trust to devise their own codes—in the case of CAFCASS, it would be subject to scrutiny by the Select Committee on Constitutional Affairs—and those over which we should have a more direct influence, through the laying of codes of practice before the House so that Members can express an opinion.

I shall withdraw the amendment for two reasons. First, the code in the new clause ranges slightly too widely because of the screening element, which is no longer part of our discussions. Secondly, as I said in another context, my hon. and learned Friend the Member for Redcar would like to express her view on the matter. I shall keep my powder dry for her benefit. I beg to ask leave to withdraw the amendment.

Schedule 3 - Repeals

Tim Loughton (Conservative, East Worthing and Shoreham)

I have a simple question about the schedule, which is very short and seems to revolve around the word “and”. Can the Minister explain what it does?

Maria Eagle (Labour, Liverpool, Garston)

Schedule 3 makes two small repeals of words in the Children Act 1989 in order to enable the insertion of amendments dealt with elsewhere in the Bill, including amendments to provisions on family assistance orders in section 16 of the Children Act 1989.

The first is the removal of the word “and” from section 14B(1) for reasons of grammatical sense. The second is the repeal of section 16(3)(a), which gives effect to clause 6 on family assistance orders by removing the condition that they are to be used only in exceptional circumstances. We considered the policy when dealing with clause 6; schedule 3 is a minor consequential amendment. I hope that I have satisfied the hon. Gentleman’s need to know.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am very satisfied, as nearly always, with the Minister’s answer. However, we are talking about later amendments to the Children Act 1989 that are not included in the version of that Act issued by the Vote Office. I reiterate an earlier comment, that it might be useful if Ministers were to make updates of the Children Act available to the Committee if amendments refer to specific parts of it. It is difficult to get hold of them otherwise.

Clause 16 - Regulations and orders

Tim Loughton (Conservative, East Worthing and Shoreham)

Owing to an oversight on our part, we have not tabled any amendments to this clause, although we might return to it on Report.

The clause is very powerful. It gives weight to all the regulations that the Secretary of State can make, and there are an awful lot of those. We have said that a lot of the detail is not in the Bill and that a lot of power is being given to the Secretary of State to make regulations, to which we are not privy at this stage, at her determination and at a later date.

Subsection (3) makes such regulations subject to the negative resolution procedure—that is, if hon. Members are fortunate enough to notice that the regulations are looming, they will have to pray against them. Given the detail missing and the amount of work that still needs to be done on the regulations, does the Minister not think that they should be subject to an affirmative resolution of both Houses so that hon. Members and noble Lords have the opportunity to debate them in more detail? We do not have the opportunity to do so now, because those regulations are not available in any draft form. Perhaps the Minister will consider that request and return to it on Report.

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman, startlingly honest as ever, said that he forgot to table amendments to the clause—that, anyway, is my interpretation of what he said; perhaps I am being too cruel.

The clause is a relatively standard one, although the hon. Gentleman has legitimate questions to raise about it; I do not complain about that. It sets out how secondary legislation under the powers conferred by the Bill is to be made: any power to make regulations under the Bill should be exercisable by statutory instrument and make use of the negative resolution procedure.

The hon. Gentleman asked whether that was the right way round and whether the affirmative resolution procedure should be used. There is nothing exceptional about this use of the negative procedure, which is in line with how it is usually used. Given the nature of some regulations, affirmative procedures are at times more appropriate; at times the negative procedure is more appropriate.

The hon. Gentleman will know that there are conventions about such things. The Bill does not breach those. That may reassure him, although it may not. The Delegated Powers and Regulatory Reform Committee in the other place considered the implications of the regulation-making powers and was content with the Bill’s provisions, so there has been parliamentary scrutiny in that sense.

I accept the hon. Gentleman’s point: some Opposition Members always prefer regulations to be made by the affirmative procedure. However, the use of the negative procedure is not out of line with normal practice, and I hope that he accepts it on that basis.

Clause 17 - Short title, commencement and extent

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 9, in clause 17, page 17, line 36, leave out ‘Children and’ and insert ‘Child Contact and Intercountry’.

We now come to the heart and kernel of the Bill: the short title. In what is becoming something of a habit, I seek to amend the short title of a Bill that is about children and adoption. Amendment No. 9 would lengthen, although not excessively, the short title from the Children and Adoption Bill to the “Child Contact and Intercountry” Bill, a much more helpful and obvious description of what the Bill is about.

We should adopt the Ronseal principle—“Does exactly what it says on the tin”—to deliberations in Parliament, and I want to apply it to the Bill. I have led for my party on this Bill, as I did on the Adoption and Children Act 2002 and the Children Act 2004. There has been constant confusion in our deliberations, as there was when we debated those earlier Acts, about the legislation to which hon. Members are referring.

I did a little research and found that over the past few years the following legislation has been enacted that refers to children and adoption. It starts with the Adoption Act 1958, the Adoption Act 1960, the Adoption Act 1964, the Adoption Act 1968, the Adoption Act 1976 and the Adoption and Children Act 2002; and now we have the Children and Adoption Bill, which I presume will become an Act in 2006.

We next have the Children Act 1958, the Children Act 1975, the Children Act 1985, the Children Act 1989, the Children (Scotland) Act 1995, the Children (Leaving Care) Act 2000 and the Children Act 2004.

We also have the Children and Young Persons (Amendment) Act 1952, the Children and Young Persons (Amendment) Act 1986, the Children and Young Persons (Protection from Tobacco) Act 1991, the Children and Young Persons Act 1956, the Children and Young Persons Act 1963, the Children and Young Persons Act 1969, the Children’s Homes Act 1982, the Children’s Commissioner for Wales Act 2001, the Foster Children (Scotland) Act 1984, the Foster Children Act 1980, the Indecency with Children Act 1960, the Matrimonial Proceedings (Children) Act 1958, the Protection of Children (Tobacco) Act 1986, the Protection of Children Act 1978 and the Protection of Children Act 1999.

The Hansard reporter will be relieved to know that I will happily give her a list of those Acts after the debate. It is a serious point, however, because there has been an awful lot of legislation by all Governments over the past 50 years to do with children and adoption. There are many other similarly titled Acts. It seems sensible, with the addition of a few extra words, to name the Bill differently to predecessor legislation to do with children and adoption. People would then know instantly to which Act we were referring. That would avoid future confusion when hon. Members start talking about previous legislation.

It is a helpful, small, sensible and weighty amendment—weighty in terms of its implications, and small given the number of words involved. I hope that the Minister will leap up to welcome and embrace it, and that she will accept it for the greater good of working out which Act we are talking about.

Maria Eagle (Labour, Liverpool, Garston)

Would that it were easy for me to leap and accept the serious points that the hon. Gentleman makes. I have much sympathy with them. However, despite the fact that I applaud his efforts to bring clarity to the statute book by clearly differentiating the various Acts, that is not the primary purpose of the short title. I am not able to accept the amendment, but I am happy to explain why, which is the next best thing.

Parliamentary counsel have some influence on short titles. They have to consider subject matter and scope. The short title gives an interpretation of the scope of the Bill, as does the long title. The difficulty with the short title proposed by the hon. Gentleman is that it does not legally or accurately reflect the contents of the Bill. As well as dealing with contact, it deals with family assistance orders, which may be made in any case with risk assessments, following the amendment made in the other place, and which may be ordered in proceedings other than contact proceedings. In addition, he seeks to add private fostering provisions to the Bill, which would further widen its scope. His suggested wording would not be an accurate description.

The hon. Gentleman’s description of inter-country adoption is not strictly accurate. He may be interested to know that parliamentary counsel deliberately avoided using that term because it is used in connection only with Hague convention proceedings. The Bill, of course, deals with countries other than those that are party to The Hague convention, so that phrase would not be appropriate; it would give the wrong idea of the Bill’s scope. Part 2 is therefore modelled on the terminology of the Adoption and Children Act 2002, which refers to adoption with a foreign element.

Although I have every sympathy with what the hon. Gentleman says, I can only tell him why I cannot accept the amendment. I assure him that the short title was carefully selected by parliamentary counsel in accordance with the usual parliamentary procedures and practices, so that it would be acceptable to the authorities of the House and do its job, which is to delineate the scope of the Bill. It may also have the slightly disadvantageous consequence of confusing us ordinary mortals further, in light of the long line of other Acts to which he referred. I hope that he will understand, even if he does not agree, why I cannot accept the amendment, and he may care to withdraw it.

Tim Loughton (Conservative, East Worthing and Shoreham)

As my hon. Friend the Member for Peterborough (Mr. Jackson) might have said, sympathy doesn’t butter any parsnips. I am devastated. The Minister had to dig deep to come up with ways of refuting this eminently sensible suggestion. She said that private fostering would not be covered by the title, yet she has set her face entirely against any suggestion of adding private fostering to the Bill. Indeed, she knows that private fostering amendments were ruled out of order and were not debated. That is a pretty limp excuse for not acceding to our suggestion.

Maria Eagle (Labour, Liverpool, Garston)

I did not wish to be provoked, but I have been. I thought that I said that the hon. Gentleman was trying to add provisions, not that we were discussing them. His amendments would have had an even wider scope had they been accepted.

Tim Loughton (Conservative, East Worthing and Shoreham)

I had sought to do that but was frustrated, so any reference to those amendments is irrelevant to the case that the Minister makes against this amendment.

The Minister said that parliamentary counsel have a big influence on short titles. I dare not think how much we pay them to play around with a few words, when we could in effect do it for free. We would offer a great financial saving if the Government were to ask us to title future Bills rather than relying on highly paid parliamentary counsel.

The amendment is not entirely frivolous, but it is tempting to push it to a vote—the numbers on either side of the Committee are interesting, Mr. Hood, and we might have to rely on your intervention. However, I do not wish to tease the Committee any further. We have made our point. It is a shame that the Minister should come up with a load of hogwash in order to say why it is not eminently sensible, but eminently sensible things are not necessarily the Government’s hallmark. Reluctantly, therefore, I beg to ask leave to withdraw the amendment.

Maria Eagle (Labour, Liverpool, Garston)

I beg to move amendment No. 28, in clause 17, page 18, line 22, leave out subsection (9).

The amendment would remove the privilege amendment inserted in the other place. As hon. Members will know, it is the privilege of the House of Commons to control charges on public funds, a long fought-for privilege of ancient lineage, and one that we do not wish to give up. The privilege amendment avoids any formal infringement of that privilege. Provisions in the Bill that, but for the privilege amendment, would have the effect of creating, imposing or increasing a charge, were authorised by the money resolution, which was agreed to immediately after Second Reading. The privilege amendment may therefore now be removed.

New Clause 1 - Extended family: welfare checklist

Stewart Jackson (Conservative, Peterborough)

I beg to move, That the clause be read a Second time.

I am pleased to be serving under your chairmanship again, Mr. Hood.

Some hon. Members and particularly the Minister will know that I have taken an interest in extended kin parenting, particularly by grandparents. I was privileged to win an Adjournment debate on 18 January to discuss such issues and had quite a debate with the Minister.

The Government have missed a golden opportunity to address some important issues that impact significantly on extended family parenting, particularly by grandparents. I want briefly to raise two or three issues relating to that missed opportunity and to explain the rationale behind the new clause.

The new clause is essentially a presumption in favour of extended family parenting. I believe genuinely that it would not in any way contravene the paramountcy principle—quite the opposite. I believe that it is in the best long-term interests of children, as any reasonable person would agree, given the significant evidence that children can, in the wake of a break-up of their parents’ relationship, benefit from contact with their grandparents.

Not much research has been done on the matter during the past few years, but I pay tribute again to the right hon. Member for Birkenhead (Mr. Field), who has done some local research among his constituents on the Wirral on the impact of the current legal system of family law on grandparents who choose to be de facto parents to their grandchildren. The system as they see it and as articulated by the right hon. Gentleman is loaded against them. I commend to the Committee the document prepared by Dr. Anne Gray of London South Bank university on the evaluation of the grandparent-toddler groups initiative, which strongly makes the case for grandparent and extended kin parenting.

I want to speak principally about three issues to which I hope the Minister will respond. In particular, I want to refer to undertakings that she gave during the Westminster Hall debate on 18 January. First, section 10 of the Children Act 1989 covers the requirement by family and friends carers to apply for a residence or special guardianship order. The Government have not sufficiently thought through the issues and the present system is significantly biased against family and extended kin members. More particularly, there is lack of parity between non-family and family members. That issue was discussed in respect of grandparents during the Westminster Hall debate. I look to the hon. Member for Stafford for support because he knows the area well and is broadly supportive of my underlying assumptions, if not the details of the new clause.

Secondly, I want to mention section 17 of the Children Act 1989 and the financial assistance given to extended family and grandparents vis-à-vis other carers. The arrangement is currently not being adhered to and has not, unfortunately, been addressed in the Bill.

Thirdly, I mentioned parity in respect of section 10 of the 1989 Act, but I should particularly like to consider section 8, regarding the need for a certain period of residence for a child with grandparents, as opposed to non-family carers. The Government had an opportunity to consider such matters in preparing the Bill, but unfortunately they do not seem to have made much progress in that respect, even though the Minister said:

“The 1989 Act recognises that, even if there is parental opposition, it could be in the interests of a child to maintain contact with their grandparents. No one has a veto. The parent does not have a veto. Subject to the paramountcy principle, the court will take into account the importance of grandparents and other relatives to the lives of children.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 268WH.]

David Kidney (Labour, Stafford)

In his plea for compatibility between grandparents, kinship carers and others, does the hon. Gentleman have regard to the requirement that the leave of the court needs to be given even before people can apply for a court order for a residence or special guardianship order? Is he aware that in the 2002 Act, foster carers now need only to have the child with them for one year before they apply without leave, whereas it is three years for grandparents and other kinship carers? Is he aware that proposed new clause 22, which I tabled but which was not selected for debate, deals with that point?

Stewart Jackson (Conservative, Peterborough)

That must rank as one of the most helpful interventions I have ever had. I thank the hon. Gentleman and pay tribute to his expertise on such matters. With all due respect to you, Mr. Hood, I am disappointed that we have not been able to discuss that new clause. It would have been nice to have focused on that issue, listened to the Minister and understood why it was not possible to introduce such provision. There is a presumption among many extended kin carers that the system is biased against them. Since the 2002 Act took effect, they certainly feel that strongly with regard to financial assistance, post 13 December 2005. It is unfortunate that we cannot debate the issue that was raised.

I should like to press the Minister on two points. During the 18 January debate on extended kin and grandparents’ access to grandchildren, she said:

“Removing the requirement would immediately bring in formal parties to start court proceedings”

in respect of the requirement to seek leave. She went on to say:

“I am not saying that that would happen in every case, but it could, and the court must have a way to screen cases if, knowing all the circumstances, it feels that proceedings are unnecessary.—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

Non-family foster carers and adopters do not have to go through that legal route. Indeed, they must only prove that the child has resided with them for 12 months, whereas family and extended kin have to prove that they have resided with the child for three years.

In addition, the costs have been estimated by the Grandparents Association as anything between £250 and £1,000. So a financial cost falls on people who may already be impecunious. The right hon. Member for Birkenhead mentioned constituents who were among the poorest people, but were forced to go through those legal loopholes. I should like to hear evidence from the Minister on why it is not possible for that legal hoop to be removed.

On 18 January, the Minister said:

“The Department for Education and Skills is considering the issue, and I expect consideration to be completed sometime this year. I know that that is rather vague.”—[Official Report, Westminster Hall, 18 January 2006; Vol. 441, c. 269WH.]

I want to press her on that point. We need to focus on the welfare of the child, which is about extended family care. There is evidence that such care works in the best interests of children. At the moment, there is a perception of unfairness and of a lack of equity. Unfortunately, the Bill does not address that, and so will exacerbate that feeling of a lack of fairness and justice for a particular part of our community.

I hope that the Minister can answer the questions put to her, not least those asked by the hon. Member for Stafford, and that we can go forward with an undertaking that those points will be taken on board. Two months ago, the Minister gave me a time-based undertaking, and I hope that she will think of that when she replies.

David Kidney (Labour, Stafford)

I support the two points that the hon. Gentleman made about the imbalances, one of which is to do with financial support, while the other is the requirement for grandparents and kinship carers to obtain the leave of the court even before they start to make their application for court proceedings.

In my time as a solicitor before I was elected to Parliament, as well as in my time as a Member of Parliament, I have witnessed many cases of injustice to grandparents because of those imbalances. I can think of many times when grandparents have been deterred from getting involved in court proceedings because they would have had to pay double to do so. Even if before their son or daughter split from their spouse they had had lots of regular contact with their grandchild and that had gone down to zero, they found it difficult to muster the financial resources and the will to get involved in a court case not once, but twice—to get the leave and then go through the procedure of trying to get the order.

I can think of a particular case of such financial imbalance. I do not have permission to name the person involved, so I shall not. The woman in question stood by her grandson through thick and thin, and came to me, as her MP, many times about her financial hardship. Even with my assistance and that of a lawyer, she could not get some of the financial support that a parent or foster carer would have got. That was most unjust.

Stewart Jackson (Conservative, Peterborough)

Does the hon. Gentleman agree from his significant experience that the issue that we hope the Minister will face, and that would have been discussed had his new clause been selected for debate, is that if we reduced the legal requirement for everyone to a year, we could still screen out unsuitable people?

David Kidney (Labour, Stafford)

I agree. A year is quite a long time to prove one’s ability to care for somebody, and if the period were reduced to a year, that would simply mean that there was no requirement to apply for leave. A person would still have to justify in court that they were entitled to the order.

In conclusion, the new clause perhaps does not say either of those two things, and says something different, but I shall be interested in the Minister’s response on those two points about imbalance.

Mark Williams (Liberal Democrat, Ceredigion)

I support the new clause moved by the hon. Member for Peterborough. One almost feels that, given the lack of wording mentioned by the hon. Member for Stafford, one is debating something that is not there. However, as far as the wording goes, I reiterate our support for the new clause, which seeks to recognise the growing and important role played by the wider family in the life of a child. We all know that in this changing society grandparents and the wider family have a huge role to play, not just potentially in the 10 per cent. of cases with which the Bill deals. I hope that the financial injustice about which hon. Members have spoken and the perception that the system is biased and is not working in favour of grandparents can be addressed, whether by the new clause or at a later stage.

Maria Eagle (Labour, Liverpool, Garston)

I shall do my best to stay in order and within the scope of the Bill. It is important that we try to do that.

The new clause would require the court, whenever it considers a disputed application for a section 8 order under the Children Act 1989, to have regard to

“the desirability of contact between the child and his extended family”.

I agree with hon. Members who have stated that contact with grandparents and other members of extended families can be hugely valuable to children in the aftermath of a family break-up. Contact of that nature can help to provide much-needed stability and support at a time of great turbulence, uncertainty and difficulty for children who are having to deal with their parents’ break-up. I am sure there is no disagreement about that across the Committee.

There are several difficulties with the new clause, the most important of which concerns its phrasing. It refers to the desirability of contact in the absence of evidence to the contrary. The hon. Member for Peterborough asserted that he did not think that would have any impact on the paramountcy principle. However, because of the way in which the proposal is worded, it would effectively create a legal presumption. As the hon. Gentleman does not set any limit on what he means by “extended family”, the court would have to presume that contact with all relatives, however distant, is desirable unless it is presented with strong evidence to refute that.

I understand the impulse, and I heard the hon. Gentleman and other Committee members say that they wanted to discuss slightly different things. The wording of the new clause is simply not compatible with a starting point that considers the welfare of the child in their individual circumstances and ordering what is best for them, as the 1989 Act currently provides.

A second problem is the location of the new clause, amending as it would the welfare checklist, which applies not only in private law cases and disputes, but in public law, for instance in relation to care orders. The new clause would require a court considering whether or not to take an abused child into care to presume that contact with their wider extended family—the concept is not at all delineated; we might be talking about an extremely extended family—would be desirable. Of course, it might be desirable in a public law case; a child whom a court is considering taking into care might greatly benefit from continuing contact with their birth family extended beyond their parents. However, it is not appropriate to force a court to presume that in advance of considering the evidence.

The practical difficulties with the wording of the new clause mean that I am unable to accept it. I am also worried by the lack of clarity to which I have alluded. The new clause does not set out where the “extended family” comes to an end. Certainly, most children should have contact with their grandparents and most probably do. They get great value from that, as do their grandparents. Most children should also have contact with aunts, uncles, cousins and relatively close extended family, but not all will necessarily be in touch with more distant relatives. It might well not be in their interests for an extremely distant relative to have a right to contact as the new clause suggests. It is not appropriate for us to put into the Bill an undelineated phrase which could be so extensive, as that would destroy clarity and cause all kinds of confusion. It is also unhelpful that the provision would apply in public law cases.

Stewart Jackson (Conservative, Peterborough)

In the present circumstances, under section 23 of the 1989 Act, social workers and others are already disregarding the primacy, for want of a better word, of family members, often for very practical reasons and with the best intentions. For instance, they do not want to upset foster carers or they have difficulty with resources and recruiting doctors. In my experience and that of many organisations in this field, they are already disregarding the importance of extended kin. That is an important point for the Minister to bear in mind when she says that the interpretation is too loose.

Maria Eagle (Labour, Liverpool, Garston)

If I understand the hon. Gentleman correctly, he seems to be talking about public law. The Bill concerns private law cases; I believe such arrangements would be outwith the scope of the Bill, and it would be wrong to include them. He primarily wants to deal with private law issues on separation, which, because of the way in which the new clause is drafted, would extend into the public law sphere. I understand his general points, but it is not appropriate to include his new clause in the Bill. The courts need to consider cases on the facts and to focus on the needs of individual children. They should not make presumptions that cut across paramountcy and do not reflect the individual child’s needs.

The hon. Gentleman made a few points with which I would like to deal. He referred to the debate that we had in Westminster Hall, which I know reflected concerns among the grandparents’ lobby and among those from more extended families, of which I have an understanding. He said that the need to apply provisions under section 10 of the 1989 Act are biased against extended family members and he was supported in that regard by what my hon. Friend the Member for Stafford said.

We believe it is important that non-separated parents are protected against section 8 applications by grandparents and other extended family members. We are trying to make provisions for those who have to deal with contact issues and matters relating to the conflict involved in break-ups. My Department has extensive discussions with grandparents’ groups and other family organisations and we are not aware of any evidence that the leave to apply hurdle is proving an obstacle to grandparents in cases where parents have separated.

I have heard voiced before the concern that relatives are unfairly blocked from seeking contact because they have to seek the court’s permission to apply. I am perfectly willing to consider individual cases that are brought to my attention and I understand that hon. Members would not want to name individuals in the Committee. It is perfectly open to them to contact me outside the Committee.

Grandparents and others must seek the court’s permission before applying for a contact or residence order. The intention is not to set an unreasonably high hurdle, but to put in place a safeguard to prevent inappropriate and vexatious applications. In practice, applications for permission to apply are normally made simultaneously with an application for contact—that is my understanding of the situation—meaning that there is no added delay, and they are almost always granted. However, it is appropriate that this theoretical hurdle exists so that cases where an application might involve a child in court processes unnecessarily can be prevented.

I have heard it said that there is an increased cost because grandparents might have to seek separate permission to apply and pay court fees twice. They do not have to pay court fees twice. The applicant only pays a single fee and they would not have to pay a separate fee for the contact application and the application for permission to apply: it can be done at the same time. I am obviously willing to hear from Members outside the Committee about specific cases where their experience is different. The hon. Member for Peterborough made a reference to a cost of £250 to £1000, which sounded like legal costs to me. We all have to pay lawyers if we go to court; that is an unfortunate fact of life. Although there are some Committee members who have done rather well out of it—including, in a previous life, me, not to put to fine a point on it. [Laughter.] I am not about to argue that lawyers should not be paid—not a popular thing to say—but when I was practising, I at least tried to discourage people from going to court if there was any opportunity to avoid it. There is no doubt that costs can add up once adversarial court proceedings begin. I cannot comment on whether people have had to pay more lawyers’ fees, but it is quite possibly true.

The hon. Gentleman referred to our earlier Westminster Hall debate about those issues, and suggested that I had made some time-limited undertakings to him. I shall have to read them to ensure that I meet whatever time limits I set myself in that debate. I am not in a position to answer that point, but I shall undertake to deal with it outside the Committee.

On the basis that the new clause has unintended consequences for the legislation, I hope that the hon. Gentleman is willing to withdraw it. I emphasise that I thoroughly understand and concur with his concerns that grandparents and suitable members of the extended family should be able to stay in touch with their grandchildren and relatives after the separation of parents, even if the situation is difficult. We support that.

The provisions in the legislation are not confined simply to parents, whether resident or non-resident; they could also apply to other family members who have an interest in the child’s life. They could apply to grandparents and members of the extended family. The hon. Gentleman ought to remember that the Bill applies in that sense.

Stewart Jackson (Conservative, Peterborough)

I have listened carefully to the Minister, and, in fairness, she has taken on board my concerns. In particular, she discussed the two issues on which I pressed her. We await developments, particularly on what “some time this year” means. There are nine months to go, but we live in hope. We have had a very good debate and heard a very helpful intervention from the hon. Member for Stafford—I say that genuinely—and the Minister had dealt with things in her usual logical and fair way. On that basis, and with the caveat that we will debate the matter on Report and later, I beg to ask leave to withdraw the motion.

New Clause 3 - Pilot scheme on early intervention

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move, That the clause be read a Second time.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following:

New clause 17—Allocation of cases—

‘(1)In any family proceedings in which a court has power to make an order with respect to a child, when allocating proceedings the court shall, upon receipt of an application relating to a child, have regard to—

(a)minimising delay to proceedings, and

(b)minimising the cost of proceedings, as far as is reasonably practicable.

(2)In deciding how to allocate proceedings in accordance with subsection (1), a court shall have regard to the availability of—

(a)mediation provided by an independent third party,

(b)mediation and conciliation provided in court,

(c)court time for the early determination of any disputed questions that arise within the proceedings, and

(d)the range of provisions available for providing the court with further information before making any decision.

(3)In deciding how to allocate proceedings in accordance with this section, a court shall have regard to any risk assessment provided in accordance with section 16A of the Children Act 1989 (c. 41) and shall, in the absence of such an assessment, consider whether to request such an assessment before proceeding.

(4)Rules of court may be made in order to set out the procedure for arranging hearings and making decisions in accordance with this section, including—

(a)the making of any application to a court,

(b)the arrangements for any hearing,

(c)the timing of hearings,

(d)the notification of any decisions made to the parties involved and others, and

(e)any other matter ancillary thereto.

(5)At any stage in any family proceedings to which this section relates the court may, upon the application of any party or of its own motion, arrange a further hearing to consider further the arrangements for the allocation of the case.’.

New clause 24—Contact orders: meeting with mediator—

‘After section 8 of the Children Act 1989 (c. 41) insert—

“8AContact orders: meeting with mediator

Applications for a contact order under section 8 must be stayed, unless by order of the court, until the applicant has attended a meeting with a mediator and the mediator has certified that mediation is not suitable to resolve the issue which is the subject of the application.”’.

Tim Loughton (Conservative, East Worthing and Shoreham)

New clause 3, which stands in my name and those of my hon. Friends, is quite important. It is concerned with the thorny issue of the early interventions pilot, about which there still remains a mystery. Perhaps we shall get to the bottom of it in the Minister’s response.

To recap, a group of eminent practitioners put together the early interventions pilot a few years ago. It was submitted, fully designed, to the Government on 8 October 2003 and addressed the problem of how to avoid disputing couples going to long, drawn-out and acrimonious legal cases. The pilot was founded on the presumption of reasonable contact and was designed largely by English lawyers and judges. It was based on the 1997 guidelines of the Association of Family Court Welfare Officers, which sought to promote a presumption of meaningful and reasonable contact—reasonable being a word that we have sought to insert in the Bill in numerous places. The guidelines were developed following a 1995 complaint against a report of the family court welfare service, the body that preceded the children and family court advisory and support service. In that case, it was shown that officers of the family court welfare service had not acted under strict guidelines, so their professional body drew up extensive guidelines based on the presumption of meaningful and reasonable contact. Building on those guidelines, a lot of work was carried out by a group of practitioners on what became the early interventions project.

To illustrate the calibre of that group, let me list the members who prepared one of its proposition papers. The chairman was district judge Nicholas Crichton, who is well known to many hon. Members for the innovative family court that he runs in Wells street in London’s west end. I have witnessed it at first hand; it is a model of how the system could be speeded up. The pre-planning group that he chaired included Dr. Hamish Cameron, a consultant child psychiatrist; Audrey Damazer, clerk to the justices of the inner London family proceedings court; Diane Elliott from the Institute of Family Therapy; Joan Hunt from the Oxford family policy unit; Brian Kirby from CAFCASS; Ruth Smallacombe, a mediator of Family Law in Partnership; the then chief executive of CAFCASS and Veronica Carter, formerly chief clerk in the Official Solicitor’s Department; so the early interventions project for the resolution of private law family disputes enjoyed fairly heavyweight input.

That proposal went forward. It contained some eminently sensible, practical and workable suggestions and was based on a heavyweight conference held in March 2002 at the Royal Society, involving involved many judges. That was entitled “Early Intervention—Towards a Pilot Project”, and was chaired by Mrs. Justice Bracewell, who gave a keynote address that supported what became the early interventions project.

In October 2003, the proposals went to the Department for Constitutional Affairs. However, somewhere between the DCA and the Department for Education and Skills, in which the Minister for Children and Families is based—she has as part of her remit this whole area, including the control of CAFCASS—the early interventions project disappeared. Its existence was later denied. It was said that the pilot had never existed, or that it was the family resolutions pilot project by a different name.

The trouble is that it was not the same thing in practice. In September 2004, the Government put into effect the family resolutions pilot project, which was to last a year. They anticipated that there would be several thousand takers for this new attempt at keeping acrimonious cases out of the courts. The pilot ran in three centres—Brighton, London and, I think, Sunderland—but there were not thousands of cases. By the time it ended in September 2005, there had been only 62 referrals from the three areas over the year. Barely half those cases completed the programme. Nearly a third of referrals dropped out before the first session, and a small number dropped out later. Nearly three quarters of non-completed cases were due to parents not attending the sessions. Most cases took longer to complete the programme than the target 12 weeks.

We were promised an appraisal of the family resolutions pilot project. Coincidentally, on the morning of the Bill’s Second Reading, unbeknown to Conservative members of the Committee, the findings of that project were produced. Fortunately, that came to light on Second Reading, during which we had to request the Minister to furnish the Front-Bench Members involved in that debate with the findings. Late in the day, we eventually got those findings, which I now have in my hand. I will not go back over the arguments as to why we got them so late in the day. Certainly, they make interesting reading.

To say that the project has been damned with faint praise is perhaps an underestimate. The best comments that we could get on it were:

“The overall effectiveness of the pilot was variable. On some issues it was hard to make a judgement.”

One conclusion was:

“The pilot has not produced a clear blue print for the future development of services, but it has provided a number of important pointers for future developments within the family justice system and beyond.”

In short, the project was a complete, total and unmitigated disaster. As an article in The Guardian on 30 May said:

“In short, it’s a waste of time.”

It need not have been a waste of time if the Government had stuck to the original intention of seeing through the early interventions pilot project, into which a lot of work had gone.

We want to be helpful to the Government. Their family resolutions project has failed, and we need to get it back on track. I suggest that we do that by seeing through the original project, and that is what new clause 3 is based on. It will designate courts to participate in the scheme. Those courts will issue a set of guidelines to parents involved, suggesting appropriate levels of contact in various cases, in the absence, of course, of good reason to the contrary; there must always be that safeguard. The court will clearly set the date of the first hearing and will give an instruction that the couples should attend a meeting with a court-appointed mediator to develop a parenting plan. In another new clause, my hon. Friend the Member for Basingstoke has set out ideas for parenting plans.

The instructions will also explain that those parents who do not go along with the parenting plan will have to attend a parent education meeting and

“attend contact-focused dispute resolution and mediation.”

That is set out in subsection (3)(d)(ii) of the new clause. It also makes it clear that

“litigation should be a last resort.”

Subsection (5) is crucial to the scheme, saying:

“The court shall take into account the willingness of each parent to participate in the scheme.”

That pilot project requires a degree of compulsion. We think it essential that the warring couple be pointed in the right direction and be required to go through a number of preliminary stages, so that they exhaust every opportunity to come up with a solution to, and resolution of, their differences in the interests of the children. That can then form the basis of an agreement, which means that long drawn out acrimonious legal cases are avoided.

As we have discussed, mediation cannot by its essence be based on compulsion, but we believe that it should be compulsory for a couple, and certainly for the initial stages. If they still opt out, and if one opts out in particular—this is the rub—the court should take account of that when making a subsequent judgment if the legal processes are continued with because no other course of action is available. In effect, brownie points should be available to those parents who comply with the suggested process.

In everything that the Government have designed for their voluntary and rather limp mediation process, my fear is that if one parent shows good will and wants to go along with mediation but the second parent sets his or her face against it from the start and wants nothing to do with it, the process will fall and court proceedings be carried forth. However, surely the person who wanted to go the extra mile with mediation should receive some recognition of their willingness to do so. Under subsection (5) of the new clause such a scheme would account for people’s willingness to go along with what is seen as a better way of avoiding court conflict.

We are suggesting doing what the Government should have done in the first place, which is to establish a pilot. We want not to set down in law what must happen, but to set the framework for a pilot. At the end of that, which would presumably last for a year or so and could be based on a sample pattern similar to that of the family resolutions pilot project, but hopefully with more people taking it up at the outset, we can make a proper assessment of what will work. There is a lack of research in this country and in others on why contact orders fail and what we can do to improve the system, to ensure that when they are granted, or, preferably, when pre-court agreements are made, they are fair to all sides, and all sides will go along with them.

New clause 3 seeks to restore what the Government were apparently looking to put in place and what I think they wanted to put in place, but which went astray somewhere between the DCA and the Department for Education and Skills and was replaced by a thin, pale imitation. However, what was originally proposed would have stood a much better chance of succeeding, and on that basis I am pleased to propose that new clause 3 be added to the Bill.

David Kidney (Labour, Stafford)

Someone contacted me recently and asked whether I would be so kind as to tell them who had put me up to new clause 17, and provide them with a copy of the briefing that I must have been given to enable me to speak to it. I was happy to tell that person that new clause 17 is entirely my own work and that there are no such people and no such briefings, although I acknowledge with grateful thanks the help of the Committee Clerk in ensuring that I put it technically in order.

New clause 17 represents my response to the twin obstacles to contact in the cases of obstruction that I identified on Second Reading. They were the possible deterrence of cost when one side does not have the benefit of public help with their costs and the delay in proceedings that makes the outcome a foregone conclusion if it takes too long to get a court decision. That is why new clause 17(1) makes clear references to the court’s responsibility to minimise costs and delay. How does the court do that? My argument is that, quite apart from my previous point about always considering mediation even before court proceedings begin, the court should, when we reach the stage of an application’s having been made, take early action to allocate cases appropriately.

Reading the evaluation of the family resolutions pilot project that the hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned, I was impressed with the reference to a case in Newcastle county court, where the CAFCASS officers immediately respond to applications to the court. Within two weeks they write a report to the court, which is available at the first directions appointment, with a summary of what they have found out ahead of that appointment. New clause 17 asks what is to be done with all that good work, the results of which the judge will have. That is why I suggest in subsection (2) that all the options are there for the court to consider and that it should decide which of them to use. The options exist already or will be put in place under the Bill.

In relation to previous amendments, I said that the court should always consider the effects of risk assessments and subsection (3) of the new clause reminds the judge to have regard to any risk assessment at the allocation stage. That does something to overcome the Minister’s objection to amendment No. 38, because the court can make a decision on allocation based on a risk assessment that has been received and, if there has not been one, the court has simply to remember to decide whether a risk assessment is needed before proceeding further.

I have also set out that the rules of court can then decide the procedures that people have to follow. Because of the dynamic nature of such situations, it is important that, having made an allocation, the court considers whether it needs to return to it later, and that is set out under subsection (5) of new clause 17. To know whether the new clause would have the right effect, it is worth considering a couple of findings to which we have referred more than once in our debates to see whether they point in the same direction.

The University of Oxford family policy briefing 3, which the hon. Member for East Worthing and Shoreham drew to our attention last week, stated that a number of matters could be taken into account, the first of which was that

“Caution is needed about legislative change. The case for amending the Children Act may be stronger in relation to domestic violence ... Introducing a presumption of contact is more problematic.”

The briefing reminds us that

“Post-separation parenting is a very neglected area”

and that there

“would be widespread support for a programme aimed at improving service provision.”

It also states:

“However policy develops it is vital to keep the focus on the needs of children”.

All of us can agree with those objectives.

Having regard to the hon. Gentleman’s recent comments, I do not know whether what I am about to say is controversial, but the evaluation of the family resolutions private project contains some valuable recommendations, the first of which is that the

“family justice system should develop a range of parenting interventions including basic parent education and higher conflict education and therapeutic interventions.”

It says that, alongside parenting focus, there need to be processes for dispute resolution and child involvement. It recommends that a small number of demonstration projects should be set up and tested. Those are recommendations, but within the text there are some helpful comments, one of which was to the effect that it would be worth exploring the possibility of enabling solicitors to refer parents to parenting groups whether or not an application had been made to the court. That would be a useful addition to the present powers.

The project also said that programmes that acquire strong inter-professional support and become the standard local operating procedure may be almost as effective as compulsory schemes. That was my point last week when I referred to interventions such as mediation. We do not have to make them compulsory under law if we set up a system that is regarded as the routine of which everyone makes use because it is helpful.

I accept that my new clause would not do all those things. Indeed, I think there is frustration in the room that the Bill does not cover those matters and that a lot is left to the trust of Ministers to carry out. As the hon. Member for East Worthing and Shoreham said about the early interventions projects, we sometimes feel a lack of involvement and knowledge about what has happened to something that we thought was a good idea. I still feel we need to do something with the Bill that gives Parliament a little more influence over such matters and allows for the sorts of things to which I have just referred. They may not be contained in the amendments before us today, but there is still time for us to get it right.

Mark Williams (Liberal Democrat, Ceredigion)

There is widespread agreement in Committee that pre-contact order mediation is something that we value and applaud. New clause 24 tabled by my hon. Friend the Member for Mid-Dorset and North Poole and me would make a meeting between parties compulsory. We understand the need to encourage parents to consider mediation before taking matters to court and to keep the child’s welfare at the forefront of their minds. However, the point at which we deviate, I guess, from the Conservatives, is on the question of the need for mediation to be compulsory. We believe that there must be willingness on the part of both parties if mediation is to be valued.

We agree with the Conservatives about new clause 3(1) and the inadequacies and inconclusiveness of “Making contact happen or making contact work?” We believe that there should be a new pilot scheme, but the focus of our work is that mediation must be voluntary if it is to be truly effective. I see a flurry of watches, so I shall sit down.

Maria Eagle (Labour, Liverpool, Garston)

I shall remember in future that the hon. Member for Ceredigion can be made to sit down simply by waving a watch at him.

I hope that I can deal with the points that hon. Members have raised on the new clauses tabled by the hon. Member for East Worthing and Shoreham and my hon. Friend the Member for Stafford.

To paraphrase the hon. Member for East Worthing and Shoreham, he suggested that there had been some kind of mysterious shift, or hijacking, and that what was the early interventions pilot suddenly became the family resolutions pilot. His thesis was this: “Now look, with the evaluation, which they did not even let us have, what a mess it is.” That is a paraphrase of his speech and rather more succinct than he managed, but I shall try to deal with his points.

I shall break the matter down into the suggestion that the early interventions pilot was hijacked in some way, and changed mysteriously by civil servants into something else, and the points about the family resolutions pilot. The events happened before my time as a Minister, so I am not speaking from personal experience, but I have looked into what happened, because of what I have heard said about it. I assure the Committee that there was no hijacking of a fully formed early interventions pilot that would have been wonderful, so that it could be watered down and changed into something else that did not receive such a glowing evaluation even if it did provide some value.

It may be easiest if I make the points that Mrs. Justice Bracewell made when she gave evidence to the Constitutional Affairs Committee inquiry on family justice and the family courts. She was deeply involved, as were other judicial figures such as District Judge Crichton, to whom the hon. Gentleman referred, who runs a slick operation at Wells street, which I have visited and had a look at.

First, Mrs. Justice Bracewell said that both she and District Judge Crichton were key players in supporting and implementing family resolutions pilot schemes, which she said had received judicial support and enthusiasm from figures such as them. She continued by saying:

“It was unfortunate in retrospect to change the name from Early Interventions to Family Resolutions, although there were sound reasons for doing so. This change caused misunderstanding in that supporters of the Early Interventions project wrongly concluded that a different scheme was being piloted and that the aims and ethos of the Early Resolutions project was being abandoned in favour of some less effective scheme.”

She was on the steering committee for the implementation of the family resolutions pilot project, and said:

“The Family Resolutions project has not been produced in-house by civil servants. There has been judicial input throughout and the result is a team effort.”

I assure the Committee that there was no sudden transformation of what had been a perfect scheme, perpetrated by civil servants somewhere between the DCA and the DFES. Before the pilots started, the steering committee that was implementing them had studied what was happening in various jurisdictions and designed a scheme that it believed to be suitable for our jurisdiction. That is all that happened. I hope that Mrs. Justice Bracewell’s words reassure the hon. Gentleman to some extent. We shall see whether they do when he winds up.

As to the impact of the family resolutions pilot project, it is true that, at 62, the number of cases that underwent the pilot in the three areas—he did recall those correctly—was disappointingly low. We had hoped that there would be a pool of 1,000 or so parents with cases at those three places who could be asked if they wished to take part. The potential figure for those who might wish to take part was derived from the recorded number of contact applications to the family courts in those three pilot areas over the previous three years.

In fact, as it happened, the number of applications in the year of the pilots fell. It was lower than in the previous three years and so the pool was smaller. Participation was not compulsory and that is the point at issue in new clause 3. Of course, once referred parents were on the pilot they were not obliged to stay. If they managed to get a settlement that was suitable for their family, we were not going to suggest that they should stay the course to the end and not get their consent order. Cases were unsuitable where there was domestic violence, harm and abuse, and we know that there have been such allegations in 25 per cent. or so of cases. That will have contributed to the figure, but I do not resile from the fact that the numbers of participants were disappointingly low.

The new clause sets out a further set of pilots, which relates in part to what my hon. Friend the Member for Stafford said. He was right to identify that cost and delay are among the factors that deter parents and family members from participating and so perhaps not dealing with such issues as swiftly as they might otherwise be able to do. I congratulate my hon. Friend on new clause 17, which, even if it has had some assistance from the Clerk, is a pretty decent bit of drafting compared with what we sometimes see.

The early interventions pilot clause, if I can call new clause 3 that, was moved by the hon. Member for East Worthing and Shoreham. We have already rehearsed some of the arguments about proposals for compulsory arrangements in advance of court hearings and how that might engage article 6 of the European convention on human rights. We have also rehearsed the idea that such a new clause might constrain the court’s freedom to consider each case on its own merits with the paramountcy principle firmly in mind.

We have also had some discussion about the idea of contact guidelines ending up as default templates for dividing up time. I have made it clear that we do not want to impose such things. Although parenting plans might be helpful in making suggestions, we do not want to start being prescriptive.

We think that the findings from the evaluation, mixed though they are, will help us to develop the content and format the contact activity provisions in the Bill. The provisions are about trying to support parents in understanding more the importance and value to their children of continuing contact with both parents, and ensuring that post-separation parenting can be supportive as possible for the children concerned for their benefit. We are all singing from the same hymn sheet in that respect. I suppose there is a difference in how we might go about it, as we have acknowledged before.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful for the detailed response from the Minister. We have not this morning discussed the thorny issue of the paramountcy of the welfare, although it has come into virtually all our other deliberations. How does the Minister think a new scheme that is a pilot and seeks to bring early resolution and to keep parents and discussions of their children out of the courts could in any way undermine the paramountcy principle? Will she give some examples of where that would happen if the new clause were put into effect?

Maria Eagle (Labour, Liverpool, Garston)

We have discussed such issues before. The hon. Gentleman’s suggestions would require compulsory mediation ahead of court appearances, and would put the concepts of reasonable contact and of dividing up the child’s time between parents in a formulaic way ahead of the court making a judgment on the basis of the individual circumstances of the case. That is when we run into the dangers that I mentioned in respect of the hon. Gentleman’s proposals.

One reason why the family resolutions pilot project differed in design and implementation from the early interventions proposals is that this country’s jurisdiction is different from those in countries where early interventions have been tried. The steering committee that dealt with the project was intent on making it fit into our framework of children’s law and courts—there was no attempt to water down the way in which the pilots worked. I hope that we can learn lessons from the project and improve the interventions that we make for families in deep conflict. I do not rule out the possibility of another pilot project in future, but it would not be sensible to specify such things in legislation. We have undertaken to continue looking at the lessons that can be learned and will do so.

On new clause 17, let me compliment my hon. Friend the Member for Stafford on his drafting skills. We see the importance of a lot of what he suggests, but it is not necessary to put a new clause in the Bill to introduce a power to change the rules of the court. The rules made under the Children Act already include matters such as the making of applications and will be updated and revised to accommodate any new provisions that the Bill makes law. There is already a rule-making power in section 104 of the Children Act, so it is not necessary to put some of the new clause into the Bill.

On my hon. Friend’s point about costs, I can say that facilitating the early resolution of cases and encouraging resolution without full court hearings is the best way to reduce costs and delay for the parties. Although costs will ultimately be determined by the issues in dispute and the amount of legal work that must be done, taking the sting out of some of the bitter disputes that end up taking a long and winding route through the court will clearly be important in reducing delay and cost.

My fear about new clause 24 is that it would introduce compulsory mediation by denying access to the courts in any case where, following an initial meeting, a mediator does not rule out mediation. There is a rather neat sidestep, which might work, to avoid the point about article 6 of the European convention on human rights and preventing access to the court. However, we still have concerns, which we rehearsed earlier, about compulsory mediation. We do not believe that it is possible or right to force people to mediate against their will; indeed, in some circumstances, it might be unsafe to do so.

An amendment identical to the hon. Gentleman’s new clause was debated in the other place and the primary concern was to offer a level playing field between privately and publicly funded applicants, because the latter are under a greater obligation than the former to consider mediation. As my noble Friend said in that debate, the issue is worth considering and could be addressed by altering the application form that is used to apply to a court for contact orders. That will then require people, including those who are unrepresented or privately funded, to state on the form whether they have discussed using mediation or gone on to use it. If the court is not satisfied with their answer, the Bill gives it the power to direct the person to attend a meeting with the mediator to consider whether mediation might be useful. My hon. Friend the Member for Stafford has made several points about the value of mediation, with which we all agree. The point at issue, however, is whether it should be compulsory.

To conclude, new clause 3 would unnecessarily restrict the court’s discretion to consider each case on its merits. New clause 17 is extremely worthy, but I hope that I have been able to reassure my hon. Friend that we are doing what we can to prevent delay in the system and that there are improvements, so his new clause is not needed in addition to the Bill. New clause 24 would tend to cause delay and, more fundamentally, introduce compulsory mediation. We have had our debates about that, and cannot support it for the reasons that we have given. With those points in mind, I hope that the hon. Member for East Worthing and Shoreham might consider withdrawing the new clause.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister for giving a fair degree of detail in her response to our proposal. Before I respond to her points on new clause 3, I will say that I have sympathy with the new clause tabled by the hon. Member for Stafford, particularly its aim to minimise delay to proceedings, which is such a big problem and which exacerbates many other problems once a dispute has arrived in the court system.

I am rather frustrated by the Minister’s failure to entertain the principle of what we are trying to put forward. The point of the new clause, and one of our main contentions of the weakness in the current system, is that the way in which the system works is not clear enough. Time is the enemy of resolution. Far too many warring couples go to court unaware of how the system will work and what penalties might be invoked against them if they frustrate the system. There are also those who are a bit more savvy and are intent on using the system to frustrate the claims of an ex-partner. That is why we have said all along that the ground rules must be made absolutely clear and as up-front as possible. When ex-partners arrive at court, they should be left in no doubt as to what they can expect, what is expected of them and what will happen if they do not go along with the rules.

If early intervention were mandatory, and parents knew exactly what was expected and that the early intervention project was mandatory and was for the benefit of their child, that would resolve early many issues that would not then need to go to court. I repeat that the early intervention project was put together by a great many people with far greater knowledge and experience in the field and in the legal world than I have, with those principles at heart. Caroline Willbourne, the Family Law Bar Association’s designated expert on contact issues, wrote in November 2004 in Family Law:

“The Early Intervention project, as formally submitted, was fully specified, properly designed and costed. And it commanded across-the-board professional support.”

She went on to state that the family resolutions scheme, based on the “every case is different” approach, was the complete antithesis of early intervention.

The early intervention scheme had a large number of heavyweight experts behind it and was properly thought out with everything eminently clear from the beginning for all participants to see and take note of. It set out clear guidance on how the procedure should take place. I fully appreciate that that was before the Minister’s time in the Department, but a better explanation should have been given to all who put a lot of work into the early interventions project as to why, where and how it went off the rails. Those who were involved, including Mrs. Justice Bracewell, were sold a pup. They were told that the two projects were identical in all but name. Clearly, what resulted in the family resolutions pilot project was very different from what had originally been intended in the early interventions pilot. No one is in any doubt that at some stage the former was dropped and the latter produced somewhere.

The early interventions pilot was, to a large degree, based on some of the early resolutions work in Florida, where the success rates are rather interesting in terms of the number of cases that are resolved before a long, drawn-out court process. The Minister’s assertion that the family resolutions pilot project involved a disappointingly low figure is an understatement if ever there were one. She gave various excuses why the anticipated pool of around 1,000 couples turned out to be no more than 62, but, by any measure, the difference is enormous. In that year, it seems, people in Sunderland, London and Brighton lived together in rather greater harmony and resolved any disputes about their children without recourse to the courts. Why such harmony broke out in all, or parts, of those places at that time, I do not know. Perhaps the Minister can enlighten us if she really claims that that is a reason why those figures were such a complete, unmitigated disaster.

The Minister says that the new clause would not help the situation, but has not addressed the detail of the suggestion. She also says that it would unnecessarily restrict the power of the courts to consider each case on its merits, but I remind her that we do not seek to put it into the Bill in open-ended form. The intention is purely to run a pilot. If, at its end, it is as unsuccessful as the family resolutions pilot project, the Minister can rightly go back to considering another solution. We are trying to come up with a helpful suggestion of how we can progress this matter without tying the Minister’s hands entirely. The early interventions pilot was not given a proper trial or fair wind.

I am grateful for the Minister’s praise of our drafting skills. I have to say that the drafting of the new clause is not down to me; my hon. and noble Friends came up with it. The new clause clearly sets out how the courts should embrace the scheme, produce a set of guidelines, specify the date of the first hearing, and instruct couples to attend a meeting with a court-appointed mediator. It also sets out what should be done if a parenting plan is not agreed: parties should attend a parent education meeting, and contact-focused dispute resolution and mediation. It also sets out that a statement should be given that litigation should be a last resort. All that is set out clearly. Anybody coming to court with such a dispute, when faced with all that, would be left in no doubt of what was expected of them, and what would happen if they did not go along with the preferred action.

I am very disappointed that the Minister has not looked more favourably on what was actually her idea in the first place. We shall not push the motion to a vote at this stage, but I would certainly like to come back to the new clause on Report, because we think it fundamental to sorting out many of the problems that the Bill aims but fails to sort out. For the time being, I reluctantly beg to ask leave to withdraw the motion.

Children and Adoption Bill [Lords] - Standing Committee B

New Clause 6 - Compensatory contact

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move, That the clause be read a Second time.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss new clause 7—Orders under section 11(2): further provision—

‘After section 11R of the Children Act 1989 insert—

“11ROrders under section 11Q: further provision

(1)A court may not make an order under section 11Q(2) granting additional contact time between a person and the child concerned following the failure by an individual to comply with a contact order unless it is satisfied that before the failure occurred the individual had been given (in accordance with rules of court) a copy of, or otherwise informed of the terms of—

(a)in the case of a failure to comply with a contact order that was varied before the failure occurred, a notice under section 11I relating to the order varying the contact order or, where more than one such order has been made, the last order proceeding the failure in question, and

(b)in any other case, a notice under section 11I relating to the contact order.

(2)A court may make an order under section 11Q(2) in pursuance of a failure by an individual to comply with a contact order where the failure occurred before the individual attained the age of 18.

(3)A court may not make an order under section 11Q(2) in respect of a failure by an individual to comply with a contact order that is an excepted order (within the meaning given in section 11B(4)).”’.

Tim Loughton (Conservative, East Worthing and Shoreham)

We are on the final leg of this Bill and many of us will miss our regular slots in this Committee room, discussing very important and weighty matters—[Interruption.] I am sorry that the Minister does not take it quite as seriously as Opposition Members.

Although new clause 6 comes at the end of our deliberations, it is a significant and serious proposal in the spirit of making practical suggestions to try to give the Bill some teeth. For people who breach contact orders, particularly on a regular basis, the threat or perception of penalties becoming a reality is far too weak.

As I said this morning, there is a problem with lack of research on the failure of contact orders to work in too many cases. I think that all hon. Members will have received papers produced by the university of Oxford department of social policy and social work. They have some interesting things to say about the reasons for breaking contact orders. They refer to the situational power of the resident parent, meaning that the parent who lives with the child is in a strong position if he or she is minded not to comply with contact orders. Although legal remedies are available, fathers can all too often be discouraged by the costs of returning to court, deterred by legal advice on the prospects of success and disadvantaged by having to represent themselves, often against a legally aided partner with custody. The slow legal system allows a status quo to be established that it is hard to overturn.

The Government have recognised that there is a problem regarding parents who have custody not abiding with contact orders. If they had not recognised that problem, the Bill would not exist. The Government’s attempts to insert an enforcement process in the current law are welcome, but they only go halfway, if that. As it stands, the only real penalty available to a court against a serial breacher of contact arrangements is to put them in contempt of court. Most judges are reluctant to go down that route, because pursued to its ultimate conclusion, it could result in a custodial sentence for the offending parent. Obviously, that would not be in the best interests of the children concerned, and the welfare of the child must be paramount throughout. Therefore, when the Government published their original proposals, which suggested community orders and tagging, at least they were going in the right direction in establishing a graded series of penalties that were practical and did not disadvantage children, who must be protected.

The trouble is that much of the Bill refers to financial compensation and financial penalties, which are effectively fines. As Opposition Members have mentioned, if a non-resident father is paying maintenance to the parent who has custody and the parent with custody is required to pay a fine for breaching the terms of the contact order, the money is simply recycled back to the non-resident parent. In many cases, that could disadvantage the children whom the money was supposed to support.

If a parent with custody wants to proceed with a breach of contact, the financial penalty for doing so may disadvantage the children. If that parent is living on benefits and is in a fairly impoverished state, they will not be able to pay money back, in which case they are in a Catch-22 situation. Then we are looking at some form of community service, which I believe has possible applications in limited circumstances, but again will not be appropriate for some people. What then happens is that the penalties run out. I believe that the perception, particularly in the eyes of the serial breacher of contact orders, will be “What’s the worst that can happen to me? At the very worst I might have to do some community work, but it is highly unlikely that that would ever be laid at my door.”

If we are serious about the Bill and about addressing the problem that too many people still breach contact orders, we must create a scale of penalties that are appropriate to the breach. Above all, they should not detrimentally affect the child, and it should be commonly perceived that they will be enforced if somebody continues to breach contact orders without good reason and in spite of all the checks and balances, with all the damage that that causes to the non-resident parent’s agreed access to his or her children. I also believe that ultimately there should be a mechanism whereby, if it is appropriate and the parents are willing, in respect of the most serious serial breachers of contact orders the custody of the children could be switched to the non-resident parent. However, there is a shortage of research into the real cause of breaches of contact orders in this country.

Some of those whom I quoted this morning in relation to the early interventions project said that we could learn a great deal from overseas countries, but that for some reason, we had failed to do so. I want to quote again from the Oxford university paper, which gives examples of different forms of penalties that can be brought against a breacher of contact orders. For example, in the Netherlands it is possible to suspend child support temporarily and to terminate adult maintenance. In some US states, occupational, driving or sports licences can be suspended. In other countries such as Germany a non-complying parent can lose their right to manage contact arrangements, which will then pass to a court-appointed contact guardian. In Greenlee county in Arizona, a third party handles all the mechanics of contact. That makes it more difficult for somebody to breach the contact order and much more obvious to an independent person acting as a go-between when they have done so. The third party can then notify the court and take the matter to another level to get something done about it.

We want to see an additional, appropriate level of penalty, which is not financially so penal that the welfare of the children is affected and which can be inserted on the scale between somebody getting a warning for a breach of contact order initially and, ultimately, in the extreme nuclear option, losing custody. We therefore believe that in this case, the principle of compensatory contact is appropriate and measured. The hon. Member for Stafford (Mr. Kidney) said that he had some sympathy with that view when the subject was broached on Second Reading.

Under new clause 6, after the initial mediation, parenting plans and so on that we propose, if a court is satisfied that an individual has failed to comply with a contact order and deems it appropriate, it has the authority to decide to award more contact time to the aggrieved non-resident parent as the penalty for the parent with custody not complying with an earlier contact order. People may ask whether that is in the best interests of the child, but there are checks and balances in the proposal whereby if the parent with custody thinks that there is a danger to the child, the burden of proof will be on that parent. If they have a case they will be permitted to present it, not punished for having breached the contact order. The new clause contains all the checks and balances in respect of domestic violence and other matters, but the burden of proof must be on the person who has not complied with a court order to prove that they had good cause not to do so.

If the parent with custody is concerned that spending more time with the non-resident parent is bad for their child, it will be a big disincentive for them to breach the contact order, because the implication will be that the child will then spend even more time with the other parent. If there is no danger and it is what the child wants to do, the parent with custody will have to make a value judgment of what is better for the child.

What we propose is a sensible, appropriate, practical and workable addition to the scale of penalties in the system, when too many contact orders are still being breached. It does not mean imposing a financial penalty that it may be inappropriate to impose on a resident parent with custody, or that the parent may be sent to jail, but it does ensure that if someone continues to frustrate a contact order, there will be a danger that the child whom they are trying to keep away from the other parent will have more time with that parent. The proposal is not meant as a reward to the other parent; it is meant to achieve a more equitable balance in the time that each parent spends with the child and, above all, to reinforce the principle that the parents should respect the terms of the contact order that the court has set down. If, having gone through the due processes of law, a person does not respect those terms, they need to be made to do so and ultimately to be penalised if they continue not to respect them.

The proposal would be a valuable addition to the Bill, as the scale of penalties would make it clear that the measure has teeth. I fear that too many people will look at the Bill as drafted and think, “Well, it’s never going to happen to me.” They will think that they can play the system and take matters right to the brink without anything happening to them. In the meantime, they will have frustrated the right of the other parent to have a contact order respected, extra court costs will have been incurred and the child will have spent more time away from the non-resident parent, from whom he or she may become alienated. New clause 6 would therefore be a helpful addition to the Bill.

New clause 7 speaks for itself. If additional contact time with the child is to be granted to a non-resident parent following failure by an individual to comply with the contact order, the court needs to be satisfied that the parent who has breached the contact order has been properly notified of his or her entitlement and of the ramifications of not complying with a court order. They can therefore have no excuse for saying that they did not know or did not realise what was happening. The new clause would tighten up the grounds on which a penalty for the breach of a contact order is imposed or varied to give the non-resident parent more time with his or her child.

The new clauses are practical and workable measures that would enhance the Bill and go some way toward giving it the teeth that I fear are lacking in too many parts. That is why, if the Bill is left in its present state, it will be an enormously wasted opportunity to remedy the situation that we know exists.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I support the new clauses. I shall address an argument that the Minister has made and, for all I know, will make against them—an argument based on the principle of the paramountcy of the welfare of the child that the new clauses are for use by parents as weapons in a war using contact as the point of argument between them. That is not at all what the new clauses are about.

As my hon. Friend said, the clauses are not about whether one parent has the right to see their child for a particular length of time. They are substantially about the right of the child to have the contact with both parents that the court has decided is appropriate and has ordered in the original contact order. Far from moving away from the principle of the paramountcy of the welfare of the child, the new clauses underline it. The contact order made in the first place will have meaning and the child will be able to take advantage of the degree and level of contact that the court originally thought appropriate only if the courts can make an order for compensatory contact.

I refer Committee members to the wording of new clause 6, particularly subsection (2)(b), which says that the court

“may make an order granting additional contact time between the person and the child concerned with a view to mitigating the effect of the breach.”

That is the whole point of the new clauses, which is why they should have the Committee’s support.

Maria Eagle (Labour, Liverpool, Garston)

I understand the points made by the hon. Member for East Worthing and Shoreham (Tim Loughton) respecting new clauses 6 and 7. New clause 6 would insert a new section 11Q into the Children Act 1989 giving courts the power to make an order for compensatory contact where there has been a breach of a contact order resulting in a person with whom the child lives, someone who has been granted contact, an individual subject to the condition of the order, or the child being deprived—that is the word—of contact time. Such an order would grant additional contact time to the person so deprived. New clause 6 makes various other provisions, which are clearly set out, and new clause 7 is a technical provision replicating what is already in clauses 3 and 4—sensible provision ensuring that warning notices are placed on contact orders and enforcement orders.

The new clauses propose that an additional sanction be made available to courts for dealing with breaches of contact orders. The hon. Member for East Worthing and Shoreham made it clear that that is precisely what they are intended to do The new clauses call it compensatory contact. Where contact has been ordered by the court, the terms of the order should of course be adhered to. That is what the Bill is about, and it is one thing on which the whole Committee can agree. Whether the order is as effective as all Members would like is the subject of many Committee debates, but there is no doubt that the aim of the Bill is to ensure that contact orders are adhered to, because the court has decided that it is in the child’s best interests that the order be made.

When a contact order is breached and a child loses substantial time with one of his or her parents or relatives subject to the order, the courts can and do vary contact orders to allow the child to have that time. As long as it has determined that it is best, the court already has and uses the power to provide compensatory contact. It might not be called that, but that is in fact what the courts do. It is right that that is done as a variation of a contact order governed by the paramountcy principle. Everybody has stressed the importance of the paramountcy principle, but not packaged as a form of punishment directed at an adult. That is where I am concerned about the new clause: it sets out clearly that an increased or decreased level of contact with the child should be parcelled out as a form of punishment for the behaviour of the adults concerned. That is not the primary purpose of contact orders. Contact should be ordered with the interests of the child at heart, not to compensate adults in an ongoing argument between separating couples.

The hon. Member for Rugby and Kenilworth (Jeremy Wright) kindly read out part of the new clause, so I do not need to read it out as well, which refers to parties who have been “deprived of contact time”, but the contact arrangements set out in a contact order are for the benefit of the child. The rights of the adult parties are not the court’s primary concern when considering contact orders.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Will the Minister give way?

Maria Eagle (Labour, Liverpool, Garston)

I will when I have finished my point. The court’s primary purpose is not to make a contact order that punishes one of the parties for a breach of an order that has already been made. We are not seeking to ensure that the rights of the adult parties are preserved. Contact is for the benefit of the child, and if a court is going to make an order it must be firmly and always in its mind that it is supposed to consider the rights of the child.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The proposed new subsection 2(b), to which the Minister was referring, states that,

“a person falling within subsection (6) has been deprived of contact time by reason of the breach”.

I am sure that she is fair-minded enough to accept that one of the people listed in subsection (6) is the child concerned, so it is perfectly feasible for us to be concerned about the child being deprived of contact time as much as the parent.

Maria Eagle (Labour, Liverpool, Garston)

Yes, that is true, and there is provision also for the child to apply for compensatory contact. I accept that children are one of the groups of people referred to in the list of those to whom the new clause might apply. However, they are not the only people. It is too easy for us to see compensatory contact, as the new clause calls it, as something that one party must get if the other party has misbehaved. Indeed, it is presented as a sanction. During the introduction to and the advocacy for the new clause by hon. Member for Rugby and Kenilworth, it was stated that compensatory contact should be one of a range of graduated—I think he said—punishments that may be meted out if the resident parent is not adhering to the court order. I am concerned that some of the child’s contact with one of its parents is then seen as a form of punishment of the other parent. In that respect, the new clause gives cause for concern. That is unlikely to be accepted by Opposition Members, but that concern is why I find it difficult to accept the new clause.

I have explained that the new clause is unnecessary because if a court order is breached or needs variation, the court already has the power to make a new order or to vary an existing order to whatever degree it thinks is best for the child in the individual set of circumstances. It is perfectly within the existing powers of the court to order that the resident parent makes the child available for contact for additional time, if time has been missed. Indeed, courts do that.

The hon. Member for East Worthing and Shoreham said that the court needs to have a scale of penalties, but I suggest to him—he might not agree—that that is exactly what the Bill does. If the Bill becomes law and there is a breach of a court order, the court will have a set of sanctions and orders available to it. For example, it could add a contact activities condition to the existing contact order, or it could make an enforcement order, which would mean unpaid work. I was not clear, from what the hon. Gentleman said, about whether the Opposition favour tagging.

Tim Loughtonindicated dissent.

Maria Eagle (Labour, Liverpool, Garston)

They do not. So the hon. Gentleman has accepted that that is probably inappropriate. The enforcement order for unpaid work is an order that is not currently available to the court. If it is appropriate, the court can order financial compensation—I know that the hon. Gentleman is concerned about that—and there will be circumstances where that will act as a deterrent to poor behaviour and not complying with a court order on the part of a resident parent.

The court can also, in extreme situations, where it has tried other measures that have failed, use its existing powers to impose a fine and commit the person in breach to prison. That happens occasionally now, although none of us want it to happen often. Where there is a greater range of potential penal orders, none of which work, the court will be clearer in its determination, if it wishes to continue to enforce an order—which it will—because there are no alternatives. It may assist the court if it has a wider range of opportunities for enforcement at its disposal.

Of course, in extreme circumstances the court can and does—rarely, admittedly—reverse residence. That has been done and it is within the powers of the court to do it.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I understand the Minister’s point about Bill allowing the courts to impose enforcement orders, contact activity directions, compensation orders, or various other things. Surely, however, she would accept that all those things are, in effect, punishments of the absent parent for failing to comply with court-ordered contact. Only compensatory contact gives effect to the original contact order. Although I understand her reservations about appearing to punish one parent rather than another within a contact situation, surely everything in the Bill does that, whereas an order for compensatory contact gives effect to the original contact order.

Maria Eagle (Labour, Liverpool, Garston)

The court already has the power in effect to order compensatory contact, although it may not call it that. It uses its sensible good judgment within its powers and on the basis of the individual circumstances of the case. I am concerned about packaging that as a sanction or punishment, with the non-resident parent getting to see the child more. I am not complaining about the fact that the court may wish to order some compensatory contact if the non-resident parent has been deprived of that by the actions of the misbehaving resident parent and, as a consequence, the court-ordered contact has not happened. Courts can and already do that.

The hon. Member for East Worthing and Shoreham suggested that there was a lack of research. I have some sympathy with what he said about why contact breaks down. I can tell him that Jan Hunt’s compendium of research into contact cites several studies. Although conflict with, or discouragement or obstruction by, the ex-partner was the factor most often cited, there are other reasons for losing contact, including practical difficulties, such as distance, finance, work schedule, the children’s refusal, legal injunctions, an early pattern of no contact, lethargy, lack of attachment, preoccupation with a new life, pressure from new commitments and new relationships, being halfway into a child’s life being too painful for the parent, feeling shut out of the child’s life, concern about the impact of contact on the child. All those reasons are cited in what research there is. Although I accept the hon. Gentleman’s point that we could always have more research, I do not accept that there is no evidence.

I suspect that we will never agree on these points, but I do not believe that there is a huge distance between us, in the sense that the court can already use its powers effectively to order more contact in appropriate places, but by considering cases individually and case by case in the context of the paramountcy principle. I am going to disappoint the hon. Gentleman by saying that, again, I will not accept his proposed new clause, but I hope he will not be too disappointed, even though a pattern has emerged during the Committee.

At least I have been able to explain why we object to the new clause. It is not that we are opposed in practice to courts having the option to respond to breaches of contact by ensuring that some of that contact is made up. We are simply concerned about doing that as a sanction or punishment for the misbehaving resident parent in this instance. On those grounds I cannot accept the proposed new clause and I hope that, with my explanation, the hon. Gentleman feels able to withdraw it.

Tim Loughton (Conservative, East Worthing and Shoreham)

Disappointment butters no parsnips, as they say in Peterborough, and the Minister has disappointed consistently throughout the Committee—although, at one stage, she was almost arguing our point. The problem is a fundamental misunderstanding of the difference between a penalty and a deterrent. If the system that the new clause would impose were working properly, it would not have to be used, because it is a deterrent. We do not want the courts to have to award compensatory contact to a non-resident parent, but we do want the threat of its imposition to be sufficient—a clear and present perceived threat—to prevent a potential breacher of the contact order from breaching it. That is a deterrent. It is not about throwing an arbitrary penalty at a person who breaches an order. It is about trying to prevent him from doing it in the first place. That is where we disagree.

The Minister said that the court already has the power to award compensatory contact, so what is the problem with including it in the Bill? That would make it clearer and a more obvious, practical and immediate deterrent to a parent who might think about messing around with a contact order for no good reason. The measure is not compulsory; it is not directing or straitjacketing the court. The amendment merely says, in proposed new subsection (2), that if various conditions are satisfied, the court “may make” an order granting additional contact time. The court will not have to do so; it will view each case on its merits.

The court might consider a financial penalty to be appropriate in terms of what is set out in the Bill, or that a community time order, during which time the child might spend time with the other parent, is more suitable. However, it might consider the order of magnitude of the breach of contact to be so great that compensatory contact should be awarded. The decision is left to the court. We are not trying to straitjacket the court; we merely want to make it explicit to a potential breacher of contact what will happen if he or she proceeds with that course of action.

The Minister spoke in terms of the rights of parents. Like all hon. Members on this side of the Committee, I have been very careful throughout our deliberations to talk in terms not of the rights of parents but of the rights of the child. I said so on Second Reading, much to the pooh-poohing of the ever present, if not always physically, hon. and learned Member for Redcar (Vera Baird) who suggested that that was some kind of contrived formulation of law. I do not think that it is. We take the view that a child has a right to maximum contact with both of his parents unless there is a case proven that that should not happen and would be detrimental to his welfare. That is fundamental to what we believe. That is what is in the interests of the child. We are not talking about using the child as some kind of bargaining chip to take away from an offending parent as a penalty. Our purpose is to safeguard the right of the child to have a contact order that has been decreed on his or her behalf abided by by both parents. That should be an entitlement that a child can expect.

The Minister has argued the case that we tried to make, but has fundamentally misunderstood why we are trying to make it, and has completely confused the concepts of deterrent and of penalty. Without the new clause, the Bill will be infinitely weaker. The Government’s failure to take that on board reinforces my view that they are not really serious about the Bill. That is why it lacks teeth. I have called it all along a toothless fudge. That is an appalling contradiction in metaphors, because no fudge that I have ever known has had teeth, but that is what the Bill will be—a limp, tokenistic measure, which will not address a problem that we have all acknowledged. It will fail to put in place proper deterrents to make it clear to any potential offender that such behaviour will not go unchallenged and that it is not in the interests of their child to allow it go unchallenged, which is one of the best deterrents to ensure that they do what the court has decided is in the best interests of the child.

I am sorry that we have to end Committee on an antagonistic note, but the point is so fundamental that I should like to press new clause 6 to a vote to reinforce how strongly we feel about it and to find out the views of all parties.

Tim Loughton (Conservative, East Worthing and Shoreham)

On a point of order, Mr. Hood. I believe that we are supposed to vote on new clause 8. We reserved the right to return to it the other day.

Jimmy Hood (Labour, Lanark and Hamilton East)

I was not advised of that, but I accept the hon. Gentleman’s point.

New Clause 8 - Presumption in favour of co-parenting

Maria Eagle (Labour, Liverpool, Garston)

On a rather more spurious point of order, Mr. Hood. It is time for me to hand out the usual pleasantries in what has been for this Bill a short, sharp but highly entertaining Committee stage. I am sure that some of our discussions, disagreements and misunderstandings will be taken up in the Bill’s remaining stages on the Floor of the House.

I should like to thank you, Mr. Hood, and Mr. Hancock. Despite the potential awkwardness of having so many lawyers from all parties in Committee, and having to deal with some issues about which there has not been unanimity, our chairmen have conducted the Committee with a great deal of humour and firm resourcefulness to ensure that we have all been in order. I am sure that I speak for all Committee members when I pass on my thanks to you and to Mr. Hancock. I am grateful for the concern shown for my health when I was unable to attend the Committee’s sittings one day. That was a matter of great sorrow to me and, of course, I read the Hansard report as soon as it was published.

A number of issues have caused us concern; there was perhaps more agreement on them than disagreement, but we managed to disagree in any event, in practical terms. One strange thing that happened during this Committee is that a bug or lurgy of some kind went around and appears to have disproportionately attacked those with the first name of Maria. It is the first time that I have come across that on a Committee.

I am grateful to my right hon. Friend the Minister for Children and Families, who is absent today but who was very much present last Thursday when I was unable to be here. She stepped into the breach admirably and, from what I read in Hansard, it is clear that she dealt with all the things that I should have dealt with. I am also grateful to a very active, vocal and informed expert bunch of Labour Back Benchers, who have been excellent in making the jobs of both of us as Ministers a lot easier by dealing with some of the points before we even had to try to deal with them.

I am grateful to my hon. Friend the Member for Stockport (Ann Coffey), who has a long association with the Bill and its predecessors, and who served on the Committee that considered the Bill in draft. She has brought considerable knowledge and expertise to her interventions, as has my hon. Friend the Member for Stafford, one of the lawyers on our Committee. He has also brought a great deal of experience and insight to the deliberations of the Committee. I know that there are also lawyers on the Opposition Benches and they, too, have shown that they understand the legalese as well as anybody else. They have contributed well to our deliberations.

I thank the hon. Member for East Worthing and Shoreham, who has brought his usual good humour—and an occasionally vituperative way of looking at things—to our deliberations. He has his own views on some of the issues; they were formed as a result of his experience on various children-type Bills in his current post on the Opposition Front Bench, a post that he has held for some time now. Although some of his amendments were ruled out of order, those of us aware of all the deliberations of the Committee will certainly think of him in future as “Mr. Insert Reasonableness”. That seems to have been the tenor of most of his amendments. That is understandable, given where he is coming from. There is no doubt that he is extremely concerned about the issues and brought his expertise to the debates.

Confusing though it may be that the hon. Member for Basingstoke (Mrs. Miller) is also called Maria, she is obviously getting into the swing of things, despite being relatively new to her post. She has been very clear in her contributions to the Committee. I thank hon. Members of all parties who have attended. The hon. Member for Mid-Dorset and North Poole (Annette Brooke), who unfortunately is not with us today, always contributes in her very particular way to deliberations, and did so on this Committee, too. The hon. Member for Ceredigion (Mark Williams) stepped nobly into the breach in her absence and dealt succinctly with some of the points that she would no doubt have made.

Finally, I thank the Officers of the House who, as ever, have kept us well served with water when we were choking and needed sustenance. They made sure that Divisions were dealt with properly under your guidance, Mr. Hood. I also thank the Hansard reporters, without whose efforts I would not have known what on earth happened on Thursday. It was very helpful to read that in plenty of time for our deliberations today.

Finally, I must say what a pleasure it has been to deal with the Bill so succinctly and sharply. It has been a relatively short Committee stage, but I think that we have gone into many of the issues in some detail. No doubt we will come back to them in the remaining stages on the Floor of the House. I look forward to that.

Tim Loughton (Conservative, East Worthing and Shoreham)

Further to that point of order, Mr. Hood. As is traditional, I add my thanks and comments to those of the Minister and I concur with everything that she has said. I thank you and Mr. Hancock for the very balanced way in which you have chaired the Committee, even if you did not select a lot of our amendments. However, we shall not bear a grudge about that.

I pay tribute to my very active hon. Friends, who have all participated in the Committee. My hon. Friend the Member for Rugby and Kenilworth was the only lawyer among my hon. Friends during our proceedings and he certainly merited his selection in the Committee with his in-depth legal analysis of what was a very legal Bill. I welcome my hon. Friend the Member for Peterborough (Mr. Jackson), who came as a Committee virgin and is a virgin no more. He certainly acquitted himself very well with his knowledge of these matters, which has been voiced in other parts of the House.

I thank our Whip, who has kept us in order so well to the extent that he missed more votes than all of my other hon. Friends. However, that was for perfectly understandable reasons: we need to be multi-skilled. I particularly pay tribute to my hon. Friend the Member for Basingstoke, who, as the Minister says, has come to this role very recently. In a short space of time, she has more than picked up the reins of what is not an easy subject—it is very technical—and mastered the brief exceedingly well without being a lawyer, although she is married to one, so it must rub off in some respect.

As usual, the Minister and I have conducted proceedings in a reasonable fashion and our debates have been measured. She has certainly soldiered on through the adversity of her illness and, as she said, her right hon. Friend the Minister for Children and Families took up the reins the other day. It is also a rare pleasure to see Labour Back Benchers contributing to the debates and risking voicing their own views on certain subjects. It was particularly good to hear the contributions from the hon. Member for Stockport, who has long-standing knowledge and experience in this area, and the hon. Member for Stafford, who brings a great wealth of expertise, as do other Labour Members. It is also worth mentioning the hon. and learned Member for Redcar, who, like Banquo’s ghost, has not been physically part of our proceedings, but her name has been on the amendment paper more than certain Government Members who have attended our proceedings. Such is her influence on these matters.

I also thank those who have helped me and my hon. Friends. We do not have an enormous civil service—it is getting more enormous all the time—to help us in our deliberations, so we have to rely on the good will and efforts of certain people who bring their concerns and points of view to us. In particular, I would like to thank Oliver Cyriax, a lawyer who has great expertise and has been a great advocate for reform of the family courts in this area.

As the Minister said, we will not agree on the Bill because our disagreement deals with some fundamental issues of principle, about which we argued long and hard in the other place. We will continue to argue long and hard about them on Report and I cannot see my hon. and right hon. Friends wanting to agree to the Bill in its present form. The amendments that we have tabled were designed to make the principle behind the Bill, about which we all agree, workable in practice. That is where I fear it falls down. For me, the biggest blow I have taken is the Minister’s refusal to entertain the idea of changing the short title of the Bill, which is fundamental to the way in which we approach the legislation. I have taken that particularly badly. However, we have many points to return to on Report, and I am sure we will.

We have done the Bill a good service in our deliberations in the Committee. It was certainly right to have additional time, and I am grateful that the Government Whip was able to give us time beyond that originally granted by the House. The length of our deliberations has certainly been justified. We have had good debates and good arguments, and I thank all of those who have made that possible. We look forward to further scrutiny of the Bill on Report.

Jimmy Hood (Labour, Lanark and Hamilton East)

I thank the Minister and hon. Members for their kind words during their points of order. I now rule that they were not points of order but, on behalf of Mr. Hancock and myself, I thank them very much for their kind words. I do not know what they will do to my reputation, but they are very welcome indeed.