Children and Families Bill

Debate between Baroness Meacher and Lord Mackay of Clashfern

Wednesday 16th October 2013 Grand Committee

[Lord Mackay of Clashfern]

I was simply making the fundamental point that adherence to the paramountcy of the welfare of the child is the principle that should rule in all cases without exception.

I understand the problem to which this clause is directed, and I shall not repeat what has been said about where it came from and so on. There is a possibility that Members of Parliament get a slightly distorted picture of what goes on in the courts, because the people they see at their surgeries are generally not those who have won. People do not normally come along to say how well they have got on. I have never been a Member of Parliament myself, so noble Lords will understand that I am only speculating, but that is a possibility.

I believe that all judges—family judges, magistrates and so on—recognise the importance of trying to preserve the relationship between a child and both parents. I entirely agree that that should be affirmed but what I find very dangerous—and they appear in more than one amendment—are the words “unless the contrary is shown”. One can see immediately what might happen. Let us say that the wife decides that she wants to have the child. She concentrates on proving that the father is not fit or that he has done something, unless the contrary is proved. That puts a focus on what are often the most difficult issues.

I suggest that the important factor is the relationship between both parents, as expressed in the clause, and that should be one of the factors that have to be taken into account in considering the welfare of the child. It is obviously important that the relationship with both parents should be preserved if possible. A factor in the checklist that includes that would obviate a great deal of the difficulty that this kind of clause could produce in putting a focus on one party trying to show that the other party is not suitable for some reason or other. It would be much better for the judge or magistrates, in approaching the matter, to take account of the fact that it is very much in the interests of the child and of the paramountcy of the child’s welfare that both parents take an interest and be involved. Precisely how that is done can be looked at as part of the general picture, but it strikes me that focusing on this as a separate matter is very likely to make matters worse rather than better.

It is some time since I had experience of the working of the courts but I used to, and much of what I learnt then remains with me and was part of what I had in mind when the Children Act 1989 was formulated. It is also fair to say that the criteria set out in that Act have proved to be a considerable international instrument in developing justice for children. Therefore, I have a very strong affiliation to what was in that Act and I am not keen to see it much changed. So long as the change is an improvement, I welcome it, but one has to be careful that one does not distort the principle while making improvements.

[Baroness Meacher]

The noble and learned Lord referred to the clause possibly generating parental attempts to downgrade the other parent. Does he agree that that is absolutely the norm at present? That is what parents do and women are particularly good at it. They really go for the father and try to discredit him. I suggest that we already have that in spades.

[Lord Mackay of Clashfern]

It is the job of the judge to do his or her best to lower that. As I say, it is some time since I had experience of dealing with this issue but I have had that experience. However, it is counterproductive to do the opposite and to make important, and put up as a presumption which may be rebutted, something which is absolutely at the heart of the difficulty between the parents. As the noble Baroness says, this situation often arises. I feel that a judge would be better able to keep the situation under control if he or she did not have to focus on whether or not the contrary was proved. The judge would just have to take account of the nature of the relationships and make sure that they were properly taken into account when addressing the major question of principle.