Children and Families Bill

Baroness Hughes of Stretford Excerpts

Wednesday 16th October 2013 Grand Committee

Moved by

[Baroness Hughes of Stretford]

53: Clause 11, page 10, line 15, leave out subsections (2) and (3) and insert—
“(2) After subsection (3)(g) insert—
“(h) the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future.””

[Baroness Hughes of Stretford (Lab)]

My Lords, Clause 11 would require a court, in considering arrangements to promote a child’s future, to presume, unless there are reasons to the contrary, that continued involvement of each parent would be conducive to the child’s welfare. I move Amendments 53 and 55 as much to probe the complex issues inherent in this matter as to propose a definitive solution. Indeed, it is not clear yet whether the Government’s proposal or any of the amendments before us today are the best route to achieving the policy objective of meaningful, continuing contact between children and both parents when the parents break up. I hope that this debate will clarify those issues so we can move to a sensible position that maximises the chances of achieving that policy objective, with which I wholly concur, while minimising the possibility of unintended, negative consequences for the children. Much of the debate outside this place has turned on the nuances of different legal interpretations of the impact of Clause 11 on the current overriding requirement in Section 1 of the Children Act that the,

“child’s welfare shall be the court’s paramount consideration”.

I will come to that point in a minute but I want to say at the outset that I believe there is a problem to be addressed here, and that the Government are right to try to do so.

We do not yet have a society in which mothers and fathers are accorded equal status as parents. Certainly by much of our public policy, public services and professional practice, whether health, education, social care, policing or the family courts, the default position is very often that parent equals mother. Often this disadvantages mothers because they are held more to account for children’s well-being. They are blamed more when things go wrong and the kids go off the rails and fathers are often let off the hook by professionals and organisations. In other instances, however, this default position can work against fathers who can struggle to get recognition from professionals. When parents separate, if the father becomes the non-resident parent, as is often the case, they are often not supported adequately by the courts or professionals to maintain contact with their children. So I start from the position of sharing the Government’s desire to put in public policy the principle of shared parental responsibility and involvement in a child’s life. Indeed, I would argue—I am sure all of us would argue—that for most children the paramount principle of the child’s welfare enshrined in the Children Act cannot be fully met unless both parents are fully involved in a child’s life and have a continuing relationship with the child, so it may be that there is a need to strengthen the principle of parental involvement.

I was a Member of Parliament for 13 years and during that time I had many cases in which fathers—and they were all fathers—had become excluded from their children’s lives, either because of the minimal contact arrangements decreed by the court in the first place or by the failure of the court to enforce the contact arrangements that had originally been made. Noble Lords may be aware of the recent decision in June this year by the Court of Appeal. Their exceptional but very welcome decision to publish their judgment and findings on one such case—Re A—has revealed the extent to which the system is sometimes failing to enable children to maintain relationships with non-resident parents, usually, but not always, the father. In this case, the father fought for more than 10 years, the family courts made 82 orders, but in the end a senior family court judge decided the impasse should be resolved by banning the father from further attempts to see his child. The Court of Appeal ruled that collectively over time, the failure of the courts amounted to,

“an unjustified violation of M’s and the father’s rights to respect for family life under ECHR”.

It would be a mistake to regard this case as wholly exceptional. It is exceptional only in that it is now in the public domain.

It may reflect in parts, but not all, of the system a culture that does not always regard the non-resident parent as equally important either in initial decisions or in enforcement. When that happens, as the cases I had as an MP showed, it often means that children lose contact not only with their fathers but with their paternal grandparents and their entire paternal family.

However, there is a view that the change in the law proposed by Clause 11, which introduces a presumption of parental involvement, would dilute the paramountcy principle of the welfare of the child in Section 1 of the Children Act. I have seen the Minister’s note which contends that the paramountcy principle is not a rebuttable presumption and therefore cannot be in conflict with the presumption in Clause 11 which is rebuttable if it needs to be on the grounds of the child’s welfare. The Minister’s view is that there is no potential conflict for the courts in juxtaposing the paramountcy principle, which is the overriding one, and the presumption in Clause 11. I am sure we will hear many views on that during the course of this debate, and I look forward to hearing them because this is a complex issue and we need to think about it very carefully.

Another argument raised against Clause 11 is that it is unnecessary, as only around 10% of cases are currently decided in courts and in 2010, for example, only 0.3% of the large number of applications for contact was refused. However, that is to assume that in all other cases contact arrangements are satisfactory, whereas many non-resident parents feel that they are forced—advised, in fact—to accept arrangements for quite low levels of contact between them and their children because that is the cultural norm set by the courts in these contested cases.

We agree that the paramount consideration is the welfare of the child and that this principle should not be jeopardised or diluted. However, we argue that the welfare of most children depends on substantial contact with both parents and the shared involvement of each parent, resident and non-resident, in the child’s life, unless there are reasons to the contrary and subject to the detail of arrangements which give the child as stable and enriched an experience as possible. With the focus on the child, any arbitrary splitting of the child’s time on a 50/50 or other basis would not be acceptable because this is about the child’s rights, not the parents’ rights. Equally, it is not acceptable for a parent to use the child to score points or vent frustration with an ex-partner by opposing or frustrating contact and involvement. Amendment 55 therefore clarifies that parental involvement does not and should not equate to shared parenting or shared time and that the involvement must promote the welfare of the child.

Amendment 53 would not include parental involvement as a legal presumption in Section 1 of the Children Act but instead inserts into the welfare checklist in Section 1(3) an additional criterion, namely,

“the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future”.

This would require the courts to focus on the current and future involvement of both parents without making it a legal presumption and therefore subject to the debate we are having today. It may avoid the doubt that has been expressed about whether the Government’s preferred formulation in Clause 11 dilutes the paramountcy principle. That is the core issue that we need to clarify this afternoon. I beg to move.

--- Later in debate ---

What I want to do at this hour is take this issue away and read Hansard carefully and have discussions with colleagues. The difference in the debate at each end of Parliament is strange, however. It is not just that MPs see only the complainers at their surgeries. I wonder whether there is a generational gap here and whether at the other end there is more appreciation of the new dynamics of family that need to be recognised. I realise that in this place I am not trying to convince but trying to listen. We have had a substantial and useful debate, and I hope that in the 90 seconds left before the shutters come down, the noble Baroness, Lady Hughes, will gracefully withdraw her amendment—at least for another day. Again I thank her for her constructive approach.

[Baroness Hughes of Stretford]

My Lords, whatever I do, I hope that I will do it gracefully. We have had an excellent debate because we knew before we started that there would be a variety of views. It has been a very constructive debate, from which a great deal of consensus has emerged and become evident. We are all agreed that the welfare of the child should be paramount and that this principle should not be diluted. We are all agreed that continued involvement of both parents in a child’s life is desirable, indeed essential, to the child’s welfare, unless there are reasons to the contrary. We are all agreed, or at least will accept, that a change in the law of one kind or another to put greater emphasis on parental involvement would be acceptable; and we are all agreed that parental involvement should be determined from a child-centred point of view—that is, with reference to the child’s experience and not any particular division of the child’s time. I can reassure the noble Baroness, Lady Meacher, that our reference to indirect involvement is not intended to suggest that, say, three letters a year would be all right at all.

Some differences of opinion are evident, particularly around whether the courts and professionals do enough at the moment to promote contact by fathers and whether there is an issue there. I feel that there is an issue there, and not just as a result of cases from when I was an MP. I take the point of the noble and learned Lord, Lord Mackay, about that. None the less, when as a Member of Parliament you get a large number of cases such as that, it behoves you to ask whether things are working properly. That is what you are there for.

I also cited the recent Court of Appeal judgment, which was very strong on the fact that many courts in that case had issued 82 orders and none of them had resulted in the contact that they had sought the father to make. The noble and learned Baroness, Lady Butler-Sloss, said that there is no evidence of bias. Of course, we do not get information from family courts about their individual decisions but there are certainly concerns among fathers themselves. I do not think that many people can top the noble and learned Baroness but in relation to Fathers 4 Justice I think I can, because they actually handcuffed me. However, as your Lordships can see, my wrists are so slender that I was able to slip out of it, much to the man’s consternation. However, I talked to some other very reasonable fathers’ groups over many years when I was Minister for Children. They testify to having difficulties and we have to take them seriously.

Having said all that, I am not sure whether we are any further forward because it depends on the Minister’s contention that the paramountcy principle cannot be overridden by a rebuttal presumption, which is that in Clause 11. So that we do not rehearse these same arguments at Report, I suggest to him with respect that he could arrange some meetings and further briefings so that we could have a discussion in a smaller environment to see whether we can find a way forward before Report. With that, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.