§ 3.9 p.m.
§ Baroness Buscombe asked Her Majesty's Government:
§ What plans they have to introduce a legal presumption for parents to have continuing contact with their child following a divorce or separation.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, generally it is in the best interests of the child to have a continuing relationship with both parents following separation. We will encourage contact where it is safe and we will look at ways of diverting more cases away from the courts.
Where one parent refuses to comply with court-ordered contact, we want to look beyond the courts' current options of fine or imprisonment. We shall publish our proposals for improving contact in November.
§ Baroness Buscombe
My Lords, I thank the Minister for his reply. However, does he accept that it is only right that separated parents should each have a legal presumption of contact with their children; that is, real parenting time? Surely that would ensure that both parents could continue to contribute to their children's family life and that those children would benefit from care by both their parents and any grandparents and extended family members who were able and willing to play a role in their upbringing. Does the Minister agree that while children's safety should not be put at risk, it is cruel, inhuman and plainly wrong to keep fit parents from their precious children without a compelling demonstrative reason, and that it is cruel and damaging to the children as well as to the parents and the grandparents?
§ Lord Filkin
My Lords, as I indicated in my reply, it is the Government's view that it is strongly in the interests of children that they have such continuing contact with both their parents when it is safe to do so. However, we believe that the Children Act 1989 quite rightly put the responsibility for making decisions on contested contact issues with the courts, with the focus being on what is in the best interests of the child. We continue to think that it is right that the courts have a wide discretion to exercise judgment on what is in the best interests of the child looking at the particular circumstances of each case that comes before them. Having said that, we are strongly of the opinion that we need to try to find ways of encouraging increasingly successful contact arrangements because we share the view that it is desirable in the vast majority of cases that children have contact with both parents as part of their growing up.
§ Lord Northbourne
My Lords, if the noble Lord means what he says about the Government's 267 presumption that what we are discussing is in the interests of children, why will he not accede to the suggestion of the noble Baroness, Lady Buscombe, that there should be a presumption? The courts would still have the opportunity of going against that presumption if it seemed appropriate to do so, but the presumption would be a great help in achieving the objectives the Government appear to endorse.
§ Lord Filkin
My Lords, I do not fully understand that argument because as the law currently stands the courts have the duty as their prime obligation to consider the interests of the child. In our experience the Government, the family courts themselves and the judiciary recognise the desirability, where it is safe to do so, of a child having continuing contact with both parents, as common sense tells us. They have full liberty to reach the objective that the noble Lord indicated. We think that is a correct principle. Having said that, we have to pursue mechanisms to increase contact wherever we possibly can.
§ The Lord Bishop of Guildford
My Lords, does the Minister accept that the key to ensuring the welfare of children in these circumstances lies with the parents jointly agreeing how they will fulfil their responsibility to their children, and that any introduction into the process which encourages a battle around the rights of either or both of the parents would be disastrous? The system, including the provision of family mediation services, ought to work to encourage parents to fulfil their responsibilities. Will the Minister encourage us to believe that the Government will seek to increase support for such services in support of parents in this situation?
§ Lord Filkin
My Lords, the right reverend Prelate put his finger exactly on the central issue—how one can try to motivate parents to be more successful in reaching agreements for effective contact in the interests of their children. The evidence is that those cases that go to court appear to be less satisfactory in reaching outcomes that both sides think work than those that are dealt with by agreement between parents. Therefore, the whole thrust of our policy is: first, to try to ensure that when the court makes an order it is enforced and enforceable, which is not always the case, and, secondly, to try to push processes to mediation before they get into a court process, which does not appear always to be the best way of resolving these very difficult disputes. I strongly endorse what the right reverend Prelate said.
§ Earl Russell
My Lords, I thank the Minister for the spirit of the answers that he has given so far. If the Question had mentioned "presumption", it would have received a warm and wide welcome on these Benches. However, it mentions "legal presumption". Since the man of property is still with us, it raises the need for equal security against the risk which is sometimes underestimated of physical or sexual violence either to the child or to the woman. As we agree that the interests of the child are paramount, 268 does the Minister agree that this is often best discovered by the use of a genuinely independent advocate for the child?
§ Lord Filkin
My Lords, there are circumstances when it is right and necessary that the child has an independent advocate both in child contact cases and more often in child protection cases. I recognise and agree with that. I also take the thrust of the noble Earl's point about it being desirable that both parents have continuing contact without unduly fettering that by making it a specific legal obligation. There is no conflict between those objectives in practice in most cases because in practice it is desirable for the absent parent to have contact and, therefore, one wants to work towards making a reality of that both in the interests of the child and in the human interest of the absent parent.