House of Lords - Draft Children (Contact) and Adoption Bill

Select Committee on Draft Children (Contact) and Adoption Bill First Report

Draft Children (Contact) and Adoption Bill

CHAPTER 1: Introduction

1. The Draft Children (Contact) and Adoption Bill was presented to Parliament on 2 February 2005 by the Secretary of State for Education and Skills.[1]

2. After an exchange of messages between the two Houses of Parliament, this Joint Committee on the draft Bill was appointed and directed to meet for the first time on Wednesday 9 February. Our terms of reference were:

"... to consider and report on any draft Children (Contact) and Adoption Bill presented to both Houses by a Minister of the Crown, and report on the draft Bill by 26th May 2005."

3. At our first meeting we decided that, in view of the widely anticipated General Election which was likely to involve dissolution of Parliament some time before 26 May, we would endeavour to complete our work by Easter. This involved a much-compressed timetable, but we believed that it would be preferable to adopt this rather than risk failing to make any report.

4. Accordingly, we held public evidence sessions on the mornings and afternoons of only two days: 24 February and 3 March. At these meetings, we heard evidence from: the Family Law Bar Association and Resolution (formerly the Solicitors Family Law association);[2] the President of the Family Division of the High Court and another judge of the Court;[3] the Children and Family Court Advisory and Support Service (CAFCASS);[4] the Welcare Accord Centre, the National Association of Child Contact Centres, Relate and the United Kingdom College of Family Mediators;[5] Families Need Fathers, the Grandparents' Association and Both Parents Forever;[6] the Association of District Judges;[7] the NSPCC and Women's Aid;[8] and the Minister for Children and Parliamentary Under-Secretary of State from the Department for Education and Skills.[9] We are grateful to all our witnesses for appearing before us at rather short notice.

5. We also issued a press notice calling for written evidence.[10] Again, we had to set a tight deadline for these submissions of the end of the first week in March, but we received over 60 submissions from a wide range of organisations and individuals. Many are printed in the separate volume of evidence. We are grateful to all those who took the time to write to us with their views.

6. We appointed two specialist advisers to assist us in our inquiry: Professor Gwynn Davis of the University of Bristol and Mr Andrew McFarlane QC of 1 King's Bench Walk Chambers. Both had previously advised the House of Commons Constitutional Affairs Committee on its inquiry, which we describe below. We are indebted to our advisers for their assistance in this brief but intensive inquiry.

7. The draft Bill is short, comprising only eight substantive clauses and two Schedules. It divides into two entirely distinct parts, the first dealing with measures relating to child contact orders, and the second with the power of the Secretary of State to impose restrictions on adoptions from specific countries.

8. In relation to the first part, we have been mindful of the report of the Commons Constitutional Affairs Committee, published on 23 February 2005, which deals with the operation of the family courts more widely.[11] We have not sought in this Report to go over the same ground as that Committee: their Report provides an essential background to our own recommendations and deals with much of the wider context in which the proposed provisions of the draft Bill must be considered. In the time available, we have focussed exclusively on the provisions of the draft Bill, particularly their workability, their likely effectiveness, and their proportionality to the problem they seek to address. In this context, we have also considered whether the draft Bill fails to include any provisions which might have been useful in advancing its aims.

9. Part 1 of the draft Bill makes provision with respect to the enforcement by the family courts of orders requiring a "resident parent" to co-operate with a "non-resident parent" in allowing contact between a child and the non-resident parent after divorce or separation.

10. This issue has been increasingly prominent in the media and in political debate in recent months and years. As the Secretary of State's Foreword to the draft Bill points out, around a quarter of the 12 million children in the United Kingdom have parents who have separated or have never lived together. In the vast majority of cases, contact with the "non-resident parent" is maintained through informal arrangements between the parents. However, in about 10 per cent of cases, agreement between the parents over the non-resident parent's contact with a child or children cannot be achieved by negotiation, and an application is made to the family courts for an order against the resident parent specifying the contact which he or she must allow the non-resident parent to have. In 2003-04 there were 40,000 applications to court connected with contact, an estimated 7000 of which were the result of alleged breaches of contact orders.[12] At present, if a contact order is breached, the only recourse available to the courts for enforcement is a finding of contempt of court (which may be punished by a fine or imprisonment), or the transference of the child's place of residence to the other parent. The draft Bill seeks to provide other mechanisms for facilitation and enforcement of contact orders.

11. Part 2 of the draft Bill concerns arrangements for the adoption by residents of the United Kingdom of children from other countries ("inter-country adoption"), a phenomenon which has been increasing in recent years. It provides for the Secretary of State to impose special restrictions on the arrangements for such adoptions from specific countries when she considers that there are good grounds for doing so, because of concerns about issues such as human trafficking or the sale of children.

Background—Child Contact

12. Part 1 of the draft Bill is the result of a process commenced in March 2001 by the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board on Family Law. CASC issued a consultation paper on arrangements for facilitating contact between a child and the non-resident parent, and the enforcement of contact orders. In its final report, Making Contact Work, CASC noted a general dissatisfaction with the legal process as a mechanism for resolving contact disputes. It made a wide range of recommendations, focussing on non-statutory measures to prevent most cases ever needing to reach court, as well as proposing that the courts should be given much wider statutory powers to ensure that their orders were obeyed. CASC recommended that this should include the power for judges to:

refer a parent who disobeyed a contact order to a variety of resources;

refer a parent to a psychiatrist or psychologist;

refer a non-resident parent who was violent or in breach of an order to an education programme or a perpetrator programme;

place a parent on probation with a condition of treatment or attendance at a given class or programme;

impose a community service order, with programmes specifically designed to address the default in contact; and

award financial compensation from one parent to another.[13]

13. In July 2004, the Government published their response in the form of a Green Paper on parental contact, entitled Parental Separation: Children's Needs and Parents' Responsibilities,[14] a joint publication by the Department for Constitutional Affairs, the Department for Education and Skills and the Department for Trade and Industry. In it, the Government acknowledged that "the current way in which the courts intervene in disputed contact cases does not work well".[15] Responding to CASC's recommendations about non-statutory provision, they proposed improving access to existing information, advice and specialist legal advice, piloting a collaborative law approach, encouraging mediation, extending in-court conciliation services and improving case management by the courts and the following-up of court orders.

14. The Government also proposed to legislate at the earliest opportunity to provide additional enforcement powers to allow:

referral of a defaulting parent in a contact/residence case to a variety of resources including information meetings, meetings with a counsellor, or parenting programmes/classes designed to deal with contact disputes;
referral of a non-resident parent who has been violent or who has breached an order to a relevant programme;
attachment of conditions to orders which could require attendance at a given class or programme;
imposition of community-based orders, with programmes specifically designed to address the default in contact;
the award of financial compensation from one parent to another (for example where the cost of a holiday has been lost).

15. Following consultation on the Green Paper, in January 2005 the Government published Parental Separation: Children's Needs and Parents' Responsibilities - Next Steps,[16] a summary of public responses to the Green Paper and an agenda for action. Amongst the "next steps" identified in the report was the publication, for pre-legislative scrutiny, of a draft Bill outlining plans to introduce new measures for enforcement of contact orders.

16. Part 1 of the draft Bill seeks to insert a number of new provisions into the Children Act 1989. The 1989 Act establishes the procedure for a court to make a contact order. A contact order is defined as "an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other".[17] At present, the court can enforce contact orders only by imposing sanctions for contempt of court, either through fines or imprisonment, or transferring residence to the other parent.

17. It is important to note that the draft Bill is intended to form just one part of the Government's proposals to support parents and children in cases of parental separation. Around 90 percent of parents are able to solve any differences without recourse to the courts. The Government's non-statutory proposals, as set out in their January 2005 Parental Separation White Paper, may succeed in increasing this percentage. The draft Bill is intended to apply to the minority who do require court intervention. We agree with the Commons Constitutional Affairs Committee that the courts are usually not the best place to resolve complex family disputes, and we agree with the general thrust of policy to utilise alternative resolution mechanisms, particularly mediation. Nevertheless, there will inevitably be some cases which do require the involvement of the courts, and these are likely to be the most difficult to resolve.

Background—Adoption

18. The draft Bill's provisions on adoption are not connected with the Government's Parental Separation proposals. Until about 10 years ago, adoption of children from other countries by residents of the United Kingdom was rare. However, over the past five years, around 300 such adoptions have taken place annually. Prospective inter-country adopters in England and Wales go through the same assessment and approval procedure as someone applying to adopt domestically, although the process is often more expensive and time-consuming.

19. In June 2003, the United Kingdom ratified the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption. The 1993 Convention aims to:

establish safeguards to ensure that inter-country adoptions only take place after the best interests of the child have been properly assessed and in circumstances which protect his or her fundamental rights;

establish a system of co-operation amongst Contracting States to ensure that these safeguards are respected; and

secure the recognition in Contracting States of adoptions made in accordance with the Convention.

20. The Adoption (Intercountry Aspects) Act 1999 enables the Secretary of State to make regulations giving effect to the 1993 Convention under United Kingdom law. Further provisions relating to inter-country adoption are contained in the Adoption and Children Act 2002.

21. On 22 June 2004 the Government announced that it was imposing a temporary suspension of adoptions of Cambodian children by United Kingdom residents, in response to concerns about the Cambodian adoption process. There is no explicit statutory power for this, and the decision is currently awaiting judicial review. The application is expected to be heard in April 2005.[18]

The Draft Bill

22. The draft Bill applies to England and Wales only.

23. Clause 1 of the draft Bill would insert new sections into the Children Act 1989, which would allow the courts to direct a person, who is party to family proceedings relating to the making or altering of a contact order and where the making of that order is opposed, to attend a contact activity. A contact activity is defined as an information session, a programme, class, counselling or guidance session or any other activity which can assist a person to establish, maintain or improve contact with a child. The clause provides that a contact activity must be appropriate, with a suitable provider, situated within reasonable travelling distance and should not interfere with work or study or conflict with religious beliefs. The court could ask a CAFCASS or Welsh family proceedings officer to monitor a person's compliance and report back to the courts.

24. Clause 2 would amend the 1989 Act to provide that a court can ask a CAFCASS or Welsh family proceedings officer to facilitate compliance with a contact order, monitor whether compliance has occurred and report to the court on compliance.

25. Clause 3 would amend the 1989 Act to allow a court to make an enforcement order where it is satisfied that a contact order has been breached without reasonable excuse. An enforcement order could impose an unpaid work or curfew requirement. In the case of a curfew requirement the Government are considering whether to give the court the power to impose a "compliance monitoring requirement", which could mean electronic tagging to monitor compliance with the curfew. When making an enforcement order, a court would have to take into account the welfare of the child concerned. Before making an enforcement order, a court would have to be satisfied that it was necessary to secure compliance with the contact order; and that its likely effect was proportionate to the seriousness of the breach of the contact order. A CAFCASS or Welsh family proceedings officer could provide information on such matters to the court and monitor compliance.

26. Clause 4 would amend the 1989 Act to allow the court to require a parent who has caused financial loss to another parent by breaching a contact order to pay compensation not exceeding the amount of the loss. The court would be required to take into account the welfare of the child concerned and the financial circumstances of the person breaching the order.

27. Clause 5 makes transitional provisions.

28. Clause 6 of the draft Bill would allow the Secretary of State to declare that special restrictions will apply to a country in relation to bringing children into the United Kingdom for adoption. The Secretary of State would have to have reason to believe that, because of practices of a country in connection with the adoption of children, it would be contrary to public policy to bring children from that country into the United Kingdom. The Secretary of State would be required to consult the National Assembly for Wales before declaring a restriction.

29. Clause 7 requires that special restrictions applicable to a restricted country would have to be set out in regulations. The regulations would require the Secretary of State not to take any steps which he or she might otherwise have taken in connection with bringing a child into the United Kingdom, but any such regulations would also have to make provision for adoptions in exceptional circumstances to proceed.

30. Clause 8 would allow the Secretary of State to impose extra steps to be taken in relation to a restricted country in certain circumstances.

31. Clause 9 gives effect to minor and consequential amendments to the Children Act 1989 and the Adoption and Children Act 2002. Details of the amendments are set out in Schedule 2 to the draft Bill.