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Lord Kilbracken: That is to be greatly deplored. Should not the child be prevented from obtaining information from one parent for the other?

Lord Mackay of Ardbrecknish: I was making a point about where the parents lived. Obviously the child is going to live with one of them, and the other will be well aware of where that is. The child perhaps visits the other and is also well aware of the address. The main point of my argument is that there are many more easily accessible ways to find the name and address of the other half than trying to get it from a Child Support Agency officer. I hope that my assurances about the powers which exist to prevent that kind of thing happening are helpful to the noble Earl and that he can withdraw his amendment.

Baroness Hollis of Heigham: Before the noble Earl decides what to do about his amendment, I ask the Minister whether he is aware of any such cases. Can he tell the Committee what disciplinary action followed for the officers concerned?

Lord Mackay of Ardbrecknish: I do not believe that the noble Baroness will be surprised when I say that I cannot answer that question at the moment. I shall certainly look into it and return to it.

Baroness Hollis of Heigham: I can understand the Minister being unable to respond in a detailed way. The point is that there is a great deal of circumstantial evidence to suggest that there is a wide gap between what the Minister wishes to be the case and what may be happening. I believe that the most helpful way in which we can pursue the degree to which there is that

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gap and the degree to which we need to strengthen the Bill to make sure that it is narrowed and not widened is to get a reply in the form which the Minister has just indicated.

Lord Mackay of Ardbrecknish: I shall certainly do two things. Depending on the outcome of this amendment, I shall draw the concern of the Committee to the attention of Miss Chant and I shall seek answers to the questions posed. I shall write to the noble Baroness with the usual copies.

Earl Russell: I am grateful to the noble Baroness for pinpointing exactly our concern. It is the difference between what the Minister wishes and what we wish was the case and what in fact is the case.

I also heard the noble Lord, Lord Houghton of Sowerby. I take his point about the reactions of other staff of the agency. I repeat again that I was making no attack on the agency as a whole. The agency has been put there to do a job and it is not to blame for the job it has been asked to do. In the end, the responsibility must rest with Ministers for giving it that job.

I insist that this is taken only as a way of controlling an individual Jack-in-office and not as a reproach to the whole of the agency staff. I take the point which the noble Lord makes, that were this provision to be on the statute book, that might be a distinction which I would be unable to sustain. I do not intend to press this amendment, as I believe the noble Lord suspected. While I am on my feet I make that distinction clear.

I say once again to the Minister that this type of disclosure is happening far too often and causing a great deal too much harm and distress. It is diminishing the reputation of the agency and making it harder that it should ever succeed. He knows that as well as I do and there is no point in wasting words on it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

Earl Russell moved Amendment No. 80:


Before Clause 18, insert the following new clause:

Day to day care

(.—(1) The definition of "day to day care" contained in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (as amended) shall be amended as follows:
(2) For "104 nights", or each occasion where that expression occurs, there shall be substituted "26 nights".
(3) At the end of the definition there shall be inserted—
"(iii) a person shall be taken to have care of a child where he would have actual care if a court order which is in force were being properly complied with by another person, and a person shall be treated as not having care of a child where she has actual care in consequence of her failure properly to comply with a court order; and for this purpose a court order shall be regarded as properly complied with by a person only if she makes every reasonable effort to give effect to its terms and purposes.").

The noble Earl said: This amendment deals with the 104-night rule, which has caused a good deal of concern. The rule is that in cases of shared care, if the child spends 104 nights in the year with the absent parent, the absent parent gets financial recognition for

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being responsible for shared care. If the child spends 103 nights with one parent or, in the case which the noble Lord, Lord Kilbracken, recounted to us last year, 99 nights of the year, that is 99 not out. It counts for nothing. No century is achieved. Naturally, that has caused a good deal of ill feeling. It is an arbitrary line and the reason given for specifying 104 nights—that it represents every weekend in the year—rather savours of being plucked completely out of the air because no arrangement happens every weekend of the year. There are things such as illness.

The second part of the amendment deals with cases where the child should have spent 104 nights of the year with the other parent but access has been denied. I know that the Bill is not intended to deal with that. The noble and learned Lord the Lord Chancellor explained that clearly in 1991, but the 104-night rule, as it works at present, gives the parent with care an incentive to deny access. The amount of anger that is caused by such cases is hardly imaginable if one has not encountered it. Giving people an incentive to do that is extremely unwise.

The inflexible insistence on 104 nights is not necessary for any reason that I have yet heard. I should like to hear what the Minister has to say about why he thinks that it is necessary and about how more flexibility could be achieved. It seems that whenever flexibility would be a good thing, the Government do not want it, but whenever it is a bad thing, they seem to want it. If the Minister can tell me that I am mistaken in that, I should be very grateful. I beg to move.

6.45 p.m.

Lord Kilbracken: I wish to support the noble Earl, Lord Russell, as strongly as possible on this amendment and particularly on subsection (2), the purpose of which he has explained with his invariable lucidity. As he indicated, I have an interest to declare in the shape of a young son who is now 13 and who spends a very considerable part of each year with me, although much less than I had thought until I came to work it out for the purpose of speaking here today.

The noble Earl mentioned the figure of 99 days. That was indeed the number of days that Seán spent with me at that time, but the years go by. I suppose that he comes to me more than 95 per cent. of such children can visit their fathers; namely, for half of every holiday, half of every half holiday, and every other weekend. Nowadays he goes to school on Saturday mornings, so he does not come to me until about 12 o'clock. If he stays until midnight on the Sunday, for the purposes of this provision that counts as only one night.

Therefore, I have calculated that there are about 38 weeks of term time in the year, which contain 35 weekends, and he comes to me for 17 nights. There are about 100 days of holiday and he comes to me for half of them, which is another 50 days, with three extra nights for half-terms. That means a total of only 71 nights a year, which is nowhere near the figure of 104 which is the minimum for this purpose. Yet I really do not see how he could come to me much more. Obviously, he will come for only half of each holiday

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and will have every other weekend with his mother. That seems to be just about the maximum amount of time that that child can spend with his father. Furthermore, if he were a weekly boarder or a termly boarder, he would spend exactly the same amount of time each year—the same number of nights—with his mother and with me, yet in calculating the amount that should be paid by the father under the Child Support Act, that cannot be taken into account at all, although not only is it costing the so-called "absent father" a lot of money in living expenses and so on, but during that time the child's mother is not incurring any expenses. In addition, in my own case I have to buy three return tickets from London to Ireland, which cost about £400, yet that cannot be taken into account either.

I cannot understand why the figure of 104 days (or the provision in general) should be included in the Bill. If the child is with the absent parent for any period of time, clearly what that parent is spending he is saving the mother in expenses and he should not have to pay as much as would otherwise be the case.

I cannot sit down without saying once again how deeply I and, I suppose, all divorced fathers resent the description of them as "absent fathers" or "absent parents" and the description of the mother as "parent with care". That gives the impression of the mothers being so caring and of the fathers not caring at all. It implies that the father is absent when, in my case, I am present for 71 nights of the year and it is his mother who is the absent parent. I suppose that that phrase is now passing into accepted legal language. Perhaps it is a lucus a non lucendo, but in any case I resent it very much.

I should also like to draw attention to one point on subsection (3). At the bottom of page 7 of the Marshalled List we start off in the male gender—here I use the word "gender" in its correct sense for once. The amendment states:


    "to have care of a child where he would have actual care".

However, when we turn the page we move into the female gender because the amendment then states:


    "a person shall be treated as not having care of a child where she has actual care in consequence".

I wonder what implications the noble Earl may see in that switch. We are always told that the male embraces the female, but is it also the case that the female embraces the male?


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