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Earl Russell: Yes, it is. It is a politically correct use of non-sexist language, but I do not think that it does any harm.

Lord Mackay of Ardbrecknish: I do not think that I shall follow the noble Earl down that road. It is nice that the noble Earl has had to answer a question about one of his amendments. That makes a change from the general run of things this afternoon.

This amendment seeks to reduce the number of nights of care which an absent parent has to provide for a child before his maintenance liability is reduced. It also provides for an absent parent to be treated as caring for a child where the person with care is denying him his rights of contact with the child under the terms of a court order.

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The existing provisions mean that an absent parent's maintenance liability is reduced where he is providing a significant amount of care for a child. The Government believe that an average of two nights per week—104 nights per year—continues to provide an appropriate benchmark. We do not consider that the proposed benchmark in the noble Earl's amendment, which amounts to one night of care per fortnight, represents a genuine sharing of responsibility. That level of care does little to help a parent with care with the day-to-day problems of bringing up a child.

The noble Earl invited me to contemplate some flexibility. It is interesting to note that his amendment is no more flexible than the current situation. It simply reduces the number of days from 104 to 26. I suggest that he has chosen to do that because it would be difficult to devise any kind of guidance or system which would be flexible in this regard. I freely accept that it is difficult to decide where the borderline comes. A line must be drawn; my line is 104 nights and the noble Earl's is 26.

I know that maintenance and contact are sometimes linked in the minds of parents, although they are separate issues. Maintenance is a legal and financial obligation that absent parents are required to discharge irrespective of whether or not they have contact with their children. Contacts are a matter for the courts to decide in the best interests of the child. We understand the frustration of people who are denied any right granted to them under a court order, in particular where the right is in respect of a child. The important consideration for the absent parent is that he should have the contacts with his children that the court has agreed and it is open to him to apply to the court to have his order enforced.

It would not be right for the agency to become involved in those sensitive issues. The only proper question for the agency is how long a child is, in fact, spending with his parents, since that affects the actual level of costs incurred by the parents. The task of deciding who bears the main costs and who has the main care of the child is difficult. If one were to reduce the number of nights from 104 to 26, many parents with care would find their maintenance reducing without, I suspect, their outlay reducing in any way.

The noble Lord, Lord Kilbracken, raised the question of fares and so forth. Of course, the departures will be the yardstick on this issue and what is just and equitable as regards the fares required to maintain the contact between, if I dare say it, the absent parent and the child or children.

This is an issue in respect of which I believe a line must be drawn. I understand the noble Earl's point that 104 is a little high and that 26 is his preferred number. I feel that 26 is far too low. Taking an average of two nights per week is, I think, a reasonable way to look at this. That does not mean to say that it will necessarily be two nights every week. Of course it will not, because holidays will come into the picture and on occasions it may in fact be seven nights per week. What is important is the total and the way in which we balance it. If the absent parent has the child for no more than 104 nights,

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clearly the parent with care has the principal responsibility for looking after the child and the main costs. That is the reality of the world. She—in the main it will be the mother, and I am not even beginning to be politically correct—will have the main costs of looking after the child. She must ensure that the child is ready for school and is clothed and that she provides a home for him or her so that the child can live the majority of his life with the parent with care. That is the reality.

Lord Kilbracken: I forgot to mention that I have no financial interest to declare because my financial affairs do not come under the aegis—if aegis it be—of the Child Support Agency. I emphasise the fact that most young children go to their fathers from early on Saturday morning to late on Sunday evening. That long period is counted as only one night for the purpose of reckoning up the 104. The Minister appeared to indicate that there may be an intermediate figure and that the 104 would be reduced a little. Anything would be better than nothing.

Earl Russell: I am grateful to the noble Lord, Lord Kilbracken. His case is one which compels attention. The point he makes about the weekend being defined as one night is significant. If we are talking about benchmarks, we need to know the general principle that is to be met before we can even begin to discuss what is the appropriate benchmark. You cannot make a benchmark until you know what you want to use the bench for.

My general principle is that one should recognise shared care where possible. In normal circumstances—not all—it is better for children to live with two parents than with one, even if they have to do so in two different homes. Therefore, I would recognise any sharing of care subject only to a de minimis rule. I believe that 26 nights is an ample interpretation of a de minimis rule.

I do not know what the Minister's general principle is. It sounds as though he is acting on the assumption that there is only a single parent who can have care. That is not in accord with the way in which modern family law is going. It is not in accord with the way in which cases are settled under the Children Act. It is not in accord with the way in which many men think about fatherhood or with the way in which many women now think about motherhood. I think this is an old-fashioned general principle and I believe it may have the effect of making separation even more traumatic for many children than is necessary. If that is the Minister's general principle, it is not satisfactory.

He has not told us why he believes that 104 nights is an appropriate benchmark. If I put words into his mouth I shall be entirely happy for him to tell me what is his general principle and I shall give way to him to do so. But I shall take his silence for consent if he does not intervene. The Minister spoke constantly about money going from the parent with care to the absent parent as a result of accepting the amendment. The noble Lord, Lord Kilbracken, was right in saying that, while the child is staying with the other parent, the absent parent is for the time being the parent with care. It shows how difficult it is to reconcile the terminology of the Bill

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with real family life. I have no more to say on the subject now. I hope that there will be further thought later and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 81 not moved.]

Clause 18 [Deferral of right to apply for maintenance assessment]:

[Amendments Nos. 82 to 86 not moved.]

Earl Russell moved Amendment No. 87:


Page 14, line 38, leave out subsection (5).

The noble Earl said: Amendment No. 87 relates to a Henry VIII clause, which is Clause 18(5). That clause allows the Minister to bring pre-1993 cases within the scope of the Act at some future date best known to himself.

Henry VIII clauses are always looked at with care in this House. The Delegated Powers Scrutiny Committee recommended that it be subjected to the affirmative procedure. I would not argue with that if I were concerned only with the exercise of delegated powers. In fact, I am not; I am concerned also with the policy intention that is embodied in that delegation of power. Therefore, I have a double cause for concern.

The effect of this is to allow the Secretary of State under the spirit of the commencement clause in the 1991 Act, which I once described as being by Henry VIII out of Humpty Dumpty, to bring pre-1993 cases into the Act at any time he sees fit. The Government, in paragraph 3 of their memorandum to the Delegated Powers Scrutiny Committee, argued that this power should be looked on kindly because it is for a beneficial purpose. That begs a big question. I am aware that the Government intend the Act to be beneficial—I did not say to whom. They must be aware by now that that view is not universally shared. They must be aware in particular that that view is not shared on these Benches. I take a dim view of giving the Minister a power to do something which should not be done at all by means of a Henry VIII clause without any further legislation. I beg to move.

7 p.m.

Lord Mackay of Ardbrecknish: It was originally the Government's intention to take on during 1996-97 those cases where there was an existing maintenance arrangement and the parent with care was not receiving benefit. In order to allow the agency to concentrate upon the introduction of the departures system, we have had to introduce the measure in Clause 18 of this Bill which defers the take-on of those cases. The subsection which the noble Earl seeks to delete will enable the Secretary of State to reactivate the take-on of these pre-1993 non-benefit cases by order. We cannot currently predict when that might be as first we shall need to ensure that the departures system is working effectively.

It has always been the Government's policy intention that all cases should eventually have access to child support maintenance under the 1991 Act. That has been fully explained and is well understood. Clause 26 of the Bill provides a clear commitment to allow parliamentary debate about the eventual take-on of the pre-1993 non-benefit cases by seeking to repeal these deferral

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provisions by way of an affirmative order, which is the strongest system of control over secondary legislation. In these circumstances, although the Committee may well regard this subsection as containing a Henry VIII power, it is wholly appropriate to provide for it. The Delegated Powers Scrutiny Committee concluded that:


    "The House may consider that the affirmative procedure provides the appropriate degree of parliamentary control".

Therefore, it is a rather special kind of Henry VIII clause which deals with the decision that we have taken to defer the take-on of those cases. It gives the Secretary of State power, through an affirmative order, to start the take-on of those pre-1993 cases. I suspect that the noble Earl would prefer that the cases were never taken on. But I hope that he will accept my explanation, although I realise that he will perhaps not agree with it, and withdraw the amendment.


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