Domestic Abuse Bill - Committee (4th Day) – in the House of Lords at 3:45 pm on 3rd February 2021.
Moved by Lord Rosser
130: After Clause 64, insert the following new Clause—“Proceedings under the Children Act 1989(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence, or(b) involved in ongoing criminal proceedings for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.”” Member’s explanatory statementThis new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.
The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
The Children Act 1989, as amended by the Children and Families Act 2014, states that the family court is
“to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”
Concerns were expressed at that time that this would strengthen the likelihood of a “contact at all costs” approach. Although judicial guidance makes it clear that:
“The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm”,
this is not as strong as the legal presumption in the Children Act 1989.
The “pro-contact” presumption, even where there has been domestic abuse, can lead to unsafe contact decisions. The Women’s Aid Nineteen Child Homicides report documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was a perpetrator of domestic abuse. Women’s Aid also found that in the cases where contact was arranged through the courts, abuse of the mother was often seen as a separate issue from the child’s safety and well-being, rather than the two being intrinsically linked. Research published in 2017 by Cafcass, the Children and Family Court Advisory and Support Service, in partnership with Women’s Aid, showed that more than two-thirds of the 216 child contact cases in the sample involved allegations of domestic abuse. Yet in 23% of these cases unsupervised contact was ordered at the first hearing.
In July last year the Ministry of Justice published the final report of its expert panel, Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The expert panel said:
“Although some professionals supported the presumption of parental involvement in section 1(2A) of the Children Act 1989, the panel received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety”.
Continuing, the report said:
“The panel is clear, however, that the presumption should not remain in its present form … We recommend that the presumption of parental involvement be reviewed urgently in order to address its detrimental effects.”
Such a review was not announced by the Government until five months later, in November 2020, and is not due to report until the summer, as I understand it. There is then likely to be a further delay in implementing any outcomes arising from the review—probably a lengthy delay if further legislation is required.
Amendment 130, pending the outcome of the review but in line with the expert panel finding that the presumption should not remain in its present form, simply states that the presumption in the Children and Families Act that the welfare of the child is best served by the involvement of both parents does not apply in cases where there are allegations, findings or admissions of domestic abuse to the child or other parent. The welfare principle would then be applied by the court to ensure that any orders made, whatever they might prove to be, are in the child’s best interests and not influenced by a presumption that the welfare of the child is best served by the involvement of both parents. That would help protect children caught up in family court proceedings from harm.
The amendment does not prevent a court coming to the conclusion, in cases where there has been or appears to have been domestic abuse, that involvement with both parents nevertheless still best serves the welfare of the child in the specific instance of the case they are hearing. But the court would not have to start off with a statutory presumption that that that would be the case.
Amendment 130 is very much rooted in the welfare of the child and simply seeks to ensure that, in cases involving domestic abuse, the assessment of the child’s welfare and what is in their best interests is the most fundamental and crucial consideration. This amendment has the support of the Victims’ Commissioner. The Victims’ Commissioner told the Commons committee considering this Bill that one of her major concerns was that the Bill does not
“Create a presumption of no contact or parental responsibility where there has been a conviction, restraining order, findings by the Family Court.”
She also said that she was
“very troubled by the presumption of shared parenting that seems to trump practically everything else in the family court.”—[
The Victims’ Commissioner has also written to the Home Secretary, saying that she saw the need to prohibit unsupervised contact between a parent on bail for domestic abuse-related offences for which criminal proceedings are ongoing. The designate domestic abuse commissioner also supports this amendment as one she considers essential to ensure robust and inclusive support for survivors of domestic abuse. The question now is whether the Government will support this amendment. I beg to move Amendment 130.