Baroness Jones of Moulsecoomb:

Moved by Baroness Jones of Moulsecoomb

42: 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 accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”(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;(b) involved in ongoing criminal proceedings for a domestic abuse offence;(c) is pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; or(d) has a criminal conviction 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 amendment seeks to prevent domestic abusers from being granted unsupervised contact with children in family law proceedings.

My Lords, I had to bring this amendment back on Report, because I did not think that the Minister accepted the issues in Committee. They are important: domestic abusers are being granted unsupervised contact with children as a result of an ingrained pro-contact culture. The Ministry of Justice’s own harm review concluded that “the dominance of contact” is seen

“as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings.”

Rather than seeing contact as a means to an end and weighing it up against all the harm and damage that an abusive parent has caused, it is seen as the end in itself, almost no matter what the cost. That is deeply harmful.

The debate on parental alienation on Monday showed just how embedded some of these ideas have become. Wanting to exclude an abusive parent can itself be labelled as abusive. Abusive men, in particular, falsely claim that abuse is mutual and reciprocal, and try to label the victim as a fellow perpetrator. As the Minister said on a previous group, an abuser will pursue their victim through the family courts to try to force contact with their child, not because they care, but because it is an extension of their coercive and controlling behaviour and their fury that their victim has managed to escape them. So, the abuse continues through the courts and then into unsupervised contact. More than a dozen children have been murdered by their fathers during unsupervised contact. Can the Minister please tell me what the Government are going to do to stop it?

In my short time in this House, I have been hugely impressed by the fairness, clarity and reasonableness of the noble Baroness, Lady Jones of Moulsecoomb—that might be bad for her reputation—even when we have not agreed. However, in this instance, I am sad to say that I cannot find anything reasonable in this amendment, but it raises some broader issues about the Bill that worry me, so I will make those points.

This amendment effectively argues for denying the right to be a parent to anyone accused of the offence of abuse. In listing those who will be denied unsupervised access to their own children, we have those “awaiting trial”, “on bail” or

“involved in ongoing criminal proceedings”,

all of which—as anyone who knows anything about the criminal justice system knows—can involve months or years of one’s life. That would mean that innocent people, accused, are already treated as guilty.

Of course, we all want to protect children from any risk and, as the noble Baroness has illustrated, those horrifying stories of children being hurt or even killed, sometimes as revenge, are at the forefront of our minds, but I have two points. The amendment refers to ensuring the

“physical safety and emotional wellbeing of a child”.

Those are two distinct threats. The latter, at least, is difficult to pin down. I argue that being deprived of time with one’s parent, free from a court-approved third party, could also be the cause of considerable emotional distress for any child. It could be a recipe for the parental alienation that she mentioned.

Secondly, even the prospect or fear of a threat to physical safety cannot distort our sense of justice or lead to disproportionate or punitive measures in a risk-averse “what if?” scenario. It could too easily lead to the state unjustly alienating children from a parent who is accused but not found guilty. Surely, evidence and facts are key to establishing the level of threat. I note that the amendment would deny unsupervised contact

“pending a fact finding hearing”,

which makes a mockery of establishing facts and tears up any commitment to factual evidence as an important part of judging whether an accused parent can be trusted to care for or parent their children without third-party supervision.

I am even worried that this amendment argues that unsupervised contact would not be allowed for anyone with a “criminal conviction” for abuse. Granted, in this instance the evidence has been weighed and facts established, but consider the implications of this. This amendment would mean that someone found guilty of abuse perhaps when as young as 18 could find themselves, at the age of 38—by now, we hope, a reformed character in a different set of circumstances, maybe no longer drinking, on drugs or mentally ill, as we have heard today, or just shame-faced about their younger self’s abusive behaviour—still denied unsupervised access to their children. To be honest, that seems ungenerous, even barbaric and vengeful. It suggests that we are branding people found guilty as perpetrators with the letter “A” for abuser, for ever.

We also heard earlier that one can gain a criminal conviction for abuse by breaching a domestic abuse order. That breach might be for a relatively minor offence. I worry that aspects of this amendment encourage a lack of perspective and a disavowal from making judgments of different threats. The Government continue to stress that they do not want a hierarchy of abuse or harm—we have just heard the Minister discuss that—but this can lead to a muddle when it comes to parental contact. I want to discourage a lazy, one-size-fits-all approach. When considering risks to children, there is a distinction between, for example, the perpetrator of regular, systematic violence or coercive control and the particular emotional or psychological abuse that one partner might inflict on another in a toxic relationship. The latter may be worse than horrible if you are at the receiving end of it, but it may never be aimed at or even witnessed by children.

To conclude, I urge the Government to maintain the presumption of parental contact. It should be curtailed or removed only with great care. That does not mean putting children at risk, but it means holding justice dear.

My Lords, I entirely agree with the noble Baroness, Lady Fox. I recognise the good intentions of the amendment, but I am concerned that it is too rigid. As I know from my judicial experience, not all situations are black and white. As I said at some length on a previous occasion on Report, judges and magistrates will get specific training on the Domestic Abuse Act, but the effect of this amendment would deny them important judicial discretion.

I am particularly concerned about that because proposed subsection (2D) in the amendment says:

“Evidence of domestic abuse may be provided in one or more of the forms accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”

As the noble Baroness, Lady Fox, pointed out, that means that a decision is taken that generally a father, but sometimes a mother, would be forbidden unsupervised contact based on the information provided by one party and before the fact-finding decision had been made by the judge. Although I understand why the amendment has been put forward, I am not prepared to support it.

My Lords, the presumption of contact cannot be the first indicated assurance by the family court process. As a front-line social worker supporting supervised contact, my experience was that there is an underlying assumption of statutory services that all parents are entitled to access to children, regardless of any fears that the primary carer or parent may have about violence or abuse. Of course, there are exceptional social workers and other professionals who will pay heed to the whole range of issues of safeguarding, particularly where there is a previous history of violence and abuse.

I commend here the long-standing and excellent work of Barnardo’s and the Thomas Coram Foundation contact centre. In my experience, they have always taken these grave matters into consideration, but their services are for the lucky few. This is why I support the amendment in the name of the noble Baroness, Lady Jones. As has been detailed, the harm review found a pattern of sexism, racism and class bias against mothers and children in the family court and confirmed the presumption of contact, which has resulted in the minimisation and disbelief of allegations of domestic abuse and child sexual abuse.

The presumption is often based on one parent lying to deprive the other of access to children and somehow persuading their children to turn against the other parent. Such legal presumption often disadvantages women, including those from minority heritage backgrounds and those for whom our legal system is frequently alienating due to a lack of adequate English or knowledge about their rights.

Even in these most serious cases against mothers and children, the presumption of contact has triumphed, dismissing evidence of domestic abuse and negating mothers’ fears of extensive coercive and controlling behaviour or sexual abuse. Some women who have written to me suggest that fathers have been able to recognise the argument of being alienated to argue their entitlement to access, even where there has been evidence of violence or sexual abuse.

As has been suggested by noble and learned Lords and other noble Lords, the court system does not always function as it should. It is not beyond the wit of our courts to make a proper assessment of the impact on children when they have witnessed countless occasions of violent incidents experienced by their mother or why children would be afraid to see their violent father in any unsupervised contact.

Children who do not want to see their fathers are sometimes forced into foster care, separated from siblings, or given to other family members, to force them into contact. The London Victims’ Commissioner has called this “state-sanctioned abuse”. I am not saying that; someone who has a wide range of experience is saying it. We have to respect that view and take it on board.

The figures speak for themselves. Women’s Aid research demonstrates that safeguarding concerns resulting from domestic abuse are still not believed or understood within the child contact system, leading to potentially unsafe contact decisions which, in the most extreme cases, have resulted in children being seriously harmed and murdered. This was highlighted in the Women’s Aid report, which referred to the horrific murder of Claire Throssell’s two sons. This case illustrates the danger of unsupervised contact. We risk further tragedies unless this is addressed now.

As has already been referred to, last year the Ministry of Justice published the final report of its expert panel—Women’s Aid was part of it—on assessing the risk of harm to children and parents in family law children’s cases. It concluded that family courts do not effectively protect many child and adult victims of domestic abuse from further harm. It called for fundamental reform of the child arrangements programme, arguing that the system should be redesigned with a focus on trauma and an assurance to work collectively across all other justice agencies. The presumption should be ended in cases where children are at risk of harm from domestic abuse, with contact arrangements for domestic abuse cases based on an informed judgment of the child’s best interests and safety. The Ministry of Justice panel concluded in June 2020 that the presumption should be urgently reviewed.

I have been overwhelmed with emails and messages from women who have experienced hopelessness with our legal system. No doubt we can deluge this Chamber with countless cases—I am sure that many noble Lords have been contacted and reached out to. All involve years of long-lasting and damaging court cases where children are forced into contact deemed unsafe. Mothers have experienced pressure to prove that their fear was real but that has been denied, so inflicting further injury to the mother and children. One survivor, speaking on behalf of many named survivors, said to me, “I am crying out for help and hope”. This amendment is one small aspect of our response to safeguard them and their children. I speak to give their voices in the Chamber today.

My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.

The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure that

“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”.

That presumption is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.

But the presumption is rebuttable, hence the words

“unless the contrary is shown”.

In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.

However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.

I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.

Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”

He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement” which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”

There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.

The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.

In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.

In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.

I will return briefly to the valuable debate we had in Committee about the paramountcy principle and the potential impact of this amendment in that respect. The current legislation regarding the presumption makes it clear that the presumption should be disapplied where there is a risk of harm to the child. That means that risk of harm from a parent perpetrator of domestic abuse should already be taken into account by courts. The Children Act 1989, in placing the child’s welfare as paramount, should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding any aspect of the child’s upbringing.

As stated by the noble Lord, Lord Marks, during the debate in Committee, Section 1 of the Children Act 1989 provides that,

“the child’s welfare shall be the court’s paramount consideration.”

This is rightly viewed as a cornerstone of that Act. It is a central cannon of our law relating to children. It is important that any changes to the law in this area do not undermine this fundamental principle. That is my short answer to the question put to me by the noble Baroness, Lady Jones. Protecting children is at the very heart of the process.

If, however, we legislate to create automatic bans on a particular form of contact, we may not be allowing courts to take account of whether there are risks to the child in the particular circumstances of the case. I can assure the noble Baroness, Lady Fox of Buckley, that the law in this area is the opposite of one size fits all. This area of law is certainly not off the shelf; it is an area where the law is bespoke. That means that rights and risks must be weighed carefully, on a case-by-case basis, allowing the judiciary to assess each case on its own merits but always putting the welfare of the child at the very heart of the decision. It is also not clear whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, should be capable of being lifted or modified at some later date if the risks in an individual case materially change. That is not something that the amendment appears to envisage.

Furthermore, in referring expressly to domestic abuse, which is only one of many circumstances which may impact on a child’s well-being and safety, the amendment could be seen to give domestic abuse prominence over other valid considerations and risks of harm to a child that judges have to take into account, such as sexual or violent offending, or a history or allegations of child abuse. It is not surprising that I can do no better than respectfully endorse the words of the noble and learned Baroness, Lady Butler-Sloss, whose experience in this area needs no comment from me. She said that the amendment would deny the important issue of judicial discretion.

I also respectfully endorse the characteristically perceptive point made by the noble Lord, Lord Marks. He pointed out the effect—or the non-effect—of the amendment on a child from a different relationship. The amendment would catch cases that ought not to be caught.

I am grateful to all noble Lords who have spoken in this short debate but, for the reasons that I have explained, the Government’s position remains unchanged on this issue. We believe that we should wait for the outcome of the review on the presumption of parental involvement before any decisions are taken on whether changes are required either to the presumption of parental involvement as a principle or to its application. To that extent, as I understood it, the position that the noble Lord, Lord Rosser, has arrived at—although he started at a different point to me—is much closer to the Government’s position. I am grateful to hear that from the noble Lord, and I therefore invite the noble Baroness, Lady Jones, to follow that lead and withdraw her amendment.

I thank all noble Lords who have spoken in this short debate. I listened very carefully but did not hear anyone offer any other solution. Children are dying. Noble Lords said again and again that the current situation was not working, but still no one has come up with a solution. I take the Minister’s comments about waiting for the review, but during my political career, which has only been 20 years long, I have found that repetition works extremely well, so I repeat to him that we have to find a solution because people—children—are dying.

The noble Baroness, Lady Fox of Buckley, gave us a “what if” situation; obviously I could also do that, but I will not. Again, I am trying to save children’s lives; I did not hear any other solutions. The noble and learned Baroness, Lady Butler-Sloss, said that the amendment is too rigid, which I accept, but judges and magistrates are getting it wrong and children are dying. I thank the noble Baroness, Lady Uddin, very much for her support from her experience. She described unsafe decisions and she put my case better than I could.

The noble Lord, Lord Marks, was very kind in his comments. Of course the welfare of children is paramount, but they are not always listened to. We have to listen to them when they say that they are not happy. That is not necessarily happening at the moment. I accept that the noble Lord, Lord Rosser, tried to do this and is pursuing it in other ways. I am grateful for that and glad. I am very happy to work with him on it.

The Minister said that more needs to be done. He talked about the review and said that the amendment is premature and that we need in-depth evidence, but this situation has been happening for decades and children are still dying. I mentioned a figure because it is easy to count deaths—every death is tragic and we can count them easily. However, we cannot count the damage or the mental and sometimes physical anguish that happens to children. That is absolutely uncountable.

I have listened and I accept some of the limitations of my amendment, but I have heard nothing about a solution to stop children dying. I beg leave to withdraw my amendment.

Amendment 42 withdrawn.

We now come to the group consisting of Amendment 43. Anyone wishing to press this amendment to a Division must make that clear in the debate.