'After section 8 in Part 2 of the Children Act 1989 there is inserted—
''8A Contact orders in cases involving family violence
(1) Where a court is considering whether to make a residence or contact order in favour of a prohibited person, the court will—
(a) consider whether the child has suffered or is at risk of suffering harm as a result of abuse or neglect or through seeing or hearing ill-treatment of another person
(b) assess the risks involved
(c) take all reasonable steps to ensure the protection of the child.
(2) For the purposes of this section a person will be defined as a prohibited person if—
(a) there is a reason to believe that he has caused or is likely to cause significant harm to a child; or
(b) he is facing charges or has been convicted of a violent offence against any member of his family or a former spouse or cohabitee or associated person as defined by section 62 of the Family Law Act 1996; or
(c) he is or the court considers he should be prohibited by a non-molestation order or an occupation order or a prohibited steps order or a restraining order or there is an undertaking not to commit acts of violence or intimidation.
(3) In considering such matters the standard of evidence applied by the court will be the simple balance of probabilities.
8B Section 8A: Supplementary
(1) In considering whether the child will be safe if contact or residence is granted to a prohibited person, the court shall, so far as is practicable, have regard to the following matters—
(a) the nature and severity of the violence;
(b) how recently the violence occurred;
(c) the frequency of violence;
(d) the risk of further violence occurring;
(e) the physical or emotional harm caused to the child by the violence;
(f) in relation to the prohibited person—
(i) if that person has Schedule one offences (1933) for neglect, physical injury or sexual harm to a child
(ii) is subject to current section 47 Children Act 1989 inquiries or has been in the past
(iii) if that person is a banned person from employment with children according to the Criminal Justice and Court Services Act 2001
(g) in relation to the child and the prohibited person—
(i) if the child is on the child protection register
(ii) if the child is subject to a protection order according to the Children Act 1989
(iii) if the child is subject to current section 47 Children Act 1989 inquiries or has been
(h) whether the other party to the proceedings—
(i) considers that the child will be safe while the prohibited person has contact with or residence of the child
(ii) consents to the prohibited person having contact with or residence of the child;
(i) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;
(j) any steps taken by the prohibited person to prevent further violence occurring;
(k) such further matters as the court considers relevant.
(2) A person who has suffered abuse is not regarded, for the purposes of this section, as having caused or allowed the child to see or hear the abuse, or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing abuse.''.'.—[Margaret Moran.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
I shall be as quick as I can. I am sure that we all want to hear the remarks of the Minister so that we can get some of the issues on record.
Hon. Members will recall the compelling evidence that we heard from the children's charities Barnardo's, NCH Action for Children, the National Society for the Prevention of Cruelty to Children and the Children's Society, as well as the written evidence from Women's Aid Federation of England, all expressing grave concerns about the effectiveness of the Children Act 1989 in respect of child contact orders.
We all agree with the principle of children maintaining contact with both parents following separation in ordinary circumstances and if it is in their best interests. However, I am sure that hon. Members also agree that children's safety and protection should be ensured. There is serious concern that the system fails to protect children from abusers who are known to them. Some children have been killed after the courts granted unsupervised contact to fathers who had abused them. There is widespread concern among children's charities that the Children Act is not effective in ensuring child protection when courts are considering granting contact orders.
There is a strong presumption in the Children Act and deriving from case law around the Act that contact is usually in the best interests of the child. However, case law also means that the courts often fail to consider the risk of abuse to children in determining contact arrangements. Children's charities believe that the Act needs to be amended to protect children from unsupervised contact with a parent in cases involving violence and abuse, unless the court is satisfied that the child will be safe. That will allow the courts an opportunity to ensure that a thorough risk assessment is carried out before unsupervised contact is granted. That is the purpose of new clause 12.
Sadly, there is ample evidence to suggest that unsupervised contact can put children at severe risk: 76 per cent. of the children covered by the AMICA—Aid for Mothers Involved in Contact Action—survey of 1999 were found to have been abused to some extent during contact visits. As I explained on Second Reading, we know of 15 cases in recent years in which children have died as a result of contact arrangements in England and Wales, and because the Government do not keep statistics, the true number may well be higher. Every one of those 15 children is just as important as Sarah Payne or any of the other murdered children whom we have mentioned considered in our debates. The new clause is intended to trigger action to prevent further tragedies.
We acknowledge that the Government have taken a wide range of measures to protect children. The Sex Offenders Act 1997, which requires sex offenders and violent offenders including schedule 1 offenders to register their name and address with the police. The Protection of Children Act 1999 prevents known offenders from working regularly with children. However, having set up protection for children in those circumstances, it is wrong that there is still a loophole in private law whereby schedule 1 offenders and those known to have been violent or to have abused children are prevented by one piece of legislation from working with children regularly—for example, as school bus drivers—yet they can have unsupervised contact with their children, who are at exactly the same risk of harm.
We believe that that major loophole can be addressed in the Bill. We are unlikely to have the opportunity to deal with it in forthcoming legislation, and the urgency of the situation is such that, unless we take this opportunity, further tragedies will occur. The law does not consistently protect children. The child protection system does not consistently protect them from contact with sex offenders or violent offenders. There are glaring gaps in our protection legislation, some of which we have heard about today; there is certainly a loophole in private law.
Some attempts have been made to close the loophole through improved legal protection. Guidelines were introduced in June 2001, but they are clearly not working, as evidence from the National Society for the Protection of Children and Women's Aid shows. The need is urgent: children are constantly
placed at risk when the courts grant unsupervised contact. Amendment to primary legislation is necessary to provide the right level of legal protection for children in private proceedings.
The coalition of Women's Aid and children's charities has emphasised that in cases of domestic violence, there is a risk not only of emotional harm to the child but of the child being abused or neglected. Daily we receive alarming reports of children who are ordered to have contact with violent parents and are abused, neglected or traumatised during those contact visits. There are five on-going cases in which unsupervised contact has been granted despite evidence of child abuse. That is not acceptable.
Clause 91 would automatically grant parental responsibility to unmarried fathers who have jointly with the mother registered the birth of the child. That may be of benefit to children, but it extends the possibility of parental contact being granted to violent or abusive unmarried parents. We know of a mother and child who fled to a refuge after being threatened with a gun; the violent father has not been able to find them despite taking out search and locate orders, but once the Bill has been enacted, he can obtain parental responsibility and he will then find it much easier to track them down.
We based the new clause on a provision in the Family Homes and Domestic Violence (Northern Ireland) Order 1998. Under that order, when a court is considering whether to grant a contact or residence order to someone who has had a non-molestation order made against him, the court must consider any harm that the child might suffer through seeing or hearing the ill-treatment of another person. That is a major step forward—indeed, it is essential, because research shows that all domestic violence has a damaging effect on children. We would like to see that reflected for the first time in the Children Act.
However, we are worried that that provision does not go far enough: we need to ensure that the courts are required to protect children from direct abuse or neglect. A case in Northern Ireland involves a woman whose husband is a schedule 1 offender. That man has committed sexual offences against children, but has been granted contact with his children. Contact visits are currently supervised by the mother, despite continuing threats of violence, but he is now seeking unsupervised contact, and the mother's solicitor has warned that it might be granted. We believe that if social services or the police have evidence that a child is at risk, it is essential that the family courts consider it when making contact orders.
The new clause deals also with those who are facing charges of violence against former partners. That is necessary, because the fathers of four of the children who were killed had been granted unsupervised contact despite the fact that they already faced imprisonment for violence offences against former partners. We also include a mandatory checklist to ensure that the courts are taking account of all risk. I hope that the Minister will acknowledge that this serious issue needs to be addressed.
The Government are grateful to my hon. Friend the Member for Luton, South and the other members of the Committee who tabled the new clause. I am grateful also to those organisations that represent children and victims of violence for participating in open and constructive discussions with the Government. I pay tribute to the president of the Family Division for the work that she has done with other senior judges in trying to bring domestic violence and child abuse to the attention of judges and magistrates.
I say at the outset that the Government accept the spirit of the new clause. Although we cannot accept it, we are seriously considering what we could do on Report to reflect its provisions. The Minister of State, Department of Health, my hon. Friend the Member for Redditch (Jacqui Smith), has been very supportive.
I shall briefly set out our thinking on the subject. We need to consider whether it is right to make an amendment relating only to orders for contact and residence under section 8 of the Children Act. That Act contains one definition of harm and it applies in all proceedings including applications for contact when a child is in care. We may be able to do something that would affect private law proceedings and could be extended to other proceedings. We might consider changing family proceeding rules as a way of offering children further protection. That would give us greater flexibility than changing primary legislation.
We also have difficulty with the supplementary provisions in proposed new section 8B(1). The problem could be tackled in a number of ways. We are considering changing some of the court forms to deal with previous offences. We might amend the family proceedings rules to ensure greater consistency—for example, to ensure that findings of fact are made about the impact of violence or abuse on a child—in the making of further orders. Perhaps conditions could be imposed on orders, if they are needed for the protection of children and their parents.
Suggestions have been made for a domestic violence register. We might consider creating one, as it would cover some of the points raised by my hon. Friend the Member for Luton, South. I assure her that we want to make further proposals on Report, and we shall continue our discussions with her, the all-party domestic violence group and the children's charities. I hope that, with those assurances, my hon. Friend will consider withdrawing the motion, and allow us to work together to make progress.
I thank all hon. Members and everyone involved in the work of the Committee.
It being twenty-five past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.