New clause 8 - Mandatory risk assessment checklist

Domestic Violence, Crime and Victims Bill [Lords] – in a Public Bill Committee at 3:00 pm on 6th July 2004.

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'After section 8 in Part II of the Children 1989 insert—

''8B Mandatory risk assessment checklist

(1) When determining whether the child will be safe if contact or residence is granted to the abusive party, the court shall, so far as is practicable, have regard to the following matters—

(a) the nature and severity of the ill-treatment;

(b) how recently the ill-treatment occurred;

(c) the frequency of the ill-treatment;

(d) the risk of further ill-treatment occurring;

(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;

(f) whether the other party to the proceedings

(i) considers that the child will be safe while the abusive part has residence of, or contact with, the child; and

(ii) consents to the abusive party having residence of, or contact with, the child;

(g) the wishes of the child, if the child is able to express them, having regard to the age and maturity of the child;

(h) any steps taken by the abusive party to prevent further ill-treatment from occurring;

(i) any other matters as the court considers relevant.''.'.

—[Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the clause be read a Second time.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following: New clause 13—Use of recovery orders—

'In Part I of the Family Law Act 1986 (c.55) (child custody), after section 34 insert—

''34A Use of recovery orders in cases involving either allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order.

(3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.

(4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see whether either party has committed acts of violence;

(b) check to see whether either party is included on the register of domestic violence perpetrators;

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(a) not remove the child from the respondent;

(b) advise the respondent to seek legal representation;

(c) notify the court of their action immediately.

(6) If there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant.

(7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court.''.'.

New clause 31—Recovery orders in cases involving allegations of domestic violence or a potential risk to the child—

'After Section 34 of the Family Law Act 1986 insert—

''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order,

(3) the order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance. Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see if either party has committed acts of violence;

(b) check to see if either party is included on the register of domestic violence perpetrators; and

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(4) Following the award of an order under subsection (2)—

(a) if records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(i) not remove the child from the respondent,

(ii) advise the respondent to seek legal representation, and

(iii) notify the court of their action immediately,

(b) if records show that the respondent has a history of violence and the applicant has no history of violence, the police will return the child to the applicant and notify the court,

(c) if there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant,

(d) if records show that both the applicant and the respondent have a history of violence, the police will immediately seek further instructions from the court and, if necessary, take appropriate steps to protect the child.

(5) The court shall not grant interim residence or contact orders unless there is evidence that a party is wilfully refusing to attend court.

(6) The court shall not disclose the address of a women's refuge publicly or give this information to any applicant or respondent or to their legal representatives.''.'

New clause 32—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.1)—

'After section 8 in Part II of the Children Act 1989 insert—

''When determining whether the child will be safe if contact or residence is granted to the abusive party, the Court shall, so far as is practicable, have regard to the following matters:

(a) the nature and severity of the ill-treatment;

(b) how recently the ill-treatment occurred;

(c) the frequency of the ill-treatment;

(d) the risk of further ill-treatment occurring;

(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;

(f) whether the other party to the proceedings

(i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and

(ii) consents to the abusive party having residence of, or contact with, the child;

(g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

(h) any steps taken by the abusive party to prevent further ill-treatment from occurring;

(i) any matters as the court considers relevant.''.'.

New clause 33—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.2)—

After section 8 in Part II of the Children Act 1989 insert—

''(8A) Allegations of ill-treatment made in section 8 proceedings

(1) Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the Court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of ill-treatment is proved.

(2) Where the Court is satisfied that a party to the proceedings (in this section referred to as the abusive party) has inflicted ill-treatment on the child or on another person, the Court shall not

(a) make any order granting the abusive party residence of the child; or

(b) make any order granting the abusive party contact (other than supervised contact) with that child, unless the child wants to see the abusive party and the Court is satisfied that the child will be safe while the abusive party has residence of or contact with the child.

(3) Notwithstanding subsection 8A(i), where in any section 8 proceedings,

(a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but

(b) the Court is satisfied that there is a risk of harm to the child, the Court may make any order under this Act that it considers necessary to protect the child.''.'.

New clause 34—Recovery orders in cases involving allegations of domestic violence or potential risk to the child—

'After section 34 of the Family Law Act 1986 insert—

''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order. An order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance, before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see if either party has committed acts of violence;

(b) check to see if either party is included on the register of domestic violence perpetrators;

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(3) Following the award of an order under subsection (2)—

(a) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(i) not remove the child from the respondent

(ii) and advise the respondent to seek legal representation

(iii) notify the court of their action immediately,

(b) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.

(4) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court''.'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:15 pm, 6th July 2004

New clause 8 is identical, apart from one line, to new clause 32, and I am conscious that other Committee members will want to speak to it. I shall not take up much of the Committee's time, because it is largely self-explanatory.

This is a good time to consider the extent to which we should take special precautions in respect of children's contact and residence with one parent who has been abusive towards another. This is a controversial area in a number of respects. First, allegations of abuse are sometimes brought against one parent by another specifically to influence the outcome of contact and residence proceedings. We should not lose sight of that. Secondly, as we have already discussed, breakdowns of relationships can cause people to behave in ways that they may subsequently greatly regret. The fact that they do so does not in itself mean that they are unsuitable to either reside or have contact with their children. We must also bear that in mind with great care.

Having established those two facts, we need to face up to the reality that there are occasions when the behaviour of one parent towards another may provide compelling evidence about their suitability to have contact or residence. We know also that where there has been a history of abuse, it may pose considerable problems in the context of future contact or residence of children with the abusive parent.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

The hon. Gentleman correctly refers to the issue of disputes between adults in these painful cases. Does he share my concern that the views of children are often not heard or given enough credence in courtrooms?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is a difficult issue. Generally, the view has been taken that the courtroom setting is a bad place to get a child's view or opinion. That is why it is generally delegated to the Children and Family Court Advisory and Support Service to try to ascertain that opinion outside a courtroom setting. How good CAFCASS may be at achieving that is utterly dependent on the competence and experience of the person doing the assessment.

In my professional career, I have regarded reports by CAFCASS or its predecessor with either delight or despair, depending on the way in which the assessment was carried out. Only last Friday at my surgery, a parent, perhaps improperly in the light of the issue of privilege, showed me a copy of a CAFCASS report about which they were complaining bitterly. Having read it, I thought it was a poorly drafted document by any standards. I have always taken the view, however, that bringing a child to court and asking them their opinion was a mistake. When I was first at the Bar, judges used to invite children in such cases to come to his or her room and have a chat, but I am not sure whether that helped matters much.

The new clause sets out a mandatory risk assessment checklist. I would hope that, in cases in which there has been abuse of one parent by another, the judge and the court would automatically run through such a checklist when deciding what to do. Most of the points raised are fairly obvious, but what is obvious and what happens in reality are not necessarily one and the same. There is an argument for having a mandatory risk assessment checklist, not because it must inevitably lead to the outcome of denying contact or residence with a particular parent, but because it might provide a useful tool to

concentrate the court's mind on the essential issues that need to be considered in such circumstances.

I would not have been willing to sign my name to new clause 32 and to ask that it be considered unless the checklist made it absolutely clear that the fact that there has been abuse by a parent does not necessarily mean that that person is unsuitable either for contact or residence. I want to emphasise that point in speaking to new clause 8. I am conscious that other hon. Members will want to speak to it and to provide different angles, and because it is so closely linked to new clause 32—it is virtually identical—I should like to conclude my remarks and listen to what they and the Minister have to say about it.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I should like to begin with new clause 33, which needs to be taken with new clause 32, which, as the hon. Gentleman said, is almost identical to new clause 8. New clause 33 is vital to protect children. I deeply regret that the checklist in new clause 8—or new clause 32—is necessary. However, the deaths of at least 23 children during contact visits in recent years will focus our minds seriously on the issue. I regard that new clause as the most significant amendment to come before this Committee.

I shall go through some of the cases. Three young children were asphyxiated by their father on a contact visit in March 2003. The four Mubiangata children were found dead in their father's burnt-out car after a contact visit. Tony Bangs, aged 12, was strangled by his father during a contact visit, and during his father's trial, it emerged that the father had also planned to murder his other two sons to take revenge on his wife for leaving him. In 2000, Daniella Hirst, aged two, was killed by her father during a contact visit in Lincolnshire. Saba and Zeeshan Zaidi, aged seven and six, were also killed in 2000 on a contact visit. The list is long, tragic and appalling. We must do everything that we can to stop adding to that dreadful list. The fact that contact and even residence orders are being made in respect of individuals with a record not only of domestic violence, but of offences against children, surely reveals that something is very seriously wrong in this country.

According to research undertaken by the National Society for the Prevention of Cruelty to Children and Women's Aid, among 178 Women's Aid organisations across the UK last year, 18 cases were uncovered in which unsupervised contact orders had been made in favour of fathers who had criminal records of schedule 1 offences—offences against children. In my previous existence, I took part in removing children from parents who endangered them by putting them in contact with schedule 1 offenders. The Committee and the whole House are entitled to ask what family courts are doing to address those issues.

We know that there are huge links between the issues of child protection and domestic violence. A Department of Health study of women's mental health undertaken last year acknowledged that almost three quarters of children on the at-risk register live in households where domestic violence occurs. The issues are completely interwoven, but the evidence is that family courts are ignoring the impact and severity of

domestic violence on family life and especially on children.

We know that the Government are concerned about the impact of domestic violence on children. They have introduced not only this Bill, but the soon-to-be-implemented section 120 of the Adoption and Children Act 2002, which makes the witnessing of domestic violence a criterion for the assessment of significant harm. We know from research conducted by the university of Leeds for the Department for Constitutional Affairs that allegations of domestic violence feature in 23 per cent. of contact and residence cases. Yet, in 2002, the courts granted 61,356 contact orders and refused contact on only 518 occasions—0.8 per cent. of cases.

We know that section 1 of the Children Act 1989 sets out the fundamental principle:

''When a court determines any question with respect to . . . the upbringing of a child . . . the child's welfare shall be the court's paramount consideration.''

We also know that that paramountcy principle has been compromised by subsequent case law; the 1995 Appeal Court judgment re O ruled that contact is almost always in the interests of the child. Actually, it is not. It is certainly not in the interests of more than 0.8 per cent. of children who come before family courts.

The children who reported to the recent Women's Aid ''Listening to Children'' campaign, which I hosted and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), attended in Portcullis House last month, did not think that contact was in their interests. Kirsty, who is aged 15, did not think that it was. She told us that domestic violence makes her feel like she wants to kill herself. Chloe asked why the courts force children to see their dads when they are frightened of them. Another child asked, ''Why can daddy take me out of school and do I have to go?'' A very young child, for whom someone spoke their words, simply requested, ''Stop daddy from finding me.''

Research quoted in the Oxford university family policy briefing on child contact with non-resident parents indicated that it is the nature and quality of parenting that is crucial, not contact:

''The mere presence of fathers is not enough . . . To the extent that men remain involved in parenting after separation, or assume parenting practices they have not done before, they have a positive influence. As in intact families, the most effective way they can parent is by providing authoritative parenting . . . It is these aspects of parenting, encompassing monitoring, encouragement, love and warmth, that are consistently linked with . . . well-being''

The messages of research are that we do not need to force on children contact with violent, abusive, potentially lethal parents, because it will almost always be in their best interests not to do so. How could it be otherwise? A survey of 130 abused parents conducted by Bristol Women's Aid in 1999 elicited the disclosure that 76 per cent. of the 148 children involved had been abused sexually, physically or

emotionally or had been neglected or even abducted during contact visits.

Let us keep things in proportion. Contact is important, safe contact is a child's right and the loss of contact on separation of parents can be a painful and damaging experience. To quote again from the Oxford university research:

''Contact has potential value in terms of developing the child's sense of identity, preserving links with the wider family and providing an additional source of support for children. In ordinary circumstances a parent with an established relationship with the child should not have to prove that contact is in the child's interests. It does mean however that care needs to be taken not to overestimate the presumed benefits of contact either where there is no pre-existing relationship or where there are known risks. Where there is abuse or neglect, exposure to domestic violence or severe parental conflict, contact can be extremely damaging to children.''

There were 23 deaths of children and more than 12,000 cases of domestic violence, yet contact was refused on only 518 occasions in 2002, the most recent year for which we have figures.

The Government have identified links between witnessing domestic violence and significant harm, and there are indubitably links between the violent abuse of women and the violent abuse of children. These vital amendments are the most important that we can make to the Bill. They do not set out to stop contact; they set out ways in which the voice of the child can be heard and, above all, they set out to make contact safe. They would allow courts to distinguish between private law cases involving domestic violence and those cases in which it is not alleged. They would require courts to ensure that children will be safe before making any order of residence or contact to a parent who has been violent. Nobody who is concerned about the importance of maintaining good contact with both parents should oppose these amendments, nor should any father's group demonstrating anywhere about contact. Above all, nobody from a Government who demonstrate, time and again, their commitment to the protection of children should oppose them either.

Photo of Sandra Gidley Sandra Gidley Women and Older People, Non-Departmental & Cross-Departmental Responsibilities 3:30 pm, 6th July 2004

I shall address most of my comments to new clause 13, which is tabled in my name and that of my hon. Friend the Member for Somerton and Frome. However, I shall briefly mention new clauses 8 and 32. They are important, because many of us are disappointed that, at a time when the Children Bill is being considered in another place and we are debating the Domestic Violence, Crime and Victims Bill, the Government have not sought to tackle the problems that both address. The system is not working, but the issue is contentious because nobody wants to deny parents the right to see their children. However, I question some of the cases in which unsupervised access has been granted. Many parents would say that their partners, although they were violent to them, would not hurt the children. However, we must bear in mind that a history of domestic violence is the biggest indicator that something could happen to children. We ignore that at our peril.

New clause 13 is designed to highlight a problem about the way in which recovery orders are currently

used, to clarify the legal procedures for dealing with child abductions and to ensure that those measures are not used inappropriately in cases of domestic violence. That is necessary because violence perpetrators have been able to use seek and recovery orders to track down their victims and recover children from refuges. Often, if an abused woman flees from the family home taking the children with her, her violent partner seeks legal advice claiming that it is a case of child abduction—that is all that he has to claim. If he does not know where the woman has gone, and even if a woman is in a refuge and clearly does not want him to know where she has gone, he can apply in private law proceedings for an order requiring the disclosure of information as to the whereabouts of the child. He can also apply for a recovery order requiring the child to be returned to him. The person on whom the order is served must immediately disclose to the court all the information that they have about the whereabouts of the child. Any person with a legitimate interest in proceedings under section 8 of the Children Act 1989 can apply for orders under section 33 and 34 of the Family Law Act 1986. An application for a contact or residence order will usually be made simultaneously.

Those measures were specifically designed to deal with child abductions and were consequently intended to provide a quick procedure. Orders can often be made ex parte and without prior notice being given to the other party. Problems have arisen because an order can be served on any person who might have knowledge of whereabouts, so orders have been served on close relatives and even on refuges themselves to try to make them disclose that information. It is counter-productive and clearly not in the children's best interests if they are in a refuge and the refuge staff can be forced to give information about them. Because the system is meant to be rapid, the recovery orders make it possible for abusers to take action so quickly that the mother frequently has no time to seek legal representation or, as has happened in some cases, is unable to attend court to give her side of the story before the child is removed from her care.

In the fourth annual report of the Advisory Board on Family Law, the Children Act sub-committee made recommendations on search and locate orders following an investigation into the circumstances leading up to the murder of Georgina McCarthy. The report states:

''When both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the children to keep their whereabouts from the parents who have made the application.''

However, history has made it clear that some judges have found it difficult to distinguish cases of domestic violence and cases of abduction. There are examples in which orders have been granted for children to be found and then returned to violent parents. When Women's Aid, which is particularly concerned about the issue, undertook a national survey in May 2003, seven refuge organisations reported problems with recovery orders. Clearly the current system is not working, and if the Government are not minded to change it, I should be interested to know how they are

going to make sure that the existing system works. I cite one example reported to Women's Aid:

''A court order in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence.''

In many cases, there is insufficient time to ensure that such reports are taken note of.

There were objections when similar amendments were tabled in the other place. The excuse made was that there was no need for such an amendment

''because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 875.]

As I have said, however, this is an urgent procedure and there is no requirement for detailed welfare investigations to be carried out. A section 8 order, such as an interim residence order, can be made without notice at the same time as a recovery order is granted. The situation needs to be rectified so that recovery orders cannot be misused by perpetrators of domestic violence. Even if there has been an earlier order, it is no guarantee that the court has full, up-to-date information about the circumstances of the case.

Some change is necessary, because domestic violence perpetrators have been able to use recovery orders to track down their victims and to recover children from refuges. The tragic case of Georgina McCarthy shows how the system fails women. In 1997, she fled to Penzance Women's Aid with her one-year-old son. Her violent husband, Paul Russell, used section 33 of the Family Law Act 1986 to apply for information on the child's whereabouts. Georgina's case got off to a relatively good start because her solicitor managed to prevent the address of the refuge from being disclosed, but she was later warned that her husband was coming to Penzance to find her. She considered moving to another refuge, but decided to stay where she was because she was given no guarantee that the police in another police authority area would be so supportive, and in Penzance she felt supported by the police, Women's Aid and her solicitor and barrister. On 9 May 1998, her husband found her and killed her in front of the child. If that illustration is not graphic enough to show the Government how the system can go wrong, I do not know what more they need. As it stands, the system is not in the best interests of the child or the mother, and I urge the Government to improve it if possible.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

First, I thank hon. Members who were involved in tabling these new clauses, as they have facilitated a necessary and interesting debate. It will not be a great surprise to many hon. Members to hear that the Government have not drastically changed their position on these issues since they were aired in the other place. However, I have discussed them with Lord Filkin, who holds the relevant portfolio in the Department for Constitutional Affairs. He has had more direct dealings with some of these issues than me, but I agree with his stance on them.

It is important to note that there are two groups within this group of new clauses: new clauses 8, 32 and

33 sit best together in one group, which I will address first. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), who has great expertise in this field, made a moving speech, but I should tell him that the Government's policy is that, in most cases, children benefit from contact with both parents after a separation. Children who have such contact generally do better at school and in later life. We are therefore committed to facilitating contact between children and both parents after separation when that is in the best interests of the child and is safe for the child and all family members, and only then.

We recognise that there are problems with parental access and contact after separation. Perhaps the most important issue for parents to consider on separation is the needs of their children. Most parents make their own contact and residence arrangements without needing to go to court. Only about one in 10 make court applications about matters concerning their children—principally about contact and residence issues. About 25 per cent. of those cases involve allegations of domestic violence. As my hon. Friend said, there have been some horrific and disturbing cases in which children, the resident parent or both have been murdered as a result of contact, but as I said the vast majority of parents do not seek court intervention to decide contact arrangements, and it is a sad fact that many of the tragic deaths that have occurred took place where contact was arranged without the involvement of the courts.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 3:45 pm, 6th July 2004

Does that not reflect the fact that people have no confidence that their concerns about domestic violence, its effects and the effect of contact on children will be heard properly? That is because of the publicity given to terrible tragedies, and all the positive publicity gained by the likes of ''Spiderman'' and his colleagues.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I understand my hon. Friend's point. I simply say that it should be the objective and aspiration of the Government and all parties to ensure that, where a resident parent has concerns about their own safety or that of their child, they have the confidence to seek protection through the family justice system, and the courts should be able to provide that protection.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Is not the perfect way to engender confidence among parents to demonstrate to them, through the Bill, that there is a checklist and a mechanism by which such issues will be addressed? That way, they could go to court in the confidence and knowledge that the issues would be dealt with.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

It is important and possible for us to demonstrate that the child's safety is paramount in all circumstances. I do not necessarily conclude that to promulgate that view we must frame a piece of legislation in a particular way, when the existing legislative framework already provides adequate protection, although perhaps that protection is not being communicated effectively. We need to get across much more effectively the message that existing

arrangements already require courts to have the welfare of the child as their paramount concern. That is what section 1 of the Children Act 1989 is all about, and that provision is already very strong.

The 1989 Act also provides the court with a checklist to which the court must have regard. It includes consideration of the physical, emotional and educational needs of the child, and any harm that the child has suffered or is at risk of suffering. In reaching its decision, a court may request additional information, which is usually provided by the Children and Family Court Advisory and Support Service and potentially includes police checks and consultation with social services. The court may also direct the local authority to investigate the child's circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary.

I therefore believe that, to a certain extent, the 1989 Act already covers many of the concerns raised by my hon. Friend the Member for Lancaster and Wyre. Although I accept that he has concerns, I believe that the 1989 Act is sufficiently strong and is capable of providing robust protection and ensuring child safety.

Photo of Sandra Gidley Sandra Gidley Women and Older People, Non-Departmental & Cross-Departmental Responsibilities

The hon. Member for Lancaster and Wyre referred to the fact that a number of schedule 1 offenders have been given unsupervised access to their children. How can the Minister be satisfied that the system is working when it clearly is not? I do not know what more evidence a judge needs. Is not the real problem that we have no sanction that we can use against judges when they clearly make the most peculiar decisions?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

That is not a serious point, but I understand that the hon. Lady is frustrated because she does not feel that the message has got across sufficiently well. We need to strike the right balance and make sure that we have a framework in which contact with parents can be maintained, but only when that is in the child's best interests, and when it can be maintained in a way that is safe for the child and members of that family.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I would like to elaborate on how I believe that the arrangements provide the guarantees in the system before giving way again.

Not all contact is the same. Some is direct, some indirect. Contact can be face-to-face for a short period or be conducted through writing and receiving letters. When a party makes an application for contact, the court may rule that contact should take place directly, indirectly or perhaps in a supervised environment if there are fears about safety. The Government have been concerned about that in recent years and we have invested extra resources into the creation of child contact centres. We have committed more than £8.5 million since 2000, taking into account the extra allocations made in March this year by my right hon. Friend the Minister for Children. That will pay for 14 new supervised contact centres in England—a welcome development that can be seen to be rooted in concerns about the safety of children.

It is also important to remember that the Children's Act sub-committee of the Advisory Board on Family Law reported on contact and domestic violence issues in 1999. CASC rejected a direct proposal to amend legislation to introduce a blanket presumption of no contact in cases of domestic violence on the grounds that it could not be applied while always putting the child's best interests at heart. Instead, it produced guidelines about how the court should deal with allegations of domestic violence in contact cases. The sub-committee promulgated those guidelines in April and May 2001, and as a result of a Court of Appeal judgment, the guidelines were partly incorporated into case law. They require that the courts should consider allegations of domestic violence at the earliest opportunity and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact will be affected. The guidelines require the courts to ensure that they are satisfied about the child and resident parent's safety before, during and after contact. I believe that that principle is robust and provides the assurance that hon. Members require.

That said, the Government recognise many of the concerns voiced by my hon. Friend the Member for Lancaster and Wyre. Hence, further new measures have been introduced since that sub-committee report. For example, from January 2005, we want to bring disclosure of allegations of domestic violence more to the forefront of cases. We continue to believe that there should not be a presumption of no contact but that allegations of domestic violence should be considered and findings of fact made before contact or residence decisions are made by the courts. From January, we will introduce a new form for use in applications under section 8 of the Children Act 1989. It will enable applicants and respondents in contact and residence applications to highlight more effectively allegations of domestic violence at the start of proceedings and for the court to make findings of fact before deciding on contact and residence applications.

Moreover, we recognise that it is not only physical violence that causes harm to children. As my hon. Friend the Member for Lancaster and Wyre said, witnessing violence against another person can have profound emotional effects on a child. That is why from January we will commence section 120 of the Adoption and Children Act 2002, which will strengthen the definition of harm by requiring courts to consider the damage to its health or development that a child may suffer from seeing or hearing about the ill treatment of someone else.

In summary, our measures provide the adequate assurance that hon. Members are seeking. They have the child's welfare as the paramount concern, and there are guidelines on how cases of domestic violence should be handled. We are making extra resources available for contact centres and introducing new systems to bring consideration of allegations of domestic violence to the forefront of proceedings. We also have the new definition of harm that the courts must consider. Together, those measures strike the right balance between ensuring the safety of the

resident parent and child and ensuring that, when it is in the child's best interest, he or she can have contact with both parents following separation. I realise that those are slightly different issues to those in new clauses 31, 34 and 13.

Turning to the points raised by the hon. Member for Romsey, the Government are not convinced that the new clauses are necessary as we believe that the existing procedures safeguard the welfare of the child. New clause 13, which the hon. Lady tabled, would put an additional duty on the court and the police where an application is made under section 34 of the Family Law Act 1986 for an order authorising an officer of the court to take charge of a child and deliver him or her to the applicant or a police constable. If the applicant has a residence order, the new clause would have the effect of establishing a presumption to return the child to the applicant after an alleged abduction by the other parent. If neither party has a residence order, the new clause is designed to place additional duties on the police and the courts before the section 34 recovery order can be made. I am afraid that all the new clauses disregard the requirements of section 34(1) of the Family Law Act 1986; indeed, they make no mention of them.

Section 34 states that before an order can be made for the recovery of a child there must be a part I order—usually a contact or residence order made under the Children Act 1989—or an order for the enforcement of that part I order, with time and place details requiring a person to give the child to the person concerned, which has not been obeyed. The section 34 order is a way of enforcing that original part I order when it has not been obeyed. Under the 1989 Act, when making any order concerning the upbringing of the child the court must have the welfare of the child as its paramount consideration. The court will have considered all the circumstances affecting the child's welfare when making the order that section 34 is intended to enforce. Although not all part I orders deal with residence, the court making such an order will have had an opportunity to look into any history or allegations of violence. New clause 13 is therefore unnecessary because enforcement cannot be triggered without a part I order being made. A section 34 application is not the place for rehearing the facts of the case; that is for the part I order hearing. If allegations of domestic violence arise after a part I order has been made, the parent making the allegations should properly go back to the court immediately and seek a variation of the order, not wait until an abduction has occurred to trigger measures regarding non-enforcement of the order. That is the proper way to proceed should circumstances arise after a part I order has been granted.

I appreciate that hon. Members who have tabled the new clauses have good intentions. As I have said, when a contact order has been made under the Children Act 1989, respondents have the right of appeal and can seek variation of the order. The court will consider any evidence of domestic violence, whether or not that is recorded in making its decision under the 1989 Act or in considering applications for variation. I explained earlier how

carefully the courts consider the welfare of the child when making orders under that Act, and how that is already set out in the framework and guidance under which they operate. Those are the appropriate ways to ensure that the child's safety is paramount and they are the best avenues through which to inquire after the child's circumstances.

The existing procedures under section 34 work effectively. The new clauses propose changes to address a problem that has arisen in a small number of cases. We are talking about the return of a child to an abusive parent using that section 34 procedure—the hon. Member for Romsey sought to illustrate that point in her example. The new clauses would require the police to make record searches and conduct inquiries into the welfare of the child. If the changes were made, the recovery of children whose return the courts had already ordered could be delayed. Such delay would be most unfortunate in the reverse circumstances of an abusive parent having removed the child.

The hon. Member for Romsey raised a number of points about ex parte orders, which are made in exceptional circumstances. By amending the Family Law Act 1996, the proposals also seek to restrict the making of ex parte residence and contact orders where the respondent to the application does not have the opportunity to attend court. That is not necessary or possible. What is more, such changes might not be in the best interests of the child where there is evidence that a party is wilfully refusing to attend court. The courts have developed strict guidelines on when ex parte orders should be made under section 8 of the Children Act 1989. For example, the Court of Appeal held in 1991 that it was undesirable for ex parte orders to be made except in the most exceptional circumstances, and then only on very strong evidence. An interim order of that kind would be followed as soon as possible by a hearing involving both parties, at which long-term orders would be made.

On the specific point raised in new clause 31 about the disclosure of the address of a refuge, I would be concerned if the rules to prevent that from happening were not already in place. I am advised that court orders for disclosure are dealt with under section 33 of the Family Law Act 1996 and that the amendment is not necessary. Anyone who does not wish to disclose their address is entitled not to do so under rule 10.21 of the family proceedings rules. The court will consider all the circumstances before making any order of disclosure that overrides a party's non-disclosure. A Court of Appeal decision has made it clear that the court should not order the police to disclose the location of women's refuges, so there is case law that prevents the disclosure of such information, and I do not believe that that part of new clause 31 is necessary.

These are complex matters, but the overriding principles are clear. We have sufficient strength in the part I order provisions to ensure that any history of abuse or domestic violence can be considered in a

case. The section 34 enforcement procedure can take place only where that part I order has already been made.

In respect of the other new clauses, although I understand the points that my hon. Friend the Member for Lancaster and Wyre made, we have to strike the right balance in ensuring that there is contact where possible, in a scenario that is safe for the child and for the child's parents and family, before, during and after such contact. The arrangements that we propose strike the right balance. With that, I hope that the motion will be withdrawn.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre 4:00 pm, 6th July 2004

I am grateful for my hon. Friend's response. I am pleased about his support for the principles of the Children Act 1989, with which I fundamentally agree. However, the problem is that the paramount principle of the 1989 Act, which is that all decisions should be made in the best interests of the child, has been compromised by case law and is being compromised by the judiciary's decisions.

I am talking not only about the re O case from 1995, to which I referred earlier, but about the re H and R case of 1995, which set out a higher standard of proof where allegations of sexual abuse against children are concerned, and the re AvN case of 1996, which set out that the welfare of the child is not paramount in the case of committal proceedings. We have a serious problem with the way in which the judiciary is interpreting that fundamental aspect of children's law in a strong media environment in which genuine concerns about children who have lost contact with their parents for various reasons are being brought to the fore, but also being misapplied to circumstances in which the protection of children needs to be emphasised over and above everything else.

My hon. Friend also does the Committee a service by setting out the clear messages in ''Safety and Justice'' about the investment that the Government are making in contact centres—it is welcome, worth while and important, but it is still not enough, because we do not have effective coverage across the country—and the work that is being done on new forms and guidelines. However, the issue is more significant than that.

In ''Safety and Justice'', the Government say that they would welcome views on whether the arrangements provide the right level of support and safety for all family members. They ask those who think that they do not do so what else should be done. The answer contained in the new clauses does not come from me; it comes from Women's Aid, the NSPCC and a plethora of other organisations that are concerned with these issues and want things to be put right.

I genuinely believe that my hon. Friends have fallen into the trap of holding the ring between what they see as the competing and perhaps equal interests of those who emphasise the benefits of shared parenting and those who emphasise the importance of safe contact. That is not an equal contest. Safe contact is imperative. I am at one with my hon. Friend in wanting there to be excellent contact arrangements for

all children. No one wants to stop contact arrangements—even those between children and violent and abusive parents—where the child wants to have contact with the parent, but we know from deaths and abuse of children during contact visits that it is imperative that we improve the situation.

I apologise for any embarrassment that I may cause to Labour Members, because I have the greatest respect for my hon. Friends, but I am prepared to press new clauses 32 and 33.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have listened carefully to the debate and I am grateful that it has taken place. I have also listened with great care to the words of the hon. Member for Lancaster and Wyre; in due course, he might press the new clauses, as he has suggested.

As a result of listening to the debate, it seems to me that there is a distinction between new clause 8 and new clause 33. They are aimed at achieving slightly different things. The Minister has persuaded me that it is undesirable to be as prescriptive as these proposals are, particularly in respect of new clause 33, which would effectively deny a party who had been involved in any act of violence—in the break-up of a marriage, for instance—the possibility of having contact or residence with their child. That is going too far.

I have had professional experience as a barrister of marital and relationship breakdown, in which people act in ways that they subsequently regret. If their behaviour is wholly out of character and is not particularly directed at the child, but at another person, to say that there is effectively an entire presumption against there ever being residence is to lay down a rule that could turn out to be harmful to the child concerned.

On the checklist, I was partially reassured by what the Minister said. At the same time, it strikes me as an innocuous addition, but he considerably reassured me about how the courts are operating. I therefore beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

Do I understand correctly that you wish to press your new clauses later, Mr. Dawson?

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

They will come after new clause 22.New clause 17 Register of Orders