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Use of recovery orders in cases involving either allegations of domestic violence or a potential risk to the child
Vera Baird
NC18
*To move the following Clause:—
'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 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.
(7) 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.
(8) 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.
(9) The court shall not grant interim residence or contact orders unless there is evidence that a party is wilfully refusing to attend court.
(10) 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.".'.
Parental contact with children after separation in cases involving ill-treatment of the child or another person (No. 2)
Vera Baird
NC19
*To move the following Clause—
'After section 8 in Part II of the Children Act 1989 insert:—
"Section 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 Court is satisifed that the child will be safe while the abusive party has residence of or contact with the child.
(3) Notwithstanding subsection 8A(1), 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.".'.
Mandatory risk assessment checklist
Vera Baird
NC20
*To move the following Clause:—
'After section 8 in Part II of the Children Act 1989 and following the proposed section 8A outlined above insert—
"Section 8B (Mandatory risk assessment checklist)
8B(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 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 other matters as the court considers relevant.".'. |
Definition of manslaughter
Vera Baird
NC21
*To move the following Clause:—
'(1) Unlawful homocide that would otherwise be murder should instead be manslaughter if the defendant acted in response to—
| (a) | gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or |
| (b) | fear of serious violence towards the defendant or another, or |
| (c) | a combination of (a) and (b); and |
a person of the defendant's age and of ordinary temperament, ie ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way.
(2) In deciding whether a person of the defendant's age and of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account all the circumstances of the defendant, other than matters (apart from his or her age) which bear only on his or her general capacity for self-control.
(3) The partial defence should not apply where—
| (a) | the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or |
| (b) | the defendant acted in pre-meditated desire for revenge. |
(4) A person should not be treated as having acted in pre-meditated desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear.
(5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.'.
Victims of Domestic Violence: immigration
Mr David Heath
Sandra Gidley
NC22
*To move the following Clause:—
'The Secretary of State may exempt victims of domestic violence and their dependants who are subject to immigration control from the restriction on public funds to enable them to access emergency accommodation and living costs, and may recover such funds from the sponsor (as defined by section 113 of the Immigration and Asylum Act 1999) of the victim.'.
Domestic Violence Advocacy Service (No. 2)
Mrs Cheryl Gillan
Mr Dominic Grieve
NC23
*To move the following Clause:—
'(1) The Secretary of State shall establish, maintain and develop a national service to be known as the Domestic Violence Advocacy Service to promote the availability of the services specified in subsection (2) to victims of domestic violence.
(2) The services referred to in subsection (1) are—
| (a) | the provision of help in developing and implementing a plan for ensuring the safety of the victim and the safety of the children of the victim as a priority; |
| (b) | the provision of general information, relevant to the victim, about the law and legal system and the availability of legal services; |
| (c) | the provision of help by the giving of advice as to how the law applies in the particular circumstances of the victim; |
| (d) | the provision of information as to the availability to the victim of relevant support services offered by other agencies; |
| (e) | the provision of assistance in accessing services relevant to the victim that are offered by other agencies; |
| (f) | the provision of help in relation to legal proceedings, whether in the family, criminal or civil courts; |
| (g) | the provision of assistance and training to support the early identification of domestic violence in high risk groups. |
(3) The Secretary of State may fund services as part of the Domestic Violence Advocacy Service by—
| (a) | entering into contracts with voluntary organisations for the provision of services by them, |
| (b) | making payments to voluntary organisations in respect of the provision of services by them, |
| (c) | making grants or loans to voluntary organisations to enable them to provide, or facilitate the provision of, services, |
| (d) | establishing and maintaining voluntary organisations to provide, or facilitate the provision of, services, |
| (e) | making grants or loans to individuals to enable them to obtain services, |
| (f) | doing anything else which he considers appropriate for funding services. |
(4) The Secretary of State may by order amend subsections (2) and (3).
(5) In this section—
"voluntary organisation" means a charity or an organisation operating on a not-for-profit basis;
"domestic violence" means, violence against a person committed by a cohabitant, relative or member of the same household.
(6) For the purposes of subsection (7)—
| (iii) | psychological or emotional abuse, including, but not limited to— |
(d) threats of physical abuse, sexual abuse or psychological abuse; or
(e) threats of physical abuse, sexual abuse or psychological abuse against a dependant;
| (b) | "cohabitant" and "relative" have the same meaning as in section 62 of the Family Law Act 1996; |
| (c) | "member" of a particular household has the same meaning as in section 5 of this Act.'. |
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