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Ms Meg Munn (Sheffield, Heeley) (Lab/Co-op): Is the hon. Gentleman not concerned that if we include this caveat, defendants might seek to claim domestic violence to escape from the seriousness of what has happened, when, in effect, the introduction of this offence is intended to make people face up to the responsibility of having been involved in or having caused the death of a child?

Mr. Grieve: I understand the hon. Lady's point, but I do not think that that is a particular risk. It is the sort of assertion that may be made in any event and it will not contribute to people deciding to assert it more frequently. The question that we must ask is: in cases of serious domestic violence that may be perpetrated against one person by their partner, are they in as good a position as others to fulfil the legal obligations that we place on them in relation to the offence that we create in clause 5? I would have thought that the hon. Lady would have no difficulty in agreeing that such a person, because of their vulnerability, would be poorly placed to provide protection to a child who was also suffering abusive behaviour and domestic violence from their partner. That may be a matter for mitigation of sentence at the end of the court case. But the question arises: should it also provide a possible defence?

We are creating a very unusual offence—an offence of negligence that places specific burdens on an individual. If that individual does not discharge those obligations,
 
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and even if they are not the person who was responsible for the injuries, they are still guilty of an extremely serious offence for which they can go to prison for a very long time. I look to the Minister to give the House his views on the matter.

Mr. Dawson: Does hon. Gentleman feel that the Bill as it stands reflects the seriousness with which people should rightly regard child abuse, and does he believe that it is important that people should not be given any opportunity to excuse their complicity in child abuse? Surely, there should be a spur to a woman to help herself out of a violent situation if she felt that a child was being hurt as well.

Mr. Grieve: The hon. Gentleman makes a good point, but it is worth bearing in mind the nature of this offence, which is punishable by a period of imprisonment of up to 14 years—it is not a slight matter, it is extremely serious—and which can be committed by an individual without their having done any positive act of violence whatever against the child in the family. That is a fairly unusual state of affairs and it is a very unusual offence under our laws.

I understand why the Government have introduced the offence, but it is worth bearing in mind whether it will act fairly, as it has the potential to be used to send people to prison for an extremely long time, when there may be doubt—or it may ultimately become clear—that they were not responsible for the injuries sustained by the child, which may or may not have caused death. In those circumstances, is it right that we should convict a person if it becomes clear that that person was the subject of serious domestic violence during the period when their alleged negligence—that is what it amounts to—took place, which was possibly meted out from exactly the same source as the violence being perpetrated on the child and that led to its death? That is the issue.

I would feel more comfortable were amendment No. 10 accepted because I do not think that it undermines the intention behind the offence in clause 5. It provides a proper safeguard, however, against what are often tragic situations.

Vera Baird (Redcar) (Lab): I want to return to the new clause tabled by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). I have tabled terribly similar clauses, which are as close to his as makes no difference, although I am grateful to the Table Office for noticing the difference.

I, too, want to pay tribute to Women's Aid. I cannot imagine that anyone in the Chamber who considered the Bill in Committee and who has an interest in the hugely important question of domestic violence does not appreciate the number of years and the amount of effort that Women's Aid has contributed to ensure that we, for example, are concentrating on this issue today. Without its determination and campaigning record, we would not have focused on the issue as strongly. It has done an extremely good job and I owe much of what I will say on various amendments this afternoon to its work.

The difficulty with contact and domestic violence can best be summed up simply in some figures. In 2002, there were 61,356 contact orders, and contact was refused in
 
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only 518 cases; in only 0.8 per cent. of all cases. Notwithstanding that, the family court welfare service says that it is dealing with about 16,000 disputed contact cases a year in which domestic violence is an issue. In some recent research, the Department for Constitutional Affairs has found that allegations of domestic violence feature in 23 per cent. of contact and residence cases.

I appreciate and respect the welfare principle, but those on the ground are satisfied that society at large is still at the slightly curious stage—curious to those who are very acquainted with the issue of domestic violence—at which truly domestic violence is not given the priority that it ought to have, because, to some extent, it is still an emerging issue. Although it is now known that it exists, and the figures are bruited around, its impact on individuals, particularly on children, is not yet appreciated to the fullest extent. That must be right; given the figures that I have just mentioned, it sounds as if a disproportionate amount of contact is being granted in cases in which there is undoubtedly at least an allegation of domestic violence. In 16,000 cases, however, the family court welfare service says that domestic violence is involved, which seems to go beyond allegations. One is therefore very concerned that the welfare principle is not safeguarding children when domestic violence is on the scene. Once I have set that out, it is clear that these new clauses and amendments are important, at least in testing how the Minister's thinking has moved on since Committee.

The welfare principle, of course, is open to a multitude of interpretations. If one has a strong, old-fashioned view—such views take a long time to die—that what is absolutely paramount for the welfare of a child is that it should be kept in touch with both its parents, almost come what may, that is one's interpretation of the welfare principle; one will give too much precedence and too much priority, in the light of what we know about domestic violence, to ensuring that that occurs. One will devalue contraindications of that.

That is a huge worry, and I have strong concerns, based on a certain amount of experience, that the judiciary—not all of its members, by any means, but some, particularly older members—has a fixed view as to the importance of fathers in families. Nobody gainsays that, but it is allowed to take precedence over examining more closely and thoroughly the impact on children of what domestic violence has taken place; they must find out that it has taken place to act on it. The same clauses and check lists have therefore been tabled again to say to the Minister that, on the figures that I have put forward, the welfare principle does not seem to be enough, and to ask what more we should be doing.

It is a good thing that section 120 of the Adoption and Children Act 2002 requires the courts to take into account the fact that children have witnessed abuse. That is important and puts the issue of domestic violence well up the agenda. Another fact that cannot be overlooked is the impact of the new court application forms that the Government introduced after the Act came into force. The form contains specific and fairly detailed questions about allegations of domestic violence so that the allegations are drawn out and the issue identified at the outset and dealt with.
 
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2 pm

I do not see any real difficulty with that, but I should be grateful for the Minister's comments. The court is happy to introduce a new series of application form questions that intend to draw out information on domestic violence, and that is a good thing. That requires the court to be aware of domestic violence and to think through its extent, depth and gravity. It also requires the court to focus some thought on how to deal with the existence of domestic violence. Given that such requirements are already on the application form, I do not see any difficulty with including the mandatory risk assessment checklist in, at the very least, guidance to judges. It is slightly rum—if I may put it that way—to have a form on which specific questions about domestic violence are set out and then not to give judges any guidance at all about how they are supposed to weigh in the balance, evaluate and put strength on the allegations that emerge.

Guidelines, such as those in new clause 2, would be very helpful. The definition of the welfare principle is wide. However, there are other aspects of the law in which judges would say that wide definitions that give them open discretion have been closed down to them only in the sense that they have been required to take a fixed set of steps in coming to their conclusion. In effect, their discretion has been guided, and I suggest that that should be the position here. Empirical evidence in many cases in which issues of domestic violence have been raised but have resulted in contact shows that the welfare principle on its own will not do. We have to set out the steps that the judiciary needs to take to satisfy ourselves that the issue of domestic violence is being given the importance that it should have.

Research that I recently read from Professor Sylvia Walby concluded that previous domestic assault is now identified

"as the simplest, most robust risk marker of subsequent domestic assault."

Let us get well away from the idea that domestic violence stops when the parties separate; it does not. If it has been present before, it is, on that analysis, likely to be present again and therefore is a factor to which the judge should give lively consideration when deciding when to allow contact.

My name is attached to a number of the amendments in the group, but I shall not spend a huge amount of time on amendment No. 64, because we discussed it in Committee. The amendment requires the Secretary of State to give himself the ability to give grants to voluntary organisations for the purposes of providing protection and support services for children who suffered from seeing the ill treatment of a parent. Despite the fact that two thirds of the children resident in refuges have either seen or been the victims of domestic violence, no funding at all is provided for paid staff to work specifically with those children.

My hon. Friend the Member for Lancaster and Wyre quoted Children's Voices in Committee, and I quoted Women's Aid. The children said how sad they had been because they had no one to talk to about the issues and, I am afraid, the position remains the same. I therefore invite my hon. Friend the Minister again to respond to the question of what we do about children who have
 
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undoubtedly suffered and for whom no resources of conversation, counselling and support are available.

Another amendments deal with the new offence relating to killing a child, mentioned by the hon. Member for Beaconsfield (Mr. Grieve). I support the new offence completely. Indeed, I have done my best to drive it forward having, with others, tabled a new clause to the Criminal Justice Act 2003 to try to deal with the terrible situation in which three children under the age of 10 are killed each week by carers. In some cases, it is perfectly plain that one or other of the two carers on trial is responsible but it impossible under the current rules of jurisprudence to ascertain which. I am strongly in favour of creating the new offence, but I want to prompt my hon. Friend the Minister to comment on the dire situation of women who suffer from domestic violence. What can he do to help with such problems?

On the death of a child, it is likely that a woman who experienced domestic violence will be charged along with its perpetrator. That will probably take place on the basis that the woman failed to protect the child, but it is well known that it is difficult for women to talk readily about domestic violence. It is also well known that when there is domestic violence, there is almost always sexual violence. It is even harder for people to talk about that. It is extraordinary difficult to expect women to talk readily about sexual violence when they are interviewed by police officers in the immediate aftermath of the death of one of their children. Such women are bound to be traumatised again, well beyond anything that the domestic violence has inflicted on them.

As my hon. Friend the Minister knows, I have dealt with many cases in which women have killed their violent partner. In early interviews to the police, those women did not disclose the extent of the domestic violence, let alone the sexual abuse, to which they were subject. However, over time and after talking to a sympathetic psychologist, psychiatrist or even solicitor, they have started to be able to talk about it. Once somebody is charged and interviewed, or interviewed and charged—whichever way round it comes—the process to court follows reasonably quickly. I do not think it right to put in place a defence for people who have suffered domestic violence, because there is probably already a defence in jurisprudence for people who have been unable to stop themselves from committing a crime because they were under duress.

Domestic violence would constitute duress in many cases, so I do not see the need for such an offence. However, within the sculpture of what has rightly been referred to as a very unusual offence in which the burden of proof is rightly reversed, there must be critical thinking as to what we will do to get women to talk about domestic violence and sexual abuse and accept that they were unable to resist what their partner had done to them and their children. The experience of lawyers like me shows that such proceedings can involve a slow process, but we must consider what special resources can be provided to ensure that, in every case in which domestic violence could be a factor, information on it is drawn out from the person involved. With the reversal of the burden of proof pretty well in place, the real danger is that, unless proper resources are provided to draw the information out, people might be wrongly convicted.
 
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Following a conviction when the burden of proof is, as it were, the usual way round, a body such as Women's Aid or Justice for Women will get a pretty salty reaction from the Court of Appeal if they say, "But over the period since this woman was convicted—in fact this began to emerge during the trial, but not very fully—she has been able to tell us exactly how bad the domestic violence was, and exactly how incapacitated by it she was." The Court of Appeal tends to think that the woman was telling the truth in the original interviews, and has lied since.

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