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Mr. Grieve: I agree with the hon. and learned Lady. In such circumstances, is it not all the more desirable for us to make plain in the Bill that the issue needs attention? If we do not, there is precisely the risk that the truth will only emerge subsequently, and will not be dealt with properly at trial.
Vera Baird: I do not deny that the hon. Gentleman has a point. My amendment is intended to add weight to it. The hon. Gentleman knows, however, that judges tend to see what is in statute as being more important that any other possible factor. That is what makes me shrink from naming domestic violence specifically; other factors may have equal potency for one or other of the parties. Nevertheless, it scares me stiff—I put it as bluntly as that—that if special resources are not put into cases of this kind, women who have done nothing other than suffer from domestic violence will be convicted. I invite my hon. Friend the Minister to tell us what he thinks he can do.
Mr. David Heath (Somerton and Frome) (LD): I listened carefully to the hon. Member for Lancaster and Wyre (Mr. Dawson) and the hon. and learned Member for Redcar (Vera Baird). My party and I agree with many things that they said. I only wish that Ministers listened more attentively to the views of people with real experience, who have a cogent story to tell.
I tabled a number of the new clauses and amendments in this group. New clause 5 deals with the important issue of recovery orders. My hon. Friend the Member for St. Ives (Andrew George) has been required for parliamentary duties elsewhere, but I know he would have been delighted to speak about a matter that he has pursued personally for some time, a matter that is of great importance to many of those who have informed our debate from outside. Women's Aid in particular is very concerned about the way in which the recovery order provisions currently work.
I think I should put on record the circumstances of what is probably the most tragic case of its kind, the case that occasioned my hon. Friend's interest. In 1997 Georgina McCarthy and her son, then aged one, fled to the Penzance branch of Women's Aid following domestic violence at her home. Her husband, Paul Russell, then used section 33 of the Family Law Act 1986 to apply for information on the child's whereabouts. In that instance Georgina McCarthy's solicitor managed to prevent the address of the refuge from being revealed, but later Georgina was warned that her husband was coming to Penzance to find her. She knew that if she moved elsewhere, section 33 would again be used by her husband to enable her whereabouts
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to be disclosed; so she decided that moving was pointless. At least in Penzance she had contact with the police, Women's Aid, her solicitor and her barrister. Tragically, it was the wrong decision. On 9 May 1988, her husband found her and killed her in front of the child.
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That is an extreme case, but it is not unique. There is evidence of abuse of the recovery order process by those wishing to discover the whereabouts of mothers who have fled abuse, and who are then wrongly accused of child abduction by their abusing partners. I do not accept the Government's response in the other place and in Committee that arrangements in the courts were sufficient to meet the need as it stands, and that no further amendment was required. Evidence suggests that, although they may be rare, there are instances of courts being prepared to entertain applications of that kind, and indeed to allow the disclosure of addresses.
That puts at risk the whole principle of women's refuges, which is a serious matter and one that the Government should address more seriously than they have so far. I hope that, even at this late stage, they will review the use of recovery orders and establish whether an accommodation can be reached, allowing them to make plain what they seem to assume is implicitly the case; that when abuse is involved, the whereabouts of a mother and child will not be given by means of that process.
My amendments Nos. 12, 13, 14 and 15 deal with the circumstances of the new offence. As the Minister knows, I welcome the creation of the offence. I was one of the Members who urged the implementation of the Law Commission's proposals at the outset, because I felt that joint enterprise in familial homicide involved serious issues. My amendments would reinstate the Law Commission's recommendation that the law should cover not just death, but serious harm. I have not yet heard a strong enough argument—other than the argument that the offence is new and we must see how it works before extending it—for differentiating between serious harm caused to a child by two perpetrators, neither of whom can be identified clearly for the purpose of prosecution, and the death of a child.
I seem to remember the hon. Member for Beaconsfield (Mr. Grieve) making a cogent point in Committee. I believe he said that grievous bodily harm was murder without a body. Are we really to countenance circumstances in which a child is seriously injured—perhaps put into a coma, or suffering major loss of a faculty—by abusive parents, and there is no prosecution? I find it difficult to differentiate between the circumstances of familial homicide and those of that sort of abuse.
The Law Commission recommended the insertion of these words, and they were in the draft Bill. The Government have now left them out, but I still see a strong argument for their inclusion. I understand, of course, that if the Bill were enacted the operation of the offence would need to be carefully reviewed, but it can be reviewed as carefully in the context of its value or otherwise in cases of serious harm as it can in cases of culpable homicide.
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My amendment No. 1 deals with a potential lacuna; the failure to include those under 16 in respect of whom a serious case review has not been undertaken, and who will not qualify for a domestic homicide review specified to be for those aged 16 or over. We discussed that in Committee, so I do not propose to spend any longer on it now.
I shall finish by considering amendment No. 10, to which the hon. Member for Beaconsfield and his colleagues have added their names, and which started off in the House of Lords as a joint enterprise between our two parties. The Government removed the amendment in Committee, which was a huge mistake. The comments of the hon. and learned Member for Redcar underline the difficulties involved in dealing with such cases. I do not accept the argument that the amendment is an invitation to a defence that is also in fact an invitation to commit the crime. Rather, it is an invitation to consider mitigation, and there is a clear differentiation to be made in that regard. There is abundant evidence that a court will not necessarily take such factors into consideration because of the circumstances, and because of the difficulties that the hon. and learned Member for Redcar described.
Those in another place who passed this amendment and have seen it removed in this House will return to this issue, and they will be right to do so. We in this House should indicate that we are not prepared to see someone who is a victim made doubly a victim by being prosecuted inappropriately for an action that they were unable to resist because of the abuse that they were suffering in the home. However, that is what will happen if we do not pass amendment No. 10 today, so I want to make it plain that it is my wish, if at all possible, to press it to a Division; unless, of course, the Minister is happy to accept it. We in this House need to send a signal to those who will consider the Bill after us that they were right and the Government are wrong.
Paul Goggins: I begin my response to what has been a wide-ranging discussion over a fairly short time by acknowledging the deep commitment and experience of many Members in respect of these issues, which is reflected in the amendments that they tabled.
I pay tribute to Women's Aid and to the other organisations that have helped to inform our discussions today and in Committee. I should gently say to the hon. Member for Somerton and Frome (Mr. Heath) that of course Front Benchers have listened to such organisations; it would be a foolish Government who did not listen to organisations that are in daily contact with those who are at the sharp end of such matters.
The Government are committed to facilitating contact between the child and the non-resident parent where that is in the best interests of the child, and where doing so is safe for the child and for all family members. I know from today's discussion and earlier ones that my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) and my hon. and learned Friend the Member for Redcar (Vera Baird) in particular hold very strong views on this issue, as well as considerable experience. I hope that they will forgive me if I tell them that the Government's position remains the same as during our earlier discussions.
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The Government are not trying to be deliberately awkward or difficult. Section 1 of the Children Act 1989, which requires courts to treat the welfare of the child as the paramount consideration in making any decision about their upbringing, is central to our policy. We consider that to be the right principle, and we do not want it to be diluted in any way. Of course, we want that principle to work in practice, and we must continue to monitor what happens and to make the necessary improvements. I am grateful for the comments that my hon. Friend the Member for Lancaster and Wyre and my hon. and learned Friend the Member for Redcar made about the improvements that we are achieving.
The new forms, which will be in use from January 2005, will ensure that courts are aware of any allegations of domestic violence from the start of a case's consideration. The commencement at the same time of section 120 of the Adoption and Children Act 2002 will strengthen the definition of harm, so that harm caused to a child by their seeing or hearing violence towards another will also be considered. In other words, not only direct violence to the child but violence witnessed by the child will be taken into account. Crucially, the courts will decide whether domestic violence has occurred before making orders on contact and residence.
My hon. and learned Friend the Member for Redcar asked what more we can do, and it is clear that we need to do whatever is required. She is right: we need to train the judiciary and to continue to ensure that attitudes change. We will continue to monitor the situation and we will, of course, consider further evidence from Members of Parliament and voluntary organisations, but the core of our policy is the belief that it is not the Government's job, in enacting legislation, to choose between parents: rather, our job is to place the best interests of the child at the heart of our policies.
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