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Mr. Dawson: I am mystified by the constant recourse to the paramountcy principle. I firmly believe that everything that I have advocated this afternoon is entirely in line with, and supports, the paramountcy principle, and that it gives good guidance to the courts in order to ensure that they consider the best interests of the child.
Paul Goggins: What we need in legislation is absolute clarity about our starting point in policy, which has to be the best interests of the child. We believe that if we start from there, and if we adopt from next January the rigorously enforced and improving system that I outlined, in conjunction with the new procedures that we are putting in place, the protection of children will be enhanced and increased, but I repeat that we need to make it clear in legislation that our starting point is the welfare and best interests of the child.
The hon. Member for Somerton and Frome mentioned recovery orders. Before a recovery order can be made, there must be a part 1 order. If either party is worried that the provisions of the part 1 order are no longer relevant—there might be new evidence or new concerns—they can return to the court and seek a variation of the contact or residence order if, for example, they have concerns about domestic violence, or if evidence of an offence has emerged. That would have to be done through a variation of the part 1 order. I should impress on the hon. Gentleman, who brought
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to our attention a deeply tragic case, that parties are not required to disclose their addresses to the court. That is an important protection, particularly for those who feel vulnerable.
I turn to familial homicide, about which a number of Members spoke, and to amendments Nos. 12, 13, 14 and 15. They reflect the real determination, which is shared throughout the House, to do everything we can to solve the so-called "Which of you did it?" cases without unduly penalising those who have themselves suffered domestic violence. The issue is: how do we get the balance right? The question of whether the offence should be extended to cover not only death but serious harm—
Mr. Mike Hancock (Portsmouth, South) (LD): Will the Minister clarify his point about people not being expected, or legally required, to give their address in court? In some instances, judges have forced people to give names and addresses in open court, so I am slightly bewildered by his comment.
Paul Goggins: I am happy to say again that parties are not required to disclose their addresses to the court, and I am perfectly happy to put that in writing to the hon. Gentleman if it will help to clarify matters.
Vera Baird: The courts must surely have such people's names and addresses; the issue is whether they are given to other parties.
Paul Goggins: I apologise if there has been some slight confusion. The judge will of course have such information; the question is how that information is then handled, and it certainly should not be made public. I hope that explanation helps the hon. Member for Portsmouth, South (Mr. Hancock).
The hon. Member for Somerton and Frome argued consistently in Committee and today for the offence of familial homicide to be extended to cover not only death but serious harm. The borderline between death and serious injury can of course sometimes be a narrow one.
I hope that the hon. Gentleman does not feel that I am trying to string him along when I say that I would not want completely to rule out extending the offence at a later stage. At this stage, however, as we begin to put the new offence in place, there are major arguments in favour of restricting the offence to death.
2.30 pm
First, defining the term "serious harm" is not without potential difficulties, whereas death provides a clear and fairly unarguable parameter for the offence. Death is rightly dealt with more seriously than other injuries under our law, and the Law Commission's proposals acknowledge that. In cases involving children, it is possible to bring charges of child cruelty or neglect under section 1 of the Children and Young Persons Act 1933. I point out to the hon. Member for Beaconsfield (Mr. Grieve) that the offence includes neglect as well as positive action to bring about cruelty or harm. The more serious cases where death has occurred require a different charge and a stronger penalty.
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Mr. Grieve: I appreciate the Minister's point. He refers to old and established law, but the fact is that the maximum penalty for that offence is entirely different from what we are imposing in respect of the new offence under the clause.
Paul Goggins: Indeed, and that reflects our concern about death and the fact that someone has taken an action that has resulted in someone's death. That requires the most severe penalties from the courts, which is why I argue that we need to have the more serious offence in place, without ruling out the possibility that we may eventually extend it, but not now. We need to get the new offence working in our legislative system.
The problem of working out who committed the offence is less likely to be a problem where the victim has been injured but survived. The victim might be in a position to give evidence about who caused the injury. Other witnesses within the household might come forward to protect the victim from future harm. Both those arguments make for a different situation: the victim is still about, requiring and receiving the protection of others within the household.
Mr. Heath: I hear what the Minister says about the review being ongoing and I note his willingness to return to the matter at a later stage. I gave the examples of a child who is rendered comatose or incapable of communication by an act of violence inflicted by one or two partners and of a baby who cannot give evidence in court. Would those partners be prosecutable under the offence as it stands? I have already argued that I believe that they should be.
Paul Goggins: I simply say to the hon. Gentleman that his examples are compelling, which is why I do not rule out extending the offence at some time in the future. It is important, first, to put in place the new offence. Let us get that right first and see how the provision operates. If appropriate, we may return to the problem at a later date.
We agree about the need to protect the victims of domestic violence and we are sympathetic to the concerns that lie behind amendments Nos. 10 and 61, but it is important to be clear, as I tried to explain in Committee, that however dreadful the experience of being a victim of domestic violence, people are not absolved from the responsibility to do what they can to protect a child or vulnerable person who is depending on them for help.
Mr. Grieve: The Minister touches on an important issue. Under clause 5(1)(d)(ii), the accusation relates to the failure
"to take such steps as he reasonably could have been expected to take to protect"
the victim from "risk". What is regarded as being "reasonable" in that context, and to what extent is reasonableness affected by the circumstances in which individuals find themselves? Surely the whole point of the amendment is to highlight that what is reasonable for a person who is suffering from domestic violence is likely to be different than for someone who is not.
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Paul Goggins: I am glad that the hon. Gentleman highlights clause 5(1)(d)(ii), as I was just about to go on to precisely that provision. A person will not be guilty of an offence unless they have failed to take such steps as they could, in their circumstances, reasonably be expected to take to protect the victim from risk. It is for the court to determine what that means; it is not a matter for Parliament to rule out. That is the key point. Including the provision in the Bill means that the courts will be able to take serious domestic violence into account. In many cases, I am sure that the court will take those circumstances into account, but in the end it is for the court rather than the House to decide.
The practical effect of the amendment would be seriously to undermine the reasonable steps test. It would make the offence less clear. Amendment No. 10, in particular, refers to someone who is
"in fear of being subjected to domestic violence",
but that could apply to a very large number of defendants. Furthermore, there are other vulnerable groups: there may be children or vulnerable elderly relatives in the household, so why should they not also be excluded? The reasonable steps provision is the best way to deal with the problem, rather than excluding one particular group, however sympathetic we are to them.
My hon. and learned Friend the Member for Redcar spoke about the links between domestic violence and sexual violence. She is right to draw our attention to that, and I hope that she is reassured that the Government understand the connection. We are trying, off the back of the sexual offences legislation that we passed last year, to drive through a series of policies and initiatives. My hon. and learned Friend will know that we are developing a network of sexual assault referral centres, far more than were in existence when we debated the Sexual Offences Act 2003. The first £4 million from the victims fund will go to organisations that work on behalf of the victims of sexual offences. I hope that she appreciates—I know she does, as I often speak to her about these matters—how much is being done to deal with the connections that she spoke about.
The hon. Member for Somerton and Frome touched briefly on domestic homicide reviews and the particular case of children. He mentioned it briefly, so I shall respond briefly. Concern was expressed at some length in Committee and it is only right to put matters straight. The concern was that the deaths of children might not always be reviewed, especially when a child or family had not come into contact with social services before the injury or death.
I wrote to members of the Committee on 13 July and I say again today that amendment No. 1 is unnecessary because any death of someone aged under 16 that met the criteria for a domestic homicide review would already have to be the subject of a serious case review. Indeed, Government guidance published in 1999, entitled "Working Together to Safeguard Children", sets out the criteria for serious case reviews and makes it clear that agencies should always conduct a review where abuse and neglect are known or suspected to have been a factor in the death. That includes all cases where a family member has killed a child, even if there was no history of abuse and no contact with statutory agencies.
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