Domestic Violence, Crime and Victims Bill [Lords]

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Mr. Heath: I do not need to add a great deal to what has been said by the hon. Member for Chesham and Amersham (Mrs. Gillan) and the hon. and learned Member for Redcar (Vera Baird).

My hon. Friend the Member for Romsey (Sandra Gidley) and I have added our names to the new clause. We anticipate that the Government's response will be that it is unnecessary because what it does is already provided on the great bulk of occasions. I simply echo the point made by the hon. and learned Member for Redcar: there is a world of difference between telling someone who might be fearful, confused and dubious about bringing matters before a court, ''You will probably have this protection,'' and saying to them, ''You will have that protection right from day one.'' We are trying to give the greatest possible encouragement to witnesses and victims to make their complaint and to be prepared to take it through the court process. There are enough obstacles in the way. The new clause would simply remove a perceived obstacle—even if it often is not one in practical terms—with no detriment to the process.

The witness or victim will not have a lawyer appearing on their behalf to make the application; that will be done by the prosecution. However, the prosecution acts on behalf of the Crown, not the victim. That is an important distinction. One hopes that the prosecution team will always bear in mind the best interests of the victim as witness, that they will ensure that they are aware of the needs and wishes of that individual, and that they will make the application to the court. However, that will not necessarily be the case. This amendment is sensible in that it provides a failsafe mechanism. It does not prevent somebody from confronting their alleged assailant in court, if that is what they wish to do,

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but it provides them with an automatic failsafe position, which gives them the protection they may well want in every circumstance. I hope that the Minister will give this suggestion serious consideration.

The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): All Committee members agree that it is imperative that where it is clear that a victim is too frightened or distressed to give evidence, special measures should be available to help them. Section 17 of the Youth Justice and Criminal Evidence Act 1999 already enables victims of domestic violence to have access to special measures where the court decides that that is appropriate. It states that the court must take into account, among other things, such factors as the domestic circumstances of the witness, any behaviour towards the witness on the part of the accused, and the nature and alleged circumstances of the offence. The new clause would provide that the automatic access to special measures, which is given to victims of sexual offences and children under 17, is given also to victims of domestic violence. We have carefully considered these issues, and we have discussed them with representatives of Victim Support. We believe that the appropriate balance has been struck. The special nature of sexual offences and the sensitive nature of the evidence that is given mean that these cases are the only ones where special measures should be automatically available for adults.

I agree with my hon. and learned Friend the Member for Redcar that there is often overlap between domestic violence cases and cases of sexual offending. We recognise that overlap, and where there are sexual offences the automatic entitlement will apply. She is right to say that, on the whole, the range of sexual offences is narrower than the range of domestic violence offences. That is another issue that we have weighed in the balance.

I know that there are concerns that special measures are not always applied for and that the courts are not always willing to allow victims of domestic violence to have access to them, although special measures have yet to be fully rolled out. I am happy to confirm that we recognise the need to ensure better case preparation and the appropriate assessment of needs by the police and prosecution. So far, special measures have had limited availability in the magistrates courts, partly because of the need for the right kind of technological facilities and partly because of the need to pilot some of the new measures. On 21 June, we published the findings of an independent evaluation of special measures, which, I am pleased to say, showed that special measures work. For instance, one third of witnesses given special measures said that they would not have given evidence without them. Since 3 June, screens, giving evidence in private and communication aids have all been available in the magistrates court. I am sure that that wider availability and the evidence that the measures work will encourage more applications to be made and granted. We will, of course, monitor the situation carefully to ensure that full use is being made of the special measures available.

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The hon. Member for Chesham and Amersham mentioned the ''no witness, no justice'' initiative, and I am delighted that she spoke so supportively. That initiative will ensure that the needs of witnesses are assessed and met. Victims of domestic violence in need of special measures will be identified at an earlier stage and applications made at the pre-trial hearing. It is clearly very important that that decision should be made as early as possible.

Vera Baird: My hon. Friend has referred to interesting research into the efficacy of special measures. Does it break down so that we know what proportion of special measures grants have been made to those who are automatically entitled to them, and what proportion have been made on application?

Paul Goggins: I shall have to get back to my hon. and learned Friend on that interesting question. I too would like to know the answer. I will get in touch with her in due course.

We need as much certainty as possible in the process so that victims approaching the ordeal that the trial process often is can do so in the knowledge that they are supported in every way. I hope that the Committee will see that the Government take special measures very seriously. We intend to make sure that they are available to victims of domestic violence when the court feels that that is appropriate. I expect the courts to be sensitive to the needs of victims of domestic violence and to grant special measures whenever they are necessary. For those reasons, I hope that the hon. Member for Chesham and Amersham will agree to withdraw the new clause.

Mrs. Gillan: I am delighted that the Minister has felt able to put on record the needs of domestic violence victims and acknowledge that they fall into a category of victims that should be eligible for special measures when they are vulnerable. That concerns everybody on the Committee.

I appreciate that the availability of special measures—suites and the new technology—is a limiting and inhibiting factor, but in the light of the statistics that the Minister has revealed, I presume and hope that he will keep the issue under constant review. The common-sense view is that people should be able to opt out of the process, and should not have to try to obtain protection. That would set people's mind at rest much earlier in what is obviously a painful and traumatic procedure. However, I am grateful that we are moving in the right direction and that the Minister has put that on the record. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 8

Mandatory risk assessment checklist

    '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;

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    (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.

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

The Chairman: 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.

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    (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—

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    ''(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''.'.

3.15 pm

 
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