Domestic Violence, Crime and Victims Bill [Lords]

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Sandra Gidley (Romsey) (LD): I shall address most of my comments to new clause 13, which is tabled in my name and that of my hon. Friend the Member for Somerton and Frome. However, I shall briefly mention new clauses 8 and 32. They are important, because many of us are disappointed that, at a time when the Children Bill is being considered in another place and we are debating the Domestic Violence, Crime and Victims Bill, the Government have not sought to tackle the problems that both address. The system is not working, but the issue is contentious because nobody wants to deny parents the right to see their children. However, I question some of the cases in which unsupervised access has been granted. Many parents would say that their partners, although they were violent to them, would not hurt the children. However, we must bear in mind that a history of domestic violence is the biggest indicator that something could happen to children. We ignore that at our peril.

New clause 13 is designed to highlight a problem about the way in which recovery orders are currently

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used, to clarify the legal procedures for dealing with child abductions and to ensure that those measures are not used inappropriately in cases of domestic violence. That is necessary because violence perpetrators have been able to use seek and recovery orders to track down their victims and recover children from refuges. Often, if an abused woman flees from the family home taking the children with her, her violent partner seeks legal advice claiming that it is a case of child abduction—that is all that he has to claim. If he does not know where the woman has gone, and even if a woman is in a refuge and clearly does not want him to know where she has gone, he can apply in private law proceedings for an order requiring the disclosure of information as to the whereabouts of the child. He can also apply for a recovery order requiring the child to be returned to him. The person on whom the order is served must immediately disclose to the court all the information that they have about the whereabouts of the child. Any person with a legitimate interest in proceedings under section 8 of the Children Act 1989 can apply for orders under section 33 and 34 of the Family Law Act 1986. An application for a contact or residence order will usually be made simultaneously.

Those measures were specifically designed to deal with child abductions and were consequently intended to provide a quick procedure. Orders can often be made ex parte and without prior notice being given to the other party. Problems have arisen because an order can be served on any person who might have knowledge of whereabouts, so orders have been served on close relatives and even on refuges themselves to try to make them disclose that information. It is counter-productive and clearly not in the children's best interests if they are in a refuge and the refuge staff can be forced to give information about them. Because the system is meant to be rapid, the recovery orders make it possible for abusers to take action so quickly that the mother frequently has no time to seek legal representation or, as has happened in some cases, is unable to attend court to give her side of the story before the child is removed from her care.

In the fourth annual report of the Advisory Board on Family Law, the Children Act sub-committee made recommendations on search and locate orders following an investigation into the circumstances leading up to the murder of Georgina McCarthy. The report states:

    ''When both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the children to keep their whereabouts from the parents who have made the application.''

However, history has made it clear that some judges have found it difficult to distinguish cases of domestic violence and cases of abduction. There are examples in which orders have been granted for children to be found and then returned to violent parents. When Women's Aid, which is particularly concerned about the issue, undertook a national survey in May 2003, seven refuge organisations reported problems with recovery orders. Clearly the current system is not working, and if the Government are not minded to change it, I should be interested to know how they are

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going to make sure that the existing system works. I cite one example reported to Women's Aid:

    ''A court order in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence.''

In many cases, there is insufficient time to ensure that such reports are taken note of.

There were objections when similar amendments were tabled in the other place. The excuse made was that there was no need for such an amendment

    ''because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 875.]

As I have said, however, this is an urgent procedure and there is no requirement for detailed welfare investigations to be carried out. A section 8 order, such as an interim residence order, can be made without notice at the same time as a recovery order is granted. The situation needs to be rectified so that recovery orders cannot be misused by perpetrators of domestic violence. Even if there has been an earlier order, it is no guarantee that the court has full, up-to-date information about the circumstances of the case.

Some change is necessary, because domestic violence perpetrators have been able to use recovery orders to track down their victims and to recover children from refuges. The tragic case of Georgina McCarthy shows how the system fails women. In 1997, she fled to Penzance Women's Aid with her one-year-old son. Her violent husband, Paul Russell, used section 33 of the Family Law Act 1986 to apply for information on the child's whereabouts. Georgina's case got off to a relatively good start because her solicitor managed to prevent the address of the refuge from being disclosed, but she was later warned that her husband was coming to Penzance to find her. She considered moving to another refuge, but decided to stay where she was because she was given no guarantee that the police in another police authority area would be so supportive, and in Penzance she felt supported by the police, Women's Aid and her solicitor and barrister. On 9 May 1998, her husband found her and killed her in front of the child. If that illustration is not graphic enough to show the Government how the system can go wrong, I do not know what more they need. As it stands, the system is not in the best interests of the child or the mother, and I urge the Government to improve it if possible.

Mr. Leslie: First, I thank hon. Members who were involved in tabling these new clauses, as they have facilitated a necessary and interesting debate. It will not be a great surprise to many hon. Members to hear that the Government have not drastically changed their position on these issues since they were aired in the other place. However, I have discussed them with Lord Filkin, who holds the relevant portfolio in the Department for Constitutional Affairs. He has had more direct dealings with some of these issues than me, but I agree with his stance on them.

It is important to note that there are two groups within this group of new clauses: new clauses 8, 32 and

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33 sit best together in one group, which I will address first. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), who has great expertise in this field, made a moving speech, but I should tell him that the Government's policy is that, in most cases, children benefit from contact with both parents after a separation. Children who have such contact generally do better at school and in later life. We are therefore committed to facilitating contact between children and both parents after separation when that is in the best interests of the child and is safe for the child and all family members, and only then.

We recognise that there are problems with parental access and contact after separation. Perhaps the most important issue for parents to consider on separation is the needs of their children. Most parents make their own contact and residence arrangements without needing to go to court. Only about one in 10 make court applications about matters concerning their children—principally about contact and residence issues. About 25 per cent. of those cases involve allegations of domestic violence. As my hon. Friend said, there have been some horrific and disturbing cases in which children, the resident parent or both have been murdered as a result of contact, but as I said the vast majority of parents do not seek court intervention to decide contact arrangements, and it is a sad fact that many of the tragic deaths that have occurred took place where contact was arranged without the involvement of the courts.

3.45 pm

Mr. Dawson: Does that not reflect the fact that people have no confidence that their concerns about domestic violence, its effects and the effect of contact on children will be heard properly? That is because of the publicity given to terrible tragedies, and all the positive publicity gained by the likes of ''Spiderman'' and his colleagues.

Mr. Leslie: I understand my hon. Friend's point. I simply say that it should be the objective and aspiration of the Government and all parties to ensure that, where a resident parent has concerns about their own safety or that of their child, they have the confidence to seek protection through the family justice system, and the courts should be able to provide that protection.

 
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