Domestic Violence, Crime and Victims Bill [Lords]

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Mr. Dawson: Is not the perfect way to engender confidence among parents to demonstrate to them, through the Bill, that there is a checklist and a mechanism by which such issues will be addressed? That way, they could go to court in the confidence and knowledge that the issues would be dealt with.

Mr. Leslie: It is important and possible for us to demonstrate that the child's safety is paramount in all circumstances. I do not necessarily conclude that to promulgate that view we must frame a piece of legislation in a particular way, when the existing legislative framework already provides adequate protection, although perhaps that protection is not being communicated effectively. We need to get across much more effectively the message that existing

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arrangements already require courts to have the welfare of the child as their paramount concern. That is what section 1 of the Children Act 1989 is all about, and that provision is already very strong.

The 1989 Act also provides the court with a checklist to which the court must have regard. It includes consideration of the physical, emotional and educational needs of the child, and any harm that the child has suffered or is at risk of suffering. In reaching its decision, a court may request additional information, which is usually provided by the Children and Family Court Advisory and Support Service and potentially includes police checks and consultation with social services. The court may also direct the local authority to investigate the child's circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary.

I therefore believe that, to a certain extent, the 1989 Act already covers many of the concerns raised by my hon. Friend the Member for Lancaster and Wyre. Although I accept that he has concerns, I believe that the 1989 Act is sufficiently strong and is capable of providing robust protection and ensuring child safety.

Sandra Gidley: The hon. Member for Lancaster and Wyre referred to the fact that a number of schedule 1 offenders have been given unsupervised access to their children. How can the Minister be satisfied that the system is working when it clearly is not? I do not know what more evidence a judge needs. Is not the real problem that we have no sanction that we can use against judges when they clearly make the most peculiar decisions?

Mr. Leslie: That is not a serious point, but I understand that the hon. Lady is frustrated because she does not feel that the message has got across sufficiently well. We need to strike the right balance and make sure that we have a framework in which contact with parents can be maintained, but only when that is in the child's best interests, and when it can be maintained in a way that is safe for the child and members of that family.

Mr. Dawson: Will my hon. Friend give way?

Mr. Leslie: I would like to elaborate on how I believe that the arrangements provide the guarantees in the system before giving way again.

Not all contact is the same. Some is direct, some indirect. Contact can be face-to-face for a short period or be conducted through writing and receiving letters. When a party makes an application for contact, the court may rule that contact should take place directly, indirectly or perhaps in a supervised environment if there are fears about safety. The Government have been concerned about that in recent years and we have invested extra resources into the creation of child contact centres. We have committed more than £8.5 million since 2000, taking into account the extra allocations made in March this year by my right hon. Friend the Minister for Children. That will pay for 14 new supervised contact centres in England—a welcome development that can be seen to be rooted in concerns about the safety of children.

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It is also important to remember that the Children's Act sub-committee of the Advisory Board on Family Law reported on contact and domestic violence issues in 1999. CASC rejected a direct proposal to amend legislation to introduce a blanket presumption of no contact in cases of domestic violence on the grounds that it could not be applied while always putting the child's best interests at heart. Instead, it produced guidelines about how the court should deal with allegations of domestic violence in contact cases. The sub-committee promulgated those guidelines in April and May 2001, and as a result of a Court of Appeal judgment, the guidelines were partly incorporated into case law. They require that the courts should consider allegations of domestic violence at the earliest opportunity and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact will be affected. The guidelines require the courts to ensure that they are satisfied about the child and resident parent's safety before, during and after contact. I believe that that principle is robust and provides the assurance that hon. Members require.

That said, the Government recognise many of the concerns voiced by my hon. Friend the Member for Lancaster and Wyre. Hence, further new measures have been introduced since that sub-committee report. For example, from January 2005, we want to bring disclosure of allegations of domestic violence more to the forefront of cases. We continue to believe that there should not be a presumption of no contact but that allegations of domestic violence should be considered and findings of fact made before contact or residence decisions are made by the courts. From January, we will introduce a new form for use in applications under section 8 of the Children Act 1989. It will enable applicants and respondents in contact and residence applications to highlight more effectively allegations of domestic violence at the start of proceedings and for the court to make findings of fact before deciding on contact and residence applications.

Moreover, we recognise that it is not only physical violence that causes harm to children. As my hon. Friend the Member for Lancaster and Wyre said, witnessing violence against another person can have profound emotional effects on a child. That is why from January we will commence section 120 of the Adoption and Children Act 2002, which will strengthen the definition of harm by requiring courts to consider the damage to its health or development that a child may suffer from seeing or hearing about the ill treatment of someone else.

In summary, our measures provide the adequate assurance that hon. Members are seeking. They have the child's welfare as the paramount concern, and there are guidelines on how cases of domestic violence should be handled. We are making extra resources available for contact centres and introducing new systems to bring consideration of allegations of domestic violence to the forefront of proceedings. We also have the new definition of harm that the courts must consider. Together, those measures strike the right balance between ensuring the safety of the

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resident parent and child and ensuring that, when it is in the child's best interest, he or she can have contact with both parents following separation. I realise that those are slightly different issues to those in new clauses 31, 34 and 13.

Turning to the points raised by the hon. Member for Romsey, the Government are not convinced that the new clauses are necessary as we believe that the existing procedures safeguard the welfare of the child. New clause 13, which the hon. Lady tabled, would put an additional duty on the court and the police where an application is made under section 34 of the Family Law Act 1986 for an order authorising an officer of the court to take charge of a child and deliver him or her to the applicant or a police constable. If the applicant has a residence order, the new clause would have the effect of establishing a presumption to return the child to the applicant after an alleged abduction by the other parent. If neither party has a residence order, the new clause is designed to place additional duties on the police and the courts before the section 34 recovery order can be made. I am afraid that all the new clauses disregard the requirements of section 34(1) of the Family Law Act 1986; indeed, they make no mention of them.

Section 34 states that before an order can be made for the recovery of a child there must be a part I order—usually a contact or residence order made under the Children Act 1989—or an order for the enforcement of that part I order, with time and place details requiring a person to give the child to the person concerned, which has not been obeyed. The section 34 order is a way of enforcing that original part I order when it has not been obeyed. Under the 1989 Act, when making any order concerning the upbringing of the child the court must have the welfare of the child as its paramount consideration. The court will have considered all the circumstances affecting the child's welfare when making the order that section 34 is intended to enforce. Although not all part I orders deal with residence, the court making such an order will have had an opportunity to look into any history or allegations of violence. New clause 13 is therefore unnecessary because enforcement cannot be triggered without a part I order being made. A section 34 application is not the place for rehearing the facts of the case; that is for the part I order hearing. If allegations of domestic violence arise after a part I order has been made, the parent making the allegations should properly go back to the court immediately and seek a variation of the order, not wait until an abduction has occurred to trigger measures regarding non-enforcement of the order. That is the proper way to proceed should circumstances arise after a part I order has been granted.

I appreciate that hon. Members who have tabled the new clauses have good intentions. As I have said, when a contact order has been made under the Children Act 1989, respondents have the right of appeal and can seek variation of the order. The court will consider any evidence of domestic violence, whether or not that is recorded in making its decision under the 1989 Act or in considering applications for variation. I explained earlier how

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carefully the courts consider the welfare of the child when making orders under that Act, and how that is already set out in the framework and guidance under which they operate. Those are the appropriate ways to ensure that the child's safety is paramount and they are the best avenues through which to inquire after the child's circumstances.

The existing procedures under section 34 work effectively. The new clauses propose changes to address a problem that has arisen in a small number of cases. We are talking about the return of a child to an abusive parent using that section 34 procedure—the hon. Member for Romsey sought to illustrate that point in her example. The new clauses would require the police to make record searches and conduct inquiries into the welfare of the child. If the changes were made, the recovery of children whose return the courts had already ordered could be delayed. Such delay would be most unfortunate in the reverse circumstances of an abusive parent having removed the child.

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The hon. Member for Romsey raised a number of points about ex parte orders, which are made in exceptional circumstances. By amending the Family Law Act 1996, the proposals also seek to restrict the making of ex parte residence and contact orders where the respondent to the application does not have the opportunity to attend court. That is not necessary or possible. What is more, such changes might not be in the best interests of the child where there is evidence that a party is wilfully refusing to attend court. The courts have developed strict guidelines on when ex parte orders should be made under section 8 of the Children Act 1989. For example, the Court of Appeal held in 1991 that it was undesirable for ex parte orders to be made except in the most exceptional circumstances, and then only on very strong evidence. An interim order of that kind would be followed as soon as possible by a hearing involving both parties, at which long-term orders would be made.

On the specific point raised in new clause 31 about the disclosure of the address of a refuge, I would be concerned if the rules to prevent that from happening were not already in place. I am advised that court orders for disclosure are dealt with under section 33 of the Family Law Act 1996 and that the amendment is not necessary. Anyone who does not wish to disclose their address is entitled not to do so under rule 10.21 of the family proceedings rules. The court will consider all the circumstances before making any order of disclosure that overrides a party's non-disclosure. A Court of Appeal decision has made it clear that the court should not order the police to disclose the location of women's refuges, so there is case law that prevents the disclosure of such information, and I do not believe that that part of new clause 31 is necessary.

These are complex matters, but the overriding principles are clear. We have sufficient strength in the part I order provisions to ensure that any history of abuse or domestic violence can be considered in a

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case. The section 34 enforcement procedure can take place only where that part I order has already been made.

In respect of the other new clauses, although I understand the points that my hon. Friend the Member for Lancaster and Wyre made, we have to strike the right balance in ensuring that there is contact where possible, in a scenario that is safe for the child and for the child's parents and family, before, during and after such contact. The arrangements that we propose strike the right balance. With that, I hope that the motion will be withdrawn.

 
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