Margaret Moran (Luton, South) (Lab): I welcome the Minister's strong support for the principle of paramountcy, particularly in the face of comments by the hon. Member for East Worthing and Shoreham (Tim Loughton). Many of us believe that his proposal would undermine that fundamental principle.
I am afraid, however, that the Bill could go further to ensure that the principle of the safety of the child is enhanced. This feels a little like groundhog day, because many hon. Members participating in our debate took part in similar discussions in the Joint Committee that considered the draft Adoption and Children Bill as well as the subsequent Bill Committee. We were concerned that existing legislation had not done enough to safeguard children at risk in contact situations, particularly if there was a risk of domestic violence.
I was pleased that the Government accepted our arguments about the risks to children in contact cases involving violence, and that my amendment was accepted, which extended the definition of harm to the child to include impairment due to seeing or hearing ill treatment of another. For the first time we enshrined in law and recognised the damage to the child caused by witnessing domestic violence and the fact that that should form part of the court's consideration. As the Minister noted, further measures have been introduced to improve family court practice with regard to domestic violence, most recently in January this year, when new court application forms were introduced.
Even so, at that time many of us said that the measure would not be sufficient to remove the risk to children, and so it has proved. None of the measures so far introduced or in the Bill require courts to ensure that contact is safe. To date there is no evidence to suggest that court practice has been improved. That is asserted not just by me, but by all the leading children's charities, including the NSPCC, Barnado's, NCH Action for Children, Women's Aid, the Greater London domestic violence project, Respect, Men's Advice Line and Enquiry Service and othersin other words, all the experts on the subject.
Despite the hon. Member for East Worthing and Shoreham decrying the report of Her Majesty's inspectorate of court administration, we cannot ignore the evidence from its study showing that in the work of
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CAFCASS in this regard, there is such a strong presumption of contact with both parents that concerns about safety and the risk to the child are overridden, thereby putting children in severe danger of violence and abuse.
Notwithstanding the legislation and recent Government initiatives, there is still grave concern that children's needs are minimised or ignored, and that many parents and children remain unsafe during contact arrangements as a result of contact orders being awarded inappropriately. If, as we all profess, the safety and welfare of the child should be the key principle throughout the legislation, we need to amend the Bill further in the interests of the safety of the child. It is important that all the proceedings covered by the Bill have the paramountcy principle at their heart.
I welcome the amendments made in the other place in relation to the introduction of clause 7. That is a significant step forward, but the court is still not required to act on the risk assessment by CAFCASS. I recognise the extensive work done by the Government to tackle domestic violence, but in the interests of children's safety the Bill should incorporate a requirement that the court act upon the risk assessment required under clause 7. It is clear that in the criminal justice system the dangers of separation where there has been a history of domestic violence are recognised, but the same understanding is not evident in many parts of the family justice system.
Much of the debate in the other place and to some extent in the Chamber today has been based on anecdote. We need a great deal more research on the subject of contact and the reasons why contact is not taking place in cases where an enforcement order has been issued. I hope that the Department will take that on board.
Let us deal with some facts. The victims of domestic violence face greatest risk post-separation. Research shows that children ordered by courts to have contact with a violent parent are likely to be abused and in some cases killed. The Green Paper on parental separation recognises that of the 10 per cent. of contact cases that get to court, in at least 35 per cent. of them there are concerns about the safety of the child. CAFCASS officers state that in about 66 per cent. of the caseload domestic violence is a significant factor.
Despite that, judicial statistics indicate that less than 1 per cent. of applications for contact orders are refused. It is clear that parents and children are being exposed to unsafe conditions by court orders. Research by Trinder in 2005 shows that
"In many of these families there had been violence in the home. Quite commonly, there were child protection concerns. The disputes presented to the court did not reflect straightforward arguments about 'contact'; they reflected a range of issues, including commitment to the child, reliability, parenting quality, the child's reaction to contact, and perceived attempts to bully or control. In short these families experienced problems on a different scale from those experienced by the majority of separating parents, including multiple risk factors associated with poor outcomes for children."
That is reinforced by a study of 73 private law family cases, which found that one year after contact proceedings ended, the children were still experiencing similar levels of emotional and behavioural disturbance as children who had been the subject of child protection proceedings. That was linked to distress among the parents and high levels of intimidation and domestic violence.
Rather than a blanket assumption that contact will always be beneficial, the findings emphasise the importance of assessing risk and considering what is best for each child. That is supposed to happen because the welfare of the child is paramount in the Children Act 1989, so why are children still at risk after all this time? First, there is insufficient liaison between the criminal justice system and the family justice system. Following an investigation into the murder of Georgina McCarthy, whose violent ex-husband used contact proceedings to obtain information as to her whereabouts, the Advisory Board on Family Law stated:
"The view of the Home Office, with which we agree, is that there needs to be much greater liaison and co-operation between the criminal justice system and the family justice system over issues of domestic violence at all court levels".
When Dame Elizabeth Butler-Sloss was asked by the Select Committee why schedule 1 offenders were still being granted contact with their children, her response was that judges do not always know when they are dealing with a parent who has been convicted of an offence against a child. That cannot be satisfactory.
Clearly, the family justice system does not have good liaison with the criminal justice system, yet we hear that the judiciary would like greater powers to enforce contact orders, even though they might unknowingly be granting contact in high risk cases. How can we legislate to give judges more powers to enforce contact, when the Bill does not contain a clause requiring pre-court checks in all cases? Such checks are needed because domestic violence tends to remain hidden. I understand that two cases in which children were killed during contact visits involved consent orders. The parents' solicitors agreed contact arrangements which were then rubber-stamped by the court, with no consideration of the possible risk.
Mr. Stewart Jackson: Does the hon. Lady agree that some children's charities have already criticised the Bill because the paramountcy principle is not explicitly at its centre, and less so than the 1989 Act?
Margaret Moran: I do not agree with the hon. Gentleman. The representations that I have received state that the Bill includes the paramountcy principle. There are concerns that the paramountcy principle is being undermined by existing case law and practice within the family courts, and we therefore need to reinforce clause 7 to ensure not only that risk assessments are conducted, but that the courts are required to act upon such risk assessments when they make decisions in difficult cases.
Most children's charities argue for a further strengthening of the Bill, because they know that the paramountcy principle has already been undermined by
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case law precedents. For example, in re O in 1995, which concerned the imposition of conditions for contact, it was stated that contact is
It was hoped that court practice on child contact and domestic violence would improve after the judgment in re L, V, M & H in 2000, which stated that the courts should have a heightened awareness of the effects of domestic violence on children and that they should make findings of fact and minimise risk. That judgment also upheld the ruling that contact is almost always in the best interests of the child.
Both case law and the inspectorate of court administration report on the practice of CAFCASS indicate that there is a strong presumption of contact despite the existence of the paramountcy principle, which is supposed to be the court's priority. The inspectorate of court administration report on CAFCASS's activities in such cases states that
The inspectorate of court administration report identifies the strong presumption of contact as the fundamental reason for the failure to protect children. CAFCASS officers admit that it is difficult for them to challenge the strong presumption of contact, even when there are concerns about the continuing impact of abuse on a child. Although the hon. Member for East Worthing and Shoreham does not regard the report as significant, many hon. Members do, and it should make us think carefully about what the Bill does to facilitate and enforce contact.
"We of course are concerned by the finding of the Inspectorate of Court Administration report that there is such a strong presumption by the courts that there must be contact with both parents that concerns about violence and children's safety are overridden. We remain utterly committed to the principle that the welfare of the child should be paramount in the consideration of the courts. We recognise that more needs to be done to address domestic violence concerns".[Official Report, 2 November 2005; Vol. 438, c. 828.]
As I have said, the amendment by the other place is extremely welcome, but it does not require the court to take that advice into consideration, and the Bill should state that that is a requirement. Furthermore, we must examine pre-contact risk assessment, which must be considered throughout all proceedings, including enforcement proceedings. When enforcement takes place, we must ensure that there is a requirement for a further risk assessment should it be necessary to safeguard the care and welfare of the child. We know that the most dangerous points for children and their parents in domestic violence cases are the points of separation and of contact. In the interests of children, it is therefore vital that we not only say that a risk assessment may be taken into account, but require it to
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be done before enforcement, because the danger is that domestic violence has taken place after the parents first had contact with the courts. We owe children nothing less than that.
The Bill requires a further provision on the voice of children. The Adoption and Children Act 2002 includes a requirement that children's views should be taken into account, but as I understand it, that provision has not been enforced. We should include a provision in this Bill to enforce section 122 of the 2002 Act, which introduced separate representation for children in family proceedings.