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‘After section 16 of the Children Act 1989 (c.41) insert—
(1) This section applies to the following functions of officers of the Service or Welsh family proceedings officers—
(a) any function in connection with family proceedings in which the court has power to make an order under this Part with respect to a child or in which a question with respect to such an order arises;
(b) any function in connection with an order made by the court in such proceedings.
(2) If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given reasonable grounds to suspect that the child concerned is at risk of significant harm, he must—
(a) make a risk assessment in relation to the child, and
(b) provide the risk assessment to the court.
(3) In respect of subsection (2), significant risk involves a risk—
(a) to the child's physical safety, or
(4) All risk assessments undertaken pursuant to subsection (2) shall proceed on the presumption that the child's interests are best served through reasonable contact with both parents unless good reason to the contrary is shown and the safety of a child is not an issue.
(5) A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.
(6) In any risk assessment based upon the likelihood of recurrence of previous risks it shall be a requirement that no reliance is placed upon previous events or previous risks in the absence of a finding of fact that those events or risks actually occurred.”'.— [Mrs. Miller.]
Brought up, and read the First time.
Mrs. Maria Miller (Basingstoke) (Con): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 20, in page 12, line 2, leave out clause 7.
No. 19, in page 12, line 20, after ‘child', insert
‘and an assessment of the differential impact upon the child of the options available to the court'.
Mrs. Miller: New clause 20 is an attempt to tie down some of the detail about when risk assessments are used, and I want to discuss three elements of it.
First, the trigger for a risk assessment is important. The trigger in new clause 20 specifies
“grounds to suspect that the child concerned is at risk of significant harm”.
Secondly, we all agree that risk assessments should have regard to the best interests of the child, which is why new clause 20 allows reasonable contact with both parents, unless there are good reasons to the contrary and safety is an issue. That point reflects the detailed discussion conducted by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) earlier this evening.
Thirdly, new clause 20 contains a tighter definition of what constitutes a risk of harm to the child, which includes a physical threat to a child’s safety and sexual abuse. The concept of a risk assessment was originally introduced in the Lords to ensure that domestic violence and child abuse could be properly assessed as soon as they were raised as part of court proceedings. Our objective this evening is to make sure that the Bill is in the best interests of the child and that safety is uppermost in our minds.
7.15 pm
In Committee, it was highlighted that risk assessments are not always in the best interests of a child, because they can delay court proceedings and stop contact between children and non-resident parents, which is why it is important that we get the
detail right. Quite a bit of research is available, particularly from the Department for Constitutional Affairs, about issues surrounding court applications. It was interesting to read that one third of court applications are because of a breach in orders laid out by a court. Some parents do not adhere to court orders, and we need to make sure that that problem will not cause problems with the risk assessments in the Bill. New clause 20 will protect the interests of the child and make sure that the best interests of the child are uppermost in everyone’s minds when risk assessments are considered.
In Committee, there was a great deal of debate about this aspect of the Bill. I am sure that the Minister will point out that the threshold detailed in new clause 20 is too high for CAFCASS to carry out, which would lead to far fewer risk assessments being undertaken and could impact on the welfare of a child. I do not think that that issue should prevent us from including new clause 20 in the Bill.
As I have said, the trigger for using the risk assessments is important. It is important that risk assessments are not used when they are not needed, because they will, by definition, lead to a loss of contact with non-resident parents and a disruption in the relationship between children and their parents. We have already heard this evening that the majority of hon. Members feel that contact with both parents is important, and this is just another issue within that argument. We must get the provision right, because it is not in the interests of the child to experience a break in contact, which could be the result of a risk assessment. Safety is always paramount, and new clause 20 does not take away from the safety of the child—indeed, it adds to their welfare.
Mr. Kidney: An allegation of sexual abuse or violence towards a child is an alarm bell that should be investigated. Does the hon. Lady agree that new clause 20 is substantially less protective than clause 7, as drafted? For example, “grounds to suspect” becomes “reasonable grounds to suspect” and “risk of harm” becomes “risk of significant harm”. Subsection (4) requires the courts to press on and assume that contact should go ahead, and subsection (6) states that the courts should not have regard to similar evidence from the past. Are those not terrible reductions in the protection available to children?
Mrs. Miller: I disagree with the hon. Gentleman. The Bill provides that, if people suspect that sexual abuse is taking place, it will be investigated. The only difference concerns “reasonable grounds” for suspecting that sexual abuse is occurring rather than “cause to believe” that it is taking place. As I have said, implementing a risk assessment of such important and difficult issues will, of necessity, mean that a child loses contact with one or other of their parents. That needs to have a high threshold of implementation because of the consequences for the welfare of the child.
Mr. Peter Bone (Wellingborough) (Con): I have come across cases in my constituency where frivolous allegations have been made against the absent parent by the person who has the child so that contact is withdrawn while assessments are made. Is my hon. Friend trying to overcome that sort of problem?
Mrs. Miller: I thank my hon. Friend for his timely intervention. That is precisely the sort of problem that we are trying to overcome, not only in this amendment but in others. That is not in any way to detract from the significant problems that are faced by families and by children throughout such proceedings. There are genuine problems associated with domestic violence and sexual abuse, but equally we have to ensure that parents do not use these provisions as a tool to beat each other over the head.
A risk assessment must be undertaken only when there is a real risk of harm. The level of repeat applications as a result of breaches of court orders illustrates the concern about the motivations of some parents in this situation. They are obviously in a very small minority, but it is something of which we need to be aware. It is our No. 1 priority to ensure the welfare of the child is protected at all stages, and part of that is to ensure that they are not tied up in protracted court proceedings. My hon. Friend the Member for East Worthing and Shoreham and I recently went to a family court to see first-hand some of the pressures that children are put under in these situations, not by the courts but by the emotional nature of the proceedings. We must always get the balance right and ensure that we are, as the Minister is always stressing to us, acting in the best interests of the child, but we must not allow the tools in the Bill to be used in a way that I am sure that he and his colleagues would not wish them to be used. That is the point that we are trying to make.
My hon. Friend the Member for East Worthing and Shoreham talked at some length about reasonable contact with both parents, so I will not delay the House with an equally detailed argument. I remind the House that it is not a requirement in law for a resident parent to allow contact with another parent, because it is viewed as a private matter, as is entirely proper. Dame Elizabeth Butler-Sloss has said:
“The courts naturally start with the view that in most cases contact between the child and the non-resident parent is desirable both for the child and for the parent.”
It is desirable, but it is not enshrined in legislation. We are talking about those who come to the courts to get resolutions to the difficulties that they face in separation and divorce. Only 10 per cent. of people in this situation undertake separation and divorce; 90 per cent. of them do not go to court. We should be concerned about the fact so many people do not undertake any formal separation procedure. In my constituency, that gives rise to several cases whereby some years after a separation parents can find that if relations break down contact with children can be lost. Settlements that have been reached informally can become difficult to keep in place if they have not been formalised, perhaps not through the courts but in another way.
I should like the Minister to acknowledge that contact is associated with better outcomes for children. To all of us who are parents, aunts, uncles or grandparents, that is not something that we should question. It is a matter of fact that children who have contact with both parents experience much better outcomes in their lives. It is not just down to the fact of contact but to the nature of the contact that those children enjoy with both their parents. That is why we
are striving to gain an acknowledgement from the Government that reasonable contact is crucial. Other hon. Members are in receipt of an excellent briefing from the University of Oxford’s department of social work and social policy, which draws out the point that the mere presence of a father is not enough—it is the quality of the contact, the parenting, and the time that non-resident parents are allowed to spend with their children that are so vital. I urge the Minister to consider that further.
I shall say a few words about the tighter definition of what constitutes a risk of harm to the child. It is important that we make risk assessments when there is a genuine risk of harm to the child. We cannot allow this provision to be used by parents who are not enjoying the best of relations—otherwise, they would not be seeking the guidance of the court—to formalise and legitimise the breaking of contact between a non-resident parent and a child. Our amendment would ensure that the Bill works in the way that we all want—in the best interests of the child.
In reality, many non-resident parents lose contact with their children after divorce. I was disappointed when the Minister gave the House a very narrow version of the research that is available on this. He quoted from one source, but there are several differing sources. It is confusing, but we must understand that there is a problem for fathers, mothers and grandparents. The tone of the Minister’s response underestimated its importance; frankly, he was complacent. He should go away and think about this further. The number of people involved in divorce and separation is growing. The situation could be dealt with in one way a decade ago but has to be dealt with very differently now. There are 160,000 divorces a year, which is the highest number for a decade. Three million children have experienced divorce or separation. In 2004, 700,000 contact orders were awarded; in 1992, the figure was 17,000. We need to ensure that the Bill covers not only the few intractable cases but the very many people who are going through this. We must set out guidelines on how people should conduct themselves through that difficult process.
It is our duty to protect a growing group of children. As my hon. Friend the Member for East Worthing and Shoreham said, 345 hon. Members have shown support for the concept of legal presumption of contact. The concept is supported throughout the House and I hope that the Government listen to the strength of feeling on that important matter.
7.30 pm
Mr. Stewart Jackson: My hon. Friend makes a compelling case. Is part of the problem with the family courts the fact that the Government are not in a position to undertake a rational analysis of what is going on because they do not collect the data on many issues properly? For example, when I wrote to the Department for Constitutional Affairs about the number of people who apply for special guardianship orders, the answer was that the Department did not collect that data. How can the Government examine and take the policy forward if they do not collect the appropriate data from which to make a decision?
Mrs. Miller: My hon. Friend makes a pertinent point. I had hoped that the Under-Secretary, who is new to his job, would appreciate the scale of difference in the available data and feel that it deserved further investigation. My hon. Friend is right to raise the matter. I reiterate that the number of people that the matter affects is growing. The Government cannot continue to bury their head in the sand. We need to get to the bottom of the issue.
The problem affects not only men but women. Women have attended my surgery who have found it difficult as non-resident parents to keep in contact with their children. If the Government lend their support to the amendment, they would acknowledge that the matter needs addressing.
Annette Brooke: I want to make some brief comments about amendment No. 19. Liberal Democrat Members welcome the new risk assessment that clause 7 proposes, but we believe that there is room for clarification. At the moment, there is a lack of detail about what a risk assessment would involve.
Clause 7 simply says that a risk assessment is an assessment of risk. I abbreviate slightly, but that is what it boils down to. Subsection (3) states:
“A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.”
That lacks clarity. Surely there is scope for saying a little more in the Bill or perhaps I could tempt the Under-Secretary to offer some guidance—I realise that that is a favoured medium for clarification.
Amendment No. 19 would ensure that risk assessments included analysis of the impact on the child of the different options that the court could choose—for example, ascertaining how a child would fare if a court ordered one sort of contact order rather than another. That could provide a useful tool to improve the court’s decision making in cases in which the child may be at risk, and make the court’s decision that much more likely to be safe and in the child’s interests. The amendment would make risk assessments more valuable in that they would contain information to guide the courts to make better contact arrangements. I shall be interested to hear the Under-Secretary’s response, and will he at least say whether clause 7 requires more guidance.
Mr. Dhanda: I want to respond to a couple of points that the hon. Member for Basingstoke (Mrs. Miller) made. She rightly said that 90 per cent. of people do not go through a formal separation procedure. That is because 90 per cent. of people do not turn to the courts in the first place. Two thirds say that they are content with their arrangements, which is not to suggest that her comments are frivolous—we need to consider the people for whom the system is not working. However, the purpose of the Bill is to try to keep people out of the courts and intervene, if possible, to take people out of the process. That is why the measure is so important.
The amendments deal with the difficult but important issues of risk assessment and domestic violence. Although there is dispute about the proportion of contact cases that involve domestic violence, there is no doubt that far too many fall into that category. It is right to treat such behaviour with little tolerance, but we must also be cautious not to do anything that would deter people from making their genuine fears known to the courts.
Amendment No. 20 and new clause 20 would, taken together, remove clause 7 and insert a replacement clause. As the hon. Member for Basingstoke will remember, in Committee she explained that she was concerned that “cause to suspect” might be too low a threshold, and would result in CAFCASS conducting risk assessments in cases where there was no need to do so. I agree that it would be wrong for risk assessments to be conducted unnecessarily. That would not only deplete CAFCASS’s limited resources, but cause unnecessary delay in many cases.
However, I do not believe that it is necessary to introduce a higher hurdle, as the amendment would, to prevent CAFCASS from carrying out unnecessary risk assessments. As the hon. Lady acknowledged in Committee, CAFCASS officers are skilled people who are experienced at picking up signs of domestic violence or abuse. They will know when a risk assessment is appropriate. I would not want to second-guess those professionals. If we raise the hurdle for when it is permissible to carry out a risk assessment so that it may be carried out only when there are “reasonable grounds”, we risk making CAFCASS unable to carry out risk assessments in cases when it feels that they are needed.
Mr. Bone: I want clarification of circumstances in which the mother has the child, the father is absent, the mother suddenly says there is violence and the father cannot see the child when there is no evidence of that. That is our concern.
Mr. Dhanda: It is a valid concern. When frivolous allegations are made, the courts will be informed of that when the risk assessment is carried out. There are case law examples of the use of such evidence and the case rightly going against the person who made the frivolous allegations.
The wording of the new clause implies that a court needs to assess whether there is a risk of harm before a risk assessment could be made. It could create circumstances in which cases of low-level or well-hidden abuse were more likely to slip through. None of us wants that.
In addition, new clause 20 means that no regard would be paid to the emotional harm that the child may suffer as a result of a court order. As was stated in Committee, the concept of harm includes not only physical and sexual but emotional abuse. I am surprised that the Opposition try to disregard the effects on the child of emotional abuse. Perhaps it was a genuine omission.
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