Children and Adoption Bill [Lords]

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Mrs. Maria Miller (Basingstoke) (Con): I welcome you to the Chair, Mr. Hancock, and I look forward to serving under your chairmanship.

I wish to speak to new clause 5, but I shall first touch on the amendments. The hon. Member for Mid-Dorset and North Poole made some important points on amendment No. 31. We must ensure that the courts consider domestic violence, because the welfare of the child is of paramount importance. That obviously has a bearing in some cases. The hon. Member for Stafford said that safety and good and meaningful contact were complementary, a point made by my hon. Friend the Member for East Worthing and Shoreham on Second Reading. There is a good deal of alignment in our recognition of the importance of domestic violence.

New clause 5 seeks to probe in a slightly different way how to handle the question of domestic violence. It is a difficult issue, but it is important that we consider it; it is ultimately our responsibility to deal with the facts and not to turn away from them. I assure the Committee that I do not diminish the importance of recognising the role of domestic violence in such situations.

The Bill focuses on children’s welfare, which should be the courts’ paramount consideration. It is very much in the interest of children to have ongoing relationships with both parents. Indeed, those words were used in the Green Paper. As the hon. Member for Stafford said on Second Reading, it is important that the relationship with both parents is maintained, as it
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is an important part of a child’s welfare. My noble Friend Baroness Morris of Bolton said on Report in another place that

    “the best parent for a child is both parents”.—[Official Report, House of Lords, 29 June 2005; Vol. 673, c. 254.]

There seems to be agreement that the involvement of both parents in a child’s future is important, yet too many lose contact with a parent after a relatively short time.

When I wound up on Second Reading, some hon. Members questioned the number of non-resident parents who do not maintain contact. On looking further into the matter, there is much discussion outside this place on which figures are right, and whether 40 per cent. of parents lose contact within two years, the figure given by Bradshaw and Millar, or whether it is more. The Minister is doubtless aware of the figures, so I shall not labour that point, but a great number of fathers—I should call them non-resident parents—lose contact with their children after a relatively short time. Indeed, the Bradshaw and Millar report states that within two to three years only 53 per cent. have direct contact with their children once a week. I am sure that all members of the Committee who are parents would think hard about whether they could have a meaningful relationship with their children if they did not see them regularly.

Why do parents lose contact? There are many reasons. Perhaps it is to do with limited contact time; perhaps it is be down to geography or finance, or the bitterness of a family break up. Indeed, it is such cases that are most likely to come to court. However, we know that a third of court applications are associated with safety allegations. That creates delay and tension. Someone who specialises in that area pointed out to me that children are often caught in the middle of such tense and volatile situations, yet 90 per cent. of court orders are granted. I presume that, in the majority of cases, the court finds that safety complaints are not founded on evidence. The Committee needs to consider carefully the result of such a potentially destructive environment on the child’s relationship with the non-resident parent.

Margaret Moran (Luton, South) (Lab): Is the hon. Lady aware that, according to CAFCASS, domestic violence is a factor in 66 per cent. of the cases that come before it which are of the type that we are describing?

5.15 pm

Mrs. Miller: My point was that, although such allegations are made, judges are finding in favour of 90 per cent. of cases. In going through the process, they consider the validity of the claims.

I do not underestimate the importance of domestic violence. However, we have to remember the principle, mentioned by my hon. Friend the Member for East Worthing and Shoreham, that people are innocent until proven guilty. We have to be careful. We must ensure that we do not consider guilty those non-resident parents who have been proven innocent.

New clause 5 is all about introducing sanctions to show not only that ungrounded complaints of domestic violence are unacceptable in the eyes of the
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law but that they will result in action being taken. While we in no way belittle the seriousness of domestic violence—indeed, our first concern is for the safety and well-being of the child—the figures suggest that there is a problem with the system. Parents know that safety accusations will, rightly, be investigated in full, and often at length by the police and social services, during which time the non-resident parent will be denied access. I have certainly come across examples of that in my constituency, and other hon. Members may have their own.

We propose new clause 5 because that should not be allowed to continue. Any parent bringing a complaint of domestic violence, which is a harrowing situation, should be taken seriously. The actions of parents who make unfounded allegations detract from that seriousness. If the hon. Member for Luton, South (Margaret Moran) feels that the courts are not treating domestic violence seriously or that cases of domestic violence are being overlooked, that is a serious matter, which must be considered. I can look at the figures to see whether there is a discrepancy. If there is, we should recognise it and do something about it.

Margaret Moran: Does the hon. Lady acknowledge that the courts inspectorate has said that there are serious concerns about the way in which the courts currently presume contact, even when there is evidence of domestic violence in the household and of harm to the child? In cases of domestic violence, there is evidence of contact with schedule 1 offenders. Does the hon. Lady not accept the findings of the inspectorate’s report?

Mrs. Miller: I believe that that report says that just a small number of people are affected, but I totally understand the hon. Lady’s point. We should be concerned about any child who is put into a dangerous situation. My underlying concern is the well-being of the child. In the vast majority of cases, safety is not an issue, but it is sometimes used by a minority of parents as a way of denying access to non-resident parents, to the detriment of the welfare of the children. Ultimately, we are here to protect the welfare of the children.

Mr. Jackson: Does my hon. Friend agree that the issue is that we do not have up-to-date research data? I was puzzled when the figure of 66 per cent. was used on Second Reading and would be interested if the Minister told us the basis for it. The figures that my hon. Friend the Member for East Worthing and Shoreham came up with earlier were from the latest research by the National Youth Advocacy Service, which showed that 26 per cent. of cases had some relation to domestic violence.

Mrs. Miller: My hon. Friend makes the important point that we need to keep a careful eye on how the situation changes over time, because it is obviously dynamic. I await with interest the Minister’s response to his request for an update on the figures—particularly the 66 per cent.—because we need to consider the matter carefully. My hon. Friend makes a good point.

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Let me return to the issue of parents who bring a complaint of domestic violence. I imagine that it would be harrowing to bring such a complaint, and each has to be treated seriously. However, we cannot allow parents to use the serious nature of such an accusation to flout the court. If allegations are subsequently proven false, that, too, should be taken seriously, and there should be consequences. Those who make false allegations should be subject to sanction, and a false complaint should be considered an aggravating factor in respect of contact orders under the terms of the Children Act.

Ms Keeble: Will the hon. Lady consider the issue from the other point of view? Women’s Aid and other organisations have done some work on the tragic killings of children by their parents, and there have been some high-profile cases. Tracking back, it became clear that assessment of the risk to children at the point of separation had not been properly undertaken, and that problem has a long history. For a lot of people, the Bill will go some way towards redressing the balance by allowing us to look much more carefully at the risk posed to children and to take that risk seriously.

Mrs. Miller: Again, I stress that I fully endorse the importance of taking domestic violence into consideration when we look at the child’s welfare—that must be part of the piece. Ultimately, we must keep the welfare of the child, rather than the parent, at the forefront of our minds.

Margaret Moran: Will the hon. Lady give way?

Mrs. Miller: It would be nice if I could finish my thought.

I deliberately did not bring up the number of children who have died in the care of their non-resident or resident parents. If I did, as the hon. Member for Northampton, North (Ms Keeble) knows, I would point out that far more children have died with their resident parent than with their non-resident parent. However, any child death is tragic, and we must work against such things. The important point is that we must keep the child’s well-being at the forefront of our minds. In the vast majority of cases, the child’s well-being will involve both parents.

Margaret Moran: Does the hon. Lady accept that the statistics that she has just quoted are nonsensical? By definition, the figures for the parent with whom the child has most contact will be disproportionately higher when there is harm to the child. Is the hon. Lady aware that it has already been accepted as part of the Adoption and Children Act 2002 that domestic violence, and even the witnessing of it, have a harmful impact on the child?

Mrs. Miller: The hon. Lady does not understand my point. I do not disagree with her points or that we must do everything we can to prevent children from being exposed to domestic violence. Equally, however—this is the point that I am trying to make, although I am not sure that Labour Members are picking up on it, so
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perhaps I need to make it more clearly—we should not allow the law to be used against the best interests of our children. We would fail in our duty were we to do that and if we allowed the continuing problem of having a number of cases going to court that have safety allegations associated with them, which the court does not see. In some cases, children are denied access to a non-resident parent on issues not found to be sound by the court.

Annette Brooke: Does the hon. Lady agree that the introduction of risk assessment in the Bill, if it could be carried out in due time, would address her concern?

Mrs. Miller: It is important to bring up risk assessment at this stage. One of our amendments would include the importance of parents in the risk assessment’s consideration of the well-being of the child. That was part of the debate that we had on the Childcare Bill a few days ago. Contact with both parents is an important aspect in the welfare of a child and something that we should consider.

I want to get back to the point that we need to ensure that any false complaints are dealt with correctly. I believe that we need to instil in parents an ethos that focuses them on what is best for their children and a respect for the court system. When talking to those who deal with these problems on a day-to-day basis—I mean no disrespect to hon. Members who have made points on the issue—we find that some parents have a fundamental lack of respect for the court system. As Dame Elizabeth Butler-Sloss, who has much knowledge in this area, said:

    “It is essential that judges have the necessary measures to ensure their court orders are respected.”

The amendment would improve the Bill and what it will do for children.

Jeremy Wright: I belatedly welcome you to the Chair, Mr. Hancock. New clause 5, which I support, reflects the undoubted problem that some resident parents—I accept that it is a very small minority—use false allegations of domestic violence as a weapon in the contact procedure. There must be something that the Bill can do about that problem. That is not to say, of course, that anybody on this side of the Committee wishes to downplay the effect of domestic violence on children or anyone else. Nor do we deny that it happens, but when false allegations are made the courts ought to have some way to deal with them.

If there is no provision for that, and if new clause 5 does not find its way into the Bill, the currency of domestic violence allegations will continue to be devalued. As long as false domestic violence allegations are made in the course of contact proceedings in order to score points and gain an advantage—we must face up to the fact that that happens in a minority of cases—those who make genuine accusations of domestic violence will find it more and more difficult to have those allegations taken seriously by the courts. That is why those of us who are concerned that genuine cases should be taken seriously and pursued to the fullest extent ought to be in favour of new clause 5. I hope that it has the sympathy of the entire Committee.

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5.30 pm

The Minister for Children and Families (Beverley Hughes): It is a great pleasure to see you in the Chair this afternoon, Mr. Hancock.

The amendments and the new clause relate to domestic violence. Two of the proposed measures seek to ensure that children and parents are protected in situations in which domestic violence is alleged or is present, and the third seeks to ensure that false allegations of domestic violence do not distort court proceedings.

Amendment No. 58, which was tabled by my hon. and learned Friend the Member for Redcar and moved so ably by my hon. Friend the Member for Stafford, would require a court faced with a case involving domestic violence to order the violent individual to attend a domestic perpetrator programme, and require the Secretary of State to issue a code of practice defining what constitutes such a programme.

I have great sympathy with the amendment. Where domestic violence is proven and places a child who is the subject of a contact order at risk, it is absolutely right that the court should take steps to address the violence. However, prescribing that that is always best managed by referral to a domestic violence perpetrator programme undermines the flexibility that the courts need and that judges have asked for in contact cases. That is true for two reasons. First, every case is different, and what is appropriate in one case might not be the best way of dealing with another.

Secondly, some of the underlying factors that can manifest themselves as domestic violence and need to be addressed can be very different. Domestic violence could be linked to serious alcohol abuse, in which case a domestic violence perpetrator programme would not address the underlying cause—there would need to be a programme designed to address alcohol abuse. Sadly, sometimes the domestic violence is so severe, long-standing and traumatic that no court would want to issue a contact order, in which case there would be no benefit to any of the parties attending such a perpetrator programme.

We must not lose sight of the purpose of contact or of the contact-activity conditions and directions in the Bill, which are intended to facilitate contact between the non-resident parent and the child. The perpetrator programmes in the Bill are intended to be available where violence is affecting contact. Other legislation and practical mechanisms are in place to deal with violence between partners that does not affect their children. I am concerned that the proposed amendments do not have the focus on the child that we have been at such pains to ensure is fundamental to the provisions in the Bill.

I am also wary of drawing up a code of practice setting out what does and does not fall within the category of domestic violence perpetrator programmes. Judges need flexibility to order the kind of contact activity that will address what they believe needs to be addressed in the circumstances. Different types of programme are designed to address different kinds of behaviour. Sometimes, that means violent behaviour, but, as we know, the definition of domestic violence that we have accepted includes non-violent but very controlling
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behaviour, financial abuse, and emotional and psychological violence—not necessarily physical violence. Therefore, a range of programmes will be sought by the court to address a wide range of underlying issues and the range of manifestations of violence perpetrated in particular domestic situations. I do not think that it would be easy to define what could be appropriately defined as a domestic violence programme.

Mr. Kidney: I follow the forceful argument that my right hon. Friend is making for flexibility. However, she would not argue, would she, that the programme, class, counselling or guidance session that the court directed could be of a flexible quality or standard? Surely she would want such courses to have a minimum standard. Would she at least agree that there should be some kind of accreditation for the people that those involved will go to and the courses that they will attend?

Beverley Hughes: Yes, I would. The organisations that present such programmes, such as the probation service, will have a fairly sophisticated programme of accreditation and training. In order to have an impact, whether through a domestic violence perpetrator programme or a parenting programme, high-quality programmes should have some validity established. In other words, they should have an impact and people should be trained to deliver the programmes effectively.

Amendment No. 31, tabled by the hon. Member for Mid-Dorset and North Poole, would require a court, before it made a contact activity direction, to consider any experience of domestic violence that might put the child or adult at risk, as well as any conflict with a person’s religious belief or with times when he or she normally works or takes part in education. I am pleased to be able to reassure the hon. Lady that the provisions of section 1 of the Children Act 1989 will apply—must apply—when a court considers whether to make a contact activity direction or condition. That means that not only the paramountcy principle but the provisions in the checklist in section 1(3) will apply. The checklist explicitly requires that the court must have regard to any harm that the child has suffered or is at risk of suffering.

The definition of “harm” in the 1989 Act was further clarified by an amendment to the Adoption and Children Act 2002, which now expressly includes the impairment of a child’s development resulting from seeing or hearing the ill treatment of another person. When considering the likely effect of a contact activity, direction or condition, the court must therefore already have regard to any experience of domestic violence that would place a child or another individual at risk.

Subsection (5) of proposed new section 11E will require the court to be satisfied that any proposed contact activity is appropriate in the circumstances of the case. If domestic violence were an issue in a particular case, it would be inappropriate for the court to order the parties to attend the same contact activity. The effect of subsection (5) is to ensure that the court will tailor the contact activity to suit the issues in the case, whether they are about domestic violence or other matters.

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We have heard some debate about the figures for the number of cases in which domestic violence features. I can shed some light on that, but I am afraid that it is not definitive. A report produced by the National Association of Probation Officers refers to the number of children who might be affected by domestic violence. The upper figure of 70 per cent. in that report was based on a survey of 300 NAPO cases. NAPO represents those who were formerly children and family court reporters, and are now CAFCASS officers. Only a proportion of total cases are referred to CAFCASS and were therefore referred to in the report, and so the NAPO survey is bound to report a higher incidence. However, I think that that is where some of the figures come from.

Research commissioned by the Department for Constitutional Affairs suggested that domestic violence was at least a factor in almost 25 per cent. of child contact cases. Therefore, the figures vary widely. For that reason, the DCA has instituted research based on the gateway forms that are now being used, in which parties will state, initially with a tick in a box, whether domestic violence is a factor in a particular case. Although we have started to collect data it is too early to draw conclusions, but I hope that we will get some firmer data as a result of the research on the gateway forms.

The hon. Member for Basingstoke (Mrs. Miller) made the assumption that because 90 per cent. of orders are granted despite many allegations of domestic violence, those allegations are false. That is a false assumption, not least because the courts make contact orders in cases where there are domestic violence issues. Where courts feel that such issues do not present a risk to the child, or where the arrangements can be done in such a way that there is indirect contact or no contact at all between the two parties in terms of the handover of a child, they will order contact as part of the arrangements. That does not mean that the court is saying that the allegations of domestic violence are false and that that is the reason for the contact order. They try to make sure that even in circumstances where violence is an issue, where appropriate such arrangements are made if they do not present any risk to the child.

Mr. Jackson: I know that the right hon. Lady did not bring up the figure of 66 per cent., although she has not necessarily demurred from what the hon. Member for Luton, South said on that, but the figures produced in the last academic survey—it was conducted in 2003—showed that incidents of domestic violence were cited in only 22 per cent. of court cases. Therefore, I press the right hon. Lady to examine the figure of 66 per cent. because I fear that we are allowing it to dominate the whole of this debate. While I obviously agree with my hon. Friend the Member for Basingstoke that we should not disregard the importance of that, it is necessary for us to concentrate on the facts rather than on predispositions.

Beverley Hughes: I was trying to be helpful by reporting to the Committee the information that we have at our disposal. I pointed out that, in respect of two sources of information, the figures vary very widely. In
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one instance, possibly because there was a high concentration of cases in which there were difficulties, the DCA figure I quoted is much closer to that which the hon. Gentleman cites from another source. It is precisely for this reason—that there is no hard evidence—that the DCA is researching the evidence from the gateway forms that we currently have, and I hope that that will give us some harder information.

Mrs. Miller: The right hon. Lady referred to cases where parents have made allegations with regard to safety but the court has made a ruling that that would not have any effect on granting access to the non-resident parent. Surely she has made the point for me, which is that the court has taken heed of the evidence that has been given and, although there may have been safety issues, the court has taken a view that they are not pertinent and relevant to the safety of the child in respect of an order being granted. It would not stop us tabling an amendment such as new clause 5 that would still make those who have made false allegations stand up and take the consequences of something that will have caused not only several problems for the court, but a great many problems for the children and would not have been in their best interests.

5.45 pm

Beverley Hughes: The issue is not as black and white as the hon. Lady would have us believe. She will correct me if I am repeating her argument incorrectly, but I thought that in saying that 90 per cent. of orders are granted despite many allegations of domestic violence, she was asserting that many such allegations must be false. The court takes a view on the circumstances of each case. Even in cases when domestic violence has occurred, it may still take the view not that it is not pertinent to the case, but that arrangements can be made for the contact to take place in ways that the court will order which ensure that there is no risk to the child. That is different from simply saying that the domestic violence was not pertinent or that the allegations were false. She made a false assumption from the figure.

New clause 5 would require the courts to have regard to false allegations of domestic violence when considering contact arrangements and whether to make an enforcement order under the Bill. As the hon. Lady said, that issue was touched on in the debate on Second Reading. I am sure that we are all united in the view that allegations of domestic violence are extremely serious and that, consequently, false allegations are not only unpleasant and upsetting for the accused parents, but must be dealt with seriously and promptly in such circumstances.

I understand the feeling that has prompted the new clause, but I cannot accept it for two reasons. First, I have a real worry that putting such a provision in primary legislation might inhibit some parents from raising genuinely held fears of domestic violence. While there are cases when allegations are false and raised purely to frustrate contact, sadly there are others in which such allegations are true. Secondly, in another category of cases there might be a genuinely
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held belief that the allegations that domestic violence will be perpetrated are true, even though subsequent investigation discovers that the fears are not borne out.

A parent with a genuine, reasonably held fear of domestic violence should not be discouraged from raising such issues or penalised for it. I am worried that the new clause would send out the wrong signal in that regard. For that reason, it is over-simplified to imagine that, in all cases, the court would be able to state what evidence is fabricated for the purpose of the new clause. It is well established in case law that some parties are convinced that, on the basis of past abuse, the other party intends to commit further violence when there is no evidence to support that other than the past abuse.

In 2002, the case of re L established that the genuine fears of a resident parent are a factor to be considered when deciding whether contact is in a child’s best interests. It is also important to remember that it is a function of the court to decide how to respond to false evidence. In any proceedings when a witness gives evidence, some of which the court finds to be false, the court may regard that witness’s evidence as a whole as unreliable. That is a basic legal principle that applies to Children Act proceedings as it applies to any other proceedings. However, it would be wrong to take the further step sought by the new clause and force the court to take particular account of part of the evidence of a witness in certain circumstances.

I hope that I have reassured the hon. Lady, the hon. Member for East Worthing and Shoreham and my hon. Friends that the Bill’s existing provisions provide adequately for the safety of children and that the wider issues of safety have been addressed.

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