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Baroness Scotland of Asthal: My Lords, I shall certainly write to your Lordships on any specific provisions, but certainly I have never known a situation where a court has ordered that there be a report and a report has not, in due course, been provided. Of course it sometimes happens that there are delays in relation to allocation, but I have never known a report to be refused. The court has to come to an informed judgment as to what is in the best interests of the child, and if it needs a report to do so, one is usually forthcoming. In my experience, most people find it difficult to say no to judges when so ordered.
Baroness Thomas of Walliswood: My Lords, the Minister has given a full response but, in many respects, it was very similar to much of the briefing she has already supplied to us. I read the briefing with care but I did not always find it entirely satisfactory. We believe that this is a very important matter. We wish to register its importance to us and to the children who will be the subject of this Bill—not the subject of disputes between parents—and who will be conveyed, in effect, from one family to another. This is a very special case. For those reasons, despite the generous
allocation of time we have been given and the great expertise of the Minister, I wish to test the opinion of the House.4.2 p.m.
On Question, Whether the said amendment (No. 102) shall be agreed to?
Their Lordships divided: Contents, 136; Not-Contents, 129.
Addington, L.
Alderdice, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor of Hever, L.
Bagri, L.
Barker, B. [Teller]
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Chan, L.
Clement-Jones, L.
Cope of Berkeley, L.
Crickhowell, L.
Dacre of Glanton, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dundee, E.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Flather, B.
Geddes, L.
Goodhart, L.
Gray of Contin, L.
Greaves, L.
Hanham, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hylton, L.
Jenkins of Hillhead, L.
Jopling, L.
Kimball, L.
Laird, L.
Lester of Herne Hill, L.
Lindsay, E.
Livsey of Talgarth, L.
Luke, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Methuen, L.
Michie of Gallanach, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Norton of Louth, L.
O'Cathain, B.
Oxford, Bp.
Park of Monmouth, B.
Parkinson, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Plumb, L.
Portsmouth, Bp.
Prior, L.
Rawlings, B.
Rawlinson of Ewell, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Sandberg, L.
Sanderson of Bowden, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stodart of Leaston, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tenby, V.
Thomas of Gwydir, L.
Thomas of Walliswood, B. [Teller]
Thomson of Monifieth, L.
Trefgarne, L.
Trumpington, B.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Weatherill, L.
Wigoder, L.
Williams of Crosby, B.
Acton, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Amos, B.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Blackstone, B.
Borrie, L.
Brett, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Gregson, L.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Janner of Braunstone, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Marsh, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nicol, B.
Northbourne, L.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Rooker, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Slim, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Strabolgi, L.
Strange, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
4.13 p.m.
Baroness Gould of Potternewton moved Amendment No. 102A: After Clause 111, insert the following new clause—
The noble Baroness said: My Lords, in moving this amendment, I thank my noble friend the Minister for many helpful meetings and for setting out so clearly the current legislative framework. I should perhaps begin by apologising to the House: I cannot be brief in my remarks, and some points may overlap with the previous debate.
It is important to stress that this debate is not about the principle of children maintaining contact with both parents following separation, which is, of course, desirable in the right circumstances. It is about ensuring that that contact is in the best interests of the child, with every possible measure being taken by the courts to guarantee the safety of the child when the courts are considering the granting of residence and contact orders in private proceedings.
I appreciate that, as in the previous debate, my noble friend is of the view that these amendments would not add to the duties already imposed by the courts according to the welfare checklist in the Children Act 1989, and that the duties are already enshrined in legislation. But, in reality, those duties are not being
It is not the Children Act itself that is at fault but the case law determined by the courts since the introduction of the Act. The consequence has been that the intention of the Children Act has been substantially altered. It is for that reason that we propose urgent action as the only way of protecting children in cases of domestic violence and child abuse.
Specifically, Amendment No. 102A, standing in my name and that of the noble Earl, Lord Russell, identifies a checklist which would require court professionals to take an objective approach to risk assessment and which would provide a clear framework for court welfare reports in cases involving allegations of violence.
The checklist is based on Section 16B(5) of the New Zealand Guardianship Act 1968, which contains such a mandatory risk checklist. The courts in New Zealand are required to consider: the nature and seriousness of the violence; how recently and how frequently it occurred; whether further violence is likely to occur; any physical or emotional harm suffered by the child as a result of violence; and whether the other parent considers that the child will be safe if contact or residence is granted to the violent parent. The point about the other parent is extremely important. This mandatory checklist therefore requires court professionals to take an objective approach to risk assessment. It also provides a clear framework for court welfare reports involving allegations of violence.
As I understand it, the objection to this proposal is that the New Zealand legislation has a general presumption in favour of contact while our legislation does not. That may well have been true. The Children Act 1989 does not contain a presumption of contact with regard to private legal proceedings; but that environment has been changed, as I said, by case law. Perhaps I may quote a couple of examples.
In the case, Re: O (Contact: Imposition of Conditions) 1995—a case involving domestic violence—the Court of Appeal ruled that contact is "almost always" in the interests of the child. This ruling established a strong presumption of contact—to such a degree that there is considerable evidence of solicitors and children and family reporters advising abused partners that there is no point in contesting contact because, in the words of the Court of Appeal, contact will almost always be granted.
In the case, Re: A v N (Committal: refusal of contact) 1996, the Court of Appeal ruled that the welfare of the child is not the paramount consideration when a parent is being sentenced for failure to comply with a contact order.
My noble friend the Minister may argue that the rulings in Re: O and in Re: A v N have been superseded by the Court of Appeal judgment in Re: L, V, M & H (Contact: Domestic Violence). However, that judgment specifically states that it is not in any way
The final paragraph of the proposed new clause allows the court to take into account any other matters it considers relevant. One area that should be included in that category is the availability of contact centres, and the availability of trained supervisors.
There are 18 major cities in England and Wales which have no contact centres offering supervised contact and, overall, only 12 per cent of contact centres are able to provide supervised contact for cases of abuse and violence. Because of this shortage, contact visits with a violent parent can far too quickly become unsupervised, and high-risk cases can be referred to contact centres which cannot provide high vigilance contact.
Trained professionals seem to be available only when the absent parent is seen as extremely dangerous to the child. Disturbingly, from my own investigations there appears to be little reporting to courts or to social workers on contact visits. The untrained volunteers appear not to be making statements to the police even when abuse has been witnessed.
I appreciate that the Government are aware of the paucity of provision and have recognised the level of risk that this can cause, that they are in the process of establishing a strategy for a national network of child contact centres and an improved referral system, and that a small amount of increased resource has been made available. Clearly, that amount is not sufficient. I hope, therefore, that the necessary resources will be available to find and equip the right premises, to train supervisors, and to provide centres which are safe for the children to meet their absent parent. A network of such centres would do much to alleviate the anxiety felt by so many children and their parents. The Lord Chancellor's Department has indicated that consultation will have to take place before a mandatory risk assessment check-list can be introduced here. I do not therefore intend to press this amendment to a vote, but I would feel more justified in not doing so if the Minister could give an assurance that there will be such consultation and that a mandatory risk assessment check-list will be included in regulations.
The redefinition of "harm" and the tightening of the Family Proceedings Rules 1991 to facilitate the reporting of violence and abuse and to provide a consistent approach are welcome initiatives. Also welcome is the work of the safety stakeholder group, which is due to report at the end of the year, in strengthening the regulations and ensuring further training for judges and magistrates. But, in spite of that, the system still fails to adequately protect children from abusers known to them. We must identify that risk at the earliest possible stage in proceedings. That is the view of the coalition of children's charities and Women's Aid, which deal with such cases daily.
I have met parents who believe that the decision to grant contact, in many cases unsupervised, sometimes puts their children at risk. Often that happens because
In a further case, a child was taken abroad, against a court decision, and returned eight days later. The child's special diet had been ignored. She had slept in a car and returned home in a distressed state.
There is also the case of the parent who was so severely abused that the abuser was given a jail sentence. The abused parent was moved to a safe address with panic links throughout the house. The abuser applied for contact on release from jail, which resulted in consultation about whether there should be supervised contact and a mediation process. It was only because the abuser failed to appear in court that the proposal was dropped. I could continue to give examples of the evidence given by other parents that I have met of the ineffectiveness of the process. One parent said:
During the progress of the Bill, we discussed the psychological damage that too many children suffer. There can be nothing more damaging to children than having to be in contact with a known abuser against their wishes. Surely nobody can deny, given the evidence before us, that the Children Act 1999 is not sufficiently effective in ensuring child protection when courts are granting contact orders. I am sure that my noble friend will agree that there is a serious problem to be resolved. My plea to the Minister is to ensure
"CASES INVOLVING ILL-TREATMENT OF CHILDREN
After section 8 of the 1989 Act there is inserted—
"8A CASES INVOLVING ILL-TREATMENT OF CHILDREN
When determining whether the child will be safe if contact or residence is granted to the abusive party, the court shall, so far as is practicable, have regard to the following matters—
(a) the nature and severity of the ill-treatment;
(b) how recently the ill-treatment occurred;
(c) the frequency of the ill-treatment;
(d) the risk of further ill-treatment occurring;
(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;
(f) whether the other party to the proceedings—
(i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and
(ii) consents to the abusive party having residence of, or contact with, the child;
(g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;
(h) any steps taken by the abusive party to prevent further ill-treatment from occurring; and
(k) any other matters as the court considers relevant.""
"I feel not only that I have been a victim of domestic violence but that my punishment is continuing through the contact".
Another parent asked:
"Why does the case have to be so extreme before one, and one's child, is protected by the law?"
The majority of respondents to an investigation by Northbrook College of Further and Higher Education believed that their children had suffered abuse during contact, varying in severity from emotional and physical abuse to sexual abuse, with 72 per cent identifying resultant behavioural problems in their children. That is the picture given by other refuges throughout the country. Such cases are much too frequent. In one case in which contact was granted, the only reason that visits stopped was that the parent is now on remand, charged with committing 32 offences against children. Something is clearly wrong. The psychological damage to children and their resident parents cannot be overstressed. These children are pawns in an emotionally abusive game and need every protection we can give them.
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