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Earl Russell: My Lords, for many years I have looked forward to having the chance to speak to an amendment roughly like this one, in circumstances roughly as promising as these.

The problem is an old one, going back for many centuries. People have always liked to turn a blind eye to it; on occasion, it is slightly harder to turn a deaf ear to it. That is illustrated by a London 17th-century by-law, discovered by C.V. Wedgwood, which stated that domestic violence was to be forbidden after 9 p.m. because of the noise that it created. I regret that that attitude is not altogether dead. People do not like to think about domestic violence, and if we do not like to think about something, we like to think that it does not exist. For example, in the 1996 case of A v N, the Court of Appeal criticised a mother for making "flimsy objections" to a father's contact with the child. The flimsy objections were that the father had committed a very serious assault on the mother, for which he had served a prison sentence. There is nothing particularly flimsy about the walls of most of our prisons.

It is such readiness to sweep such violence under the carpet and to take no notice of it that makes this amendment necessary. I know that the Government are tabling their own amendment, which I welcome warmly so far as it goes. It makes clear that it may harm children if they witness harm to their mother. However, that does not meet the principal problem that the amendments are supposed to address; that is to say, not all courts are taking sufficient trouble to assess whether there is a serious risk of harm. There have even been cases in which contact, sometimes even unsupervised, has been granted to people who are on the sex offenders register. Such contact should not happen.

The underlying indifference to the interests of the child was shown in the case of In Re H and R, in which it was ruled that the required standard of proof to show that contact would pose a risk was higher than the ordinary balance of probabilities. For centuries we have had a male-based law, and I do not refer solely to the composition of the judiciary, because I have great admiration for the higher judiciary, although I look forward in due course to its having a better gender balance. Much more serious is that the law has been made by men for men since the beginning of legal memory in 1189, and, I imagine, for much longer. There is a whole male-based culture here. One can understand, if one thinks only of the man's interest, the reasoning of the decision in In Re. H and R. Although the case did not involve a criminal charge, there was an accusation that the person had done something criminal.

However, that case did not go like the case that I remember reading about in the Evening Standard when I was a boy. A man was tried for murder and acquitted.

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The Daily Express then said that he had done it. He sued the Daily Express for libel, but, because of the reverse burden of proof, he lost that case. That taught me a great deal about the law.

In a case such as this, one would have expected the same sort of effect of reverse balance of proof. If the amendment in the name of my noble friend Lady Barker, which the House has just carried, had been law then, and if the child had been represented in that case, the judgment might not have happened.

As it is, the man's interest, which is a perfectly legitimate interest, is given a primacy over the interests of the child. That is risky and inherently improper. It does not meet the equality of arms principle of Article 6.1 of the European Convention on Human Rights.

I have some figures about how freely contact is granted. In 2001, the courts granted 55,030 contact orders and refused 713, even though, according to the Association of Chief Officers of Probation, 16,000 of those cases involved domestic violence. I am not for a moment arguing that every case that involves domestic violence should lead to a refusal of contact. That would be a mercilessly rigid approach. However, I propose that in every case in which there is domestic violence, the extent of risk must be considered before a contact order is made and before it is decided whether that contact order should be supervised or unsupervised.

Because that does not appear to be happening at the moment, we believe that further action is needed. That action must be taken through the statute book in a form that ensures that actual consideration is given to actual risk. As the noble Baroness, Lady Gould of Potternewton, said, there must be a checklist. It cannot be exhaustive, because some of the forms of domestic violence that have been heard of beggar the imagination. I recall one case from the local women's refuge almost next door to me of a child who had been regularly buggered by his grandfather with a knitting needle. Who would have thought of specifying that in a checklist? There must be flexibility. However, we do not need just flexibility, because you cannot have flexibility until you have something to flex. There has to be something on the statute book that directs Her Majesty's judges that, although in all normal circumstances contact is likely to be good for the child, the child's safety must be paramount. It is not good for a child to be put at gross physical risk or to be put in a situation in which he or she can be used as a decoy to lead a man to somebody who may want to murder the child's mother.

I understand that there were 30,000 cases under the Protection from Harassment Act 1997 in London last year. I had a small walk-on part in helping to get that Act on the statute book. I am glad that I did so, because it seems to be used regularly in defence against a violent ex-partner. The moment when the man is most at risk of committing violence is usually the moment when the woman says that she has had enough. That is also the moment at which the man wants to apply for an order for contact.

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On one occasion, a man making the application was violent in court to the extent that the judge had to adjourn the court. He still got his contact order. If nothing else proves that not enough care is being taken in this area, that case alone does so. I am proud to support the amendment.

4.30 p.m.

Baroness Thornton: My Lords, I shall speak to Amendment No. 102B in my name.


    "This is a poem for you to see

About this man trying to get Cicely

I want you all to read this loud and clear

Then you'll know why he is my biggest fear


    He touched me where I knew he shouldn't

I wanted to run away but I just couldn't

Then when I said 'Let me go'

He blocked the door and said 'No'


    He said 'If you tell mother what I have done

I'll shoot her with this gun'


    I love Cicely with all my heart

Please don't let this man tear us apart".

Those are extracts from a poem written by a 13 year-old girl who is terrified that the man who touched her and brutalised her mother may go on to do God knows what to her four year-old sister. The poem talks about how they escaped. I have changed the names in the case, although there has been some media coverage of it. Now, because the mother refused to let her abusive ex-partner have unsupervised access to the younger sister and went into hiding to protect the child, she may be about to have four year-old Cecily granted residence with this man. If it comes, the judgment cannot be challenged. There is no redress if this small child is abused and her life is wrecked. In that case, the system will have failed her in the most appalling way. The older child's views have not been taken into account in this case. Can we be content with a system that produces that outcome?

That is one of many cases that demonstrate the damaging effects of the 1995 ruling in In Re H and R on child sex abuse. That case, along with others, has diluted the effect of the Children Act 1989, which no longer works to protect children as originally intended. As recently as last week, I met a woman who told me a horrifying story. She separated from her violent partner three years ago, but the father obtained an order for supervised contact with her child, despite the child having witnessed the violence and, it is suspected, having also been mistreated. The mother had resisted and opposed contact because the child was so terrified and traumatised.

In the end, supervised contact was granted. At this point, the mother decided to try to make the best of the situation and to normalise the contact as far as possible. As a result, contact was extended and eventually became unsupervised and for longer periods.

Then, over a period of months, the child became withdrawn and troubled and started to behave in an inappropriate sexual manner. It emerged that the child had been sexually abused by the father as soon as unsupervised contact was granted. Social services and

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the police were involved. Charges were brought against the father, but they were dropped because of the age of the child, although there is no doubt that the child has been abused. The mother and the family are now involved in rebuilding that child's life.

That case raises some serious questions. The father can return to court at any time to apply for renewed contact with the child. He has not been placed on the child abuse register. The family have the issue hanging over them for as long as it takes. There is nothing they can do about that. There is no redress to the courts about what has happened to that child. Nothing can be done about the decision that was taken. The supervised contact that took place was woefully inadequate. I cannot believe that the Government can be content that that could happen to a child. How can these things happen in this rich and civilised country, with its sophisticated legal system and legal rights guaranteed? There is a growing anxiety, even desperation, that despite all the safeguards that are supposed to be there, children are being exposed to abusive parents by courts granting residence and unsupervised contact without taking proper account of the dangers to which they are exposing them.

In Grand Committee, my noble friend the Minister pointed out that these matters are already covered in the Children Act 1989 and said that our amendments would gloss or interfere with the fundamental principle that the welfare of the child is paramount. To my simple mind, that fundamental principle has already been undermined by case law. We are seeking to remedy that situation.

The case of In Re O, on the imposition of conditions for contact, states that contact is almost always in the interests of the child. To my knowledge there has been no research that suggests that contact with a violent parent is beneficial to a child. In fact, authoritative statements were made on the issue by Dr Sturge and Dr Glaser, who were commissioned to write a report about contact and domestic violence for use in the appeal courts. They described domestic violence as a,


    "very serious and significant failure in parenting".

They stated that,


    "the research is entirely consistent in showing the deleterious effects on children of exposure to domestic violence",

and that,


    "children are affected as much by exposure to violence as by being involved in it".

They said that, in other words,


    "there should be no automatic assumption that contact to a previously or currently violent parent was in the child's interests; if anything, the assumption should be in the opposite direction".

There is no question but that my noble friend the Minister and her colleagues are hard at work on trying to remedy this situation. There have been attempts to improve legal protection for children in contact arrangements, and good practice guidelines have been issued to judges. However, figures from the Judicial Statistics for England and Wales suggest that those actions have had little effect. If the courts were placing greater emphasis on child protection as a result of the guidelines, one would expect an increase in the number

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of cases in which the courts refused contact. To date, however, there has been a decrease in the number of cases in which contact has been refused. The Minister did not accept that point as evidence when I made it in an earlier debate. I still believe, however, that the violence involved in so many marital breakdowns demonstrates the need for greater care when making contact arrangements. If the Minister believes that the rebuttable principle outlined in this amendment is not the right route, will she give us some indication of what the Government believe is the right one?

The law and the system are not working for some children. As the noble Earl, Lord Russell, said, some judges are making contact orders even after a parent has been violent in court. Women's Aid has told me of two cases in the past month in which contact was granted although the fathers had been violent in court. It is breathtaking to think that a judge could decide to allow a young child to be alone with a man who displays such lack of control even in court. It is no wonder that many parents—most of whom are women—and their children feel that the law protects judges rather than children. These vulnerable parents, and even more vulnerable children, feel that the current situation is both unfair and unbalanced.

I am grateful to the NSPCC, Women's Aid and NCH Action for Children for the material they have supplied and for their campaigning work on this issue. I am also grateful for the letters and information on the issue provided by the Lord Chancellor's Department.

I have heard my noble friend the Minister say on several occasions that the strength of our system is that each case is considered on a case-by-case basis and that all contact arrangements are considered on a child-by-child basis, which is as it should be. However, why do we keep hearing of things going so terribly wrong for some children? How can the arrangements be working on a child-by-child basis when we continually hear about cases in which things have gone so wrong? I should therefore like to ask a few more questions. When will we see the results of the reviews? Will the Government legislate on the issue if the results of the reviews warrant it? When will the Government take action to strengthen supervised contact arrangements?

There is support across the House for Amendment No. 102B. I thank the noble Baroness, Lady Noakes, and other noble Lords for their support on this issue. I am looking for movement by the Government on strengthening protection for these children.

4.45 p.m.

Lord Campbell of Alloway: My Lords, I apologise to the House—I did not realise that these two amendments were grouped. I wish to support Amendment No. 102B, but not Amendment No. 102A, for a reason that I shall give in a moment.

I do not know whether your Lordships have seen the report in The Times today about the decision of the European Court of Human Rights. The point was taken that our domestic law concerning the protection of children from abuse was defective, but that the local

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authority—and we are concerned here with local authority treatment under Section 8—did not know and was therefore, under certain articles, not liable. However, it was liable because it did not have in place a proper system of administration. The only reason that I refer to the case is that the domestic law was defective. One has only to read The Times report to see that that is so.

I do not want to take a long time arguing law. However, the point of this amendment is that it does plug a gap in our domestic law. It does so—I say this with respect to the noble Baroness, Lady Scotland, if I could claim her attention for half a second—without in any way conflicting with the principle established in In Re W that the welfare of the child is the paramount consideration. It does not conflict in any way whatever; it is a totally different matter. The amendment is establishing in domestic law a remedy for the abuse of a child. It is not connected directly or exclusively with adoption. I do not have much more to say to Amendment No. 102B. However, if it were put to a Division, I would certainly be compelled to support it.

The reason why—with respect to the noble Earl, Lord Russell, and others—I cannot support proposed new Section 8A is that it proposes—I do not wish to be offensive—nannying the court. The amendment is telling the court to do the sort of thing that it would do in any event. I am rather against that. I am rather in favour of leaving it to the court to have regard to these types of principles—which are all totally right, totally justified, very well drafted and extremely well expressed.


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