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Baroness Scotland of Asthal: My Lords, I think that it does bite; the question is whether it bites hard enough. It is incredibly important that we make sure that the principle bites hard enough. The noble Earl referred to past incidents. A number of noble Lords may have fought the culture which has failed to recognise that child abuse occurs, has failed to recognise that domestic violence is a scourge which needs to be removed, and has failed to give mainly women, but also children, the protection they need. I agree with the noble Earl that that blindness has to be eradicated. Those who refuse to see must be made to see. There is no disagreement between us on that matter.
The Children Act obliges the court to consider all harm that a child has suffered or is at risk of suffering. That includes physical abuse, sexual abuse and the impairment of health or development. The government amendment to that definition of harm, tabled in the other place, makes clear that that includes harm caused to a child by witnessing the ill-treatment of others. We know that children can be harmed by witnessing violence. The Court of Appeal stressed that in the case of In Re L and others in June 2000.
The court can already attach conditions to orders it thinks necessary to ensure that the child is not at risk, for example, by deciding that the contact be indirect, restricted to letters and cards, or that it be supervised. The court can order a local authority to investigate the child's circumstances if it thinks that the child may be at risk of significant harm such that a care order might be required. It can also make orders for the protection not only of the child but also of a party to the case in any family proceedings regardless of whether an application for such an order has been made. For example, the court can make a prohibited steps order under the Children Act preventing a person taking a
step in relation to a child, including contacting him or her. It can also make a non-molestation order under the Family Law Act 1996. If a court—
Lord Campbell of Alloway: My Lords, I am obliged to the noble Baroness. The noble Baroness is saying that the proposed new subsection (3) in Amendment No. 102B is totally unnecessary because of what she has just said. The noble Baroness nods her head. I am grateful for that clarification.
Baroness Scotland of Asthal: My Lords, it is not just the courts that need to be involved. A number of other agencies, not least those who practise the law and give advice, need to be robust and to understand what the provisions actually stand for. The help and assistance of many agencies is needed—I refer to the police, social services and others—to create the safety net. Some of the examples that my noble friends gave made me wonder what the lawyers were doing. It also made me wonder whether my work would not be better placed not at this Dispatch Box but back at the Bar. The tools are there but they need to be used by people who know how to wield them.
The court is already obliged to consider the risk posed to a child if an order is made. Indeed, it can make an order only if it is satisfied that that is better than making no order at all. It also has the powers to make orders to protect those it believes to be at risk, even if no application for such protection has been made. The anxieties expressed today concern the extent to which the provisions we are discussing are being exercised consistently in practice. Many of us would wish that by a stroke of a pen or by adding a provision to a Bill we could make things better and that that would be the end of the process. However, we all know that it is not the end; in fact, it is the beginning. Unless all of those who operate in the system understand and take advantage of the provisions, we work in vain. We must improve the practice.
The amendment proposed by my noble friend Lady Thornton and the noble Baroness, Lady Noakes, would introduce a presumption into the Children Act that where a person has ill treated a child or another person, that person should not have residence or contact with the child unless the child consents and the court is satisfied that the child will be safe. I wish to deal first with the matter of the child's consent. One of the most tragic and poignant aspects of children who are abused by a parent is that often they love that parent. If the child is asked whether he or she wishes to see the parent and to live with him or her, the tragedy is that they will often say yes. Why do they say that? It is because they love the parent but hate the abuse. Often the child will say—
Baroness Howarth of Breckland: My Lords, I find it difficult to remain seated. I acknowledge that the point the noble Baroness has just made is often the case. I did not make a speech as I felt that many noble Lords had made the points that I wished to make. I am concerned about those children who say very definitely that they
do not wish to return to the abusing parent. Just before I came into the House I received a telephone call about a child who has been placed back with his abusing father following a complex case. The child ran away to his mum. His mum rang social services as she realised that an order existed but she wanted the child. As a social worker I sympathise with the noble Baroness's comments as regards being here rather than out in the field. Social services said that as there was an order they would not make an assessment and that the child should be sent home. We are keen to address situations where the child says that he or she does not want to go back to a particular parent.
Baroness Scotland of Asthal: My Lords, I absolutely understand that. However, the noble Baroness will be aware that in framing legislation we seek to catch both those situations. We catch those who do not want to go back and who say clearly and powerfully, "I do not want to go" and we catch those cases where the child says, "Please let me go back because it is the only thing that I know". Those two cases are conjoined in the child's wishes.
Earl Russell: My Lords, I hope that noble Lords will forgive me for intervening again. I am responsible for persuading my colleagues to put these words into the amendment. The noble Baroness, Lady Howarth, read my mind exactly. This was meant to be a necessary but not a sufficient condition.
5.15 p.m.
Baroness Scotland of Asthal: My Lords, I absolutely understand that. The proposal is qualified by the provision that,
- "the court is satisfied that the child will be safe".
The equivalent presumption of contact is not proposed when there are no allegations. My noble friend Lady Gould touched on that point. I shall be frank with the House: I am not in favour of presumptions. The one thing that I learnt from my practice in family law is that no two cases are alike. I shall give two examples. A father may have injured a child in a road traffic accident, and he therefore becomes a Schedule 1 offender. He is caring and loving and has a supportive relationship with his children. The question is: why should there be a presumption in such a case that there should be no contact with him? The other example is that of a father who loves his children and who has never been violent to them but who opposes the children living with their mother because he is angry about the breakdown of their relationship and, as a result, actively seeks to turn the children against her. Those examples are the two ends
of the scale. Why should one have a presumption of no contact in his favour and the other have a presumption that there should be contact?Those are difficult issues. I entirely appreciate that the amendments respond to much more serious cases than I have just described, including neglect; they do not respond to the matters at the small end. However, a provision would catch both. The court would have to say, in relation to both, "No presumption" and it would have real difficulty separating the two if it wanted to. Inconsistencies would be created. There are likely to be legal arguments about the cases in which the presumption applies. A contested two-tier system could be created when dealing with child contact applications, which may add to delay and conflict, neither of which is in the interests of children. The only criterion that should apply is: what is in the child's paramount best interest?
The Children Act 1989 makes the welfare of the child the court's paramount consideration. I cannot think of a better criterion. The amendment tabled by my noble friend Lady Gould proposes a check-list for the court that will apply when it considers whether a child will be safe. We are going to consider all of those matters in the consultation process. They will be at the root of what we will examine. I hope that she is reassured on that count. These issues exercise the minds of all those who participate in this field. The group that has undertaken much of the consultation has representatives on it from a broad spectrum, including judges, lawyers, non-governmental organisations and charities working with children. Those who have been intimately involved are participating and helping us to craft something that is, we hope, of worth and importance.
Not everyone who would meet the definition of "abusive party" in Amendment No. 102B would be violent or pose any risk to their children. I entirely understand that the amendments were intended to help to better protect children. One poor outcome for children of separating parents is conflict. The more conflict that there is in families—physical or otherwise—the worse the outcome for children. We want to minimise that.
Having a check-list for Section 8 orders could also lead to some confusion, as I have outlined. It is not the test imposed by Section 1(3) of the Act. That requires the court to consider how capable each party is of meeting the child's needs. It is the child who comes first. The requirement of the child to consent in Amendment No. 102B cuts across the welfare principle itself. The law rightly requires the court to come to an objective determination—assisted by child-welfare experts, where appropriate—about what is in the child's best interests. Consent requirements are not consistent with that.
The Government are focusing on four key areas. First, we are focusing on tightening court rules and importing some of the key messages from surveys of the best practice guidelines produced by the Children Act sub-committee of the Lord Chancellor's advisory board on family law. We are working closely with
members of the judiciary, the magistracy and the legal profession and with child care professionals, the police and organisations representing the interests of children, families and the victims of violence. It is fair to say that our stakeholder group achieved a good degree of consensus at its last meeting on 9th October about what needs to change. There is a sense of urgency about this work. To ensure that we can make rapid progress, it divided into smaller teams, each of which will develop proposals for change in areas such as improving information for the court and making findings of fact. We hope to consider a package of reforms by the end of the year, although the group made it clear to us that it must have the time that it needs to get this right.The second area is specialisation. The president of the Family Division has recently taken on responsibility for the ticketing or authorising of most family judges in the county court. At district judge level, a new ticket has now been introduced for those dealing with disputed private family law including contact applications. We take very seriously the comments made by my noble friend and other noble Lords about consistency. It is not enough to have superb delivery and performance in relation to the higher courts if that is not uniformly adopted in all courts. As a noble Lord said earlier, if one child is abused, that is one child too many. There will always be a risk but we are doing everything that we can to limit the nature of that risk. The president is currently reviewing all those judges who are—or perhaps should be—sitting in family work to ensure that they have the appropriate experience and training to deal effectively with family cases. The president recommends minimum sitting levels to ensure that judges maintain their expertise. Once they get their ticket, that is not the end of the matter; they will have a proper opportunity to keep that experience fresh.
We have a precedent in this regard. The president has already completed the review with regard to judges dealing with adoption. New arrangements for specialist adoption centres and specialist judges at county court level were launched in October and November last year. We have consulted those who have gone through the adoption process at specialist centres to find out whether the system is working. We have been delighted by the positive response. We want to learn from the specialist adoption centres about improving the way in which we handle other family business, including child contacts and domestic violence.
That specialisation is being followed through in other areas. Those who provide publicly-funded legal services in family cases must meet minimum standards if their contracts are to be renewed. The Law Society in partnership with the Solicitors' Family Law Association and the Family Law Bar Association have produced a best-practice protocol for family work. It includes best practice for screening and taking forward cases involving domestic violence. Again, that is linked to the training of family solicitors and to standard-setting for family work. Therefore, no longer in the
publicly funded sector will there be a generic practitioner who is unable to carry out the work properly in specialised areas such as family work.Thirdly, I turn to training. Effective training of all those in the family justice system is key if we are to achieve the type of culture change that we should all like to see. For example, the president is working closely with the Judicial Studies Board on judicial training. Domestic violence is now included in all family seminars, conferences and training for the judiciary. The Judicial Studies Board is also working closely with the Magistrates' Courts Committees to support the development of training in the subject of domestic violence. I hope that, if the noble Baroness, Lady Howe, is still sitting, she will receive the benefit of that.
I turn to the subject of support services for families. In partnership with child contact centre services and funders, we are mapping the demand for, and provision of, child contact centres as part of the development of a national strategy. We are also facilitating child contact centres which seek to develop standard definitions of services and a standard referral process in order to ensure that families are referred only to services which meet their needs, especially in terms of levels of supervision.
However, we recognise that the issue also involves a change of culture—it is a matter of changing hearts and minds. It is not easy to change culture, but we recognise that we need to see changes in this area as part of a wider policy on child protection and on tackling domestic violence. The vast majority of families resolve disputes concerning contact and residence without resort to the courts. Therefore, we need to ensure that advice and support services work, too. The changes are of critical importance, but they are changes to practice and performance. I hope that I have said enough to persuade your Lordships that we are doing all that is feasible as quickly and as speedily as we can.
I shall now answer specifically some of the pointed questions raised by the noble Baroness, Lady Noakes. We are currently surveying contact orders in 12 courts in order to consider issues such as the rates of enforcement, whether the courts are using options such as supervised, indirect contact, the rates of domestic violence, and findings of fact. We hope that the results will be available in January.
The definition and referral of contact centres should be completed by the end of the year. The safety stakeholder group's work on changes to secondary legislation—that is, the information available to the court, the automatic triggers, and a further investigation and check—should also be available by the end of the year. The development models of supervised contact should be available at about that time, too. The second survey of guidelines on domestic violence and contact analysis should be available shortly, and that will be fed into the safety group. We are working as fast as we can. As I said earlier, the stakeholders have said that they must have time to
make a considered and informed judgment before they make recommendations. We agree with them because we want to get the matter right.I say to both my noble friends Lady Gould and Lady Thornton that, if we need primary legislation, we shall reconsider the matter. But we believe that this measure should cover the situation. If it does not, then of course we shall have to look again.
We have tried to take on board everything that noble Lords have said in relation to this issue. It is amazingly important. We are determined that the protection given to the children of this country is as robust and as sound as possible. We rely on all those who participate in the field to help us to craft a system which will achieve that. However, it will be delivered not only by the courts and by legislation; it will be delivered by practice on the ground with all participants playing their part—that is, the police, social services, lawyers, social workers, courts and health workers, who see the aberrant effects of some of the dysfunction caused by breakdown. We all need to participate in the process to ensure that the practice on the ground is as we should like it to be and so that we no longer need to feel shamed by some of the examples referred to today.
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