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Baroness Scotland of Asthal moved Amendment No. 7:
- After Clause 1, insert the following new clause—
On Question, amendment agreed to.
Baroness Walmsley moved Amendment No. 8:
"ADDITIONAL CONSIDERATIONS IF PARTIES ARE COHABITANTS OR FORMER COHABITANTS
(1) Section 41 of the Family Law Act 1996 (c. 27) (which requires a court, when considering the nature of the relationship of cohabitants or former cohabitants, to have regard to their non-married status) is repealed.
(2) In section 36(6)(e) of that Act (court to have regard to nature of parties' relationship when considering whether to give right to occupy to cohabitant or former cohabitant with no existing right), after "relationship" insert "and in particular the level of commitment involved in it"."
After Clause 3, insert the following new clause—
USE OF RECOVERY ORDERS
In Part 1 of the Family Law Act 1986 (c. 55) (child custody), after section 34 insert—
"34A USE OF RECOVERY ORDERS IN CASES INVOLVING ALLEGATIONS OF DOMESTIC VIOLENCE OR A POTENTIAL RISK TO THE CHILD
(1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.
(2) If there is no residence order in favour of either parent, the court may grant a recovery order.
(3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.
(4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—
(a) check their records to see if either party has committed acts of violence;
(b) check to see if either party is included on the register of domestic violence perpetrators;
(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.
(5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—
(a) not remove the child from the respondent;
(b) advise the respondent to seek legal representation;
(c) notify the court of their action immediately.
(6) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.
(7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court.""
The noble Baroness said: My Lords, Amendment No. 8 is identical to Amendment No. 12 which we debated in Grand Committee. In moving it, I am somewhat hesitant because on that occasion the Minister kindly gave us what was referred to as the tour d'horizon of the regulations that are already in place. Her main objection to my amendment was that she considered it to be unnecessary because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.
Having looked carefully at the noble Baroness's remarks, Women's Aid, which has been briefing me on this issue, has taken legal advice. That advice confirms that, because this is an urgent procedure for dealing with abductions, there is no requirement for detailed welfare investigations to be carried out, and a Section 8 order—for example, for interim residence—can be made without notice at the same time as a recovery order is granted. Therefore, this situation needs to be rectified in order to ensure that recovery orders are not misused by perpetrators.
Even if there has been an earlier order, that does not necessarily mean that the court has full and up-to-date information about the present circumstances of the case. That is crucial in order for the court to make a just decision.
I recall that when we debated this issue in Grand Committee, the noble and learned Lord, Lord Donaldson, emphasised the speed of these procedures. He proposed that it might be sensible to consider having a standstill before the order was carried out so that the custodial parent could attend and make the case as to why it should not be carried out. I submit that proposed new subsection (5) of my amendment may provide just such leeway.
Therefore, the amendment seeks to clarify the legal procedures for dealing with child abductions and it seeks to ensure that the measures are not used inappropriately in cases of domestic violence. We still believe that such a provision is necessary because domestic violence perpetrators have been able to seek, and obtain, recovery orders to track down their victims and recover children even, on some occasions, as I believe I mentioned in Grand Committee, from refuges, despite all the safeguards referred to by the Minister.
The person who must give up the child may very well have recourse to other measures after doing so. But that situation is very unsettling for the child. The genie is already out of the bottle and it is very bad for the child. In those circumstances, it is far better to prevent that happening in the first place.
If an abused woman flees from the family home, taking the children with her, we still believe that her violent partner may seek legal advice, claiming that it is a case of child abduction. As your Lordships know, the person on whom the order is served must immediately disclose to the court all the information that he or she has about the whereabouts of the child. Any person with a legitimate interest can apply for orders under Sections 33 and 34 of the Family Law Act 1986 and an application for a contact or residence order will usually be made simultaneously. Therefore, as these measures are intended specifically to deal with child abductions, understandably this is a very quick procedure, as is also a without-notice application.
The order can be served on any person who may have knowledge of the whereabouts of the child. As we said in Committee, there have even been instances of staff in women's refuges being ordered to disclose in court, in front of the perpetrator, the full address of the refuge where the women and children are staying. Of course, that does not put just the woman who is the subject of the application in danger, but also all the women who are taking refuge at the address.
The reason that I return to this matter is because things do not always work as they should. Recovery orders make it possible for abusers to take action so fast that the mother has no time—it usually is the mother—to seek legal representation, or sometimes to attend court and give her side of the story before a child is removed from her care.
In the fourth annual report of the Advisory Board on Family Law 2000–01, at page 52, the Children Act Sub- Committee made recommendations. One recommendation was that when both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the child to keep the whereabouts from the parent who has made the application. However, despite the measures that the Minister believes are watertight to protect children, I have pointed out that some judges appear to have difficulty in distinguishing between cases of domestic violence and cases
In a national survey conducted by Women's Aid in May 2003, seven refuge organisations reported problems with recovery orders. In Committee I quoted one of the cases. On this occasion I would like to quote a couple of others. The comments indicate that such a situation can happen even when the father has a police record for violence and the mother is staying in a refuge. The survey stated:
In those circumstances, because the mother is viewed as having abducted the child, she is likely to be treated very harshly by the courts and the wishes and feelings of the child will not necessarily have been taken into consideration at all. That is made very clear in the case details provided by another survey respondent:
As I said earlier, even if that appeal is successful, a great deal of damage will have been done to the well-being of the child in the mean time. Even when the perpetrator is in prison the family justice system can still be used to track down his victims. The following case does not involve a recovery order but it illustrates the dangers of making orders without notice when the circumstances of both parties are not known:
The family justice system should recognise the need to protect children and mothers who flee violence in all circumstances and be that little bit cleverer than the very clever and manipulative men who sometimes can find loopholes in the law to get at their victims.
In Committee, the Minister said that we should not allow the courts to be used as a weapon in a protracted war between partners—a kind of tug-of-love situation about which we have all heard. I absolutely agree with
However, I think the courts recognise these cases and deal with them appropriately. So it is essential that family law should not enable perpetrators to track down their victims and obtain without notice orders for contact or residence before the court is fully aware of the circumstances of the case and is able to deal with a full and up-to-date report on the situation regarding the welfare of the child. I beg to move.
"A very recent case where a violent father with a criminal history of violence was able to get an ex parte residence order and a High Court issued recovery order executed in a refuge".
The second case is as follows:
"A court in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence".
"The father started proceedings claiming [the mother] had abducted the child without warning. The mother was ordered at very short notice to attend court. She did not manage to get to court in time, and did not have a solicitor, so the decision was made before she arrived: a residence order in favour of father. The child is not at all happy with this decision, which is being appealed".
"The parents of an extremely violent man, who is in prison for assaulting his ex-partner, applied for contact with their grandchildren. At the same time the grandparents obtained an order for disclosure of the mother's address. All of this was done ex parte, and the mother knew nothing about this until she received an order from the court stating that a welfare report had been ordered on the issue of parental grandparent contact. This woman is still receiving hospital treatment for the injuries she received a year ago, and she is terrified that her ex-partner will find out where she is living".
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