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Baroness Anelay of St Johns: My Lords, the text of the amendment is identical to the one tabled in Grand Committee. Therefore, the drafting questions I posed then must remain the same. On the last occasion the noble Baroness, Lady Walmsley, said that she would consider my questions. I wonder whether she has had the chance to do so and whether Women's Aid has been able to advise her upon it. She might be able to set my mind at rest when she responds to this short debate.
As I said in Grand Committee, I sympathise with the noble Baroness's objective. I notice that subsection (5)(a) in the amendment refers to not removing the child from the respondent and subsection (6) refers to defendant. Is that intentional? Who is the defendant and who is the respondent in this context? Subsection (4) refers to a police check of records to see whether either party has committed acts of violence. As I said before, I agree entirely that that should be done. But then subsection (5) goes on to state:
- "If the records show that the applicant has a history of violence"—
- "the police . . . will not remove the child from the respondent".
The amendment puts a very heavy responsibility on the police. We need to take account of what happens to the child. According to Amendment No. 8 the police do not remove the child from the respondent even where he or she is shown to have a history of violence. That makes one wonder whether the amendment puts the welfare of the child first. I know from the noble Baroness's long history and experience in these matters that that is the last thing she wants because she always, quite rightly, considers the welfare of the child first.
So, although it is almost my pleasure to receive briefing from Women's Aid and to do as much as I can to support its amendments, I find myself in the position where I cannot support the text of this amendment because of the problems it raises. I still sympathise with the objective, but at this stage I am not in a position to support it.
Baroness Scotland of Asthal: My Lords, as the noble Baroness, Lady Walmsley, rightly says, these amendments are identical to the ones we discussed in Grand Committee on 21 January. On that occasion I set out at length—and I apologised then—how the current law on recovery orders operates. I do not intend to repeat that detailed explanation this evening. I will, however, briefly rehearse my objections to the amendments. I must say that my objections remain the same.
I hear what the noble Baroness says in relation to child abduction issues. I do not agree. Obviously, I do not know the details about which the noble Baroness speaks. I can tell your Lordships that the law and the rules are robust. Of course I cannot comment on whether they are applied accurately, properly and appropriately in each case without looking at the particular facts of the case. We do not know whether these cases are internal or international abductions and which rules applied and which did not. The welfare of the child remains the kernel to each application. So, all I said on the last occasion still applies.
Case law indicates that the police should not be ordered to disclose the address of the women's refuge. The Chief Constable of West Yorkshire Police v S in 1998 is reported in Family Law Reports at page 973. That is what is supposed to happen. The normal procedure is that if there is any issue or difficulty the court invites the parties to write the address down on a piece of paper. Your Lordships will know that it is usual for the officer of the court or the constable to be given the right to take charge of the child and deliver him to the person concerned. Where neither party has a residence order, and accusations of violence are made, Amendment No. 8 seeks to place additional duties on the court and the police to inquire into whether the allegations of violence are justified. If they were, the court would not return the child to the applicant, but the respondent would be advised to get legal advice.
I hope that I made the point when we discussed this in Committee that Amendment No. 8 seeks to place these additional duties in a way that I do not think is appropriate. My objections to the amendment are as follows. Respondents to the Children Act Section 8 applications have the right to appeal and can seek variations of the order. The Section 34 application is not the place for rehearsing the facts of the case that will already have been decided at an earlier hearing. The existing remedies for the enforcement of the residence order against those who do not comply with them and the powers to make orders authorising the return of the children are sufficient. What is more, they safeguard the welfare of any children involved. The provisions of the Children Act and the guidelines on how the court should deal with the allegations of domestic violence ensure that the welfare of the child is paramount and that allegations of domestic violence are properly taken into account by the court when deciding contact issues.
I have already given the House the good news about what will happen in relation to the forms, which will ensure that allegations of domestic violence are dealt with at the initial application stage. There should be no need for further discussion of the issues or applications made under Section 34 of the Family Law Act 1986.
While I fully understand the good intentions behind Amendment No. 8, the law as I set it out in Grand Committee already provides sufficient protection and, with the introduction of the new forms, will offer increased protection. For all those reasons, I regret that I cannot agree with the amendment. I know that the noble Baroness expresses the issue of child abduction on behalf of Women's Aid. Since it is an issue with which I am familiar, if the noble Baroness thinks that it would be helpful for me to produce a note on why the child abduction provisions do not also impinge on this, I would be happy to do that. I do not wish to tire the House by going through the structure, the case law, and the different forms of international child abduction and non-international child abduction. If the noble Baroness would find that helpful, I would be happy to do it.
Baroness Walmsley: My Lords, I thank the Minister for her explanation and for her offer of a note about the child abduction arrangements. That would be most helpful. I hope that the House will forgive me for returning to test this issue once more on behalf of Women's Aid, which still has concerns, mainly connected with the speed of the proceedings and the fact that sometimes the person who has custody of the child does not even get the chance to know that it is going on.
I apologise to the noble Baroness, Lady Anelay of St Johns, for not addressing the issue that she raised last time. I had intended to do so. We should have changed one of those words so that both were the same. Both "respondent" and "defendant" refer to the person who has custody of the child; in other words, the person who is not the applicant.
I accept that the noble Baroness raised the issue of what happens if the person who has custody of the child has a history of violence. In that situation, the person who is trying to get custody of the child would not be bringing it under a claim that the child had been abducted. He or she would be bringing that claim for custody of the child on the basis that the person who had custody was totally inappropriate because of that history of violence. So I do not think it would apply in this case.
It would be most helpful to have the note to which the Minister referred. I think Women's Aid will consider that with very great interest and I hope that their minds will be set at rest. It is nice to know that the Minister thinks that the law is robust in this case, and I hope that she is right. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I must advise the House that if Amendment No. 9 is agreed to, I cannot call Amendments Nos. 10 to 17 inclusive, because of pre-emption.
Lord Renton moved Amendment No. 9:
- Page 2, line 29, leave out subsections (1) to (5) and insert—
The noble Lord said: My Lords, Amendment No. 9 is an important drafting amendment. It is important because Clause 4 includes a new method of drafting which is unconventional, ungrammatical and, I suggest, unacceptable. May I have the attention of the Front Bench?
This new method of drafting introduces a system which contains references to capital letters of the alphabet, which are repeated, instead of using the traditional, grammatical method which has always been used and which everybody understands. In redrafting subsections (1) to (5) of Clause 4 in the traditional way, not only have I made them clearer but I have shortened them without altering their meaning or legal effect. Moreover, I have, I believe, made them easier to understand.
I ought to confess that I was chairman of the only official committee since 1870 to advise on the way in which Acts of Parliament should be drafted. In our day, this method of using capital letters as cross references had never even been contemplated. So far as I know, this is the only precedent so far in which they have been used in a massive way. I really do think that the purpose and method of drafting should continue in the way that they have for generations.
I draw attention to a strange reference in Clause 4; it is in line 21 of page 3, at the end of subsection (5), and states:
This is an important matter, and I hope that the noble Baroness, for whom we all have very great respect, will show that she understands the problem and will accept my solution to it. I beg to move.
"(1) A person is guilty of an offence if—
(a) a child or vulnerable adult dies as a result of the unlawful act of—
(i) a member of the same household as that victim, and
(ii) who had had frequent contact with him or her,
(b) at that time there was a significant risk of serious physical harm being caused to the victim by the unlawful act of such a person, and
(c) either it was that person whose act caused the victim's death or—
(i) that person was, or ought to have been, aware of the risk mentioned in paragraph (b),
(ii) that person failed to take such steps as he could reasonably have been expected to take to protect the victim from the risk, and
(iii) the act occurred in circumstances of the kind that that person foresaw or ought to have foreseen.
(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(c) or the second in subsection (1)(c)(i) to (iii) that applies.
(3) If that person was not the mother or father of the victim—
(a) that person may not be charged with an offence under this section if he or she was under the age of 16 at the time of the act that caused the victim's death, or
(b) for the purpose of subsection (1)(c)(iii) that person could not have been expected to take any such step as is referred to there before attaining that age.
(4) For the purpose of this section—
(a) a person is to be regarded as a "member" of a particular household even if he or she does not live in that household, if he or she visits it so often and for such periods of time that it is reasonable to regard him or her as a member of it, and
(b) where the victim lived in different households at different times, "the same household" refers to the one in which the victim was living at the time of the act that caused the victim's death.
(5) For the purposes of this section an "unlawful" act is one that—
(a) constitutes an offence, or
(b) would constitute an offence but for being the act of—
(i) a person under the age of ten, or
(ii) a person entitled to rely on a defence of insanity.
(6) Subsection (5)(b) does not apply to an act of such a person as is mentioned in subsections (1), (3) or (5)."
"Paragraph (b) does not apply to an act of D".
Is that English? Is that a proper way to draft?
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