Children and Adoption Bill [HL]

moved Amendment No. 6: "Before Clause 1, insert the following new clause—"    ““PRE-COURT CHECKS TO ENSURE DECISIONS ON RESIDENCE AND CONTACT ARE MADE ON BASIS OF ADEQUATE INFORMATION    In section 8 of the Children Act 1989 (c. 41) (residence, contact and other orders with respect to children) insert— ““(6)   In all cases where there are allegations of ill-treatment of the child, of another member of the family or of another child— (a)   an officer of the Service or a Welsh family proceedings officer shall undertake pre-court checks to ensure that any relevant information is made available to the court at the first hearing; (b)   an officer of the Service or a Welsh family proceedings officer shall have access to the information databases on children set up under section 12 of the Children Act 2004 (c. 31).”””” The noble Baroness said: In this important group I shall speak to Amendments Nos. 6, 8 and 74, and my noble friend Lady Thornton shall speak to the other amendments. First, I apologise if I speak at some length, but I have tabled three distinct amendments. They all have one purpose—how to reduce the risk to children who might be involved in a domestic violence situation and where contact has been granted. It is a great regret that this question has not yet been resolved. My noble friend and I have raised it on many occasions and I hope that this time we may get a different response. Accepting the amendments does not mean that all situations of domestic violence should be resolved with no contact orders. Equally, no contact and indirect contact should not be unthinkable, given the knowledge that we have about the seriousness of harm to children living in an atmosphere of domestic violence. In the Bill, safe contact is referred to in a number of cases, but there are no defined mechanisms as to how safety can be determined and ensured. The amendments are designed to ensure that that is rectified. Amendment No. 6 calls for pre-court checks in every case where there are concerns about a child’s safety. That is in line with the Children Act 1989, which states that the welfare of the child is paramount, and also with the Children Act 2004, which imposes duties on almost all statutory agencies to share information about children and to make arrangements to safeguard and promote their welfare. In November 2004, during one of the hearings of the Select Committee on Parental Contact, Dame Elizabeth Butler-Sloss was asked about judges allowing parents who have committed offences against children to have unsupervised contact with children. She replied:"““We do not always know that they are Schedule 1 offenders at the time””." That is the real question; we have to know. Recent research shows that where 178 cases had been examined, in 21 of those cases unsupervised contact had been ordered with a Schedule 1 offender or with a parent whose behaviour caused the child to be included on the child protection register. That cannot be acceptable, and it might be an extremely dangerous situation for the child. I paraphrase, but the noble Earl, Lord Howe, said that no court would knowingly put children at risk—I am sure that is right. But if the family courts do not have a reliable system for identifying parents who have been convicted of offences against children, they are not able to make informed decisions that are safe and in the best interests of the children. The amendment aims to address that problem in our family justice system by requiring pre-court checks and giving CAFCASS officers automatic access to the information databases on children. That is not to say that since we last discussed those issues there have not been some improvements in the process. We have seen gateway forms and guidelines issued with the intention of highlighting cases where there are concerns about domestic violence and possible harm to the child. The definition of ““harm”” in the Children Act 1989 included,"““impairment suffered due to seeing or hearing ill-treatment of another””." Neither of those measures requires the courts to ensure that contact orders are safe for children. Meanwhile, there is anecdotal evidence to suggest that domestic violence perpetrators are using the gateway forms to make false allegations against their ex-partners, while some abused women are turning up in court without having responded to the gateway forms. That shows they are not working in the way that was envisaged. Even worse, some judges now insist that CAFCASS should not do checks on cases where the domestic violence box has been ticked if they do not have the prior consent of the parents. In other words, parental rights are taking precedence over children’s rights and safety. The family courts need automatic access to information from pre-court checks, and they should be able to obtain it quickly. On Amendment No. 8, it is now almost exactly three years to the day since I moved a similar amendment calling for a risk assessment checklist. That was on 23 October 2002. The Government said that further consultation would take place, however an opportunity to do that was missed when they did not use the consultation paper Safety and Justice to discuss the issue. In her reply to the debate in 2002, my noble friend Lady Scotland indicated that if there proved to be a need for primary legislation, the matter would be reconsidered. I say to my noble friend on my left that I hope he will take the opportunity to reconsider. I must stress and I fully accept that it is obviously desirable for children to maintain contact with both parents following separation. It is only desirable in the right circumstances, and those circumstances must give a guarantee of safety for the child. Against that background, it is essential that the issue of safety is addressed at the beginning of the proceedings, otherwise court interventions are likely to be inappropriate or dangerous. The importance of early intervention is identified in the Government’s own evidence. The Department of Health, in its document Women’s Mental Health: Into the Mainstream from 2003, identified that nearly three-quarters of children on the at-risk register live in households where domestic violence occurs, and yet that horrendous situation is all too often not recognised in private law family proceedings, where contact orders are now refused in less than 1 per cent of cases. Of course, there is a proven linkage between domestic violence and child abuse. It is essential that the issue of a child’s safety is addressed at the start of the proceedings. Risk assessment is necessary to ensure safe contact. We discussed that point in the scrutiny committee—which I was pleased to be a member of—but it was rejected by the Government. I still fail to understand why the clause has been rejected. The Minister may respond by saying that the welfare checklist in the Children Act 1989 includes any risk of harm to the child and that it is sufficient to protect children in cases of domestic violence. While the risk of harm is included, the welfare principle has been seriously undermined by case law precedents which put too much emphasis on contact, minimise domestic violence and set an unreasonably high standard of proof. My noble friend quoted some case law; I shall do the same. In Re O (Contact: Imposition of conditions)[1995] the Appeal Court ruled that contact is almost always in the interests of the child. In this case, the father was given a suspended sentence for breaching an undertaking not to pester or molest the mother, but the judgment focused on her unreasonable hostility and so gave contact. In Re A v N (Refusal of contact)[1996] the Appeal Court ruled that the welfare of the child is not paramount in committal proceedings. In this case, the mother was sentenced to six weeks in prison for not complying with the contact order even though the father had a history of violence, including a serious assault on his former wife, for which he was sent to prison. In Re H and R (Child Sexual Abuse: Standard of Proof) [1995] the House of Lords ruled that a higher standard of proof than the simple balance of probabilities should be required in family law cases involving ““more serious allegations””. However, the noble and learned Lord, Lord Browne-Wilkinson, dissented from that judgment and said:"““My Lords, I am anxious that the decision of the House in this case may establish the law in an unworkable form to the detriment of many children at risk””." Those case law precedents are not overruled by the extension of the definition of harm to include witnessing domestic violence. Without adequate risk assessment, the new court application forms, the gateway forms, provide no guarantee that contact will be safe. There is a clear indication that the family justice system does not have adequate proceedings for identifying high-risk cases and assessing and managing risk to ensure that contact will be safe. Court rules are not the answer. Rules are one thing; legislation is another. In this instance, legislation is required. Moving to Amendment No. 74, we talk a lot about the voice of the child. This is an opportunity to guarantee that the child is heard. The Government states:"““Contact arrangements which put the safety of the child or the resident parent at risk should not be put in place””." The amendment aims to express that intention in legislation, bearing in mind that children have been killed by violent fathers as a result of contact arrangements ordered by the courts in England and Wales. Sturge and Glaser, the psychiatrists who provide expert advice on child contact and domestic violence, emphasise that children should be listened to and taken seriously. That is particularly important if the child is frightened or does not want to see a violent or abusive parent. To enforce contact orders in such circumstances would itself be abusive. I have talked to a number of parents who have refused to comply with contact orders because their children are terrified of seeing the violent parent. If orders are to be made in a child’s best interests, it is essential that the court should take account of the child’s wishes and feelings at the enforcement stage. The amendment will also require the court to take account of any concerns about the safety of the child. Again, we cannot assume that the court will automatically do that because case law requires the court to demand a higher standard of proof in cases involving more serious allegations, as I have previously said. It means that in cases involving serious allegations of child abuse there is a danger that instead of focusing on the welfare of the child, the court will focus on whether the evidence meets the higher standard of proof. That is why I am tabling that amendment. I beg to move.