Children and Adoption Bill [HL]

I rise to support my noble friend Lady Gould and to speak to the amendments tabled in my name in this group, Amendments Nos. 7, 9, 25 and 73. The Committee will have realised by now that not for the first time the noble Baroness, Lady Gould, and I are doing a double act. I hope the Committee will bear with me while I explain the purpose of the four amendments. Amendment No. 7 concerns the finding of fact where there are allegations of abuse. This is needed because in the case Re L, V, M & H (Contact: domesticviolence)[2000] the Court of Appeal stated that in a contact or other Section 8 application where allegations of domestic violence are made which might have an effect on the outcome, those allegations must be adjudicated upon and found proved or not proved. This point was also emphasised in the guidelines for good practice on parental contact in cases where there is domestic violence. These recommended that the courts should consider what evidence is required and what directions need to be given in order to make findings of fact in relation to disputed allegations of abuse which are likely to affect the outcome of the case. The good practice guidelines were implemented in 2001 and were a matter for discussion during deliberations on previous Bills with which my noble friend and I have been involved, but they are not mandatory, and that is the point. Despite case law incorporating many recommendations from the guidelines, by the Government’s own admission their implementation remains ““patchy and inconsistent””. There are still cases where the courts are failing to hold a finding of fact hearing. In a recent case involving allegations of child abuse, a domestic violence survivor who had had more than 60 court hearings said that she was still asking her solicitor in vain to press for a finding of fact hearing. The difficulties have already been referred to by the noble Baroness, Lady Howarth, in the most recent report issued by Her Majesty’s Inspectorate of Court Administration. The pressures under which CAFCASS operates also mean that there is a failure to conduct finding of fact hearings. They are not taking place. So the first part of this amendment concerns the need to expedite findings of fact. The second part of the amendment concerns the standard of proof in cases of serious allegations. It is the not the first time we have brought this matter before noble Lords. Indeed, my noble friend has already referred to it. But the standard of proof in cases involving serious allegations means that allegations of child sexual abuse are highly problematical because of the House of Lords ruling in Re H & R (Child sexual abuse: standard of proof)[1995], already referred to. As a result of that judgment, when they are dealing with cases involving more serious types of allegation, the courts have to focus on the notion of a higher standard of proof rather than on the welfare of the child. In effect, this judgment undermines the paramount importance of the welfare of the child in family proceedings and makes it harder to protect those children who are most at risk. This is extremely problematic in private law family proceedings where only a few children have separate representation. For this reason it is crucial that the simple balance of probabilities should be reinstated as the appropriate standard of proof in all family law cases. Indeed, that is the intention of this amendment. Amendment No. 9 concerns the need to redress a balance and introduces implied terms for orders in family proceedings to ensure that, if necessary, enforcement orders can be made against a non-resident parent. It seems ridiculous that enforcement orders can be made against the resident parent, but not against the non-resident parent. But noble Lords have already made the point that one of the main issues here is the fact that non-resident parents often drift away and do not themselves fulfil the contact orders that were made. Clause 4 states that anyone who is party to the proceedings or subject to a condition imposed by a contact order can apply for an enforcement order. However, that will not work in practice because enforcement orders can be made only against someone who has breached the terms of the order. Most orders do not require the non-resident parent to do anything. It will not be possible to use enforcement proceedings against a non-resident parent if they persistently fail to turn up for contact visits. It seems important that the court should be seen to be even-handed in its treatment of both parents. That seems a fairly simple amendment. Amendment No. 25 concerns referral to perpetrator programmes being included in contact activities. It seems essential that family proceedings should not be used by domestic violence perpetrators as the means of inflicting continuing abuse on their ex-partner or children. Indeed, the Government have acknowledged that, in 35 per cent of cases, there were concerns about the safety of a child and also sometimes about that of the resident parent. CAFCASS officers have stated that domestic violence features in about 60 per cent of their cases. As contact is now refused in fewer than 1 per cent of cases, it is clear that many domestic violence perpetrators are being granted contact with their children. As we know, that has tragic consequences on occasion. As has already been said, sometimes mothers refuse to comply with contact orders because they do not believe that it will be safe for themselves or their children. The amendment seeks to address that risk by requiring the court to refer violent parents to domestic violence perpetrator programmes. Such programmes are crucial for the safety of children involved in private law family proceedings with violent parents. They provide realistic risk assessment and management and help abusers to address the attitudes and beliefs underlying violent and abusive behaviour. Perpetrator programmes should be available in all areas of the country. It is unacceptable that children should be ordered to have unsafe contact with an abusive parent simply because there is no local programme available. For that reason, the amendment makes no exception for areas where there is currently no perpetrator programme. If there is a domestic violence perpetrator and no programme, that should raise a question mark over the contact arrangements anyway. Finally, I fear to tread in your Lordships’ House into anything that addresses changing ““may”” to ““must””, so I am testing the water. If it has been accepted that there is a reasonable excuse for failing to comply with a contact order, it will be inappropriate to enforce that order. That is why I would like ““may”” changed to ““must””.