Children and Adoption Bill [HL]

These are very grave issues, and we intend to study with great care the weighty contributions that have been made from all parts of the Committee. We will reflect on them further and wish to have further discussion with my noble friends, the noble Earl and the two noble Baronesses—both as Members of the House and in their respective positions with CAFCASS—to see whether we believe that any further changes are necessary in respect of violence and the safety of the child to meet the concerns raised. We all share the absolute desire to see that contact is safe, and that orders are made in a safe environment. I shall set out the position in a moment, but we are not convinced that further legal changes are necessarily required. As I say, a whole set of serious concerns has been raised. My noble friend Lady Gould gave a good deal of chapter and verse and, just as I promise the noble Earl, Lord Howe, that we hope that there will be some reflection on the elaborate reading out of cases, the least I can do is reflect on the elaborate reading out of cases that she did in respect of her amendments. We undertake to do that and see whether that leads us to wish to make any changes on Report. My noble friend Lady Thornton can rest assured—she knows how the House works—that the most conclusive reply that I have on any amendment is on the one concerned with ““may”” and ““must””, Amendment No. 73. I am informed that it is completely unnecessary to make the change that she requires. Her amendment would mean that new Section 11J(3) of the Children Act 1989 stated that if a court was satisfied that a person breaching an order had a reasonable excuse for doing so, it must not make an enforcement order. That is her requirement. Our advice is that the use of ““may”” has the same effect. Paragraph 28 of the Explanatory Notes makes that absolutely clear. I do not have such conclusive and compelling replies to the other amendments, which raise quite technical issues, but I shall address each of the other six amendments in turn. However, I shall say at the outset that the current position is very robust in terms of its protection of children and ensuring that contact arrangements are safe. First and critically, the child’s welfare is the paramount consideration when deciding whether to make a contact activity direction under the 1989 Act. The opening words of that Act are that,"““the child’s welfare shall be the court’s paramount consideration””." Secondly, the welfare checklist in Section 1 of the Children Act 1989, which applies when courts make contact orders, states in subsection (3)(e) that a consideration to which the court must have regard in particular is,"““any harm which he has suffered or is at risk of suffering””." That is about as explicit as it could be. Thirdly, the definition of harm in the Children Act 1989, as clarified recently by an amendment made in the Adoption and Children Act 2002, now expressly includes the impairment of a child’s development resulting from seeing or hearing the ill treatment of another person. In addition to being firmly enshrined in statute, safety considerations have been assimilated into case law as a result of the judgment in Re L&Others. That incorporated into case law part of the Children Act sub-committee’s guidelines for good practice in contact cases involving domestic violence. Where domestic violence has been proved, the court must consider its effect on both the child and the parent with whom the child is living. The court must make a contact order only if it is satisfied that the safety of both the child and the resident parent can be secured before, during and after contact. Fourthly, safeguards relating to court processes have also been significantly tightened up in recent years. For example, the court currently has mechanisms for ensuring that the address of one party is not released to another party where there are safety issues. So, in relation to a contact activity, the court could prevent the date, time and location of a contact activity being disclosed, thus adding to the safety of attendance at the contact activity for vulnerable individuals. We have done a great deal to ensure that contact arrangements are safe. We believe that the current legal protection is adequate, although we will reflect carefully on the points made in the debate. The issue then is whether further changes should be made in the six other amendments that have been tabled by my noble friends. Amendment No. 6, tabled by my noble friend Lady Gould, states that when a court is considering how to approach cases it should ensure that it has all the information that it needs. CAFCASS and the courts already have the power to secure all that information under Section 7 of the Children Act 1989. The amendment proposes to add to that role by giving CAFCASS access to databases established under Section 12 of the Children Act 2004, for the purpose of carrying out pre-court checks. We have considered that carefully, but our advice is that it is not necessary to amend the Bill to give CAFCASS access to the databases. Our existing regulation-making powers under the 2004 Act would allow us to name CAFCASS as being allowed to have access. We are not sure how much benefit having access to the database would be in practice, as the index contains only basic identifying information about children such as their name, gender and details of those with parental responsibility. There will not be any further information on a child’s circumstances. However, the power to procure the information is already in law and we do not require further statutory changes to make it available. Amendment No. 7, tabled by my noble friend Lady Thornton, seeks to amend the Children Act 1989 to place a duty on the court to hold a ““finding of fact”” hearing where there are allegations of abuse, not only in contact cases, but in residence, prohibited steps and specific issue cases. That too is not necessary, because the courts already have a duty to determine whether alleged violence has occurred and, if so, its impact on the child, and whether the nature and effect of the violence is such that it is likely that any order of the court for contact would be affected. In the Court of Appeal case Re L & Others of June 2000, Dame Elizabeth Butler-Sloss said:"““On an application for interim contact, when allegations of domestic violence have not yet been adjudicated upon, the court should give particular consideration to the likely risk of harm to the child, whether physical or emotional, if contact is granted or refused. The court should ensure, as far as it can, that any risk of harm to the child is minimised and the safety of the child and the residential parent is secured before, during and after any such contact””." That case law is binding on the lower courts and is adequate to the issues raised in the amendment. In January, we introduced the new gateway forms, which were brought about by the previous piece of legislation in the area. The purpose of the forms is for parties to state at the outset whether there are allegations of domestic violence or abuse. That will considerably strengthen the protection of children in that regard, and we are committed to a full evaluation of the use of the forms, which will take place next year. On the basis of the gateway forms, the court can then make findings of fact as regards the allegations before it comes to determine the application for a Section 8 order under the 1989 Act. My noble friend Lady Thornton cited a case—Re H & R—that has caused a great deal of comment in child protection circles on the standard of proof in relation to more serious allegations of child abuse or violence. The finding in that judgment was not that the standard of proof was different in respect of more serious allegations; the standard of proof is exactly the same as for less serious allegations, being a simple ““balance of probabilities”” test. The issue is not standard of proof, which is the same, but the weight of evidence required to substantiate cases. In that case, what the judge said simply accorded with common sense—that it is less likely that a serious incident occurred than that a less serious incident occurred, so the weight of evidence required to substantiate a more serious case would be greater. The case concerned very serious allegations of sexual abuse in public law proceedings. Again, we do not believe that there is a case for the amendment to change the standard of proof, and we certainly do not accept the point made by my noble friend Lady Thornton—that the situation undermines the paramountcy principle, which we take to be absolutely central to decisions on contact and access to children. Amendment No. 8 would insert a new clause in the 1989 Act requiring the court to have regard to a number of factors when considering the safety of the child if residence or contact were granted to an allegedly abusive party. It was spoken to by my noble friend Lady Gould. We believe that that is covered entirely by the welfare checklist in Section 1(3) of the 1989 Act. It is also undesirable because it would raise questions as to the applicability of the welfare checklist. As the Committee knows, in considering whether to make any order under Section 8 of the 1989 Act, the court must have regard to the factors in the welfare checklist. As stated at the outset, one of the factors is ““any harm”” that the child,"““has suffered or is at risk of suffering””" That definition of ““harm”” was clarified by the Adoption and Children Act 2002 expressly to include,"““impairment suffered from seeing or hearing the ill-treatment of another””." The welfare checklist also includes, among other things, the child’s physical, emotional and educational needs, his ascertainable wishes and feelings, and how capable each of his parents, or any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. Amendment No. 9 addresses the issue of enforcement of contact orders against non-resident parents. Our belief is that the powers to enforce against non-resident parents are implicit in the 1989 Act. It is not appropriate to apply those provisions to residence orders. There are separate powers under Section 14 of the Children Act 1989 for the enforcement of residence orders, which are different from contact orders. As regards the implied terms being directed to an ““applicant”” only, I am informed that the intention is to direct them at non-resident parents. However, resident parents also make applications for contact orders in circumstances where they want to regulate the child’s contact with the non-resident parent. It is therefore a mistake to assume that non-resident parents will always be applicants rather than respondents. Amendment No. 25, tabled in the name of my noble friend Lady Thornton, would instruct the court to direct a person who is found to have been violent within a family to a domestic violence perpetrator programme and monitor the progress made before granting unsupervised contact or an order for residence. The amendment would give the courts no discretion in those circumstances and would be required to refer the person to a perpetrator programme in all such cases. I should like to state clearly that we support very strongly the use of domestic violence perpetrator programmes. Referral to such programmes is already included within the scope of contact activities in the Bill and the court can direct people to attend them. Our concern is that by stipulating the further requirements in the amendment, we would be too prescriptive to the courts and would take away their discretion to deal with cases on their own merits and facts. Amendment No. 74 would supplement new Section 11J(3) of the Children Act 1989. As I explained in relation to the previous amendment, section states that, if a court is a court is satisfied that a person had a reasonable excuse for breaching a contact order, it may not make an enforcement order. The amendment tabled by my noble friend Lady Gould would mean that, in deciding whether there was a reasonable excuse, the court would have to consider the wishes and feelings of the child and concerns about the safety of the child or any member of the child’s family. We are entirely sympathetic with the objective of that amendment, which is, of course, that the wishes or feelings of the child should be taken into full account in the making of any such orders. We have no difference with my noble friend in the motivation behind the amendment. Indeed, this is the first principle set out in the welfare checklist in Section 1(3) of the Children Act 1989, which we are determined should be implemented. The issue is whether this factor should be singled out from a range of other factors which should be taken account of in these proceedings and what would constitute a reasonable excuse for breach of a contact order, which would depend on the particular circumstances of the case that the court was considering. But I can assure my noble friend that we take very seriously the concerns that she has raised and will consider further. We do not believe that changes to the law are necessarily required to meet the objectives that have been raised by my noble friends and the noble Earl opposite. However, we entirely share the concerns that these amendments seek to meet. We will study with very great care the contributions that have been made in Committee today and we will seek to engage with all Members of the Committee to determine whether further changes might be appropriate at Report.