My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.
The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.
In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and
safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.
In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.
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I will return briefly to the valuable debate we had in Committee about the paramountcy principle and the potential impact of this amendment in that respect. The current legislation regarding the presumption makes it clear that the presumption should be disapplied where there is a risk of harm to the child. That means that risk of harm from a parent perpetrator of domestic abuse should already be taken into account by courts. The Children Act 1989, in placing the child’s welfare as paramount, should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding any aspect of the child’s upbringing.
As stated by the noble Lord, Lord Marks, during the debate in Committee, Section 1 of the Children Act 1989 provides that,
“the child’s welfare shall be the court’s paramount consideration.”
This is rightly viewed as a cornerstone of that Act. It is a central cannon of our law relating to children. It is important that any changes to the law in this area do not undermine this fundamental principle. That is my short answer to the question put to me by the noble Baroness, Lady Jones. Protecting children is at the very heart of the process.
If, however, we legislate to create automatic bans on a particular form of contact, we may not be allowing courts to take account of whether there are risks to the child in the particular circumstances of the case. I can assure the noble Baroness, Lady Fox of Buckley, that the law in this area is the opposite of one size fits all. This area of law is certainly not off the shelf; it is an area where the law is bespoke. That means that rights and risks must be weighed carefully, on a case-by-case basis, allowing the judiciary to assess each case on its own merits but always putting the welfare of the child at the very heart of the decision. It is also not clear
whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, should be capable of being lifted or modified at some later date if the risks in an individual case materially change. That is not something that the amendment appears to envisage.
Furthermore, in referring expressly to domestic abuse, which is only one of many circumstances which may impact on a child’s well-being and safety, the amendment could be seen to give domestic abuse prominence over other valid considerations and risks of harm to a child that judges have to take into account, such as sexual or violent offending, or a history or allegations of child abuse. It is not surprising that I can do no better than respectfully endorse the words of the noble and learned Baroness, Lady Butler-Sloss, whose experience in this area needs no comment from me. She said that the amendment would deny the important issue of judicial discretion.
I also respectfully endorse the characteristically perceptive point made by the noble Lord, Lord Marks. He pointed out the effect—or the non-effect—of the amendment on a child from a different relationship. The amendment would catch cases that ought not to be caught.
I am grateful to all noble Lords who have spoken in this short debate but, for the reasons that I have explained, the Government’s position remains unchanged on this issue. We believe that we should wait for the outcome of the review on the presumption of parental involvement before any decisions are taken on whether changes are required either to the presumption of parental involvement as a principle or to its application. To that extent, as I understood it, the position that the noble Lord, Lord Rosser, has arrived at—although he started at a different point to me—is much closer to the Government’s position. I am grateful to hear that from the noble Lord, and I therefore invite the noble Baroness, Lady Jones, to follow that lead and withdraw her amendment.