My Lords, as we have heard, Amendment 82, the first in this group, is designed to prevent a parental alienation argument, usually relating to contact but sometimes to residence as well, being used by perpetrators of domestic violence or child sexual abuse to harass their victims through repeated applications to the family court.
The Government need no reminding of the background, because it was the Government who commissioned the panel on the risk of harm in 2020, to which my noble friend Lady Brinton referred. That was responsible for a significant change of thinking in this area. The assumption that ensuring that children should always continue contact with both parents unless the circumstances were exceptional had dominated courts’ thinking for many years and was given some statutory force, though not in absolute terms, by Section 1(2A) of the Children Act 1989. However, the panel found that there was a pervasive culture of disbelieving victims of domestic abuse, compounded by a pattern of abusive ex-partners abusing the courts’ processes by applications to the court, and effectively of the courts ordering contact, in particular in favour of abusive parents, against the wishes of the victim—the other parent.
Allegations of parental alienation—I accept that the term became something of a term of art, perhaps unjustifiably—are frequently made by abusive parents, and they still are, generally seeking contact but also residence. My noble friend Lady Brinton has given a detailed account of why the parental alienation issue has represented a significant failure of the family courts in recent years. The process involves the abusive parent claiming that the resident parent is opposing contact in an effort to alienate the child from the non-resident parent; essentially, it is the bad-mouthing allegation taken to extremes, in a way that is wholly unjustifiable. I will not repeat the persuasive account of the issue that my noble friend Lady Brinton has given. However, in these cases with which we are
concerned, the victim’s allegations are generally true. We need to remember that the children may be put at risk by unwanted contact with their parent’s abuser.
Summarising the position in 2020, the Minister, the noble and learned Lord, Lord Bellamy, wrote in the ministerial foreword to the panel’s report:
“The Panel found that too often, adversarial court proceedings retraumatised victims. Allegations of domestic abuse were too readily disbelieved or dismissed, alongside poor risk assessments and siloed working. The report also identified a view amongst many respondents that courts often placed an undue emphasis on ensuring children had contact with both parents”.
In its recommendations, the panel recommended a series of principles, which included:
“The court and those working within the system will be alert to those seeking to use … processes in an abusive or controlling way. Such behaviour will be actively identified and stopped”.
However, the issue persists.
Amendment 82 is directed at preventing victims being treated as responsible for parental alienation if they oppose applications made by perpetrators of violence against them to the courts. The amendment, as framed, would prevent a victim of domestic violence being considered as responsible for parental alienation.
The Committee may accept that the amendment as it stands is too absolute. As the noble Baroness, Lady Fox of Buckley, pointed out, supported by the noble Lord, Lord Meston, the amendment as drawn purports to prevent a court reaching a conclusion of fact, which it ought to be entitled to reach in a case where the evidence supports that finding. Nevertheless, I suggest that, in the view of the evidence that the panel and many other experts have considered, the direction of travel of the amendment is right. The interventions of my noble friend Lady Brinton and the noble Baroness, Lady Chakrabarti, in response to the speech of the noble Baroness, Lady Fox of Buckley, made it clear what the point and intention of this amendment are. If it needs redrafting, that could be dealt with between now and Report. The aim is to prevent perpetrators of domestic abuse continuing that abuse by transferring it to the court, abusing the court process with unwarranted accusations against their victims of turning the abusive parent against the victim.
Amendment 111 would reflect in the Bill a principle implicit in the findings of the panel: that in domestic abuse cases the court should disapply the Section 1(2A) presumption that parental involvement of both parents is generally in the interests of a child or furthers a child’s welfare. Furthermore, by the amendment, unsupervised contact should not be ordered in a case where the parent concerned is a defendant or a potential defendant in a case of domestic abuse, child abuse or a sexual offence. The level of supervision specified involves the presence of an approved third party at all times during contact, to ensure the physical safety and emotional well-being of the child, but the court would be left to determine the precise nature and location of the supervised contact permitted. I suggest that that represents a relatively minimal level of safeguarding. I accept entirely the caution expressed by the noble Lord, Lord Meston, as to the difficulty sometimes of arranging supervised contact. However, that difficulty needs to be weighed against the danger of exposing children to unnecessary risk, and I suggest that the amendment provides a reasonable balance.
Amendment 110 would ensure that anyone carrying out psychological assessment of a person as a victim for family proceedings would be suitably qualified by being regulated by the Health and Care Professions Council. I accept again the point that the noble Lord, Lord Meston, made, that often the perpetrator needs psychological assessment as well. Whether the qualification for making psychological assessments should be as is suggested—that is, regulation by the Health and Care Professions Council—is a matter for discussion. However, suitable qualification is always important.
Amendment 117 would protect victims from orders to disclose medical records to proven or alleged perpetrators of domestic abuse against them, unless the circumstances were exceptional. We have been through much of the detail of that and the principles behind it in relation to group one, and I suggest that the amendment is important in just the same way as the amendment in group one.
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These amendments sought by the London Victims’ Commissioner and others reflect the evidence that perpetrators of domestic violence are resorting to the use of intimidatory tactics and, as has been pointed out, often with the help of significant financial resources that are not available to the victims, including seeking psychological assessments and medical records of their victims in repeated family court proceedings taken against them. This fits with the pattern found by the 2020 panel, and with case studies and evidence produced in particular by the London Victims’ Commissioner, of perpetrators using counterallegations in court proceedings in oppressive and abusive ways. It would not be fair to blame the courts too harshly for what has been happening, but there have been indications of excessive gullibility by courts when faced with persistent and oppressive litigators. However, the evidence establishes that abusers have been abusing court proceedings, in effect harnessing the unwitting assistance of the courts in an underhand and offensive attempt to bully their victims.
I turn to the suite of amendments to Clause 16, which has become known as Jade’s law. Amendments 84 to 100 are designed to prevent a co-parent who has been found guilty of killing the other parent, or, by the addition in Amendment 85, as described by the noble Baroness, Lady Chakrabarti, of a sexual offence against a child in the family, making repeated applications to the court for orders under the Children Act without leave of the court. The provision that applications could be made with the leave of the court is an important safeguard or exception to these amendments. The amendments would enlarge the category of offenders subject to Clause 16 to include a perpetrator of a sexual offence against a child in the family—that is provided for in Amendment 85, which I suggest must be right—and would make barring orders the norm in circumstances where a perpetrator within the ambit of Clause 16 would be prevented making repeated applications to court for orders in respect of a child without leave.
Amendment 89 takes the converse point and would exempt from the effect of Clause 16 a victim who sustained domestic abuse before killing a co-parent. These amendments seek greater use of barring orders under Section 91(14) of the Children Act, which prevents
applications if the court so orders. The Committee has heard that those barring orders are designed to bar applications for orders under the Children Act without leave of the court. I remind the Committee of the evidence that the panel found that barring orders are infrequently used, and that the guidelines in the case of Re P in 1999 were that these orders be made only in exceptional cases. It seems that reversing the proposition that they should be for use only in exceptional cases may be a topic to which we ought to return on Report. I accept the general point that caution should be exercised in relation to the framing of barring orders, as suggested by the noble Lord, Lord Meston.
I do not suppose that the noble Lords who have tabled the amendments in this group would insist—and indeed they do not—that they are perfectly drafted and should be accepted as they stand in Committee. However, they indicate a path that is entirely consistent with the recent evidence and that found by the panel. They build on the achievements of the Domestic Abuse Act in a direction that is consistent with those findings and that legislation, and with the ministerial foreword to the panel report by the noble and learned Lord, Lord Bellamy.