My Lords, I begin by thanking the noble Baroness, Lady Chakrabarti, for tabling this group of amendments, which take us deep into the heart of the family court and its proceedings. The noble Baroness speaks compellingly and with great passion on these matters. I think she would agree with me that family court proceedings involve some of the most sensitive and difficult decisions that any court has to make, resulting as they do in often profound consequences for parents, children and whole families.
All the amendments in this group have noble aims. They seek to protect vulnerable children and victims of domestic abuse, and that is an agenda that I and the Government strongly support. I shall address each in turn, but I need to start by airing what I see as a difficulty running through these amendments: in one way or another, a number of them seek to curtail the family court’s discretion to take individual decisions on a case-specific basis on what is in the best interests of the children involved. With enormous respect to the noble Baroness, whose experience is much wider than mine, we need to be a bit careful here. The paramountcy principle, enshrined originally in the Children Act, provides the bedrock of all family court decisions. It is a principle that I firmly believe we must protect and uphold.
I start with Amendment 89. As the noble Baroness explained, it seeks to exempt from the provisions of Clause 16 victims of domestic abuse who then kill their abuser; this is Jade’s law, as she mentioned. None of us can have anything but the deepest sympathy for people who find themselves dealing with these extremely difficult and challenging situations. That is why my response on this amendment is that the Bill already allows for this protection. Clause 16 gives a clear route to protect victims of domestic abuse who have killed their abuser. It allows the Crown Court not to suspend parental responsibility in cases of voluntary manslaughter where it would not be in the interests of justice to do so. Our intention in including this exemption is that it could be used in situations where a victim of domestic abuse kills their abuser after a campaign of abuse. I hope the noble Baroness will find that assurance helpful.
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Amendment 82 seeks to ensure that victims under Clause 1 cannot be considered perpetrators of parental alienation. I thought that we had some very interesting contributions on this topic. While the aim of the amendment is, as I have just said, to prevent victims of domestic abuse being deemed perpetrators of parental alienation in the family court, the main problem here is that the scope of Clause 1 is significantly wider than victims of domestic abuse. The other—perhaps somewhat technical but still quite important—point is around the amendment wording. The noble Lord, Lord Meston, referred to this. The Government do not recognise the concept of parental alienation. We did not reference it in the controlling and coercive behaviour statutory guidance that accompanied the Domestic Abuse Act. If we were to do so here, it would risk giving legitimacy to a concept that we have expressly rejected, on advice.
I was grateful to the noble Lord, Lord Meston, for quoting the case of Re C. I hope noble Lords will forgive me for repeating the words of the President of the Family Division, who noted:
“Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful”.
He went on to make it clear that this is ultimately a “question of fact” and that the courts should focus on identifying particular “alienating behaviours”. It is the role of the judge to make decisions based on the evidence and the applicable law and to apply this to the individual facts of each case.
In August 2023, the Family Justice Council published draft guidance on responding to allegations of alienating behaviour. We expect the final guidance to be published later in the year. It is positive that the family justice system is taking steps to address the issue of alienating behaviour, even if it remains work in progress. The aim of the amendment is a worthy one, but the upcoming guidance will provide a clear framework on how the family court deals with cases of this nature. I therefore hope that the noble Baroness will feel able to wait upon that guidance.
I turn next to the large group of amendments concerning Section 91(14) orders, often referred to as barring orders. I understand the noble Baroness’s motivation in tabling these amendments, which are aimed at ensuring that, where a prohibited steps order—a Section 8 order under the Children Act 1989—is made by the Crown Court, it is accompanied by a Section 91(14) order to prohibit further applications by the offender. The concern I have with this approach is that it risks creating a breach of rules of natural justice, as well as breaching Article 6 of the European Convention on Human Rights. Any offender who is subject to this kind of restriction to their parental responsibility must have an opportunity to be heard and to bring a challenge through the courts if that is what they want to do. I will qualify that in a second, but it is one of the reasons why we require in the legislation that the family court reviews the order made in the Crown Court and the local authority brings the application, to remove the burden on the victims.
It is important to emphasise that family court judges have the power to make Section 91(14) orders where they feel that further applications would put any individual involved at risk of harm. In the Domestic Abuse Act 2021, we made it absolutely clear that these orders are available and should be made in appropriate circumstances. Indeed, the Domestic Abuse Act clarified the appropriateness of Section 91(14) orders in preventing abusers using the family justice system as a continuing form of abuse.
What lies behind that is that, once the family court has reviewed the order and made a decision, we want the remaining family and child to be able to get on with their lives in as normal a family environment as possible, rather than being repeatedly dragged back to court by the imprisoned parent. Section 91(14) orders are available, to prevent a person from making further applications without the court’s permission—particularly where doing so may cause harm or distress to the children or other involved parties. The court has a discretion to determine when such an order would be appropriate, and we will seek to provide guidance to make clear that they should give strong consideration to it in these kinds of cases.
I hope it is of some reassurance to the noble Baroness that there are, nevertheless, good reasons for not making a Section 91(14) order alongside the prohibited steps order, but that there are well-used existing powers to put one in place when the circumstances are appropriate.