HC Deb 16 October 1996 vol 282 cc777-85 12.30 pm
Mr. Mike Gapes (Ilford, South)

My purpose in requesting this debate is to highlight a serious problem that I believe has arisen in the operation of one aspect of the far-reaching, wide-ranging and generally positive comprehensive reforms that were introduced in the Children Act 1989 and that came into law in 1991. I intend to focus my remarks on section 8 orders, and the role of the courts in enforcing contact between the absent parent and the child living with the parent with care.

In our modern society, notions of the family have changed, and it is my belief that the law, and above all its interpretation by the predominantly elderly male judiciary, have not adjusted to take account of those changes. To quote Simon Jolly in the Child and Family Law Quarterly in 1995: The general principle is now well established that when a child is living with only one of its parents it is almost always in the interest of the child to have contact with his or her other parent. No one disputes that it is almost always the case, but my contention is that, increasingly, the courts are taking matters further, and enforcing contact when it may not be in the interests of the child, the parent with care or the new family and siblings in that new family.

The Master of the Rolls, Sir Thomas Bingham, is quoted in the same publication as saying: The courts should not at all readily accept that the child's welfare will be injured by direct contact. Judging that question, the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear to be likely to be short-term or transient problems. Neither parent should be encouraged or permitted to think that the more intransigent, the more unreasonable, the more obdurate and the more unco-operative they are, the more likely they are to get their own way. That may be a theoretical position, but how do we measure short-term costs and long-term benefits when we are talking about young children and their parents? Does that approach deal with the real world and all its complexities?

The real world is a very complex place. In Britain, one in three of all marriages end in divorce. Each year, about 250,000 children see their parents divorce. One in three marriages is a remarriage, and one in three births is to parents who are not married. There are 1.5 million one-parent families, and 2.5 million dependent children. Half the dependent children in one-parent families have part-time step-families because one of their birth parents has a new relationship. One in 12 dependent children live in step-families, and more than half full-time step-families have a new baby brother or sister.

I was concerned by reports in the press about separated parents killing themselves and their children. There were also reports of difficulties over contact arrangements, so I decided to ask some parliamentary questions and to seek some information from Ministers about the monitoring of an issue that potentially affects a large number of parents, children, step-parents and siblings. Earlier this year, I tabled a variety of questions to different Ministers, and I should like to refer to some of the answers that I received.

I asked the then Health Minister, now the Under-Secretary of State for Transport, the hon. Member for Battersea (Mr. Bowis), the following question: (1) how many children have been (a) placed in the care of local authorities, (b) placed in the care of the other parent and (c) cared for by a step parent or partner following the imprisonment of a parent with care in each year since 1991 as a result of contempt of court for non-compliance with a court order under section 8 of the Children Act 1989; (2) how many incidents resulting in injuries to children had occurred during … contact".—[Official Report, 14 February 1996; Vol. 271, c. 602–3.] I received the answer that the information was not available centrally.

I asked the Lord Chancellor's Department how many contact orders have been made under section 8 of the Children Act 1989 where the presiding judge had been aware that one parent had been charged with, or convicted of assaulting the other parent."—[Official Report, 16 February 1996; Vol. 271, c. 718.] I was told that my question would be answered by the chief executive of the Court Service, who told me: the task of extracting what information might be available would be disproportionately costly in view of the volume of cases", so he was unable to identify the cases but could give me only the overall figure. He told me that there were 106,911 contact orders made between October 1991 and September 1995. That did not answer my question.

I asked the Home Office how many convictions for assault had occurred as a result of incidents (a) prior to, (b) during and (c) after contact between parents whose children were subject to contact orders made under section 8 of the Children Act 1989 in each year since 1991. The reply was: Information relating to the number of convictions for assault relating to incidents where contact orders were made … is not collected centrally."—[Official Report, 15 February 1996; Vol. 271, c. 702.] And so it continued. I received answers from the Lord Chancellor's Department, the Home Office and the Department of Health, but none of them said that they had the information.

I then asked whether the Government intended to monitor and collect information on those matters. I asked the Secretary of State for Health what information he collects centrally on the effects of the operation of section 8 orders".—[Official Report, 21 February 1996; Vol. 272, c. 163.] The answer was none. Once again, I was told that the information could be collected only at disproportionate cost.

When I asked about the most frequent pattern of contact between children and their absent parents, and what plans there were to carry out research on the impact of contact orders under section 8 on religious attendance by children at places of religious worship to illustrate that alternate weekends could be disruptive, I was told that there were no such plans. I therefore concluded that the Government were not monitoring the effects of an important Act, affecting so many young people and their parents.

Recently, there have been more reports about domestic violence and its consequences. A case reported in the press involved a woman, Dawn Austin, who has been gaoled for six weeks because she refused to comply with a court order under section 8 of the Children Act. She has been gaoled for contempt and her nine-year-old son and her four-year-old daughter have been placed in the care of strangers—they are with foster parents.

Is that sensible? It is not the first such occurrence, but it is alarming because the ex-partner of Miss Austin is a man who has a conviction for domestic violence in a previous relationship and has been imprisoned for it. Despite that history, the court decided to imprison the mother and take the children away and put them with foster parents—so much for priority being given to the welfare of the child.

A very important study that compared domestic violence and child contact arrangements in England with those in Denmark was published in June. At my request, it is being considered by the Lord Chancellor's Department. The study was conducted by Marianne Hester and Lorraine Radford, and makes compelling reading. They studied the cases of 53 women, whom they interviewed, and 120 children across a very wide age range were involved.

The women had had difficulties involving domestic violence, and the study was concerned with what had happened to them before and after the breakdown of the relationships and the involvement of the courts with regard to contact arrangements under section 8 of the Children Act. The conclusions should ring alarm bells for so many professionals, people in the legal profession and politicians.

The report concluded: Contact takes precedence over child welfare. The value of contact to the child was rarely questioned in the light of the father's abuse. Professionals involved in contact cases rarely challenged a man's use of violence. Many reinforced the perpetrator's distorted perception of responsibility by focusing solely on the mother's hostility to contact. Under the heading "The abuse of women and children during contact visits", the report concluded: child contact gives fathers the ability to continue to abuse, harass and exert control over women and children. It also said that there was an emphasis in the process on getting an agreement rather than an outcome that was necessarily practical or would help the children or the parent with care.

The report's authors highlighted the failure to protect the parent with care when the handover arrangements were made. It said: inadequate provisions were made to ensure the safety of women during mediation and on court or court welfare premises. Resources to protect women from further violence when taking or collecting children from contact visits were also extremely limited. The report is very long, and although I do not have time to quote too much of it, its conclusions are worth considering. It says: At the time of the last interviews, almost one third of the women whose children had maintained contact said the children had recently been abused on contact visits with fathers (eight out of twenty-six). It says that the professionals in the court welfare service place an emphasis on contact with the father that overrides anything else: They had a strong commitment to the idea of maintaining contact for children with non-resident fathers, even where there had been child abuse and the children were afraid … emphasis has thus shifted away from the individual circumstances and needs of a particular child and the actual quality of the relationship with the father, to addressing the needs of a `hypothetical child'. There lies my point. We must consider the real situation of real children in the real world. Not every child fits into an idealised model, and not every family can easily accommodate children maintaining contact with the absent parent that is not to the detriment of the family and the parent with whom they live, or does not give rise to the potential for domestic violence.

Other serious concerns, which I do not have time to go into, were highlighted by the Children Act advisory committee's annual report for 1994–95. One of the many conclusions of that important report quotes the assessment of Judge Fricker that penal enforcement of contact orders is unlikely to be in the interests of the child and should not be encouraged as a punitive approach to non-compliance. Mothers in this country who are in fear daily of contact arrangements also fear that the professionals will say, "If you don't comply, we will take the children away from you, the residence order will be given to the absent parent, and there will be other problems for you. We might even put you in gaol." We have seen that women can be gaoled under such circumstances.

I do not believe that, when Parliament adopted the Children Act, such outcomes were ever intended. There is a danger that the courts are reinterpreting the Act to the detriment of many children and their parents, and the Government need to reassert and make clear as quickly as possible that it is not their intention that the child's welfare is damaged by the imprisonment of the mother.

The situation could be eased if a commitment were given that, in cases of a record of domestic violence, there should be a presumption of no contact rather than contact before consideration of the matter. If we do not go down that road, serious problems will continue to cause great hardship and suffering to many women and children.

The Government must collect data, monitor the situation, respond positively to the recent studies and reports, and act to ensure that mothers are not separated from their children and children are not forced into foster homes for weeks at a time. What happens when the mother comes out of prison? Presumably the absent parent can apply for another court order, and the whole process can continue indefinitely. We must put a stop to this social problem that is being experienced by a minority of mothers.

12.47 pm
The Parliamentary Under-Secretary of State for Health (Mr. Simon Burns)

It is two and a quarter years since I contributed to a debate. I am delighted that, having been in the enviable position over that time of delivering probably the most popular speech heard in the House—"That this House do now adjourn"—I have been able to forswear my Trappist vow of silence to take part in this debate.

I congratulate the hon. Member for Ilford, South (Mr. Gapes) on choosing this important subject, and on drawing attention to the problems faced by families, women and children in this sensitive and often heart-rending issue. I also suspect that it is appropriate to discuss the Children Act 1989, since this week is the fifth anniversary of its implementation.

The Children Act is recognised as a most comprehensive piece of legislation, incorporating public and private law relating to children. It enshrines five main principles. First, the child's welfare is paramount—that is crucial. Secondly, children are best cared for by both parents wherever possible. Thirdly, the state and courts should intervene only where improvements will be made for the child. The fourth principle is that delay is generally not in the best interests of the child, and the fifth IS that laws and procedures regarding children should be unified.

Section 1 of the Children Act sets out the principles that guide a court making decisions under the Act. The child's welfare is the paramount consideration when a court determines any question involving his or her upbringing. I cannot emphasise that enough. Thus other considerations, such as the feelings of the parents, or any questions of "fault", must assume secondary importance, except as they affect the child's welfare.

Section 8 orders comprise a flexible package of orders which should cater for any question that may arise about the welfare of the child, and provide practical solutions. The intention is to encourage parents to maintain their involvement in the child's life, and to avoid driving unnecessary wedges between them.

Four types of order were created under section 8—contact orders, prohibited steps orders, residence orders and specific issue orders. In addition, under section 1(5), the court must consider whether making an order would be better for the child than making no order at all. I think that it will be helpful to the hon. Gentleman if I briefly define section 8 orders.

A contact order means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the contact order, or for that person and child to have contact with each other. Previous legislation on access orders was about having access to the child, whereas section 8 contact orders are designed to provide for the child to visit or stay with the person named in the order. In 1995, the number of contact orders made rose by 12 per cent. to just over 35,000.

A prohibited steps order means an order that no step that could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. Its purpose is to impose a specific restriction on the exercise of responsibility by the parents—covering, for example, taking a child abroad for an extended holiday. In 1995, the number of such orders was just under 6,000.

A residence order means an order settling the arrangements to be made as to the person with whom a child is to live. The residence order was a new concept introduced by the Children Act to replace the custody order. It is more flexible, and it may accommodate various shared care arrangements. A person in whose favour a residence order is made will automatically obtain parental responsibility for the child, if he does not already have it.

However, a residence order confers parental responsibility on a non-parent only for as long as the order is in force. The intention is that both parents should feel that they have a continuing role to play in relation to their children. In 1995, the number of such orders was about 26,000.

A specific issue order means an order giving directions for the purpose of determining a specific question that has arisen, or that may arise, in connection with any aspect of parental responsibility for a child. An example might be the need for permission in respect of a particular medical condition, or of the choice of a school for the child. Both prohibited steps orders and specific issue orders are concerned with "single issues", and are modelled on wardship jurisdiction.

In each case, the question of what is in the child's best interests must be decided on the particular facts of that case. There is no question of a fixed policy of discrimination against one parent in favour of the other, or against certain classes of people as parents.

The reforms contained in the Children Act emphasise that principle, but also the fact that both parents have a continuing responsibility for their child and, generally, should have continuing involvement in the child's upbringing, even after a separation or divorce. The legislation provides a flexible system of orders intended to settle particular matters in a way that neither parent may upset, rather than to remove parental power and authority from one parent to confer sole power and authority on the other.

In most cases where the court is required to decide what is in the best interests of the child, it will order residence in favour of one parent and contact for the other. I do not find it surprising that in many cases it will be in the best interests of the child to have a settled home with the mother.

As the hon. Member said, an emerging problem of the 1990s is the role of the father in a changing society. Structural and economic changes in society have brought especial stresses and strains to family life. The hon. Gentleman has already mentioned the fact that there is a great deal of concern about fathers with a history of violence seeking contact with their children after the marriage or relationship has broken down.

The Government are committed to helping families to stay together, where that is possible and realistic, but they cannot make marriages or relationships work. If breakdown or divorce occur, it is of prime importance that children are protected, and that both parents can also receive support. However, I repeat that the interests of the child must be paramount.

In such situations, parents need to be fully aware that they have both rights and responsibilities in relation to their children. It is a sad fact of life today that almost half the fathers whose marriages or relationships break down lose contact with their children within three years of the event.

I know that the hon. Gentleman will be aware of recent articles in the press drawing attention to the problem. They have mentioned, for example, the support that Bob Geldof has recently given to the organisation Families Need Fathers.

The hon. Gentleman has drawn the attention of the House to the recent case in which a mother has been imprisoned for contempt of court. I repeat the fact that the imprisonment was for precisely that—contempt of court. The woman concerned would have had the opportunity to oppose the making of the contact order and to put all the relevant information before the court. The court, having weighed all the facts, decided to make the order despite the mother's objections. By refusing to comply with it, the woman put herself in contempt of court. It was the eighth time that that had happened, and the decision of the judge was upheld by the Court of Appeal.

We need to emphasise again and again that, as any parent should know, being a parent entails a long-term commitment. It is that continuity of parental responsibility that we emphasised in the Children Act. Relationship breakdown and divorce are traumatic events, for parents and children alike. The Exeter family study suggested that the health outcomes of children in reordered or single-parent families may be worse than for those in intact families. Continuing contact between a father and his children may have a positive effect on reducing some negative outcomes for children.

The hon. Gentleman referred to the findings of a study by Marianne Hester and Lorraine Radford entitled "Domestic Violence and Child Contact in England and Denmark", published earlier this year by the Joseph Rowntree Foundation. In the short time available, I shall draw attention to the conclusions of that important in-depth study.

The researchers concluded that contact should not be presumed to be in the best interests of the child if there had been domestic violence to the mother. More attention should be given to ensuring the safety of the mothers and to assessing the needs and wishes of the individual child. That is in line with the ideas being promoted by various women's organisations working with domestic violence, most notably the Women's Aid Federation.

Although the study is small in scale, it has produced some worrying evidence about the effect on women and children of contact arrangements in cases where there has been domestic violence. It shows that professionals, especially legal professionals, need to become more aware of domestic violence and its impact on children.

With the Family Law Act 1996, which is due to come into effect in October 1997, we have taken several steps that will improve protection for women and children. I believe that that Act will reduce much of the hostility and antagonism that exists under the present system, because the changes will place less emphasis on the financial aspects and on fault in relation to marriage breakdown. Introducing a period for reflection and mediation will encourage greater thought to be given to the relationships between adults, and will help both parents to settle reasonably their future relationships with their children.

On the question of the monitoring of contact orders, it is important to refer to the Children Act advisory committee that was established in 1991 to monitor the operation of the Act, and to comment on issues arising from its implementation. I advise the hon. Member for Ilford, South to look at the document—if he has not already done so—because it is invaluable.

Mr. Gapes

indicated assent.

Mr. Burns

I see that he is nodding, which suggests that he has seen the document.

I assure the House and the hon. Member that the Government understand the fears and concerns of a parent who has obtained a contact order from the courts but who has been frustrated when the other parent has not complied with the order. We also understand the fear of a mother who is threatened with violence to her or her children. I am grateful to the hon. Gentleman for raising this important—

Madam Deputy Speaker (Dame Janet Fookes)