AS AN AMENDMENT TO COMMONS AMENDMENT No. 141 (Hansard, 8 November 1989)

§ Lord Prys-Davies
My Lords, on behalf of my noble friend Lady David, I beg to move Amendment No. 141A. My noble friend has asked me to apologise for the fact that she was unable to stay in the House to move the amendment and to speak in support of it.
If my noble friend Lady David had been here she would have made it clear that this is no more than a probing amendment. The amendment as it stands poses a dilemma between the duty to protect the welfare of the child, and the need to ensure that injustice is not done to a parent who is wrongfully accused of abusing his child. The amendment 786 represents one approach. On the other hand, we are bound to ask whether a mere possibility of exposing a child to risk of abuse should support the making of an exclusion order.
We appreciate that the Law Commission in a recent working paper has specifically examined this complicated issue and expressed a view as to how it should be resolved. It is a difficult issue. I believe that my noble friend Lady David was particularly anxious to know whether she could tempt the noble and learned Lord the Lord Chancellor to express a view at the moment about this content ious issue and the best way of resolving it.

§ The Lord Chancellor
My Lords, at Committee and Report stages we considered amendments proposed by the noble and learned Lord, Lord Elwyn-Jones, and the noble Baroness, Lady David, respectively about undertakings by a member of the household to vacate the home where an application for an emergency protection order was being considered. I said that this was an important issue which raised difficult questions and which we were still considering.
I should like, seeing as I mentioned the noble and learned Lord, Lord Elwyn-Jones, to say how much we miss him on this occasion. He was with us for most of the debates when we had the Bill before us, and I am sure that all of us would like to see him quickly restored to his normal health.
I am thinking of the noble and learned Lord, the noble Baroness, Lady David, and I have no doubt also the noble Lord, Lord Prys-Davies, in moving this amendment. We have no disagreement on the underlying principle that, in some cases, removal of the abused child can be as traumatic or even more traumatic for the child than the abuse itself and a better course may be to try to have the suspected abuser leave. The question is whether it is necessary to change the law in order to facilitate an outcome of this kind in appropriate cases, and if so in what way.
The Law Commission have initiated discussions on these very questions in their welcome consultative document, to which reference has already been made, Domestic Violence and Occupation in the Family Home, Working Paper No. 113, published for comment in August.
They made three introductory points. First, the possibility of ousting an abuser, or suspected abuser, from the home instead of having to remove the child would be an effective protection against child abuse in a relatively small proportion of cases. The abuse must be of a kind for which only one of the adults in the household is responsible, and there must be another adult able to look after the child properly and willing to co-operate in the exclusion of the other. The possibility of ousting a suspected abuser is probably most relevant in cases of sexual abuse or serious one-off acts of violence.
Secondly, any attempt to turn the present hotch-potch of enactments into a coherent scheme 787 of law on occupation of the family home and protection of family members from domestic violence and molestation —the remit of the Law Commission itself—faces considerable problems. Devising even a limited scheme for the protection of children is not without difficulty. The law in this field is not at all simple and there are issues which need to be taken into consideration before decisions are made.
Thirdly, in particular the Court of Appeal in domestic proceedings has repeatedly emphasised the draconian nature of exclusion orders which in the longer term can have serious implications for property and occupational rights. This consultative document is a first important stage in the process by which the Law Commission reviews existing law and puts forward proposals for reform, just as it did on the reforms of private child care law which are now embodied in the Bill.
The next step is for comments on the proposals to be sent to the Law Commission by the end of November and for it to consider those comments. Those who have read the consultative document will know that the Law Commission specifically asked for views on 20 questions listed in Appendix B of the document. While no fundamental change in the present system is suggested, the Law Commission says that a number of important issues have to be addressed. In a field as complex as this one, more harm than good can be caused by rushing hastily into legislation.
That means that at present the Government cannot bring forward substantive proposals. They must await the Law Commission's recommendations following the consultation exercise. However, we propose to clarify local authorities' power to assist the suspected abuser to find alternative accommodation. That is the concern of Amendment No. 290 to which I shall speak later. So within the rather difficult framework of the existing law we are trying to move somewhat in the direction of this amendment; but to go along with the amendment at this stage, as I think the noble Lord will recognise, would be premature. The difficulties are great but the will to find a good solution to them is very strong.
I am able to illustrate that difficulty by the present Bill. It was preceded by a great number of consultations, the White Paper and the Law Commission work. Yet when the Bill begins its parliamentary process there is much further discussion and improvement such as we are witnessing tonight. So in a complicated area such as this I think it would be rather unwise to seek to move too quickly.

§ Lord Mishcon
My Lords, perhaps I may intervene for one moment before the noble Lord rises. I should like at once to say that I am sure that my noble and learned friend Lord Elwyn-Jones will very much appreciate the kind reference that the noble and learned Lord made about him and the way in which your Lordships received it.

§ Lord Mottistone
My Lords, I rise to say very briefly that the NSPCC advises me that it supports the principle that an alleged offender should be removed from the home rather than the child but, for the reasons which my noble and learned friend gave at some length, it has not yet seen a draft which fully meets the requirements to satisfy the child's safety, the offender's civil rights and the financial position of the family. I should like to tell the House what the society's founder, Benjamin Waugh, said in 1884: Our aim is to remove the evil from the child not the child from his home". I believe that that quotation is underlined by much that is in this Bill. It might perhaps guide us in those parts which have not yet been tied up.

§ Baroness Faithfull
My Lords, I should like to make just one point. I confess that I had another solution to the problem of an alleged abuser who does not want to move out of his home and feels that he is being unfairly treated. My solution was to have an empty flat which we offered to the mother and the children for them to move to. I think that that ought to be considered as well. It could not possibly be put in the Bill but it is good practice. It is fair to the child for the child to remain with the mother, brothers and sisters; it is fair to the man, because if he felt that he was being treated unfairly he could stay in the home. I just throw in that suggestion.

§ Lord Prys-Davies
My Lords, I should like to thank the noble and learned Lord for his response to this amendment, which, as I said at the beginning, is a probing amendment. I am sure that my noble friend Lady David and my noble and learned friend Lord Elwyn-Jones will read with great interest the words spoken by the noble and learned Lord the Lord Chancellor. They will be studied. I beg leave to withdraw the amendment.