Domestic Abuse Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Meacher

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Baroness Meacher (CB) [V]]

My Lords, I will speak principally to Amendment 130 in the name of the noble Lord, Lord Rosser. Parental contact is, of course, enormously important. Continued contact can be very dangerous both mentally and physically, but it can be beneficial. To make the right decision for each family is of the utmost importance, and sometimes people get it wrong. However, my support for the amendment is nuanced. I support proposed new subsection (4) but I add that a parent of either sex who has been found to exercise controlling or coercive behaviour should probably not have continued contact with the children. Such contact is likely to be used to continue controlling the partner. The child becomes a pawn in the fight with the partner.

I know an appalling example of this. Years after a divorce between an American dad and a British mum, the mother is required to pay to fly to the US five or six times a year to take her child to the father for contact. Because she cannot trust the father to allow the child to come back, the mother keeps the passport. This means that, after the week’s contact, she has to fly to the US and pick up the child. Even Covid was not accepted as a reason not to go, and the mother caught it on the plane back to the UK over Christmas. The child does not want to go to see her father but is being used as a pawn.

I accept that anecdotal evidence is of limited value; I am a great believer in research. However, I ask that, before Report, the presumption of parental contact be considered in the context of controlling or coercive behaviour and the results of relevant research on the issue.

The first part of the amendment assumes that the presumption of parental contact should not apply in relation to a parent where domestic abuse has affected the child or other parent. I support the implication that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment could be nuanced before Report. I fully accept that it should not be presumed that parental contact would apply in these circumstances.

In my experience, even when domestic abuse against children as well as a partner has occurred, this should not necessarily rule out parental contact. This depends on the nature of the abuse, the ages and level of understanding of the children, the presence or absence of controlling behaviour—a key factor in the situation—and an overall assessment of the potential harms and benefits involved. I also broadly support the amendment in the name of the noble Baroness, Lady Jones, but I would qualify it on Report.

While again recognising the limited value of individual cases, I will illustrate with a personal experience my point that very serious domestic abuse and continued parental contact may be compatible and, indeed, helpful. The case I will cite involves abuse of children by a mother. As with abuse by a father, abuse by a mother can be extraordinarily damaging, and it can take the authorities a very long time to recognise it.

A male member of my family and his children suffered what can be described only as severe trauma over several years. It took Cafcass and the judicial system two and a half years to recognise that the person who was lying about her abuse of her children, and making up allegations, was in fact the mother. The authorities assumed at that time that mothers did not abuse their children. The very little eight year-old girl climbed up on a chair and unbolted the front door—she was always locked into her mother’s house—ran to the bus stop, managed to get on the right bus and get off at the right stop, and ran one mile through Tottenham to her dad’s house. Only then did the matter go back to court and the judge recognised that he and everyone else involved had made an appalling mistake. Having required the children to live with their mother for two and a half years, the lead social worker in the case finally made it clear that the children should only visit her but certainly not live with her.

The children have lived with their father ever since, but all have suffered from various levels of PTSD. They have had years of therapy, paid for the father, not by the state. Despite the abuse of the children and the damage to them, this father has encouraged contact with the mother. Once the children were safely placed with their father, he felt it was important for them to accept that their mum could not provide parenting but that she was, nevertheless, herself a victim. Her behaviour very much reflected her own experiences as a child. The children know that they cannot expect normal parenting, but they understand her mental state and therefore see her as a person with her own problems. In my view, they have benefited very much from the fact that they are not left with only the horrendous memories of their abuse as small children.

My personal experience, while only anecdotal, explains why I feel so strongly about the issue of parental contact. It is very complex yet hugely important. In conclusion, I support both these amendments but would like to see them adjusted before Report.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, throughout the preparation for proceedings on this Bill, I have been extremely impressed, and greatly assisted, by the work of Women’s Aid, the Victims’ Commissioner for London, the Victims’ Commissioner and many others who have worked tirelessly, with the grain of this Bill, to improve the response of us all, and the courts, to the scourge that is domestic abuse. However, with this amendment and the amendment to it, which many of them support, I have a number of concerns.

The amendment, as we have heard, seeks to disapply the presumption in Section 1(2A) of the Children Act 1989. I turn for a moment to two provisions of that widely admired legislation. As is well known, Section 1 provides:

“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”


That overriding requirement lies at the heart of the Act, and judges and lawyers have long regarded it as the central canon of our law relating to children. The presumption under Section 1(2A) requires courts hearing proceedings, which include making orders about where children are to live and orders for contact between a child and their parents, to presume that

“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”

That presumption reflects a wealth of evidence not mentioned so far in this debate, but it is generally in a child’s interest to have a relationship with each of their parents. However, that presumption is rebuttable, hence the words

“unless the contrary is shown.”

It is often the case that judges will make a decision, which generally they do not like to make but do, that given a history of domestic abuse by one parent of the other and the effect upon the child, contact with one parent will be withheld. The noble Lord, Lord Rosser, confirmed that the statutory guidance for judges ensures that they carefully consider whether contact is justified or should be withheld.

I do not suggest for a moment that all contact is safe. As many have said, cases of abuse and very serious abuse can arise during and around occasions on which contact takes place, as it can on other occasions. But I disagree with the noble Baroness, Lady Jones of Moulsecoomb, which I rarely do on these issues, that the presumption is treated by the courts as overriding. I agree with the point made by the noble Baroness, Lady Meacher, that different solutions may be right for different families. The question for the House is where that leaves us. My concern is that there will be cases where this amendment runs the risk of putting the interests of children behind the interests of parents.

However, the removal of the presumption in this subsection is not the only reason I am concerned about this amendment and the amendment to it. Subsection (4) of the proposed new clause would forbid the court from making any order for unsupervised access with a parent who is

“awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.”

That prohibition would be absolute, and I think it would be wrong. It would forbid a child from having unsupervised contact with a parent which may, in particular circumstances, work against the best interests of the child, contravening the paramountcy principle I mentioned. It should be for the judges to determine what the circumstances in each case demand. The noble Baroness, Lady Meacher, pointed out that circumstances differ and the extent to which they do.

Furthermore, the amendment is not limited to cases involving domestic abuse against a parent of the child concerned. Section 9(8) of the Children Act referred to in subsection (4) of the proposed new clause is concerned with allegations of “a domestic abuse offence.” The subsection would prohibit, for example, a court making an order for unsupervised contact between a father and his older child because the father had been accused of a domestic abuse offence committed against a new partner who was not the child’s mother, irrespective of any relationship between the new partner and the child. Such a prohibition would be grossly unjust, depriving the child of his or her relationship with the father. It would again run entirely counter to the paramountcy principle.

What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, Lady Meacher, mentioned a case where they were indeed wrong. The noble Baroness, Lady Gardner of Parkes, mentioned a case where allegations might be malicious. This provision runs the risk of inviting unwarranted allegations of abuse calculated to destroy a child’s relationship with a parent against whom nothing has been found, on the basis of allegations that may be irrelevant to the welfare of the child. A family judge would determine whether such allegations of abuse were made out and would do so on the basis of evidence adduced before the court, not on the basis of unproved allegations. This amendment involves, to that extent, a denial of justice and a denial of justice to children.

I firmly believe that judicial discretion should not be withdrawn in this sensitive area of family life. There are many cases where abusive behaviour by one parent towards another entirely justifies the withdrawal of contact between the abusive parent and the child. But there are other cases, as the noble Baroness, Lady Meacher, recognised, where withdrawing contact is inimical to the welfare of the child.

Improving the way in which family courts understand and respond to domestic abuse of all sorts is of the greatest importance, but this amendment is too prescriptive in its statement and its outcome. Removing the power of judges to act in the best interests of the child, on whose behalf they daily make very difficult decisions, is not the way to achieve the aims of this Bill.