My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.
The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure 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 is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.
But the presumption is rebuttable, hence the words
“unless the contrary is shown”.
In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.
However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.
I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.
Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.