Parental Responsibility for People Convicted of Serious Offences

(Limited Text - Ministerial Extracts only)

Monday 7th November 2022 Westminster Hall

[The Minister of State, Ministry of Justice (Edward Argar)]

I begin by paying tribute to the right hon. Member for Alyn and Deeside (Mark Tami) for his work, and to the Petitions Committee for securing the opportunity for us to debate this very important subject. I hope the right hon. Gentleman will allow me to refer to him almost as a conduit for the work that has been done by Jade’s family and by Mr Duggan, who I pay tribute to for his campaigning work on this hugely upsetting and challenging issue. I think it was the hon. Member for Delyn (Rob Roberts) who highlighted that the petition has attracted signatures from every constituency across the country. I do not know if that is unique, but it is a pretty high bar to pass. There were over 100 signatures from my constituency in rural north Leicestershire. That reflects the impact that the issue has had across the country, and the strength of feeling among people from all walks of life. I offer my most sincere condolences to Jade’s family on the loss of their daughter and mother, and to her friends on the loss of a friend, in such horrific circumstances, at the hands of someone whose name I—like the hon. Gentleman—do not propose to use.

The thoughts of everyone in this Chamber will remain with Jade’s family. The right hon. Member for Alyn and Deeside did something quite extraordinary: he managed to articulate the circumstances, their impact, and the feelings of Jade’s family in an incredibly moving and clear way; I am sure I could not have done it. That does not happen as often as it should in this place, especially in the main Chamber, but in this Chamber we sometimes adopt a more measured tone that does more justice to the subjects that we discuss. The right hon. Gentleman’s constituents—this is not about party politics—are extremely lucky to have such a dedicated and caring Member of Parliament representing their interests.

I stand here with mixed emotions. In one sense, it is a pleasure to be back in this Department. For almost a year and half, between 2018 and 2019, I was the Parliamentary Under Secretary of State responsible for victims and witnesses. I worked with my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) in her role at the Home Office to commission the rape review, bring forward a victim strategy, get rid of the “same roof” rule for compensation, and look at the victims code. We worked closely with victims of violence, particularly in the context of domestic abuse, and coercive and controlling relationships.

[Rob Roberts]

I suspect that the right hon. Gentleman is about to give us a reason why he is not able to commit to legislation, so I thought I would intervene to give him a few more seconds to reconsider, and to think of extra ways in which he might squeeze this change into a bit of legislation.

[Edward Argar]

I am grateful to the hon. Gentleman, who seeks to gently nudge me. When I held my former brief, working cross-party, I saw the lengths that people will go to in their attempts to manipulate, coerce and control, as the shadow Minister, the hon. Member for Lewisham West and Penge (Ellie Reeves), highlighted. Even when a victim or their family are told that they are physically safe because the perpetrator is in prison, that does not address the challenges that they face in feeling psychologically safe. I think the hon. Member for Bristol East (Kerry McCarthy) highlighted that children are victims too. Those who witness these events, and those who may not have witnessed them but who live with the consequences, are also victims of the crime.

[Mark Tami]

I thank the Minister for his kind comments. Does he agree that in an abusive relationship, victims often start with the perception that the perpetrator really loves and cares for them, and that that is why they have that controlling behaviour? They tell them, “I really care for you, so I need to monitor your mobile phone. I need to know exactly where you are going.” That turns into an abusive relationship. We have all known about relationships that we worry are not on an even keel. This is one of the most tragic cases that I have come across, but there are many other cases out there. This abuse is still there, is still prevalent and, in the worst cases, can lead to what we have seen.

[Edward Argar]

I entirely agree with the right hon. Gentleman’s point about the nature of coercive and controlling behaviour, and of domestic abuse and violence. As he says, we are dealing with highly manipulative people who, in some cases, will seek to make the victim feel as if they bear responsibility. Of course, in no way do they; the only responsibility rests with the perpetrator. He is absolutely right to highlight that point.

The legal issue that we are debating falls under the ministerial responsibilities of my colleague the noble Lord Bellamy KC, who covers matters such as family law, but it is important that I respond to this debate, not just because he is in the other place, but because there is clearly read-across to my responsibility as victims Minister.

The issue of parental responsibility is fundamentally important. It can shape the development of and relationship with a child. As the right hon. Gentleman and others highlighted, under by the Children Act 1989, “parental responsibility” refers to all the rights, duties, and responsibilities of parents or carers towards their children. That includes deciding where the child should go to school, live and go on holiday. As my hon. Friend the Member for Wrexham (Sarah Atherton) said, the Act starts from a presumption that the child’s welfare and interests are paramount, and, to a degree, from the assumption that a child’s being with their parents, or that there is parental contact and responsibility, is the preferred approach.

As hon. Members have highlighted, legally, mothers and fathers automatically have parental responsibility. Courts can make orders to restrict their parental responsibility where that is in the child’s best interests, and depending on the circumstances, but it cannot be simply removed. I do not propose to reiterate at length the legal context, which the right hon. Member for Alyn and Deeside set out very clearly.

I have listened carefully to hon. Members’ arguments for changing the law so that that a parent convicted of the murder of the other parent has their parental responsibility automatically suspended during the period of their imprisonment. There is no doubt that, legally and emotionally, this is a complex and challenging topic, and I sympathise with the view that more should be done to ensure that the courts can better support bereaved families in such circumstances. I hasten to add that today is only my 11th day back in the Ministry of Justice, but I have reservations, some of which my hon. Friend the Member for Wrexham alluded to, about whether an automatic suspension—the reversal that the right hon. Member for Alyn and Deeside talked about—is necessarily the best way of achieving the outcomes sought, given the legal context of the Children’s Act. I will unpick that in a moment.

The hon. Member for Bristol East and I may not have the same political perspective on everything, but throughout my time in this House, her contributions have always been thoughtful and considered, as were her remarks today. I will look up Children Heard and Seen, but I would be grateful if she sent me anything that she wanted to about that charity. In a previous role at the Ministry of Justice, I was responsible for pushing through the female offender strategy, which sought to reduce the use of prison when people—particularly mothers—were given short sentences for minor offences. There is cross-over with the work I am currently doing, so I would be grateful for anything she could share with me.

[Kerry McCarthy]

I am happy to do that, and I can give the Minister details of meetings we have had with Children Heard and Seen, attended by the previous children’s Minister and the previous prisons Minister. I agree with what the Minister just said, but he touches on something that Children Heard and Seen rail against. Quite a lot of work has been done, including by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and my predecessor, Baroness Corston, to try to ensure that women, particularly those with young children, are less likely to be imprisoned, but that, again, is prisoner-focused. The difference between that and Children Heard and Seen is that the latter is not about the prisoner. It is about the children and putting them first, so there is a slight difference.

[Edward Argar]

The context for what I said was this: the presumption behind the strategy was that the best interests of the child should be taken into consideration. I am going down the rabbit hole slightly here, but previously, a number of mothers would be sentenced for what would be deemed relatively minor offences—offences in which there was no violence against the person or similar. That would happen in circumstances where the mother had a functioning relationship with their child that was at risk of being broken. We sought to provide a little bit more discretion around that, to understand where it was a functioning relationship, and where it might work more effectively. Over the years, the tool that was being used had become blunt.

The hon. Lady asked how many children have a parent in prison. I do not know how many of my predecessors she has had this conversation with, but I will endeavour to find that data, because it would add to the debate.

[Sarah Atherton]

Will the Minister give way?

[Edward Argar]

I will make a little progress, and then I will come to my hon. Friend. The Children Act 1989, as hon. Members will know, starts from the presumption that the child’s welfare—the interests of the child—are paramount. Courts consider that when making decisions.

There are various safeguards already in place to protect children, and they have been set out by the right hon. Member for Alyn and Deeside. They include the duties of local authorities, and the private law orders available to family members in such circumstances, as well as mechanisms that courts can employ to restrict parental responsibility and prevent repeated and unreasonable court applications, or applications that pose a risk of harm. Courts have discretion, through the permissions hearing, to restrict the ability of a perpetrator—a convicted offender—to use the court process in a vexatious way. Finally, I will set out what more can be done to support families in such tragic cases, and the actions that the Government have taken so far.

[Sarah Atherton]

Going back to the female offender strategy that the Minister mentioned, I understand that there will be a pilot unit in Wales—a residential women’s centre. I have been a strong advocate of ensuring that there is some sort of families unit there, so that as women progress towards the end of a sentence, they can be reintroduced to their family and learn parenting skills, and there is a seamless transition to living in the community when they are released. Will the Minister drop me a line on what is happening with the children’s unit? I do not know whether he knows the answer now; if he does, that is great.

[Edward Argar]

I will answer briefly to avoid straying too far from the premise of the debate. Although I am no longer responsible for the female offender strategy, I will certainly ensure that the Minister of State for Prisons, Parole and Probation is made aware of my hon. Friend’s point.

As the hon. Member for Bristol East said, we must look at the issues case by case; there is no one-size-fits-all approach. Each case is different. That is one of the reasons why there are reservations about having an automatic presumption, rather than letting the courts consider each case. It is important to note that under the Children Act 1989, the welfare of the child, rather than the views or interests of any adult, is the uppermost consideration in cases that come before the court.

In determining a child’s welfare needs, the court will have regard to the factors set out in the welfare checklist in the Children Act, including the ascertainable wishes and feelings of the child, the impact on the child of any change in circumstances, any harm that they have suffered or are at risk of suffering, and how capable an individual with parental responsibility is of genuinely meeting that child’s needs and best interests.

In tragic cases such as Jade’s, where one parent has been convicted of murdering the other, the responsible local authority has a duty to protect the child and ensure that they are safeguarded from harm. That may include initiating care proceedings to provide the child with a permanent or interim care arrangement. Such arrangements, as has been set out, can include family members such as grandparents being granted parental responsibility for the child, for example through the granting of a special guardianship order by the court.

The process needs the involvement of the court. Under the principles of the Children Act, and also under our law’s underpinning principles, only a court can restrict or change parental rights. When it is in the child’s best interests, and appropriate given the circumstances of the case, there are mechanisms whereby the court can restrict the parental responsibility of a parent, but that must be done through the court.

[Rob Roberts]

The Minister is being very generous with his time. On that point, he will know better than I do whether there is any mechanism to ask, for example, a bunch of family court judges or High Court judges whether they would be in favour of making the suspension of parental responsibility apply automatically. That would mean that if they hand down a conviction for the murder of another parent, it would automatically form part of the sentence. Could we ask judges that and see what their opinion is, or is that not something that we do?

[Edward Argar]

I am grateful to the hon. Member. He is kind to presume that I am as expert 11 days in as I was when I had held this brief for many years, but there is a fair amount that I have kept close to. It is challenging. We must recognise the independence of our judiciary and the very clear delineation between judiciary and politics, but we routinely seek the views and advice of the judiciary. In a moment, I will turn to something that we may be able to do in this space.

[Mark Tami]

That sounds all well and good, but it ignores the reality of where we are and what the family have been through. They have suffered the loss of their daughter in horrific circumstances; we have not gone into the detail today. Asking them effectively to go through that again to get something that they rightly, in my view, assumed would be the case anyway puts a hell of a strain on them. In many cases, people might decide not to go down that road, because they cannot put themselves and their family through it.

[Edward Argar]

The right hon. Gentleman is absolutely right to highlight that. I would find it difficult to articulate as eloquently as he did not only how horrific the original events were but how horrific the possibility of reliving them, in a sense, by having to go through a court process, is. It may disappoint him, but I will seek to move things forward a little later in my remarks. We come back to that point in the Children Act 1989: the presumption of the role of the court. There will always be an element of that court process necessary under the presumptions that were built into that groundbreaking piece of legislation.

I also highlight that, as I mentioned, under section 91(14) of the Act the court can prevent a parent from bringing or making applications to the court without the court’s prior permission, in particular where their doing so may cause harm or distress to the children or other parties involved in the case. That may not entirely remove the problem, but it gives the courts a route to prevent the vexatious use of the legal process to try to re-traumatise or re-victimise a family. Judges would consider that, and would have the power to prevent such an application where multiple applications were being used to cause harm and upset.

As I said, I have heard the calls today to change the law so that a parent convicted of murdering the other parent would have their parental responsibility automatically suspended during imprisonment. I think the right hon. Member for Alyn and Deeside characterised it as essentially a reversal of the presumption in this case. I have to say I am truly sympathetic, particularly given the case at hand. I cannot imagine anyone not being so, having heard the right hon. Gentleman and being aware of the circumstances of the case. However, the courts have mechanisms both to make orders to give parental responsibility to family members and to restrict it significantly in appropriate cases, but always through the prism of their interpretation of the child’s welfare and best interests. Every family is different, as is each set of circumstances that families find themselves in. Our view is that it is important that courts continue to have the flexibility that the Children Act gives them to make decisions that are tailored to the unique life of every child.

The legal challenge to the concept of automatic suspension is that it risks not aligning with the existing principles underpinning that key piece of legislation—the 1989 Act—and the way it works. There is a genuine risk that if we set up a mechanism to suspend parental responsibility automatically in certain circumstances, without affording the court the opportunity to hear all the arguments or evidence in the case, that would undermine the fundamentals of the framework in the Act. I recognise that in situations where one parent is convicted of the murder of the other, the process of obtaining the legal redress and the orders that I have set out today can be time-consuming, and that making or responding to court applications and attending multiple court hearings on related issues can be psychologically horrendous for those involved and can re-traumatise people who are just beginning to rebuild their lives.

I therefore want to outline an offer: two measures that the Government are taking to improve matters for families in such circumstances. I fear I may not go as far as the right hon. Member for Alyn and Deeside might wish, but I hope it might be a further step forward. I know him to be a reasonable man, so he may, without prejudice and without in any way resiling from his clear view on what needs to be done, take up the offer of these measures—I suspect and hope he will.

First, the right hon. Gentleman highlighted the issue about cost and he will be aware that on 17 October we laid before the House secondary legislation to expand the scope of legal aid to applications for special guardianship orders. That means that when a private individual such as a family member wishes to become a special guardian, they can receive legal aid advice and representation to help. A successful application to be a special guardian will result in that individual having parental responsibility for a child or children.

Secondly, having heard the arguments made today and having read and carefully reflected on the petition and my predecessor’s response to it, I will ask the family procedure rule committee to consider what opportunities there will be for procedures to be expedited or otherwise adjusted so that, in circumstances such as these, applications for special guardianship or other orders as well as applications to restrict parental responsibility can be made with as few procedural burdens, and as swiftly, as possible. It will be for the rule committee to consider that request, but it is a request that we will make. That would have the benefit of maintaining the Children Act and existing legal mechanisms and principles for courts to assess matters on a case-by-case basis, tailored to the child, but it would, I hope, reduce the trauma and burden that those processes can place on people.

In short, we believe that it is right to limit the parental responsibility of those who hold it if that is deemed to be for the welfare and in the best interests of the child, and that it is right that that power is exercised by the courts and that they have the powers at their disposal to make these orders. I am grateful for the opportunity to respond to the debate, and I thank the right hon. Member for Alyn and Deeside for securing it. I suspect he has spoken to many Ministers, but I will consider very carefully the points that have been made. If he wishes to take me up on my offer, I will meet him and Lord Bellamy, who is the lead for family law in the Department. If he will allow me to join that meeting, as the victims Minister, I would be happy to further discuss the points that have been raised this afternoon and how we can best deliver on our commitment to safeguard children while ensuring that their best interests remain the utmost priority.