Prisoners: Parental Rights

Debate between Kate Green and Phillip Lee

Wednesday 13th December 2017 Westminster Hall

[Dr Lee]

If the hon. Lady will allow me, I will develop my argument with regards to the current powers of courts in such cases. As I was saying, the hon. Member for Swansea East is fast developing a strong reputation for campaigning on sensitive, difficult and often family-related issues. I commend her for her work in lots of different areas.

I am here on behalf of the Minister of State for Justice, who is detained on legislative business. While policy responsibility for family law sits with him, I have listened carefully to the points that have been made and will ensure that they are relayed to him in full. It is clear that significant distress and emotional harm can result when a parent in prison exercises their parental responsibility with the clear intention of frustrating day-to-day care decisions made by the other parent or to inflict further harm. Such behaviour is unacceptable.

While the maintenance of family ties forms a key foundation stone to support an offender’s rehabilitation, it is clear that not all children can or should maintain contact with a parent who is in prison. Maintaining family ties must always be balanced against the risk of harm posed to the child or the parent with care. While a number of protections are in place under the current law, particular issues arise in cases where children are the victims of an offence by the convicted parent. I have listened closely to the points that have been made about the practical impacts of parental responsibility being exercised in that way and to the arguments for changing the law so that a parent prisoner convicted of a sexual or violent offence loses their parental responsibility on conviction.

In considering the arguments for change, I will set out the current law. There are various aspects to the law on parental responsibility: how parental responsibility is acquired by a parent; whether and how parental responsibility can be removed from a parent in appropriate cases to protect a child or the other parent from the risk of further abuse or harm; and the exercise of parental responsibility by a parent and the means by which a court may restrict the exercise of parental responsibility in specific ways.

Mothers automatically acquire parental responsibility. A father who is married to the mother at the time of the child’s birth also acquires that responsibility. There are no provisions in law by which parental responsibility may be removed from a mother or married father, except through adoption of the child. Unmarried fathers may acquire parental responsibility through various means: birth registration, an agreement with the mother that is registered with the court or by court order. A court may remove parental responsibility from an unmarried father if the child’s welfare so requires.

Where a parent seeks to abuse their parental responsibility, their actions may be overridden by the family court. That power applies regardless of how the parent acquired parental responsibility. The child’s welfare is always the paramount consideration, and there is no absolute right for a parent or any other person to exercise parental responsibility in a way that is detrimental to the child’s best interests. That is clearly the right position in principle.

The ability of a parent prisoner to exercise parental responsibility in many aspects of a child’s day-to-day life is limited by having no direct contact with the child or the parent with care, and powers are available to the family court to restrict the exercise of parental responsibility, which I will talk about in a moment. However, where those protections have not been sought or have not worked for whatever reason, a parent who is determined to abuse their parental responsibility may still be able to do so.

Where there is disagreement between parents who both have parental responsibility, either of them may make an application to the family court for a prohibited steps or specific issue order. A prohibited steps order has the effect of preventing a parent from exercising his or her parental responsibility for their child in a specified way without first obtaining the consent of the court—for example, changing a child’s surname or causing a child to be known by a different surname. A specific issue order allows the court to determine how a specific aspect of parental responsibility for a child should be decided—for example, whether a child should change school.

In addition, where the court is making any order and the person who has applied for it has made multiple previous applications in relation to the child that the court considers to be vexatious, it may make an order restricting that person’s ability to make any further applications of a specified kind in respect of that child without the permission of the court.

I recognise that the current protections place the onus on the parent with care to apply to the family court to restrict the other parent’s exercise of parental responsibility, which is why there are calls to legislate for an automatic removal of parental responsibility in certain circumstances. Questions have been raised about the effectiveness of the orders and how they can best be used to protect a child or parent with care from the abusive exercise of parental responsibility by a parent in prison.

Any change to remove parental responsibility automatically on conviction of certain criminal offences would involve some important considerations for my Department. We would need to be clear that such a change in the law would be in the best interests of all children, for whom the current law provides maximum flexibility. The family court currently balances the legal rights, responsibilities and duties of each parent with the paramount need to further the welfare of the child and to safeguard them from risk of harm or further harm.

[Kate Green]

I am listening with real interest to what the Minister is saying. Would it be possible to consider a change in the law that created a rebuttable presumption of the loss of parental responsibility in certain circumstances? That would put the onus not on the parent with care, but on the parent who has perpetrated the damage.

[Dr Lee]

That certainly warrants consideration, so I will take it away and pass it on to my ministerial colleague.

Legislation to remove parental responsibility upon conviction of specified offences would need to be carefully considered, given the potential impact on a wide range of children in different family circumstances. There would be many points of detail to work through, some of them potentially quite difficult, to ensure that any changes to the law were workable in practice and likely to achieve the desired outcome, while maintaining the right balance between rights, duties and responsibilities and protecting vulnerable children and adults.

I will turn to some of the questions raised in this interesting debate. The hon. Member for Swansea East referred to judicial awareness of practice direction 12J and mandatory training of judges. The Judicial College plays a vital role in providing the appropriate training for all family judges. The president of the family division has publicly urged the judiciary to familiarise themselves with the new rules and to do everything possible to ensure that those rules are properly complied with on every occasion.

The hon. Members for Swansea East and for Gower (Tonia Antoniazzi) asked about fathers exercising parental responsibility and why they should have the right to control a child’s life from behind bars. The Children Act 1989 makes it clear that parental responsibility can be exercised alone unless the law requires the consent of all those who share parental responsibility. The courts have held that there are exceptional categories of decision that need such consent—for example, changing names or taking the child abroad. Day-to-day decisions should not be affected or blocked by the father.

The hon. Member for Stretford and Urmston (Kate Green) made a characteristically informed speech. She mentioned the importance of children having contact with their mothers in prison. Prisoners have a statutory right to have contact with their children where it is safe to do so. There is a presumption that a parent’s involvement will further the child’s welfare, and that is not revoked or rebutted when a mother is imprisoned, provided that contact remains safe and in the child’s best interests.

The hon. Lady asked about the sentencing of mothers without a consideration of the impact on dependent children. The courts are required under article 8 of the European convention on human rights to obtain information on dependent children and conduct a balancing exercise, weighing the rights of potentially affected children against the seriousness of the parent’s offence. Case law shows that that is often done in practice. The Government cannot interfere with the exercise of the judiciary.

The hon. Lady also raised the “Visiting Mum” programme run at Eastwood Park, which I gather is funded by the Big Lottery Fund. It has supported 150 children and 89 mothers to have visits from Wales to Eastwood Park in Gloucestershire. I assure her that its work is being considered as part of the broader women’s justice strategy.

My hon. Friend the Member for St Ives (Derek Thomas) spoke of the improving situation for women offenders and family access. We are developing a women’s strategy, which will be published in the new year, to improve outcomes for women. The legacy of where prisons are makes it practically difficult to hold women closer to home. The shadow Minister, the hon. Member for Bradford East (Imran Hussain), referred to the women’s custodial estate being absent in Wales. I assure him that I have not met anybody who wants a prison for women to be built in Wales. I will just say that all decisions about women’s justice are currently under consideration, and I hope that all colleagues, and particularly the hon. Member for Stretford and Urmston, will be pleased when the strategy is published in the new year.

Of course, I cannot make any commitments today about changing the law on parental responsibility, but the Government will give careful consideration to the points that have been raised this morning. I thank the hon. Member for Swansea East for securing the debate and for raising these important issues.

Oral Answers to Questions

Debate between Kate Green and Phillip Lee

Tuesday 5th December 2017 Commons Chamber

[Dr Lee]

In my travels around the country, every governor of a women’s prison I have met knows the importance of maintaining good family links. In the strategy, we have this in our minds in developing an infrastructure for the future, whereby women are held as close a possible to their families, if they have to be locked up.

[Kate Green (Stretford and Urmston) (Lab)]

What action are the Government taking to reduce the incidence of breach and recall, which is leading to an increase in the women’s prison population?

[Dr Lee]

We are aware of the challenges around recall, and some of this is to do with the fact that women go back out into the community and into exactly the same situation they were in before going into prison. This is being considered in depth, and our approach to it will be part of the women’s strategy.

Prison and Youth Custody Centre Safety

Debate between Kate Green and Phillip Lee

Wednesday 19th July 2017 Commons Chamber

[Dr Lee]

Yes. We have made some real progress; we are stopping thousands of mobile phones getting into our prisons. We are working extremely hard to stop the use of drones and to block the use of mobile phone signals over prisons. Things are not perfect; we have not finished this work, but we are continuing to press hard, because it would be fantastic to have a mobile phone and drone-free prison network.

[Kate Green (Stretford and Urmston) (Lab)]

I look forward to the strategy for women offenders that the Minister said he would introduce later this year. He will know that last year, 30% of women in custody self-harmed, and 12 women killed themselves in prison—the highest level since 2004. In reviewing the estate for women, will he take the opportunity, once and for all, to take on board the recommendations of Baroness Jean Corston? Women who need to be in custody should be placed not in prisons far from their families, but in small, secure community units. There is a once-in-a-lifetime opportunity to do this. Please will the Minister take it?

[Dr Lee]

The Corston report was one of the first things I read when I was appointed to this role in July 2016, and it makes a persuasive case. There is an issue about where some women should be held. I am not completely convinced that we can go down the path of all women being held in community provision, in residential women’s centres. However, I am persuaded that we can reduce the number of women we are locking up. This will be based primarily on the way that we deliver community provision, and on mental health care before, during and after prison.

I have met a number of women in prison, the majority of whom have displayed scars of self-harm. As the hon. Lady might know, I am a doctor and I observe these things, and it is quite distressing to see this. To deal with the problem, we need to change the environment in which these women are held and to get their mental health services improved. Those are my two priorities, and I hope that the hon. Lady will be reassured that the strategy, which will be delivered by the end of this year, will get things right.