Children (Access to Parents)

Elfyn Llwyd Excerpts

Tuesday 29th March 2011 Commons Chamber

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I rise to oppose the Bill and declare that I practised in family law as both a solicitor and a barrister for about 35 years. I therefore draw on a number of years’ experience in the courts. I believe that the motion has been made with the best possible intentions, but if the Bill was passed, it would fall foul of the law of unintended consequences.

In all cases in which decisions are made regarding contact arrangements for children, paramount consideration must always be given to the welfare of the child, as required under the Children Act 1989 and article 3 of the UN convention on the rights of the child. Thus far, the hon. Member for Dover (Charlie Elphicke) and I agree. Sustaining meaningful relationships with non-resident parents and other carers such as grandparents, whether male or female, is important for meeting a child’s emotional needs. Thus far we still agree. It is often in the best interests of the child to ensure that contact with both parents and other carers is maintained. Again, we agree.

However, many organisations, including the National Society for the Prevention of Cruelty to Children, do not support any measures that seek to alter the paramountcy principle defined in the 1989 Act, which ensures that the welfare of children overrides all other considerations. That is a view with which I entirely concur. There is evidence to suggest that the paramountcy principle might be undermined by informal arrangements. Research published by Her Majesty’s inspectorate of court administration shows that courts already operate with an informal presumption of contact despite there being no legislation to require that. HMICA found that this informal arrangement has had the effect of undermining the safety of children who were at risk by focusing courts’ attention on contact rather than on the welfare of the child. More research is needed to assess the extent and impact of the informal use of presumption of contact in family courts.

Fewer than one in 10 cases in which parents divorce or separate comes before a family court for decisions to be made or disputes to be settled regarding contact arrangements involving children, but it is important to appreciate just how regularly the risks to a child’s welfare need to be actively considered by judges when ruling on parental access in family courts. Research for the Ministry of Justice in 2008 on applications for child contact across 11 courts found that the majority of cases included serious welfare concerns about the impact on the child of domestic violence, parental mental health issues, parental drug or alcohol misuse, a parent’s learning disability or the likelihood of a parent abducting the child. Only 37% of applications did not contain any serious welfare concerns which might affect the child. The most frequent welfare concern was domestic violence, which affected 154 of the 308 case files reviewed. Domestic violence is widely recognised as a major child protection issue, with 750,000 children witnessing domestic violence annually.

Victims of domestic violence face greatest risk post-separation, and research shows that children ordered by courts to have contact with a violent parent are likely to be abused themselves and, in the most extreme cases, killed. In 2005 HMICA published a report on the handling of safety in family proceedings. The research found that courts already operate with an informal presumption of contact, even when there is nothing in legislation to require this. The report said:

“The presumption of contact was evident in all the practice sessions observed during this inspection and there was consistent evidence that inappropriate assumptions about contact were made, rather than assessments about whether there was any risk associated with domestic abuse cases.”

More research needs to be carried out by the Ministry of Justice. The forthcoming interim report from the Family Justice Review, likely to be published by the end of this month, may address the matter and its findings should not be pre-empted.

The issue of parental contact was debated in detail in the 2005-06 parliamentary Session during the passage of the Children and Adoption Bill. The resulting Children and Adoption Act 2006 amended the Children Act 1989 to allow greater flexibility for courts facilitating contact and gave courts powers to require parents to undertake a contact activity, such as attending a parenting programme or information session. Following that Bill’s passage, the then Government committed to carrying out further research on parental access issues. Any further consideration to alter the current arrangements should result from evidence-based research and further study of the effects of contact on the welfare of the child.

I will offer one case study, that of Vivian Gamor. In 2007 a judge criticised decisions which allowed a mentally ill woman access to her children, whom she subsequently killed. Vivian Gamor, 29, beat Antoine, 10 years old, and suffocated Kenniece, three years old, in east London, in January 2007. The judge, Peter Rook QC, said that in retrospect Gamor should not have been given free access to the youngsters. The serious case review highlighted many problems. It showed that despite reports of some successful contact visits by Ms Gamor and her plan to have the children live with her, further efforts should have been made to contact the children’s father, with whom they had been living, to assess the situation before deciding whether to support Ms Gamor’s request for further contact. Judge Rook said that

“this terrible tragedy could have been avoided if Gamor had not been allowed unsupervised access and the children’s father’s grave concerns had been given weight.”

Ms Gamor was sectioned for serious mental illness in early 2006 and the children moved in with their father. However, she was later released from care after doctors concluded that she posed no risk to herself or others. Following her release, she was gradually granted supervised access to the children in November 2006, and then, on three occasions, unsupervised access to her children. It was on the third occasion of unsupervised access that Ms Gamor killed her children during the night at her flat, just two weeks after overnight contact had begun.

In conclusion, we should be very wary of diluting the paramountcy principle because it is clear that in any family breakdown, the most vulnerable players are the children. We must continue to have their welfare in mind first and foremost, and nothing that I have heard today or witnessed in the family courts persuades me that a change in the law is required.

Question put (Standing Order No. 23) and agreed to.

Ordered,

That Charlie Elphicke, Penny Mordaunt, Priti Patel, Charlotte Leslie, Kwasi Kwarteng, Margot James, Caroline Dinenage, Chris Heaton-Harris, Tracey Crouch, Nadhim Zahawi, Karen Lumley and Jane Ellison present the Bill.

Charlie Elphicke accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 13 May and to be printed (Bill 174).