UPDATE 13 May 2024 – see below at end of point 1.**
A few days ago, there were a number of amendments to legislation going through Parliament that tried to address widespread concerns and (if they were passed) would have had significant impact on family law. Shortly after I started drafting this blog post, those in the House of Lords fell. See Hansard here. There is one ongoing in the House of Commons.
Here’s a brief outline and explanation.
- “Paedophiles to lose parental rights”
This amendment, being brought by Harriet Harman MP to the Criminal Justice Bill, has cross-party support and she expects it to pass through the next Parliamentary stages. There was quite bit of publicity about this last week (see below). I’m using the terms ‘father’ and ‘mother’ here to reflect the aims of the amendment but the actual legislation refers generically to ‘parent’.
This proposed reform has been described as removing the parental rights of convicted sex offenders. As our chair, Lucy Reed sets out on her Pink Tape blog, it won’t actually do that. It’s a restriction on parental responsibility (PR) not ‘stripping of parental rights’. Under the Harman amendment, fathers who are convicted of a serious sexual offence against any children would have their PR for their own children suspended by the criminal court (Any sexual offence against a child triable in the Crown Court is defined as ‘serious’). However, the offender could still apply for contact and other orders about their child e.g. change of name; education; medical treatment etc. They will be in the same position as a father who didn’t have PR to start with. They will lose PR but not all their parental ‘rights’. The difference is that they wouldn’t be (for example) automatically entitled to information from their child’s school and health services. A father in this position could also apply to get their PR back. As Harriet Harman said in this BBC podcast, the default position will change in that, in future, a protective parent would not have to apply to court to take away PR from a parent who has been convicted of those offences.
I’m not a criminal lawyer but my understanding of what Harriet Harman said and looking at the existing legislation on sexual offences, this protects other people’s children because offenders have to be placed on the Sex Offenders Register and are heavily regulated. They will not be allowed to work with children because of the disclosure and barring scheme; under ‘Sarah’s Law’ a person who has a genuine concern that someone may be a risk to a child can enquire about whether they are on the Register. However this range of protection does not restrict a parent’s legal relationship with his own children. Harriet Harman said in the podcast that this was because patriarchal attitudes in the 1990s ‘carved out’ an exception for fathers regarding their PR. So it’s clearing up that anomaly, and is certainly a step in the right direction, but not as all-encompassing as the impression the coverage has given. (I should quickly add that there may well be protection for the child and family through social services and victim support agencies – the children certainly shouldn’t be left at risk.)
Sanchia Berg has written about the reform here, but she said it only relates to sexual offences against a child under 13. The amendment just says ‘child’ so, as it stands, the amendment applies to sexual offences against anyone under 18, or so I thought (but this apparent contradiction is explained below*).
There’s been publicity for a while about campaigns to stop fathers who are convicted sex offenders from seeing their children. For example, Claire Waxman, the Victims Commissioner for London wants ‘Jade’s law’ to extend to families in this situation. Jade’s law is currently sitting in the Prisoners and Victims Bill, also going through Parliament, and will suspend the exercise of PR by a father who has killed the child’s mother. Baroness Chakrabarti was putting forward an amendment to that part of the Bill to add protection for children where their father has been convicted of sexual offences toward children in his family. The Jade’s law clause says that the Crown Court must make a prohibited steps order against the parent who killed the other that:
‘no step which could be taken by a parent in meeting their parental responsibility for a child may be taken by the offender with respect to the child without the consent of the High Court or the family court, and be made to have effect until the order is varied or discharged by the High Court or the family court.’
The Chakrabarti amendment added that this would also apply to a parent with PR who is convicted of ‘a sexual offence against the child or a child in the family’. So her intention was that a parent who was convicted of sexually abusing his children would lose PR, just as a parent who was convicted of murder or manslaughter of the other parent.
On the other hand, the Harman amendment to the Criminal Justice Bill initially appeared to suspend PR from any father who has sexually assaulted any children (not necessarily his own).
On listening to the podcast, it wasn’t clear to me why we needed both amendments but perhaps Harriet Harman knew that the Chakrabarti version was not expected to get past the Government. In any event, what happened in the Lords on 23 April was that the Government Minister said:
‘We propose to move an amendment in another statutory vehicle for the automatic suspension of parental responsibility in cases where an offender has been sentenced for the rape of a child, which will mirror the approach taken in Clause 16. There will be a review by the family court and so forth.’
And looking back at Baroness Chakrabarti’s introduction, she said:
‘I am aware that, in response to an amendment to the Criminal Justice Bill in the other place from my right honourable friend Harriet Harman, the Government have announced that they want to do something and give a concession in our direction in relation to those who rape a child under 13. With huge respect to the Government, that is not enough, because there are very serious sex offences that are not rape and there are very vulnerable children who are just over 13. A child is a child—not least for the purposes of the UN Convention on the Rights of the Child, if one can still talk about such instruments in Parliament—until they are 18, and certainly there are very serious sex offences that are not rape. So we wish to go further in the ambit of Clause 16, which is Jade’s law. [my emphasis]
*So, disappointingly, Harriet Harman and the Government are still prepared to ‘carve out’ some fathers with PR – only children whose fathers were convicted of rape of an under 13-year-old will be protected. Nothing changes for children of other sexual offenders (who rape 14-18 year olds or who commit other sexual offences against children).
On some transparency points made in the BBC podcast that featured Lucy Reed and Sanchia Berg with Harriet Harman, it’s true that the Reporting Pilot in Cardiff court allowed Sanchia to bring the case of ‘Bethan’ to public attention. It’s also true that Harriet Harman tried to make courts more transparent when she was a Labour Government Minister in the 2000s. However, she said two things that are inaccurate in the podcast. First, it’s not correct that family court proceedings were made private because of concerns about lurid press coverage. They are private simply because the rules and practice in the old magistrates courts and county courts were based on and developed through assumptions they should be. We now have private family court hearings because of a combination of the current Family Procedure Rules and contempt of court legislation that was introduced in 1960, nothing to do with poor behaviour by the press. Second, Harriet Harman said she brought in a pilot in 2006 that allowed journalists into court. She didn’t. Journalists were not allowed into most family courts until a change in the rules in 2009 (although the rules in the old Family Proceedings Courts where magistrates heard family cases did allow the press in, but with very restricted reporting.) There was no such pilot. She may have been thinking about the BAILII Family Courts Information Pilot for publication of judgments from a few courts that was announced in 2008 and evaluated in 2011.
**UPDATE 13 May 2024 –
The Ministry of Justice has now announced ‘Child rapists to automatically have parental responsibility stripped: Vile abusers who rape a child will have their own parental responsibilities automatically removed under new laws.
The legislative reform appears in both the Criminal Justice Bill and the Victims & Prisoners Bill and will amend the Children Act 1989 so that if a parent is convicted of the rape of a child aged under 13, the Crown Court will, on sentencing, make a prohibited steps order that stops the parent exercising their parental responsibility in respect of their own children. This provision does not protect as many children as either Harriet Harman MP or Baroness Chakrabarti wanted, nor does it completely remove the offender’s parental rights. It would appear, however, to address some of the problems that might face parents like ‘Bethan’ in the Cardiff case.**
2. Unregulated psychologists in family courts
On a separate but also controversial point, Baroness Chakrabarti had tabled another amendment to the Prisoners and Victims Bill that aimed to exclude non-regulated psychologists from being appointed as expert witnesses in family court proceedings. You can read all about this issue in Hannah Summers’ report from Bristol Family Court about Melanie Gill. The senior judiciary have said that it is not up to them to rule out such ‘experts’ but that if ‘psychologist’ is to become a protected title, that is a matter for Parliament. There’s a petition going to the Government on this, that’s now gathered more than the 10,000 signatures required for a response.
Somewhat surprisingly, the Government has now delegated this to the Family Procedure Rule Committee. The Minister said:
‘The position of the Lord Chancellor is that this matter should be undertaken now by the Family Procedure Rule Committee—which operates in very close collaboration with practitioners, judges and all those involved in the family law scene—to implement changes, rather than it being done through this primary legislation.’
Let’s hope the Rule Committee will address this issue more rapidly than might have happened in Parliament.
3. Removing the presumption of contact in cases of domestic abuse
A further Chakrabarti amendment aimed to disapply the legislative presumption that contact with a non-resident parent is in the child’s welfare, in circumstances where the child or the other parent is victim of domestic abuse. In theory, of course, the presumption will be rebutted where contact would not be safe, but we know from the Harm Report that there’s little confidence this is working, and the Government announced an ‘urgent’ review of this legal presumption in 2020. We’ve discussed this old chestnut in a number of posts about our series of Freedom of Information about the still ongoing review. Checking the latest reply we had from the Ministry of Justice, we see that in February, we were told the research had been completed in October 2023 and the review would be published ‘at some point’.
Unsurprisingly, the Minister did not accept the amendment, saying that ‘.. a forthcoming review is about to be published by the ministry…’.
Conclusion
To summarise what progress has been made – Will paedophiles be stripped of parental rights? If they are convicted of the rape of child aged under 13 they will have their PR restricted but retain their other parental rights. If they are convicted of any other type of serious sexual offence against a child, they will retain their PR unless their other parent applies to court, just as ‘Bethan’ had to do. There’s perhaps been some progress on the ‘cowboy psychs’ (quoting Baroness Chakrabarti) but nothing new on the presumption review.
Image: Big Ben thanks Graeme Tozer at Flickr (Creative Commons)
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