Parental Rights (Rapists) and Family Courts

In my initial response to this case, I recommended to the Government an amendment to the Children Act 1989 to remove the parental right of any man who has fathered a child through rape. The Government’s argument, regrettably, was that this would undermine the convicted rapist’s article 8 right to a family life. I am afraid that this is nonsense. This is a qualified right, and no one could conclude that his rights should supersede the safeguarding concerns of mother or child.

I do, however, understand the concerns raised about how my suggestion could undermine the vital principle that the welfare of the child should always be paramount, so, in consultation with Sir James Munby, the former president of the family court, we have developed alternative proposals that would maintain the paramountcy principle, while protecting victims of rape and their children. Requiring a father who has fathered a child though rape to obtain the permission of the court before applying for a section 8 order, or requiring the court to presume, unless the contrary is shown, that involvement of such an individual will be contrary to the child’s welfare should satisfy those two tests. You would not think we had to be so explicit in primary legislation with the courts, but the sad fact is that Sammy’s and other women’s experience demonstrates to us that we must. I am incredibly grateful to Sir James and survivors alongside Sammy who have worked with me on these proposals, and I believe that there is now simply no reason why the Government should not urgently accept them.

My Bill goes further than this specific legislative change. The family courts are private—and rightly so, to protect the children that they must safeguard—but it is precisely this privacy that puts some women at risk. Sammy herself risked contempt of court in speaking out about her story. I have had constituents told by their solicitors that they will no longer represent them because they have been to their MP to ask for help. I have sought to establish how widespread a problem the issue of convicted rapists gaining access to their children is, but no data is collected to allow scrutiny of the courts and their decisions. This is not the case in the criminal courts, where we know outcomes, we can scrutinise data and we can establish if legislation is being properly upheld, but we cannot know that in the family courts.

Pioneering research by Women’s Aid found clear examples of family courts prioritising domestic abusers’ rights over survivors’ and children’s rights to life and to be free from degrading treatment. Its report, “Nineteen Child Homicides”, revealed the deaths of 19 children following contact granted to men who were known abusers. This research led to the updating of practice direction 12J, which provides protection for victims of domestic abuse and harm. This should be sufficient and it should be followed, but campaigners and survivors have concerns that it is not being followed and that contact is still being granted inappropriately. It should not be down to charities to expose these issues at the heart of our justice system, so I believe we need an independent inquiry to establish the level of this discrimination in the courts and what needs to be done to address it.

We, as politicians, must never interfere with the independence of the judiciary. We must trust that it will always follow the spirit of the law that we make in this place and that it will take decisions that will protect victims and their children. However, just last week comments by Mr Justice Hayden came to light that were deeply concerning and betrayed an attitude that we had hoped was safely buried in the judiciary—that women are somehow owned by their partners, that we are inferior to men and that we do not have the same rights and certainly cannot exercise them through the courts. He said:

“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife”.

This view will, I am confident, not be shared by the vast majority of the judiciary, but it points to wider concerns about attitudes and understanding on violence against women and girls that are clearly barriers to improving the court’s response to these crimes.

While secrecy in institutions prevails, it is the very health of our democracy and the rights of our citizens that are at risk. The relationship between those who make decisions and those whom decisions are made about need not rest on blind trust. In fact, a healthy scepticism—challenging, scrutinising, protesting—is the hallmark of a democracy in good health. However, to achieve that, the scales need to be, as much as possible, evenly weighted between the people and those in power—between the institutions of the state and those that are subject to them. That is why, periodically, when there is deep public concern, it is appropriate to launch an inquiry on behalf of the public to get to the truth.

For family courts and cases involving domestic abuse, there is a fear that, beneath the shroud of secrecy, there is injustice. The women and children we are talking about are some of the most vulnerable in our society. Women such as Sammy have already been let down by the state time and again. We, as public servants, owe it to them to reward the bravery of those who have dared to speak out. We cannot allow their voices to continue to go unheard, silenced and ignored, and we cannot perpetuate a system that discriminates against them and potentially places them and their children in harm’s way. It is time for the voices of those who have suffered in silence for too long to finally be heard.

That Louise Haigh, Sir Nicholas Soames, Eddie Hughes, Mrs Maria Miller, Glyn Davies, Kevin Hollinrake, Jess Phillips, Philip Davies, Layla Moran, Sir Mike Penning, Jim Shannon and Sir Kevin Barron present the Bill.

Louise Haigh accordingly presented the Bill.