We are now on Report on this Bill. It is relatively short but there are some important topics for discussion, so I thought it might be helpful to draw your Lordships’ attention to paragraph 8.151 of the Companionwhich says:
“Arguments fully deployed in Committee of the whole House or in Grand Committee should not be repeated at length on report”.
Clause 3: Restricting parental responsibility of certain sex offenders
1: Clause 3, page 5, line 40, leave out from “offender”)” to end of line 1 on page 6 and insert “for any sexual offence in relation to children, including online offences,”
Member’s explanatory statement
This amendment lowers the threshold at which the restrictions in Clause 3 can apply.
My Lords, I thank the Minister and her officials for the helpful meetings between Committee and Report and for the correspondence. I have retabled my amendment from Committee, which would place restrictions on parental responsibility, as Amendment 1, and signed Amendments 2 and 3 from the noble Lord, Lord Meston, which I support. I listened very carefully to the Minister and was grateful to be able to discuss the matter with her. We thank the Government for recognising that there must be a clear position on when those convicted of child sex abuse lose their parental rights. It has been iniquitous that parental rights have trumped the safeguarding of children, even when the person with parental rights has been convicted of child sexual abuse.
However, we are not convinced that this is strong enough and Amendment 1 includes all convicted of child sexual abuse. This is not about the punishment of the offender; it is about protecting all children. The organisation We Stand told us that research from the Centre of Expertise on Child Sexual Abuse shows that natural parents are the highest offending group in intra-familial child sex abuse, which accounts for two-thirds of offences. As a result, children of convicted child sex offenders are at the most risk.
Any non-abusing or protective parent has a legal duty to protect their child from any child sex offender and at any level of offending. Too many have to fight the family court’s assumption about the rights of a parent, even one who is a convicted child sex abuse offender. Everything is stacked against the protective parent, with little or no legal aid to fight to protect their children and no right to know where the offender is, which also means court papers cannot be served to them. They have no right to the rehabilitation or risk assessments of the offender. That is also extraordinary: how can they comment on them or ask for assessments to be made?
Contrast that with the offender, who has the right to make multiple applications to vary or overturn protective orders and to make repeated requests for contact with the children. This is especially problematic in households where there has also been coercive control and domestic abuse, as repeated requests continue the abuse, but the family courts have too often seen it only through the eyes of the offending parent trying to assert their rights. Judges and other authorities, such as social services and Cafcass, are forced into a legislative anomaly: they must balance potential harm to a child from a convicted sex abuser parent with legislation stating that both parents’ involvement in the child’s life further supports the welfare of that child. This leads to inconsistent outcomes.
My Lords, I will speak to Amendments 2 and 3, which were laid by the noble Lord, Lord Meston, who apologises for being unable to be in the House today. Rather courageously and dangerously, he has asked me to present the two amendments in his name. I shall do my amateur best.
Amendment 2 would restrict the acquisition of parental responsibility by those convicted of serious sexual offences against a child. The Bill as drafted requires the Crown Court to prohibit convicted offenders from exercising parental responsibility and does so by requiring that the court makes an order when sentencing the offender. However, this would not and does not cover children of convicted offenders who are born after the sentencing hearing. As the current law stands, a convicted child sex offender could still acquire parental responsibility automatically for a child after sentencing—even one day after sentencing—leaving the mother and child unprotected from controlling or obstructive interference by the convicted father.
One accepts that many of the convicted fathers in such cases might not automatically acquire parental responsibility because they are not married to the mother, and it is very unlikely that the mother would then agree that the father should be included on the birth certificate. However, if the father and mother were still married to each other at the time of the child’s birth, the father would automatically acquire parental responsibility. To change that, under current law the mother would have to apply to the family court on notice to the father.
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This amendment would ensure that children born after conviction have the same level of protection as the Bill intends to provide to children born before the offender is sentenced. It would remove the offender’s eligibility for parental responsibility at birth but would preserve his ability to apply later to the family court, where the child’s best interests remain the test. The important point is that this would not leave it to the mother to have to apply to the family court herself, as would currently be the case. It is relevant to both Clauses 3 and 4, as a child may be conceived out of rape but may not be born until after the offender has been sentenced. The duty to notify the local authority under the proposed new Section 10F in Clause 4, under the current wording, does not apply to a child who has not yet been born.
I move to Amendment 3. Current bail arrangements allow police and courts to impose conditions to prevent reoffending or interference with victims and witnesses. But children are rarely included, raising concerns that fathers accused of rape and serious sexual offences can manipulate, intimidate or coercively control their children or their children’s mothers. This amendment would add an automatic condition that bail granted to a person accused of RASSO would prohibit direct or indirect contact with any of the accused’s children.
The current bail arrangements under the Bail Act 1976 allow police and courts to impose conditions to prevent reoffending or interference with victims and witnesses. Although children affected by domestic abuse are recognised as victims under the Domestic Abuse Act 2021, they are rarely included in bail conditions, even when their parent is accused of rape or other serious sexual offences. There are related and growing concerns that fathers accused of these sorts of offences retain direct or indirect contact with their children, potentially enabling witness intimidation, manipulation or coercive control of the mother. The proposed amendment would require that, whenever bail is granted to a person accused of one of these offences, an automatic condition must be imposed prohibiting direct or indirect contact with any of the accused’s children. This would help guarantee the children’s protection from witness tampering and the children’s parent’s protection from intimidation and coercion.
My Lords, I thank the noble Baroness, Lady Brinton, for her Amendment 1, which addresses the thresholds proposed in the Bill. As she knows, we on these Benches have similarly expressed concern about the proposed threshold. This restricts the effect of Clause 3 to offenders sentenced to four years or more. Given the evident consensus against the current threshold, we on this side look forward to the Minister’s response.
Amendments 2 and 3, spoken to by the noble Lord, Lord Russell of Liverpool, raise interesting and entirely reasonable points, revealing potential gaps in the present legislation, so again I look forward to what the Minister will say.
This brings me to Amendment 4, in my name and that of my noble and learned friend Lord Keen of Elie. It seeks to extend the safeguarding framework in Clause 3 so that it applies to those convicted of the most serious child cruelty offences—and I emphasise “cruelty”, as it is not just about sexual offences. It should be noted that in respect of the Crime and Policing Bill we understand that the Government have tabled a new schedule, which lists child cruelty offences, taking the step of treating sex offenders and child cruelty offenders analogously. Our amendment uses the very same definition of child cruelty, so it is wholly consistent with the Government’s thinking.
Our amendment asks the Government only to take the same stance in this Bill to ensure that the parental responsibility of offenders is restricted when serious child cruelty has been committed. If the Government are not inclined to support this, we ask why. I ask the House again, regarding parental responsibility, why should our response to a child who has suffered cruelty differ from cases where a child has been sexually assaulted? I look forward to the Minister’s response.
My Lords, the Government appreciate that this group of amendments is driven by a desire to safeguard the children who are, quite rightly, at the centre of these difficult and sensitive cases. As I said in Committee, this aim is one I share.
Amendment 2, in the names of the noble Lords, Lord Meston and Lord Russell, and the noble Baroness, Lady Brinton, seeks to apply our proposed parental responsibility measures to as yet unborn children. There are complexities to this, because there are three distinct groups of as yet unborn children who would be caught by this measure. These are as follows: first, a child who has been conceived as a result of the rape of the victim by the defendant, but who is as yet unborn at the date of sentence; secondly, a child who has been conceived but is as yet unborn when their father is sentenced to four years’ or more imprisonment for a child sex offence; and, thirdly, a child who will be conceived at some point in the future but has not yet been conceived. Different considerations apply in relation to each.
We thank the noble Lords and the noble Baroness for their amendment because, in the course of our consideration of it, we have realised that an unborn child who has been conceived as a result of rape is not covered by Clause 4, as currently drafted, to which the noble Lord, Lord Russell, referred. As my honourable friend Minister Davies-Jones said in the other place, safeguards are in place through the family courts which could restrict parental responsibility in these cases, but it is a serious gap in Clause 4, and I have asked my officials to look further at this and consider how we can best protect this group of children. This is complex, and I cannot address it today, here and now, but I will write to your Lordships with an update on this as soon as I can.
The second group, to which I have already referred in outline, consists of women who are pregnant by a man at the time he is sentenced to four or more years’ imprisonment for a child sex offence. I appreciate that these children are likely to be at the same risk as the living children for whom he already holds parental responsibility. Again, in relation to that category, I have asked my officials to consider what approach may be possible in these cases.
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However, these new provisions in the Bill are novel and untested. We need to understand how the measures we are proposing work in practice before we consider expanding them any further. We do not know, for example, how many offenders will apply to the family courts to seek to vary or discharge the prohibited steps order made automatically at the Crown Court, and therefore we do not know the impact this will have on the family courts. We cannot take the risk of overwhelming them with an influx of cases arising from the new automatic restriction. The family courts are involved in difficult cases every day and it is important that any changes we make do not delay those cases and thereby put other vulnerable children already in the system at risk.
We will monitor how these provisions operate once they are implemented. Officials will develop a system which allows us to understand the impact they are having, how they work in practice and how they can be improved. We should be cautious and not expand these measures further without this insight and understanding. There are already routes to apply for restriction of parental responsibility in child cruelty cases. For these reasons, I urge the noble and learned Lord not to press his amendment.
Finally, on a related subject to these amendments, I want to take this opportunity to update your Lordships’ House about the implementation of Section 18 of the Victims and Prisoners Act 2024, commonly known as Jade’s law. I am pleased to restate the Government’s firm commitment to bringing these important measures into force and am glad to be able to announce when Jade’s law will commence.
I add one caveat. It is complicated because delivering this legislation requires a substantial and carefully co-ordinated programme of work. It will require secondary legislation, which in all probability will include amendments to the Criminal Procedure Rules and the Family Procedure Rules, updates to judicial guidance and significant procedural and training changes across the police, the legal profession, local authorities, the CPS, HMCTS, Cafcass, Cafcass Cymru and the Prison Service. This body of work will take time, so officials gave me the date of 6 April 2027 for implementation, due to the scale of the task and the steps that will need to occur between laying the commencement statutory instrument and commencement. But I was concerned that that was too far away, so I have good news. I am very grateful to officials in the Ministry of Justice, who have made a huge effort, and, as a result, I am delighted to say that the implementation date has been brought forward and is planned for the end of December 2026.
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Even if the presumption is repealed, this fundamental belief is still enshrined in the introduction and guidance to the Children Act 1989’s key principles. Children of a child sexual abusing parentare often at greater risk than other children, who are automatically protected by criminal restrictions, such as sexual harm prevention orders and registration requirements.
On a technical point, the serious sexual offences listed in new Schedule ZA1 to the Children Act 1989 include both indecent imagery offences and contact offences. Imagery offences have a minimum sentence of a community order; this means we could well argue that serious offences under Clause 3 could be triggered at any sentencing threshold. However, the majority of sentences for indecent imagery tend to fall between three months and a year, while sentencing guidelines for contact offences start at a minimum of one year. Those convicted of these offences would be excluded from the Government’s proposal in Clause 3.
Surely, for safeguarding reasons, now is the time to change the legal responsibility, with the offending parent having to prove why they are safe to exercise parental responsibility, through rehabilitation courses and, of course, assessment by professionals. The position of the court must surely start with the assumption of the protection of the child, not the rights of the offender parent. I beg to move.
It is the third group covered by this amendment that causes us difficulties. It refers to any or all future children of someone who has received a four-year sentence for a child sex offence, in perpetuity. This would cover a child conceived, say, 50 years after that sentence had been imposed and served. It is this last cohort of children that is the reason the Government cannot accept this amendment. We cannot know what the circumstances of each case will be for future children, particularly when decades may have passed between the sentence and their birth. We cannot, therefore, be sure that we are acting in the best interests of a child who may not be conceived for many decades hence by automatically preventing the offender acquiring parental responsibility.
It is important that I restate what has already been said by the noble Baroness, Lady Brinton: these measures are not an additional punishment for the offender. The point of them is to offer rapid protection to the offender’s existing children who are deemed to be at an immediate risk, right then and right there, in the Crown Court. That is why under the Government’s proposals, the restriction can and should happen automatically, at the point of sentence—but a child conceived many years later is a much more complicated and challenging proposition. In general terms, the proper place to make decisions about the welfare of future children is in the family court, so in most cases it is the family court where these applications should be determined.
As I have said before, criminal court judges do not have the training, the experience or, frankly, the time to consider, in each individual case, whether the restriction of parental responsibility is in the best interests of that particular child. That kind of consideration should be made by the expert and experienced judges of the family court—judges such as the much-respected noble Lord, Lord Meston—who will have the benefit of reports from, for example, expert social workers. It is self-evident that this kind of determination cannot be made in advance of the child’s birth, possibly many decades in advance.
Finally, as the noble Lord, Lord Meston, and probably other noble Lords are aware, parental responsibility can be acquired in multiple ways, and while it may be the noble Lord’s intention that this amendment should apply only to parents who automatically acquire parental responsibility, it would not prevent an unmarried father obtaining parental responsibility for future children by being named on the birth certificate if the mother wished to do so. It is a fact that not all mothers accept the guilt of their partners, even post-conviction and sentence. This would create a situation in which some offenders could never acquire parental responsibility for a future child without a separate order being made, while others could. That would be a significant inconsistency in the law which we cannot accept. For these reasons, we cannot accept this amendment, but again I thank your Lordships for bringing to my attention cases where the mother is pregnant at the time of sentencing. Those unborn children require protection, and we will look at how best to provide it.
I turn to Amendment 3, also in the name of the noble Lord, Lord Meston, but spoken to by the noble Lord, Lord Russell. This amendment seeks to create mandatory bail conditions preventing defendants contacting children for whom they hold parental responsibility while they are under investigation or awaiting trial on bail. We all want to ensure that children are protected when a parent has been accused of a serious sexual offence, but the Government cannot accept this amendment. Existing legislation already provides the police and courts with powers to impose robust bail conditions, which can include requirements not to have any unsupervised access to children and not to live and sleep at an address where children are living, and it is absolutely standard for there to be a condition not to contact prosecution witnesses, including children, in a case where those children are giving evidence. If there is a real danger to witnesses or to children, it is very likely that bail will be refused. However, in the real world, there will be some cases in which there is plainly no risk to the suspect’s children, so to remove the judge’s discretion would probably be incompatible with Article 8.
As the law stands, there are no mandatory bail conditions of any kind for any type of offence. To start introducing them would restrict the important discretion of the police and courts to apply conditions on a case-by-case basis to address real risks. It would also interfere with the presumption of innocence and the presumption of entitlement to bail, both of which underpin our whole criminal justice system. The amendment also seeks to impose a condition which would require the accused to disclose the nature of any bail conditions imposed to the family court while they are under investigation or on trial if there are existing children proceedings. The joint protocol on the disclosure of information between family and criminal agencies and jurisdictions already provides a clear framework for the sharing of information, so there is no need for such a statutory provision. For these reasons, I ask the noble Lord not to press his amendment.
I now turn to Amendment 1 in the name of the noble Baroness, Lady Brinton. I have had a number of very useful conversations with the noble Baroness, whom I greatly admire, and I understand the aim of this amendment. I think and hope that she understands that I share her wish to protect as many children as possible, but Clause 3 is not a marker for when parental responsibility should be restricted; it is about when such a restriction should happen automatically at the point of sentence—that is to say, without the usual consideration by the family court. Any individual who poses a serious risk to children should not be able to exercise parental responsibility, but to restrict it automatically, we must be certain that the restriction is in that child’s best interests. The seriousness of the offences in scope of our measure, marked by a sentence of four years or more, ensures that we can be confident, in those cases, that that is the case.
That is not to say that an offender who has committed sexual offences against children but has received a sentence of less than four years’ imprisonment cannot or should not have their parental responsibility restricted; in some cases, that will be exactly what should happen, but an application to restrict parental responsibility can then be made to the family courts in exactly the same way as it can be now. They will consider all the circumstances of the case and make a decision in the child’s best interests.
Amendment 4 in the names of the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, seeks to introduce an automatic restriction on the exercise of parental responsibility for offenders convicted of child cruelty and sentenced to imprisonment of four years or more. The Government believe the aim of this amendment is sound and principled; child cruelty offences are heinous, and we all wish to protect as many children as possible, so we understand why the noble and learned Lord seeks to extend the Government’s measures.