The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)

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. 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.