Wednesday 7th February 2024
(10 months, 2 weeks ago)
Lords ChamberVictims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 31-IV(a) Amendments for Committee (Supplementary to the Fourth Marshalled List) - (6 Feb 2024)
Baroness Brinton (LD)
I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.
I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.
A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.
Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?
I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.
From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.
Earl Howe (Con)
My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.
I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.
To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.
The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.
My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.
When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.
Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.
Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.
Amendment 106 seeks to revise current data protection legislation, so that victims of malicious complaints involving third parties can prevent the processing, and subsequently request the deletion, of personal data gathered during a safeguarding investigation where the complaint was not upheld.
It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.
Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.
I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.
I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.
Baroness Thornton (Lab)
Can the noble Earl clarify that he is saying that it is up to the victim to take the action?
Earl Howe (Con)
The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.
Baroness Brinton (LD)
May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.
Earl Howe (Con)
I will be very happy to do that because I fully recognise the seriousness of the issue, and in particular the appalling events that Stella Creasy had to endure.
Lord Russell of Liverpool (CB)
The noble Earl has laid out, in his usual exemplary way, the way that the system is meant to work and the way it is designed. I suggest that the acid test would be to go to the officials concerned in Waltham Forest and ask them to describe, without leading the witness, exactly how they see what the noble Earl has just described—how they understand it—and how they therefore see what they can and should do. I suspect the results would be some distance away from what the noble Earl has just described, and therein lies the problem. It is fine to have a system, a process and a code that are meant to work, but if they are not working, which they clearly were not in this case, to put the onus on the individual victim to try to rectify that does not seem like justice, and neither does it seem sensible or proportionate.
Earl Howe
I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.
I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.
I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.
We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.
Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.
In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.
Earl Howe (Con)
I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.
Baroness Newlove (Con)
My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.
I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.
For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.
I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.
Baroness Bertin (Con)
My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.
Earl Howe (Con)
My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.
On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.
My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.
Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.
As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.
Baroness Chakrabarti (Lab)
I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.
I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.
My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.
Earl Howe (Con)
My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.
Baroness Bertin (Con)
I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.
Earl Howe (Con)
I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.
We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.
Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.
The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.
Baroness Newlove (Con)
My Lords, I am grateful for that response to the noble Baroness, Lady Finlay. I did a report on registered intermediaries. Again, I mean no disrespect to the Minister, because this is a very passionate area that we are speaking about, but we have a shortage of registered intermediaries, and they are the ones who train the police to get the best evidence.
I am concerned about people with autism or special needs, and even victims who have nothing apart from their trauma. My concern is that there is a shortage of registered intermediaries, and the reason is that they were not getting paid to do the job. I ask the Minister to write to me to see where we are on that position. While he has given a copy-and-paste response, in a sense, it does not help to fix the problem for people with special needs.
I have met a couple of victims of rape who were disabled. They thought they were raped because they were disabled, but it has never left me that when they went through the court trial they found that those people were on the web and looking at disabled people. It was not because that victim was disabled. So I am concerned. The Minister does not have to answer now, but I ask him to write to me about where we are on registered intermediaries after that report six or seven years ago.
Earl Howe (Con)
I would be happy to write to my noble friend.
Amendment 173 seeks to extend Clause 24 to the whole of the UK. At the moment these measures apply to England and Wales, on the basis that policing is a devolved matter. This aligns with the territorial extent of the majority of measures within the Bill. We have also taken the decision to limit the scope to England and Wales as, following engagement with the devolved Governments, it is clear that there is no appetite at present for these provisions to extend further.
Baroness Thornton (Lab)
I assume the noble Earl is asking me to withdraw my amendment.
I thank all noble Lords who have taken part in this debate. The noble Earl will be able to report with some veracity to his noble friend, who we hope will be back with us next week, that there is a complete degree of unity across the Committee about the need for action on all these amendments.
I thank the noble Earl for the fact that there has been some movement; I think that at least two meetings will flow from this group of amendments. I thank the noble Baroness, Lady Finn, in place of the noble Baroness, Lady Morgan, for her introduction and the suggestion that we should meet to discuss Amendment 106 and take that discussion forward together.
On Amendment 106, we have talked about my honourable friend Stella Creasy, who I have known since she was about 16 or 17 years old, but the briefing we got told us of many other examples of people who had been harassed. As one anonymous case said:
“Out of the blue Z received a call from their local police sharing details of a complaint made about the treatment of her children. The anonymously submitted complaint made a series of false claims accusing Z of neglect and abuse ranging from failing to feed or clothe their children correctly or take them to the dentist and GP. Social services were able to confirm that Z’s children attended school, the dentist and were registered with their local GP. Despite a lengthy investigation Z is no further in understanding who made this complaint, and their children’s record remains”.
She feels wretched about that fact. Of course, that carries forward to what happens to those children. Every time that mother has to fill in a form or a job application in public services of some sort, the fact that the report exists on the record is material.
Many noble Lords hold positions. I am a non-executive director of the Whittington Hospital and have had to go through the usual CRB checks to hold that position. If this was me, I would have to have declared that. That is what happened to Stella Creasy and all these other women who have been harassed and about whom vexatious complaints have been made. It is not just that this is unfair and a continuation of harassment; it has a material effect on those people and their children. We need to find a remedy for this issue.
I turn to the other amendments. I thank the noble Baroness, Lady Bertin, for her introduction and for the way in which she talked to her amendments. The noble Baroness, Lady Newlove, made her usual powerful and informed contribution. The words of the noble and learned Lord, Lord Thomas, were very wise. The noble Baroness, Lady Finlay, champions some of the most vulnerable people in our society. The noble Lord, Lord Marks, was perfectly correct in saying that the effects of Amendments 78 and 79 in my name would be only beneficial, not just for the victims of rape but for all the authorities and for their conduct in dealing with these victims.
The question is: can we wait another couple of years for the Law Commission to report and for the Government to consider it and take it forward? I was interested in what the noble Baroness, Lady Bertin, had to say. This issue may not fall within the scope of what the Law Commission is considering. We all need to know that, so that the discussions we might have with the Minister can be resolved in a spirit of information. I praise the noble Earl who has had to stand in for dealing with all these issues in his normal informed and courteous manner.
Finally, Amendment 115 on not delaying therapy is vital. As my noble friend Lady Chakrabarti said, the idea that you have to choose between therapy and justice is so abhorrent that we cannot wait another couple of years to be able to sort that out.
I thank the noble Earl. I look forward to the meetings and conversations we will have between now and Report, when I suspect we will return to many of these issues. I withdraw my amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by agreeing with the last point made by the noble Lord, Lord Marks, that the overall path of this group of amendments is consistent with the harm panel’s recommendations.
In debating the group, I can see that there may be drafting improvements to be done. I am particularly grateful to the noble Lord, Lord Meston, for the points he made regarding the drafting of particular amendments.
I remind noble Lords that I sit as a family magistrate in London, and have been one for about 10 years. About 80% of the work that we deal with in our practice is private law, and so very much the types of cases that we are considering in this group of amendments.
I am grateful to my noble friend Lady Chakrabarti for the way she divided this group into two—Jade’s law and then the amendments that focus on using the family court to perpetrate or perpetuate abuse, which is almost always abuse of the woman.
I will not go through the amendments individually, because they have been fairly widely debated, but I will make some particular points, the first of which is on Amendment 82, which the noble Baroness, Lady Fox, questioned and spoke to. The point she made was about the medicalisation of parental alienation, and I think she argued that the courts should decide.
Some noble Lords in the Committee will have taken part, about three years ago, in the Second Reading of the Domestic Abuse Bill, as it was then, when the noble Baroness, Lady Meyer, spoke passionately about parental alienation. She absolutely believes that parental alienation is real, and that she experienced it with her own sons. In my experience of when domestic abuse allegations are made, which is fairly frequent, it is not an unusual scenario where the woman is making accusations of domestic abuse against the man and the man is applying for a child arrangements order to restart contact with his children, and he is making allegations of parental alienation. When that happens at magistrates’ level, we kick it upstairs.
We know it is a complex area, where, as the noble Lord, Lord Meston, said, there has been recent advice from the president on this matter, and we know that, particularly when there are wealthy individuals involved, there will be any number of experts who are brought into the court to try to resolve cases. We see these allegations a lot at my level, and we try, if possible, to resolve them there, but if they are persisted with, we will put them up to district judge or circuit judge level.
I want to reiterate what the noble Lord, Lord Meston, said about the Crown Courts putting in place protection orders to prohibit repeated applications and that this should be a decision for the family court. It is something that is routinely done in the family court, when you see persistent applicants who are abusing the process, and I argue that it is usually evident when we see it and they are orders that are regularly put in place.
The other point that the noble Lord, Lord Meston, made, was on Amendment 89, which I support. He questioned the degree of drafting in the amendment. The point I would make is that while there may well be shortcomings in the drafting, the direction of travel is clear and consistent with the rest of the amendments in the group. That may well be something that this side of the House would want to persist with at later stages of the Bill, depending on how the Minister replies to this debate.
In summary, family courts present some of the most difficult cases that I deal with. You see more tears in a family court than in any other court structure. I had a meeting this morning with a group representing fathers. This is an unusual group: you do not see them that much, and not much lobbying material has been sent to me regarding this or the Bill as a whole. The group that came to see me this morning was called Dads Unlimited, and its particular interest is in male suicide and male self-harm. The point that it was making to me—I must admit that it had some pretty persuasive data—was that, when men are involved in the family court system and making applications to court, they hide their mental vulnerabilities. They do not go to see their GP, and they do not want to talk about it, because they believe that it will be used against them when they are making their applications to court to restart contact with their children.
This is a difficult issue, and I think everybody understands that. Nevertheless, these amendments are trying to codify and build in protections to reduce abuse within family courts as far as possible, and I support them.
Earl Howe (Con)
My Lords, I begin by thanking the noble Baroness, Lady Chakrabarti, for tabling this group of amendments, which take us deep into the heart of the family court and its proceedings. The noble Baroness speaks compellingly and with great passion on these matters. I think she would agree with me that family court proceedings involve some of the most sensitive and difficult decisions that any court has to make, resulting as they do in often profound consequences for parents, children and whole families.
All the amendments in this group have noble aims. They seek to protect vulnerable children and victims of domestic abuse, and that is an agenda that I and the Government strongly support. I shall address each in turn, but I need to start by airing what I see as a difficulty running through these amendments: in one way or another, a number of them seek to curtail the family court’s discretion to take individual decisions on a case-specific basis on what is in the best interests of the children involved. With enormous respect to the noble Baroness, whose experience is much wider than mine, we need to be a bit careful here. The paramountcy principle, enshrined originally in the Children Act, provides the bedrock of all family court decisions. It is a principle that I firmly believe we must protect and uphold.
I start with Amendment 89. As the noble Baroness explained, it seeks to exempt from the provisions of Clause 16 victims of domestic abuse who then kill their abuser; this is Jade’s law, as she mentioned. None of us can have anything but the deepest sympathy for people who find themselves dealing with these extremely difficult and challenging situations. That is why my response on this amendment is that the Bill already allows for this protection. Clause 16 gives a clear route to protect victims of domestic abuse who have killed their abuser. It allows the Crown Court not to suspend parental responsibility in cases of voluntary manslaughter where it would not be in the interests of justice to do so. Our intention in including this exemption is that it could be used in situations where a victim of domestic abuse kills their abuser after a campaign of abuse. I hope the noble Baroness will find that assurance helpful.
Lord Meston (CB)
My Lords, I hesitate to interrupt, and I understand the drift of what the noble Earl is saying, but all I was suggesting was that, although I fully understand the desirability in many cases of having Section 91(14) orders—and suggest that in these extreme cases they should be the norm—it should not be done in the Crown Court but should be part of the mandatory requirements at the review hearing that will follow shortly afterwards in the family court. It should, at the very least, be something in the statute that the reviewing family court should be required to consider.
Earl Howe (Con)
I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.
Baroness Chakrabarti (Lab)
I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.
Earl Howe
I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.
Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences
“against the child, or a child in the family”.
I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.
Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.
There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.
Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.
I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.
I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.
Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.
In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.
I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.
Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.