Wednesday 3rd February 2021
(3 years, 2 months ago)
Lords ChamberDomestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
(1A) A person referred to in this subsection is—(a) a party to the proceedings;(b) a relative of a party to the proceedings (other than P); or(c) a witness in the proceedings.”Member’s explanatory statement
This amendment and the other amendments to Clause 62 in the name of Lord Marks of Henley-on-Thames would apply the same special measures to parties or witnesses who are victims or at risk of being victims of domestic abuse in civil proceedings as apply in family proceedings.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, my four amendments in this group—Amendments 109, 111, 112 and 113—to which the noble Baroness, Lady Bennett of Manor Castle, has kindly added her name, are intended simply to apply the Bill’s provisions relating to special measures in family proceedings to civil proceedings as well.
Under the Bill as it stands, special measures are to be available to parties or witnesses in family proceedings who are victims of domestic abuse or at risk of being such victims. Although the provision of special measures in courts is relatively recent, the courts recognise how important it is to help vulnerable parties and witnesses reduce the trauma— the ordeal, even—of involvement in court proceedings. Special measures are arrangements to help a vulnerable party or witness give evidence or participate in court proceedings in a way that mitigates that trauma. Even in the driest and least emotional of cases, the experience of being involved in litigation, especially of giving oral evidence, is often extremely stressful. For vulnerable parties and witnesses, most with a history of deep and often emotionally searing personal involvement in the events that led to the proceedings, the experience of reliving them is fraught with anxiety, fear and even terror. Therefore, the need for special measures arises.
Such special measures enable witnesses or parties to give evidence from behind a screen, usually in abuse cases, to protect them from having to face their abuser or abuser’s family across a courtroom. Alternatively, provision can be made for witnesses to give evidence via a live link or with the assistance of an intermediary. Special measures cannot remove the fear but can help to reduce it. We take them as a matter of compassion for those involved, but also out of concern that victims and vulnerable parties should not be too frightened of bringing proceedings to come forward and therefore continue to suffer abuse in silence, sometimes with horrifying consequences. We also take special measures to help ensure that proceedings are fair, that the quality of the evidence before the court is as good as it can be in difficult circumstances, and that the courts can, therefore, make fair decisions.
For family proceedings, Clause 61 would require that where a party or witness is, or is at risk of being, a victim of domestic abuse carried out by another party or relative of another party, or by a witness in the proceedings, it is to be assumed that there is a risk of the quality of the victim’s evidence, or of her participation in the proceedings generally, being diminished.
That has the effect of bringing into play the provisions of Part 3A of the Family Procedure Rules 2010, which are supported by a detailed practice direction. They provide that victims of domestic abuse and other parties or witnesses are eligible for special measures if the quality of their evidence or their ability to participate in the proceedings is likely to be diminished by their vulnerability. The rules and the practice direction set out a full code for the court to identify vulnerability and consider ways to help vulnerable witnesses and parties. They do not just cover giving evidence. Directions may include
“matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.”
The existing provisions also go wider than domestic abuse and cover:
“sexual abuse … physical and emotional abuse; racial and/or cultural abuse or discrimination … forced marriage or … “honour based violence” … female genital or other physical mutilation … abuse or discrimination based on gender or sexual orientation … and … human trafficking.”
Clause 61 requires the court to assume that, if the threshold I mentioned is met, special measures will automatically be available in domestic abuse cases for victims and those at risk of being victims. The court will then consider what, if any, special measures should be taken. There is scope for an opt-out under Clause 61(4), whereby a party or witness in family proceedings can signify that they do
“not wish to be deemed to be eligible”
for special measures.
The reason that I have spent some time setting out the background and the arrangements proposed for family proceedings is that they are thoroughly sensible and helpful and likely to be effective without unforeseen and unjust gaps. My amendments are directed at ensuring that the same arrangements apply in civil proceedings by bringing Clause 62 into line with Clause 61. They would implement the recommendations made by the Civil Justice Council and supported by Refuge, Women’s Aid and the Equalities and Human Rights Commission, among others.
Clause 62, as drafted, does not do the same for civil proceedings as Clause 61 does for family proceedings. For a reason I do not understand, the clause sets a higher bar for civil proceedings. There is an additional threshold test, which a party or witness would have to surmount to secure eligibility for such measures. The clause requires that to qualify as a victim or alleged victim, the person must be the victim of “a specified offence”, that is one specified in regulations by the Lord Chancellor. That condition is defined in Clause 62(3). For it to be met, there must have been a conviction or a caution for the offence, or someone must have been charged with the offence against the victim. Therefore, it would not be enough for the vulnerable witness or party to establish that they are frightened of being a victim or at risk of being a victim, nor even that they have, in fact, been a victim. They have to establish that the criminal law has been invoked so that the offender must have been cautioned or charged by the police for the specified offence or convicted of it by a criminal court. I suggest that there is no basis for this distinction between family and civil proceedings.
We know how often victims do not report abuse to the police, whether out of fear of their abusers or the relatives, fear of the trauma of criminal proceedings, concern for their private lives being exposed, or other reasons. The Office for National Statistics estimates that around four in five—79%—of survivors do not report partner abuse to the police. Requiring that victims go through the criminal process before being treated as vulnerable, and excluding those at risk of being victims from being treated as vulnerable altogether, represents a failure to understand vulnerability. Invoking criminal proceedings requires robustness. Experience and common sense tell us that vulnerable witnesses and parties are those least likely to involve the police and the criminal courts.
I have discussed this issue with the noble Lord, Lord Wolfson, and I am grateful to him for talking to me about these amendments and engaging with them. The noble Lord explained the Government’s position by saying that there is an intimacy to family proceedings not present in ordinary civil proceedings. In many cases that will be right, but I invite the noble Lord to concede, from his own experience, that there are literally thousands of cases involving partners, former partners and others who are personally connected—as defined in the Bill—which involve disputes that have a domestic or quasi-domestic context.
I give a few examples only: disputes about ownership and occupation of property; ownership, loss or damage to goods; landlord and tenant disputes, including disputes about who holds tenancies; employment disputes; and inheritance disputes. There are also disputes arising out of families running businesses together, which has become increasingly common in recent decades. These sometimes involve partnership disputes, sometimes it is disputes over the ownership of shares or misuse of company funds. In these cases, the parties might be companies, but the witnesses might have been involved in an acrimonious and abusive personal relationship.
The list goes on and lawyers well know that cases with personal connections give rise to the greatest animosity and the greatest tension. I can see no reason to apply a different test for vulnerability in civil proceedings from that applicable to family proceedings. If the conditions for family proceedings are met and the party or a witness is a victim or at risk of being a victim of domestic abuse, carried out by another party or a relative of such a party, or another witness in the proceedings, special measures should generally follow. It will always be for the court to determine whether those conditions are met, as it is in family proceedings. It would also be for the court to determine whether special measures are appropriate and what they should be. If the threshold is met, however, it is unjustified, illogical and unfair to insist that an offence must already have been committed and that the criminal law must have been invoked before eligibility for special measures is established. I beg to move.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the clear, comprehensive and powerful outline of these amendments by the noble Lord, Lord Marks of Henley-on-Thames, in whose name they are tabled. It was a pleasure to attach my name to Amendments 109 and 111.
The case has been set out very clearly so I do not need to detain the Committee for long. I will just say why I attached my name to these amendments when I saw that no other noble Lords had done so. It was because of my experiences as a young journalist many years ago in Australia, when I covered mostly criminal courts. This was in the days long before there was thought of protecting witnesses who were the victims of what we now call domestic abuse.
I saw the sometimes harrowing ordeals that people had to go through. I think the noble Lord, Lord Marks used the word “ordeal”. Members of your Lordships’ House are used to testifying, speaking and being in these spaces, but we are talking about people who are victims of domestic abuse and have suffered all the personal damage that entails. They are also not used to being in these environments very often. As the noble Lord, Lord Marks, said, this is an issue of compassion—of protecting people and ensuring that we are not making victims of domestic abuse suffer again. It is also an issue of justice because if they are to be able to clearly set out the case—to explain the circumstances and to bear witness—they need to be in conditions that reasonably allow them to do that.
As the noble Lord, Lord Marks, said, to set a higher bar for civil proceedings than for family proceedings simply does not make sense. As he said, there are many cases in which civil proceedings will be intimately entangled with family issues and issues of domestic circumstances. I think particularly of farms and some cases I have seen where the acrimonious break-up of family farm businesses will often be tangled in civil proceedings but have an intensely personal side as well.
These are important, sensible and helpful amendments. I very much hope that the Government will take them on board in the interests of compassion and justice.
Lord Rosser (Lab) [V]
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, first, let me say how grateful I am to the noble Lords who spoke.
It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.
The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.
I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 114. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 63: Prohibition of cross-examination in person in family proceedings
Amendment 114
Lord Rosser
Member’s explanatory statement
This is to probe that in the family court, where a perpetrator’s conviction is spent, other protections will be in place to protect a victim of abuse from being cross-examined by the perpetrator.
Lord Rosser (Lab) (V)
My Lords, I am speaking in place of my noble friend Lord Ponsonby of Shulbrede on this and a small number of groups to follow. My noble friend sends his apologies to the Committee; he is unable to be here because he is sitting in court today as a magistrate.
Amendment 114 is probing in nature. Proposed new Section 31R in Clause 63 provides for protections against cross-examination in person where one of the parties has a caution or conviction for a specified domestic abuse-related offence against the other. Subsection (3) provides that the protection does not apply where the conviction or caution has been spent. This amendment would remove subsection (3). It is intended to clarify that where a domestic abuse conviction or caution has been spent, other protections against cross- examination in person will apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. We are all aware of the traumatic and long-lasting impacts that domestic abuse can have and the continuing risk of abuse that victims can face from a perpetrator. Where a conviction becomes spent and the protections under this new section lapse, there should surely be a risk assessment before cross-examination in person can be permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It would helpful if the Government could give clarity and assurances on this point in their response.
The Victims’ Commissioner for London has also raised with us the issue of restraining orders, which are often given for a fairly short period. It would be helpful if the Minister could give assurances that the expiration of a restraining order would not impact on the ability of a victim to access necessary protections from that perpetrator in a family proceeding. I look forward to the Minister’s reply and to his explanation of the various government amendments in the group. I beg to move.
Baroness Newlove (Con) (V)
My Lords, I shall speak to Amendment 114. As the noble Lord, Lord Rosser, has just said, it is purely a probing amendment concerning the need for additional safeguards in cases where a conviction or caution has been spent. It seeks to build on the excellent proposals championed by the Government to protect the survivors of domestic abuse from being cross-examined by their perpetrators in the family court. As the former Victims’ Commissioner, I sadly heard directly from abuse survivors who had endured the pain, humiliation and re-traumatisation of being questioned on the stand by their abuser, and I am glad that we are putting an end to this blatantly abusive practice.
None the less, I am concerned that the current provisions overlook a scenario that we are likely to see in the family courts. Clause 63 does not currently apply to a conviction or caution that is spent. This is for the purposes of the Rehabilitation of Offenders Act 1974. I understand the motivations behind not further punishing an offender past the time when they are considered rehabilitated, yet we know that domestic abuse involves patterns of behaviour that will not necessarily be interrupted or indeed stopped by a conviction. Thanks to data from SafeLives, we know that a quarter of high-harm perpetrators are repeat offenders, with some having at least six different victims. In other parts of the Bill, we will debate the need for an effective perpetrator strategy that will undoubtedly seek to improve our interventions post conviction.
Proceedings in the family courts can go on for years and may well continue past the time when a conviction or caution has been spent, especially if other convictions or cautions occurred. However, unless some sort of intervention has been made with the perpetrator, the risk could well remain. I raise this scenario to suggest not that we should further punish, but that such risks have not been fully considered. If there was one key takeaway from the Ministry of Justice Expert Panel on Harm report, it was that there are systemic issues with how risk is identified and managed in the family courts in relation to domestic abuse.
I therefore ask my noble friend the Minister whether he considers that the proposals in the Bill as drafted will ensure that such risk is properly managed in cases where convictions or cautions have been spent. I suggest that this provision needs to be reviewed and that extra safeguards such as risk assessments should perhaps be introduced in such cases.
Baroness Redfern (Con) (V)
My Lords, I am pleased to follow my noble friend Lady Newlove and I warmly congratulate the Government on introducing the Bill. In doing so, I am pleased to have the opportunity to voice my support for its aims, in particular the proposals to reform the family court and provide protection measures for victims suffering domestic abuse. Even going to court is a harrowing and daunting process which can cause significant distress when a victim comes face to face with their perpetrator, even when the engagement is indirect. Measures must be in place to ensure the provision of separate entrances to the court building, as we heard earlier, and separate waiting rooms.
We know that domestic abuse comes in many traits. It is based not only on physical violence but on emotional, coercive, controlling or even economic abuse. Perpetrators of abuse should be inhibited from cross-examining their victims in person. Perpetrators should be prevented from directly or indirectly engaging with a victim during family court proceedings, particularly as many victims fear false accusations of parental alienation, which clearly has prevented many telling their personal stories. Protective screens in a court setting help to shield victims from their alleged abuser and prevent intimidation, as do live links, evidence-giving in private and greater emphasis on reassuring abuse victims, particularly children, who are always victims. These new measures will help to achieve the best result for those children.
Having received many briefings and personal testimonies, victims eagerly await new protective measures, so that the reporting of victims being re-victimised and retraumatised within the family court setting is stopped. The Bill must deliver a once-in-a-lifetime opportunity to transform our national response for domestic abuse victims and, in achieving the right support for those victims, will go a long way to helping them rebuild their lives. Importantly, they will be listened to.
Lord Paddick (LD) [V]
My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.
The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.
I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.
Lord Wolfson of Tredegar (Con)
My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.
As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.
It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.
However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.
New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.
Lord Rosser (Lab) [V]
I thank the Minister for his considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their contributions, particularly the noble Baroness, Lady Newlove, for adding her name to Amendment 114.
I said at the beginning that this is a probing amendment intended to gain clarity and assurances that where a domestic abuse conviction or caution has been spent, other protections against cross-examination in person would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall reflect further on what he said in response to this probing amendment. In the meantime, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment makes a minor drafting change.
(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;” Member’s explanatory statement
This amendment provides that “conviction”, in relation to service disciplinary proceedings, includes a finding of guilt and a finding in summary proceedings before an officer that a charge has been proved.
Member’s explanatory statement
This amendment and the Minister’s amendment at page 41, line 41 expand the definition of “service disciplinary proceedings” to include proceedings in respect of offences under previous armed forces legislation.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 41, line 32.
““service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);”Member’s explanatory statement
See the explanatory statement for the Minister’s amendment at page 41, line 32.
Member’s explanatory statement
This amendment corrects an incorrect cross-reference.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group consisting of Amendment 121. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Amendment 121
Lord Rosser
“31VA Direction to prohibit direct or indirect engagement: evidence of domestic abuse(1) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party, the court may give a direction prohibiting the latter party from directly or indirectly engaging with the victim during proceedings, if the court deems any such engagement is causing significant distress to the victim.(2) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(3) Regulations under subsection (2) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.(4) A direction under this section may be made by the court— (a) on an application made by a party to the proceedings, or(b) of its own motion.(5) In determining whether the significant distress condition is met in the case of a party, the court must have regard to, among other things—(a) any views expressed by the victim;(b) any views expressed by the other party;(c) any behaviour by the party in relation to the victim in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;(d) any behaviour by the party at any stage of the proceedings, both generally and in relation to the victim;(e) any behaviour by the victim at any stage of the proceedings, both generally and in relation to the party;(f) any relationship (of whatever nature) between the victim and the party.(6) If the court decides that there are no alternative measures to prevent engagement which causes distress, the court must—(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party during the court proceedings, and(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.(7) Subsection (8) applies if, by the end of the period specified under subsection (6)(b), either—(a) the party has notified the court that no qualified legal representative is to act for the party during the court proceedings, or(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party during the court proceedings.(8) The court must consider whether it is necessary in the interests of justice for the party to be represented by a qualified legal representative appointed by the court to represent the interests of the party.(9) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to represent the party.(10) If the court appoints a qualified legal representative to represent one party, and the other party to proceedings is not represented, the court must consider whether it is necessary in the interests of justice for the other party also to be represented by a qualified legal representative to ensure a fair process.(11) If the court decides that it is necessary to appoint representation under subsection (10), the court must choose and appoint a qualified legal representative to represent the other party.”Member’s explanatory statement
These changes would give courts the discretion to prevent a perpetrator directly or indirectly engaging with a victim during family court proceedings, where such engagement is causing distress, and to appoint a legal representative to represent the perpetrator in court, if that is necessary to prevent distress to the victim.
Lord Rosser (Lab) [V]
My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.
These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.
As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.
Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.
In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.
The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.
Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.
Lord Mackay of Clashfern (Con) [V]
My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.
I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.
That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.
Baroness Hamwee (LD) [V]
My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.
As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.
In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.
Lord McConnell of Glenscorrodale (Lab) [V]
My Lords, I thank my noble friend Lord Rosser for so comprehensively outlining the purpose behind Amendment 121 and the very strong case for it. I also thank the noble and learned Lord, Lord Mackay, for his clear explanation.
It is of course important from the legal perspective to look at the different situations in the family courts and the way in which different stages in the proceedings need to be accommodated. I also feel that the amendment is important because of the potential human impact of the absence of such a provision. Legal representation is important, as is the ability of the court to make determinations where distress has been, or could be, caused to the victim. It is also important to anticipate the impact on victims who might choose to go down this route if such a provision is not in place.
The fear and intimidation involved in advance of a decision to begin proceedings in family courts, or to continue with them after they have started, can be very daunting for any victim but perhaps in particular for a victim of domestic abuse. Therefore, putting these provisions in place would help encourage those who need to take a stand and make the move, trying to get out of their current circumstances and into a better place for them and the children. It could encourage them rather than put them off continuing proceedings or beginning them in the first place.
I want to ask a specific question about the impact on children. Over the years, I have seen many cases where intimidation at this stage has not necessarily been directed at the former partner or wife of the abuser, but at the children in order to indirectly intimidate the former partner or wife. Although we have clearly indicated in Clause 3 that children should be properly recognised as victims of domestic abuse, I would like the mover and supporters of the amendment to clarify that, either directly or indirectly, children affected by such distress would be covered by the provisions at the start of the proposed new clause.
For example, would the definition of children as victims mean that any distress caused to children fell under this provision? If not, would intimidation of children be deemed an indirect cause of distress? If the Government are not content to include the amendment or similar provisions in the final Bill, I would be particularly interested to hear from the Minister, on their behalf, how children who might be affected in this way around the family courts, whether outside or even within the court setting if they have been asked to play some kind of role by either their parent or the court, will be protected if this provision is not in place. I look forward to hearing the Minister’s response.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.
This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.
There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.
As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.
In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.
This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
Lord Rosser (Lab) [V]
I again thank the Minister for his considered response, particularly his comments at the end, which clarified in my mind the basis of the Government’s lack of enthusiasm for the amendment. As the Minister has clarified, the Government do not believe that the terms of the amendment are needed because the issues raised are covered by other measures in the Bill or existing provisions. It is not a case of certain parts of the amendment not being particularly well worded or the wording leaving certain issues unresolved.
I thank all noble Lords who have spoken in this debate for their contributions. I particularly thank the noble and learned Lord, Lord Mackay of Clashfern, for adding his name to the amendment. Clearly, we will want to reflect further on what the Minister has said, particularly the reasons for not accepting the amendment—namely, that the issues raised are covered by other measures in the Bill and by existing provisions. We will want to reflect on that and then determine whether to bring this matter back at a later stage. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 122. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 122
“(7) A qualified legal representative appointed by the court under subsection (6) is responsible to the party, but must cross-examine the witness having regard to such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”Member’s explanatory statement
This amendment is intended to maintain the responsibility of the legally qualified representative to the party in whose interests the cross-examination is conducted while ensuring it is conducted with proper regard for risk of distress to the witness and risk that the quality of the witness’s evidence might be diminished.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this group of amendments addresses the role of a legally qualified representative appointed by the court to conduct cross-examination under Clause 63 in family proceedings or Clause 64 in civil proceedings. The amendments also address the need for the availability of legal aid for both parties in domestic abuse proceedings.
Dealing first with those amendments relating to the role of court-appointed legal representatives, in each such case a party, who typically, but not always, will be the perpetrator, is prohibited under the Bill from cross-examining a witness directly. In any such case, the court will have considered whether there is a satisfactory alternative means of enabling the witness to be cross-examined or of obtaining the evidence that the witness would have given without cross-examination. For the moment, I find difficulty in seeing exactly how that would work unless there were other witnesses who could give evidence to the same effect as the evidence that the witness might have given.
If the court cannot find alternative ways of getting the witness to give evidence before the court, it will have invited the party who, but for the prohibition, would have conducted the cross-examination to instruct a lawyer within a specified time to conduct the cross-examination instead. If the party does not instruct such a lawyer—usually, one supposes, because of financial constraints—the court will consider appointing a qualified legal representative
“to represent the interests of the party”
to conduct the cross-examination
“in the interests of the party”.
The proposed provisions are complicated but unobjectionable so far. However, I am concerned by the proposals, in both family and civil proceedings, that such an advocate
“is not responsible to the party”,
a point mentioned by the noble Lord, Lord Wolfson, in the last group but which he politely deferred for consideration to this one. I regard this as a dangerous precedent that is inimical to a fundamental principle of our court process, which is that the advocate owes a duty to his client, although that duty is at all times subject to the duty that the advocate owes to the court.
The analogy that applies to what is proposed here is with special advocates, who are appointed for cases before the Special Immigration Appeals Commission or various other cases where issues of national security are involved. In such cases, the reason why those appointed as special advocates do not carry a responsibility to the persons whose interests they represent is that they are specifically prohibited from disclosing to those persons the security-sensitive material that is being disclosed to them—in other words, the special advocates are effectively sworn to secrecy. In those national security cases the special advocates cannot take instructions upon the secret material disclosed to them, nor can they consider with those whom they represent how to deal with or respond to such material. In those circumstances they have an independence that is treated as precluding a responsibility to the persons whose interests they represent.
The position is quite different here. No issues of national security are involved. Secrecy is not an issue. No material is withheld from the party represented. There is no bar on full discussion between the advocate and that party. Indeed, if justice is to be done, there is an imperative for the advocate to take full instructions and to consider, in the light of the evidence and the party’s account of the facts, what questions should be asked.
The starting point has to be that the advocate owes a responsibility to the client and I see no reason to depart from that. The advocate should, for example, owe the client a duty of care, and a duty to take instructions accurately, read the papers carefully and approach the case on the basis of the client’s instructions. The advocate should be answerable to the client if he or she performs negligently, does not do the work, or fails to understand or appreciate the import of the evidence. Of course there will be some questions that it would be improper for the advocate to ask. In that event, it is for the advocate to advise the client and, if necessary, to seek the direction of the judge before putting such questions. It should be for the judge to determine what questioning is permissible and appropriate.
That is why my Amendments 122 and 127 would provide for the cross-examination to be conducted subject to
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
Those are the considerations that the court has to have regard to in appointing the advocate. In most cases, I do not believe that directions such as that are likely to be necessary. The intimidation of a victim in these cases usually arises from the presence of the perpetrator as cross-examiner and/or the style of his cross-examination. Once a sensitive advocate is conducting the cross-examination, attuned to the vulnerability of the witness and the advocate’s duty to the court, the risk of intimidation is reduced.
However, if there are areas where the advocate advises that particular questions or lines of questioning cross the line, that is usually on the ground that such questions are irrelevant or unhelpful. The party will usually accept the advocate’s advice, but if there are lines of questioning where the party persists in wishing to pursue questions that the advocate regards as inappropriate, it should be for the judge, not the advocate, to decide whether the questions may be asked. There is no good reason for removing the advocate’s responsibility to the client, fundamentally undermining that responsibility.
I have had the opportunity to discuss this issue with the noble Lord, Lord Wolfson, and I am grateful to him for the attention he has given to it. I understand the Government’s position to be that where lawyers are appointed to conduct cross-examination in circumstances such as these, such lawyers should, in a way, be independent, so that they may decline to ask questions which the party whose interests they represent wishes to have put to the witness. They should be able to say to the client, “I’m not putting that”, without having to be answerable to the client for that decision. At first blush I see the force of that, but on analysis it is quite unfair, because the party represented is in fact denied true representation, and such an arrangement blurs the function of the judge and the advocate, to which I referred. In proceedings of all types, judges will frequently rule questions out of order. That is all part of the trial process and I see no basis for changing it here.
Amendments 123 and 128 raise questions of assistance by court-appointed advocates and legal representation in domestic abuse proceedings more generally. They make broadly two points. The first is that an appointment of an advocate for the limited purpose of conducting a single cross-examination is unlikely significantly to enhance either the fairness of the proceedings or the chance of their leading to a just outcome—a point touched on in the last group.
The answer to this difficulty is that the court should be able to ensure that the advocate will remain in place for as long as needed in the proceedings to assist both the parties and the court to deal with the case justly, in line with the overriding objective, having regard, in family cases, to dealing with it justly and to any welfare issues involved. One can imagine the frustration that judges would feel when, having had the assistance of an experienced court-appointed advocate for the cross-examination of the victim, the advocate’s role in the case is brought to an end and the judge is left with the parties in court in as conflictual a situation as they were before the proceedings started and with no help in resolving it.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Naseby, who was due to speak next, is still in the debate in Grand Committee, so I call the Minister.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.
Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.
As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.
Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.
The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.
For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.
The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.
Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.
However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.
In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.
I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.
One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.
The Minister referred to the safeguards that I built into the amendments in their directions to the judge—
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.
I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.
Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 124. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.(2) In civil proceedings, no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction, caution or charge when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or(iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere);(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence within the meaning of the Armed Forces Act 2006 (except proceedings before a civilian court within the meaning of that Act); (b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 80 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc(1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied; or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by sections 1 and 3 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor. (4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment and the other amendments to Clause 64 in the name of Lord Marks of Henley-on-Thames would allow for the same prohibition of direct cross-examination in civil proceedings as that which is available in family proceedings.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, could I have a moment? I apologise for the delay. Following so closely on from my last speech, it was difficult to see where we were.
Having spent some considerable time this afternoon introducing my amendments in groups 1 and 4, I will be relatively brief in introducing this group. The amendments are intended to extend to all civil cases the same protection from direct cross-examination by a party as is to be afforded in family cases to victims and vulnerable witnesses where certain conditions are met.
The reason for my relative brevity in this group is that the principles upon which I contended in the first group that special measures should be available on the same basis for civil proceedings as for family proceedings apply with equal force to the prohibition of direct cross-examination. Therefore, I will not dwell on them again, save to make the point once again that there is no justifiable distinction to be drawn between the trauma likely to be caused to the vulnerable by direct cross-examination in civil cases and such similar trauma as may arise in family cases.
However, because the proposals are complex, the amendment is long. Clause 63 inserts new Clauses 31Q to 31U into the Matrimonial and Family Proceedings Act 1984, which broadly prohibit direct cross-examination in family cases in a number of circumstances. First, direct cross-examination by someone convicted of, cautioned for or charged with a specified offence—that is, an offence specified by the Lord Chancellor—of a witness who is a victim or alleged victim of that offence is prohibited and, importantly, vice versa. No victim or alleged victim of such an offence may directly cross-examine the perpetrator or alleged perpetrator. Secondly, direct cross-examination by either party of the other is prohibited in cases where one party has obtained an on-notice protective injunction which is in force at the time of the proceedings. Thirdly, in cases where specified evidence—that is, evidence of a description specified by the Lord Chancellor in regulations—is adduced that a witness in proceedings has been the victim of domestic abuse carried out by a party to the proceedings, that party may not directly cross-examine that witness. Correspondingly, where there is such evidence that a party to proceedings has been the victim of domestic abuse carried out by a witness, that party may not directly cross-examine that witness.
What is important is that these three categories of cases involve a prohibition that is absolute. That offers vulnerable parties and witnesses an assurance that there will be no direct cross-examination that offends against those provisions in any of the cases covered by the prohibition.
Finally, in other cases not coming within the first three categories of cases, the court may prohibit—that is, it has the power to prohibit—direct cross-examination of any witness by a party if the court takes the view that two conditions are met. The first condition is that the quality of the witness’s evidence would be likely to be diminished if direct cross-examination were permitted and improved if it were prohibited. The second condition is that the witness’s distress would be more significant under direct cross-examination by the party than were the cross-examination differently conducted. Before prohibiting direct cross-examination in such a case, the court must be satisfied that the prohibition would not be contrary to the interests of justice.
So while those provisions may be complex, they are, by and large, admirable, as they cater effectively for all circumstances where a vulnerable witness is liable to be directly cross-examined by a party to proceedings of whom she or he is plainly frightened, or where a vulnerable party may be put in the position of being obliged to cross-examine directly a witness who has in the past abused that party. It goes without saying that such a cross-examiner may be afraid of the consequences of putting questions to such a witness. But the important point to note is that the first three categories of case involve mandatory prohibition.
In civil cases, however, for a reason that once again I do not understand, there is no provision in Clause 64 of the Bill for the mandatory prohibition of direct cross-examination in any of the categories 1 to 3—that is, commissioner-specified offences, a mandatory injunction in force protecting a party, or evidence of domestic abuse by a party against a witness or a witness against a party. All that remains is the fourth category of protection: the discretionary and conditional protection offered in family cases that do not fall into the first three categories.
Again, I understand from the Minister—who has been keen on this issue, as on all others, to listen to noble Lords and to help—that the Government’s position is that civil proceedings lack the intimacy of family proceedings and so do not merit the same protection for vulnerable witnesses and parties. However, as I said in the earlier group, there are literally thousands of civil cases—as the noble Lord recognised—of many types involving vulnerable parties and witnesses, and exactly the same considerations apply in those civil cases as apply in family cases. I would suggest that the parties and witnesses involved in them should be entitled to exactly the same protection from direct cross-examination on the same basis as in family cases. I mention before closing that this view is shared by the Civil Justice Council, the Law Society, Refuge, Women’s Aid, and many others.
I invite the Government to reconsider whether they wish to stick with this illogical distinction or to instead come back on Report having ironed it right out of the Bill. I beg to move.
Lord Parkinson of Whitley Bay (Con)
I am afraid we cannot hear the noble Baroness. She might still be on mute.
Baroness Bennett of Manor Castle (GP) [V]
Let me try an alternative technology—apologies, my Lords.
It is a great pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames, for the second time, on this group of amendments, on which it is clear that he has done a great deal of work, and for which he deserves great thanks. I am simply here again as a support act for the reasons that I set out in the first group of amendments we addressed today. I think the arguments of justice and compassion are the same in this group of amendments as they were in that first group.
Sitting in many courtrooms over the years as a journalist, looking at the witnesses, you think about what the experience of being a witness is like. Earlier, I used the theoretical but eminently likely example of civil proceedings arising out of the collapse of a farm business that is also associated with domestic abuse. Later on, we will be talking about attempts to insert into the Bill an offence of non-fatal strangulation or suffocation. If we think about the actual experience of a witness who suffered that kind of assault and is then expected to stand in a courtroom and look in the eye the person responsible for that assault, and who is expected to look strong, stand tall and not seem what anyone might determine as shifty or uncertain, we can imagine the pressure that puts on such a witness.
In his answer to the first group of amendments, the Minister said, “Well, there is always judge’s discretion.” We know from many other debates in your Lordships’ House on the Bill that much domestic abuse is not fully reported. Indeed, we know that non-fatal strangulation and suffocation are sometimes recorded simply as common assault. Full information about what witnesses may have been subjected to may not be available and full reporting may not have happened, so it may not be open to a judge to be in the right place to rule on this. There should be an automatic protection available to witnesses who need it.
I will be brief because we have a great deal to do, but I believe that this is an important set of amendments, and I really hope that the Government will reconsider.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will start by making a general point about an issue that has been concerning me regarding the amendments on cross-examination on special measures. I apologise that I am not a lawyer, and if I have not quite have grasped what Committee stage is. I could have been jumping up to speak to all these amendments, so I have bundled my comments into one. I hope that will work. If I have got it wrong, I will not do it again.
I have found the noble Lord, Lord Paddick, hugely helpful and insightful throughout these Committee discussions, but something he said on Monday troubled me. He said:
“My Lords, for reasons of brevity and clarity, I will refer to the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’ or ‘defendant’, and the person the notice seeks to protect as the ‘victim’, rather than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.”
He went on to say:
“Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.”—[Official Report, 1/2/21; col. 1925.]
I understand entirely the noble Lord’s shorthand point, but I get anxious that sometimes, that sort of shorthand becomes the presumed fact or reality. That has been the case throughout Committee stage—nowhere more obviously than in the discussion about cross-examination —and I worry that that might prejudice justice and fairness in proceedings. As the noble Lord, Lord Paddick, rightly stated, it is up to the court ultimately to decide on guilt or innocence. It seems to me that cross-examination is a key part of making such weighty decisions. Testing the evidence thoroughly is very important, and demands for special measures for cross-examination should not compromise that.
We have already heard the way in which this can happen. We have heard the noble Lord, Lord Marks of Henley-on-Thames, say, in calling for special measures in an earlier set of amendments, that if a witness claims that they are frightened, this can be seen as sufficient reason to treat the alleged perpetrator as a perpetrator, and the alleged victim is secure in special measures. I just worry about a slippery slope. Because of the importance I place on cross-examination, in relation to the distinction between family courts and civil courts, I would actually prefer that a legal representative be appointed by both courts in order to facilitate the most objective and thorough cross-examination and to make sure that the evidence is objectively tested.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.
The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.
Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.
The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.
In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.
Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.
Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.
Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.
I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.
I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 130. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 130
Lord Rosser
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence, or(b) involved in ongoing criminal proceedings for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.”” Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Lord Rosser (Lab) [V]
Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.
The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
“(c) pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; orwho has a criminal conviction for a domestic abuse offence.”Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Baroness Jones of Moulsecoomb (GP)
My Lords, some of the earlier amendments to the Bill have been about removing stress from survivors, particularly when they are in court. I support Amendment 130 moved by the noble Lord, Lord Rosser, and my amendment is a friendly amendment. Our amendments are about removing stress from children, which I think noble Lords will agree is a very noble cause. As other noble Lords have found, we have been contacted by an incredible number of people and organisations, who have explained that this is a problem and it needs fixing. The presumption of contact in certain family law cases involving domestic abuse needs to be rethought. Obviously, it is incredibly important in many family situations to help children maintain contact with both parents, but in circumstances of domestic abuse this can be precisely the opposite of what needs to happen and can result in disaster.
The whole point of family courts is that they are supposed to be about the welfare of the child, but it seems that too often a court maintains contact in situations that are obviously very harmful to children. The courts apply this presumption of contact too rigidly. Rather than acting as a presumption which can be rebutted, it has become more of an overriding obsession. It has been described as creating a “culture of contact” which pervades the entire family court system and then excludes other aspects of a child’s welfare, including listening to the child’s wishes and protecting them from abuse.
This culture of contact has led to serious tragedies. As the noble Lord, Lord Rosser, mentioned the Women’s Aid report Nineteen Child Homicides documents 19 children in 12 families who were killed at the hands of abusive fathers during unsupervised contact between the years 2005 and 2015. One example of a tragedy was Darren Sykes, who murdered his two children and took his own life by setting fire to his attic. Despite a consistent history of domestic abuse, and against the wishes of the two little boys, the pro-contact culture of the family courts led to Sykes being granted unsupervised contact with the children for five hours each week. This culminated in him taking the boys up to the attic, barricading the three of them in, and setting multiple fires. Mortally wounded, one of the boy’s last words were spoken to a firefighter. He said, “My dad did this, and he did it on purpose.”
Each one of these deaths is a preventable tragedy. Your Lordships have a duty, through the Bill, to prevent each one of them happening again to another child. My amendment to Amendment 130 has a straight- forward purpose: to ensure that unsupervised contact is not granted where the court has found that domestic abuse has taken place, or where there is a relevant criminal conviction. It should be put beyond doubt that a parent cannot have unsupervised contact when they have been proven to be a domestic abuser. This is a simple proposition: too many children are murdered by parents who are known—and who have been shown —to be abusive. We must protect these children and say, “Never again”.
Baroness Gardner of Parkes (Con) [V]
My Lords, I am very supportive of the Bill. The mental and physical damage of domestic abuse goes far beyond the pain and anguish caused at the time it occurs and stays with victims and their families for many years, if not for the rest of their lives. It is important that we do all we can in this legislation to help victims to get out of abusive relationships and rebuild their lives.
I will speak on Amendments 130 and 130A and propose to add parental alienation to the definition of abusive behaviour and, therefore, every provision of the Bill. I fear that the amendments may undo much of the work which the Bill seeks to do to protect victims of domestic abuse and swing the pendulum of control back to the perpetrator of that abuse, rather than the victim, if they make counter-allegations.
Without meaning to sound flippant I say that, at the extreme, any parent going through a break-up or divorce could find themselves accused of domestic abuse under this Act. That is not what the Bill is intended for. I wonder if the concerns of noble Lords on these amendments are already covered by the combination of Clause 1(3)(e) and (5). Alternatively, if they had a specific instance in mind, they should look at where that can be catered for in specific clauses, not by a wholesale change to the entire Act in this way.
The noble Lord, Lord Marks, has made it clear that direct cross-examination can cause great distress. It is important to help all people in vulnerable situations. I can see these amendments having massive unintended consequences if they are included. I urge the House not to accept either of these changes, so as to maintain the integrity of the Act.
Baroness Meacher (CB) [V]
My Lords, I will speak principally to Amendment 130 in the name of the noble Lord, Lord Rosser. Parental contact is, of course, enormously important. Continued contact can be very dangerous both mentally and physically, but it can be beneficial. To make the right decision for each family is of the utmost importance, and sometimes people get it wrong. However, my support for the amendment is nuanced. I support proposed new subsection (4) but I add that a parent of either sex who has been found to exercise controlling or coercive behaviour should probably not have continued contact with the children. Such contact is likely to be used to continue controlling the partner. The child becomes a pawn in the fight with the partner.
I know an appalling example of this. Years after a divorce between an American dad and a British mum, the mother is required to pay to fly to the US five or six times a year to take her child to the father for contact. Because she cannot trust the father to allow the child to come back, the mother keeps the passport. This means that, after the week’s contact, she has to fly to the US and pick up the child. Even Covid was not accepted as a reason not to go, and the mother caught it on the plane back to the UK over Christmas. The child does not want to go to see her father but is being used as a pawn.
I accept that anecdotal evidence is of limited value; I am a great believer in research. However, I ask that, before Report, the presumption of parental contact be considered in the context of controlling or coercive behaviour and the results of relevant research on the issue.
The first part of the amendment assumes that the presumption of parental contact should not apply in relation to a parent where domestic abuse has affected the child or other parent. I support the implication that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment could be nuanced before Report. I fully accept that it should not be presumed that parental contact would apply in these circumstances.
In my experience, even when domestic abuse against children as well as a partner has occurred, this should not necessarily rule out parental contact. This depends on the nature of the abuse, the ages and level of understanding of the children, the presence or absence of controlling behaviour—a key factor in the situation—and an overall assessment of the potential harms and benefits involved. I also broadly support the amendment in the name of the noble Baroness, Lady Jones, but I would qualify it on Report.
While again recognising the limited value of individual cases, I will illustrate with a personal experience my point that very serious domestic abuse and continued parental contact may be compatible and, indeed, helpful. The case I will cite involves abuse of children by a mother. As with abuse by a father, abuse by a mother can be extraordinarily damaging, and it can take the authorities a very long time to recognise it.
A male member of my family and his children suffered what can be described only as severe trauma over several years. It took Cafcass and the judicial system two and a half years to recognise that the person who was lying about her abuse of her children, and making up allegations, was in fact the mother. The authorities assumed at that time that mothers did not abuse their children. The very little eight year-old girl climbed up on a chair and unbolted the front door—she was always locked into her mother’s house—ran to the bus stop, managed to get on the right bus and get off at the right stop, and ran one mile through Tottenham to her dad’s house. Only then did the matter go back to court and the judge recognised that he and everyone else involved had made an appalling mistake. Having required the children to live with their mother for two and a half years, the lead social worker in the case finally made it clear that the children should only visit her but certainly not live with her.
The children have lived with their father ever since, but all have suffered from various levels of PTSD. They have had years of therapy, paid for the father, not by the state. Despite the abuse of the children and the damage to them, this father has encouraged contact with the mother. Once the children were safely placed with their father, he felt it was important for them to accept that their mum could not provide parenting but that she was, nevertheless, herself a victim. Her behaviour very much reflected her own experiences as a child. The children know that they cannot expect normal parenting, but they understand her mental state and therefore see her as a person with her own problems. In my view, they have benefited very much from the fact that they are not left with only the horrendous memories of their abuse as small children.
My personal experience, while only anecdotal, explains why I feel so strongly about the issue of parental contact. It is very complex yet hugely important. In conclusion, I support both these amendments but would like to see them adjusted before Report.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, throughout the preparation for proceedings on this Bill, I have been extremely impressed, and greatly assisted, by the work of Women’s Aid, the Victims’ Commissioner for London, the Victims’ Commissioner and many others who have worked tirelessly, with the grain of this Bill, to improve the response of us all, and the courts, to the scourge that is domestic abuse. However, with this amendment and the amendment to it, which many of them support, I have a number of concerns.
The amendment, as we have heard, seeks to disapply the presumption in Section 1(2A) of the Children Act 1989. I turn for a moment to two provisions of that widely admired legislation. As is well known, Section 1 provides:
“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”
That overriding requirement lies at the heart of the Act, and judges and lawyers have long regarded it as the central canon of our law relating to children. The presumption under Section 1(2A) requires courts hearing proceedings, which include making orders about where children are to live and orders for contact between a child and their parents, to presume that
“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”
That presumption reflects a wealth of evidence not mentioned so far in this debate, but it is generally in a child’s interest to have a relationship with each of their parents. However, that presumption is rebuttable, hence the words
“unless the contrary is shown.”
It is often the case that judges will make a decision, which generally they do not like to make but do, that given a history of domestic abuse by one parent of the other and the effect upon the child, contact with one parent will be withheld. The noble Lord, Lord Rosser, confirmed that the statutory guidance for judges ensures that they carefully consider whether contact is justified or should be withheld.
I do not suggest for a moment that all contact is safe. As many have said, cases of abuse and very serious abuse can arise during and around occasions on which contact takes place, as it can on other occasions. But I disagree with the noble Baroness, Lady Jones of Moulsecoomb, which I rarely do on these issues, that the presumption is treated by the courts as overriding. I agree with the point made by the noble Baroness, Lady Meacher, that different solutions may be right for different families. The question for the House is where that leaves us. My concern is that there will be cases where this amendment runs the risk of putting the interests of children behind the interests of parents.
However, the removal of the presumption in this subsection is not the only reason I am concerned about this amendment and the amendment to it. Subsection (4) of the proposed new clause would forbid the court from making any order for unsupervised access with a parent who is
“awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.”
That prohibition would be absolute, and I think it would be wrong. It would forbid a child from having unsupervised contact with a parent which may, in particular circumstances, work against the best interests of the child, contravening the paramountcy principle I mentioned. It should be for the judges to determine what the circumstances in each case demand. The noble Baroness, Lady Meacher, pointed out that circumstances differ and the extent to which they do.
Furthermore, the amendment is not limited to cases involving domestic abuse against a parent of the child concerned. Section 9(8) of the Children Act referred to in subsection (4) of the proposed new clause is concerned with allegations of “a domestic abuse offence.” The subsection would prohibit, for example, a court making an order for unsupervised contact between a father and his older child because the father had been accused of a domestic abuse offence committed against a new partner who was not the child’s mother, irrespective of any relationship between the new partner and the child. Such a prohibition would be grossly unjust, depriving the child of his or her relationship with the father. It would again run entirely counter to the paramountcy principle.
What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, Lady Meacher, mentioned a case where they were indeed wrong. The noble Baroness, Lady Gardner of Parkes, mentioned a case where allegations might be malicious. This provision runs the risk of inviting unwarranted allegations of abuse calculated to destroy a child’s relationship with a parent against whom nothing has been found, on the basis of allegations that may be irrelevant to the welfare of the child. A family judge would determine whether such allegations of abuse were made out and would do so on the basis of evidence adduced before the court, not on the basis of unproved allegations. This amendment involves, to that extent, a denial of justice and a denial of justice to children.
I firmly believe that judicial discretion should not be withdrawn in this sensitive area of family life. There are many cases where abusive behaviour by one parent towards another entirely justifies the withdrawal of contact between the abusive parent and the child. But there are other cases, as the noble Baroness, Lady Meacher, recognised, where withdrawing contact is inimical to the welfare of the child.
Improving the way in which family courts understand and respond to domestic abuse of all sorts is of the greatest importance, but this amendment is too prescriptive in its statement and its outcome. Removing the power of judges to act in the best interests of the child, on whose behalf they daily make very difficult decisions, is not the way to achieve the aims of this Bill.
Lord Randall of Uxbridge (Con) [V]
My Lords, at the outset, I was attracted to these amendments. As a lay person, listening to the noble Lord, Lord Rosser, with his usual measured way of introducing amendments, and the noble Baroness, Lady Jones of Moulsecoomb, I found the arguments compelling. But as I listened, I thought that although there is sometimes merit in having us lay people who have no knowledge of the law involved—as was mentioned in the previous group—the arguments showed why it is so important to have people who have experience with what the laws we are making would mean in practice in the courts. Having heard the arguments of the noble Lord, Lord Marks, in particular, and the noble Baronesses, Lady Meacher and Lady Gardner of Parkes, and believing that the intentions behind these amendments are worthy, because it seems self-evident that this must be done, I am not convinced that this way of dealing with the issue will be beneficial for the people we want to protect—the children.
Of course, those chilling statistics of where children have been killed by an abusive parent, after this has been discovered, are very concerning, but I am not necessarily sure that passing any of these amendments would completely rule it out. I think we all agree, those of us lucky enough to have happy families and know other happy families, what the harm would be for those who need it and that parental involvement is paramount.
Lord Rooker (Lab) [V]
My Lords, my quick message to Hansard is that they can tear up the note I sent earlier. In fact, the noble Lord, Lord Randall of Uxbridge, has just made the speech I decided to make having listened to the debate. I do not propose to repeat what he said, save for the fact that the general thrust of his conclusion as a lay person is the same one I have come to. I read the briefings, considered the issue and listened to my noble friend Lord Rosser; I was then surprised when listening to the noble Baroness, Lady Gardner. As the debate went on, I started to have second thoughts. This is the benefit of Committee—that is what it is for. The idea can be taken away and reworked.
I will raise one point from one of the briefings, from Support Not Separation and Women Against Rape, which quoted the harm review. They said they found a pattern of bias in the court professionals which gave weight to the views of the child who wanted contact but dismissed the views of the child who did not. That is extremely worrying.
However, having come to the same conclusion as the noble Lord, Lord Randall, I will leave it there.
Baroness Butler-Sloss (CB) [V]
My Lords, I view this amendment, which is in two parts, with some concern. To a very large extent, I share the views of the noble Lord, Lord Marks of Henley-on-Thames, and those of the noble Lord, Lord Randall of Uxbridge.
When I was President of the Family Division—and throughout the 35 years I was a family judge—I heard a great many cases which had some element of domestic abuse. I do not like presumptions, if they can be avoided. I remember that, when the amended Section 1(2A) was introduced while I was a Member of this House, I was very dubious about it, because I do not like presumptions. The important point of the Children Act is Section 1, which says that
“the child’s welfare shall be the court’s paramount consideration.”
Any family judge or magistrate has to look at all the circumstances and decide whether it is appropriate, in those circumstances, for both parents to have a relationship with the child after their separation. In normal circumstances, one takes it for granted that both parents will have a relationship, but there will be cases in which there should not be one.
I am not quite so concerned about the first part of Amendment 130, because it says that subsection (2A) shall not apply in situations which have affected the child. Even so, it should be a matter where the welfare of the child is paramount and the judge exercises his or her discretion, having come to a conclusion based on all the facts.
I am particularly opposed to the second part of Amendment 130: the restrictions on Section 9. This is, first, because it does not require domestic abuse to have affected the child. Other points have been made on this by the noble Lord, Lord Marks, with which I entirely agree, but I can see circumstances where a child was for one reason or another—possibly at boarding school or away on holiday—not present when there was domestic abuse between the parents, and the child had no knowledge of it. In those circumstances, it would not be inappropriate for the child to have unsupervised contact with a parent who had done absolutely nothing wrong to the child but who may have been involved in a single or unusual circumstance which could be classified as domestic abuse of the other parent.
This draconian proposal that Section 9 be restricted is inappropriate, although I entirely understand and share the concerns about the parents—mothers as well as fathers—who have been given unsupervised contact where there are issues of domestic abuse which are true, where the children are then killed. That is extremely sad; there should be adequate training of all judges and/or magistrates trying family cases. It may be more important to get the Ministry of Justice to discuss with the Judicial College and the President of the Family Division whether the training of judges and magistrates in issues of domestic abuse, to which I shall refer on the next group, should be improved. I will later refer to a useful case in the Court of Appeal which has been discussing this.
I am completely opposed to the second part of Amendment 130. I am sympathetic to what lies behind it, but I believe there should be a broader consideration of whether, where the welfare of the children must be paramount, there should be any presumptions of any sort—but certainly not in the way this has been drafted.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
In place of the noble Baroness, Lady Andrews, I call the noble Baroness, Lady Altmann.
Baroness Altmann (Con) [V]
My Lords, I once again congratulate the Government on bringing forward this important Bill and on the constructive and helpful manner in which my noble friends the Ministers have all engaged with so many noble Lords to try to ensure that this legislation achieves its aim of protecting victims of domestic abuse.
I am speaking to Amendments 130 and 130A because I share the concerns expressed by other noble Lords that they may unintentionally undermine the aims of the Bill. I recognise the rationale and thinking behind them and the desire to protect children, who can be innocent victims in these awful cases, but I agree with the noble Baroness, Lady Meacher, and so many others that contact with both parents is normally in the long-term interests of children. That is why I supported amendments at an earlier stage to ensure that parental alienation is taken seriously, rather than being left to statutory guidance or, as these amendments might suggest, removed from the guidance as well.
The current legal position reflects huge amounts of evidence that children benefit from contact with both parents and that significant psychological damage can be caused by loss of such contact. I therefore have serious concerns that removing the presumption of contact could cause more harm to more children than this amendment is designed to prevent. Of course, there will be dreadful cases in which an abusive parent will perpetrate harm on the children, but that is extremely rare. As the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Marks, the noble Baroness, Lady Meacher, the noble Lord, Lord Rosser, and others have explained, the family courts already have the power, under the Children Act 1989, to decide against contact in individual cases where it is judged to be appropriate for that case. The Act presumes only that contact with both parents will be in the child’s interests unless the contrary is shown. Should the contrary indeed be shown, rather than merely alleged, and should abuse be proven, then those are clearly the exceptional cases in which a court would hardly be likely to grant access.
Do we not have a principle of ensuring that someone is proven guilty before being deprived of such important rights? Amendment 130 would require that, even where there are allegations of domestic abuse, whether it is against the child or a parent, the deprivation of access to children would still hold. That clearly invites the risk of unfounded allegations being made by one parent who wishes to prevent their ex-partner seeing the children, potentially as a way in which to punish the other parent or for other reasons. That could lead to the other parent being accused, for example, of emotional or psychological abuse, for which there may be no visible signs and which, indeed, may subsequently be disproved. However, the amendment would mean that the courts would deny access to the person who is accused before any judicial opportunity to find that parent innocent.
I echo the words of my noble friend Lady Gardner of Parkes, who mentioned parental alienation, which we discussed in an earlier group, and those of the noble Baroness, Lady Meacher, and others: these cases can be hugely complex. We have to trust the courts to apply the expertise necessary in such cases, which are the vast majority. The presumption of contact seems to have so much weight of evidence behind it that it would be extremely unwise and damaging to many children if the amendment, and Amendment 130A, were accepted.
We do not want the Bill to damage children in a misguided attempt to help them. It does not seem to fit with natural justice to impose automatic sanctions without the normal judicial oversight or a conviction to substantiate claims. I recognise the intention of these amendments and I share the desire to prevent any children being severely harmed or even unwittingly put into the hands of an abuser who may kill them. However, I hope that Amendments 130 and 130A will not form part of the Bill because the alternative, whereby children are denied access to their parent, and the other parent is denied access to their children, on the basis of unsubstantiated and potentially false claims, could lead to substantial harm and, indeed, the suicide of a parent or children, who often suffer terribly if they are unable to have contact with a parent.
Baroness Burt of Solihull (LD)
My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.
As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.
As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.
Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.
We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.
The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.
I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.
Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.
Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.
I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.
The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.
It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.
Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.
In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.
Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.
Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.
I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.
Baroness Jones of Moulsecoomb (GP)
My Lords, I thank all noble Lords who contributed to this extremely valuable debate. In particular, I thank the Minister for his sympathy for our point of view. As he says, there are real consequences in rejecting these amendments. I note the heavyweight opposition on several points but I am not convinced. The fact is that we have a problem and just rejecting these amendments will not solve it. I hope that there will be further working together on this, and that noble Lords will forgive me if I do not note all the responses, as it was fairly clear these amendments will not be going forward.
I really want to thank the noble Baroness, Lady Burt of Solihull, for her very constructive comments. The fact is that, as she said, we can underestimate the damage done by perpetrators. This is the problem. We have not fixed the problem of children’s deaths through abusive parents. Going forward, I want to find out how we can solve that problem. Let us please remember that deaths are a figure we can point to but that mental, physical and emotional abuse are much harder to quantify. This must happen. If we have 20, 24 or 60 deaths, whatever, then a multiplicity of other abuses will have happened. We must take that into account in rejecting these amendments. I said at the beginning of the debate that there is always a presumption of parental involvement—that it is better to have two parents involved—but the way that things stand at the moment is too strong, so this must be rethought.
I beg leave to withdraw my amendment and presume that the amendment of the noble Lord, Lord Rosser, will also be withdrawn. I feel that he was absolutely right to table his amendment, because it has enabled a debate. Hopefully, we will move forward and find a solution.
Lord Rosser (Lab) [V]
I am not quite sure what right of reply I have, since my name is not shown on the speakers’ list as being able to speak at the end of this debate. I do not want to test the patience of the House, so I had probably better keep my comments brief.
It was the expert panel set up by the Ministry of Justice which came to the conclusion that the presumption in favour of contact
“further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
I would add that my amendment does not prevent a court coming to the conclusion that, nevertheless, where there is domestic abuse, there should still be involvement with both parents. It is just that it would not start off with a presumption that it should be the case.
I will leave my comments there. I thank the Minister for his full response, and thank all noble Lords who took part in the debate. Bearing in mind that I am not actually shown as having a right to speak at the end, I had better conclude my comments by begging leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord was entitled to speak. He was just left off the list inadvertently.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 131. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 131
Baroness Bertin
“Confidentiality of refuge addresses
(1) In family proceedings, where a person (“P”) is—(a) witness or party to the proceedings; and(b) has been subject to domestic abuse as defined under section 1 of this Act; and(c) is residing at a refuge;the provisions in this section apply.(2) The court must not share the residential address of the refuge with any individual or third party.(3) A court order must not be served on P at the residential address of the refuge.(4) A court order may be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.(5) The residential address of the refuge must be redacted from any court documentation.”Member’s explanatory statement
This would prevent the residential address of a refuge being shared as part of court proceedings.
Baroness Bertin (Con)
My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.
Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.
I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.
The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served
“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”
As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.
The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to be encouraged.
By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.
In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.
This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.
Lord Rosser (Lab) (V)
My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.
Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.
The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.
Baroness Newlove (Con) [V]
My Lords, I support measures to improve the safety of family court proceedings for survivors of domestic abuse and their children so will use my time to speak to Amendments 132 and 135.
Amendment 135 would offer victims of domestic abuse transparency about their right to appeal in the family courts. It would not introduce a new right to appeal; rather, it would make victims aware of the existing rights that they can exercise. As someone who has navigated the justice system, I can attest to how overwhelming and disempowering it can be. Basic information about the most fundamental rights is often not communicated properly. In fact, it is never known until many years later. This is particularly worrying when there are time limits on accessing rights, as is the case with appeals in the family courts, where you have 21 days unless the judge has specified otherwise.
These issues are only deepened when you are without legal representation. Following legal aid reforms in 2013, most private-law children cases now involve at least one litigant in person. Research has shown how the challenges of self-representation are particularly pronounced in cases involving domestic abuse, a fact reflected in the Ministry of Justice’s harm panel report. Indeed, I have heard from many survivors of domestic abuse who have represented themselves in court and have felt that their abuse was dismissed or misunderstood and that the fact-finding procedures, such as practice direction 12J, were not followed. None of them was aware of their right to appeal.
The Court of Appeal has recently heard evidence from four linked cases and will consider the family court’s approach to domestic abuse. During these proceedings, the President of the Family Division, Sir Andrew McFarlane, noted his surprise that systemic issues have been identified with how the courts handle domestic abuse as so few cases are appealed. Many factors will inform a decision to appeal, including financial limitations and emotional strain. However, from the survivors of domestic abuse whom I have spoken to, it appears that one of the biggest factors is the lack of awareness that such an avenue is available to them. The President of the Family Division has been clear that the appeals process is the correct mechanism for examining the courts’ approach to domestic abuse. This amendment would help that to become a reality on the ground.
Amendment 132 would place a duty on courts to share information about proceedings involving the same victim. It is something that we know should happen, but unfortunately it often does not. Again, I point to the Ministry of Justice’s harm panel report and the recurring issue of the family courts not adequately managing risk. The report specifically acknowledged the courts’ failure to identify abuse through repeated court applications. The criminal courts can often offer crucial information that would give family judges a clearer picture of risk in a case—for example, where protective orders, such as restraining orders or non-molestation orders have been granted. The Suzy Lamplugh Trust recently estimated that 38% of its domestic abuse and stalking casework clients who are in the family courts have some form of protective order—a restraining order, non-molestation order or stalking protection order—against the perpetrator. Equipping judges with this information would support them to better identify abusive dynamics and provide some contextual evidence when suspected repeated and vexatious applications are being made.
The second half of the amendment is designed to address these repeat applications. While barring orders technically exist to allow intervention on such behaviour, the reality is that they are rarely used. The Ministry of Justice’s review heard evidence from a specialist organisation which was not aware of any barring orders being made in the child sexual abuse cases it had supported, even when there had been a conviction and the abusive parent had made multiple applications for child arrangement orders or variations. In the Government’s implementation plan, there was a commitment to urgently review the use of barring orders and to consider them for inclusion in this Bill, so I ask my noble friend for an update on this commitment.
Baroness Hamwee (LD) [V]
My Lords, I feel slightly embarrassed to be coming in ahead of the noble Baroness, Lady Helic, who has her name to one of these amendments. I look forward to hearing what she has to say.
I think—and I apologise if I have this wrong—that on Monday it was said from the Government Front Bench that refuge addresses were never disclosed. We need to allow for human error and human ingenuity. We have previously touched on how many victims have moved away from their home area in order that their whereabouts will not be discovered but, as we have also heard, abusers can be determined. So much of the issue is about power and control, so it is not difficult to see that an abuser might do everything to track down a victim. The noble Baroness, Lady Bertin, referred to the prevalence of stalking. Knowing that a victim has moved to a refuge must be a red rag to some bulls. The dangers are not only to the victim of that abuser but to other occupants of the refuge. I am aware of situations where others have been endangered, including the children of the occupants, as well of course as the children of the victim and of the abuser, themselves victims. What must a child think when they are uprooted by Mummy, told that they are going somewhere where Daddy cannot get at them, and then Daddy appears? The noble Baroness, Lady Bertin, also referred to the horror stories on which I have been briefed.
Baroness Helic (Con) [V]
My Lords, I intend to focus mainly on Amendment 133, which is in my name. Like the other amendments in this group, which I support, it is trying to make sure that the courts protect survivors of domestic abuse from further harm. I thank the noble Lord, Lord Ponsonby, for his support on this amendment and for his leadership on the others, and I take this opportunity to thank the noble Baroness, Lady Hamwee, the noble Lord, Lord Rosser, and my noble friends Lady Newlove and Lady Bertin for their contributions. I have learned a lot from them.
I approach this debate humbly. I am not a legal expert and I have not had what is called “a lived experience”. My intervention is informed by many cases I have come across, in particular the case of a close friend whose experience at the hands of a judge and experts lacking domestic violence training has been traumatic, painful and unjust. I also want to put on the record the work of the London Victims’ Commissioner’s office and Women's Aid, from whom I have learned an enormous amount.
The Ministry of Justice review into the risk of harm in family court cases involving domestic violence, which concluded in June last year, found serious systemic issues. Despite good intentions, domestic abuse allegations are being overlooked, misunderstood and dismissed. Survivors and their children are being put at risk as a result, something which I have heard about directly from survivors. To quote one survivor who spoke to Women’s Aid and Queen Mary University of London:
“All professional witnesses supported me but despite overwhelming evidence, the judge said that I didn’t fit the profile of domestic violence victims as I wasn’t scared enough. Also I was too educated and knowledgeable to allow DV to happen to me.”
This runs against everything we know about domestic abuse and the damage it does.
I am afraid that underpinning this is a lack of judicial understanding. This is not a criticism of individual judges; they face tremendous challenges, given the complexity of domestic abuse cases and the way that society’s awareness and understanding of domestic abuse has improved in recent years. But, unfortunately, the family courts’ approach to domestic abuse remains much the same as 20 years ago, and the system is stacked against the survivor because of both the pro-contact culture of the courts and the intersecting structural disadvantages women experiencing domestic abuse face within then.
If we want to change the practice and culture of the courts so that they truly put the best interests of the child at heart, they need to work at the cutting edge of our understanding of domestic abuse and its harms, not years behind, and, for that, specialist training is absolutely crucial.
We have already heard several times in Committee about the need for better training. The noble and learned Baroness, Lady Butler-Sloss, discussed judicial training, while Amendment 53 looked at the issue from another angle. Among those calling for improvements from outside are Women’s Aid and the London Victims’ Commissioner. The Government have also recognised the importance of training. The Ministry of Justice review panel recommended
“training for all participants in the family justice system”,
and I was heartened to hear my noble friend Lady Williams agree that judicial training needs to be revisited. I hope that she and my noble friend Lord Wolfson will be receptive to this amendment.
Domestic abuse affects all aspects of a family court case. It shapes how participants present at court, the evidence they give and how they give it, and it is a critical factor in determining the interests at stake and how safe child contact is arranged. However, as is recognised in the Bill, domestic abuse has a wide range of impacts and requires a wide-ranging, intersectional understanding. Mandatory training, delivered by domestic abuse specialists, will ensure that judges at all levels are much better equipped to understand the effects of domestic abuse and how to respond to it. As such, it will support and make possible the implementation of all aspects of the Bill. I note also that similar training is required for sexual violence, although that remains outside the scope of the Bill.
By stipulating that the training should be developed in consultation with the domestic abuse commissioner, we can ensure that it truly teaches current best practice and is aligned with national and specialist efforts to tackle abuse. As our understanding of domestic abuse improves, the courts will not, and should not, be left behind.
My focus so far has been on judicial training, but perhaps the real importance of the amendment is that it goes further than that, extending not just to members of the judiciary but to any Cafcass employees, social workers or appointed experts advising the court. That is why this amendment is so necessary. The Judicial College could offer better training for judges without it, but that is not enough.
Expert witnesses rightly play an important role in advising and guiding the family courts, but of course they do not have a thorough understanding of every field or every issue. Many expert witnesses, whose opinions might be crucial in shaping a court’s decision, are not experts in domestic abuse at all. They are not well placed to advise on whether domestic abuse is taking place or on what its impact might be.
Training which gives a full picture of domestic abuse—the context, the impact and how to respond—is therefore necessary in order that experts in our courts have a full picture of the situations they advise on. It will make them more aware of the risks and more attuned to the harm that could be inflicted. It will help implement the recommendations identified by the Ministry of Justice review, which called for training for all participants, including a cultural change programme and a multidisciplinary approach across all agencies and professionals. The result will be better processes for survivors and, crucially, better outcomes for children.
One survivor who contacted me recently described how Cafcass does not see her as a victim of domestic abuse because there are no broken bones or scars and because she seems like a strong and capable woman. But, as we all know, and as the Bill recognises, domestic abuse takes many more forms than just the worst manifestations of violence. It is no good changing our legislation to reflect that if we do not change practice as well. That requires training, and that is why we need this amendment.
Lord Rooker (Lab) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Helic. I will speak to Amendments 131, 132, 133, and 136. I shall not go back to my time in the Commons, when I dealt with some cases in a personal way.
I have had the benefit of a briefing from someone who has sat as a court independent domestic violence adviser and has what I will call direct, hands-on street experience and remains involved in the wider processes. She has worked in the voluntary sector and in law enforcement, so her experience comes from both sides.
Baroness Butler-Sloss (CB) [V]
My Lords, I strongly support as much training as possibly can be given to everyone who works in any way in the family courts, but I strongly oppose the proposal that this provision should be in primary legislation. This is a matter for the Ministry of Justice; in relation to judges and magistrates in particular, it should be a matter for the Judicial College.
I am interested to see that magistrates who sit in the family proceedings courts have been consistently ignored in this debate, throughout many of the amendments. Many of these cases are actually in the family proceedings courts. Both the judiciary and magistrates have specific training from the Judicial College. I used to be the chairman of family training in the predecessor to the Judicial College; I certainly gained a great deal from seeking the advice outside the judiciary. Involving the domestic abuse commissioner is an excellent idea. She should be able to advise the Judicial College, particularly speaking to the family judges and the family magistrates, but this should not be part of primary legislation.
It is also important to bear in mind that each of the groups which are set out have their own training processes. Again, it would be important for the Ministry of Justice to discuss with social services and with the medical profession—almost certainly through the Royal College of Psychiatrists and the similar organisation for psychologists —whether they have adequate training for dealing with evidence of domestic abuse. Any other independent appointed experts should be looked at for appropriate training. I have no doubt that Cafcass gets training. It works with the Ministry of Justice and with the family courts, and its training is very important. But it is not appropriate in my view for this to be put into primary legislation.
I was interested to read a case in 2020 called H v F; the Court of Appeal gave helpful advice on the importance of the interface between the criminal courts and the family courts on domestic abuse issues and suggested that there should be specialist training for judges. I hope that that will be picked up by the Judicial College. It would be helpful for discussion for the president of the Family Division, but please do not put any of this into primary legislation.
However, although I do not support Amendment 133, I support everything the noble Baroness, Lady Helic, has said about the importance of training. I entirely agree with her suggestions and her very powerful speech, apart from the matter of primary legislation. I strongly support Amendment 134 because of the important research on trauma and its effect, as has already been said, on the ability of witnesses to give evidence. It is believed that very often the problems of not remembering certain things are because of trauma. There is a lot behind this which needs to become part of the training of all those involved in the family courts and domestic abuse cases. It is very important that there should be far more awareness of the impact of trauma on those who are the sufferers of domestic abuse.
Let me mention the two groups that I have referred to throughout Committee: the victims of forced marriage, and those of modern slavery who may not have gone through the NRM; even if they have, they need help for their trauma.
I do not think there is anything more to say about Amendment 136. Clearly the victim should not have to pay for the perpetrator to have contact; I should have thought any parent seeking contact should be expected to pay for it as a general principle.
Baroness Verma (Con) [V]
My Lords, I feel very privileged to be following noble Lords in speaking to this amendment. I want to put it on the record that I am chair of UN Women UK.
I shall speak briefly to Amendments 132 and 133. I fully support sharing information, from the perspective of women from minority communities. With the support of the work that H.O.P.E training is doing through Meena Kumari and her team, I have learned an awful lot, even though I have been working in this area for a very long time. I have come to the conclusion that the silos that exist have been compounded even further if someone is from an ethnic minority background, English is not their first language and they do not understand how to access services and opportunities. They live within multigenerational households, and when they finally try to leave and enter a refuge, it may not be equipped for their needs, or they enter the home of a friend of a relative who can also be put at risk.
It is critical to offer as much protection as possible and to try, through training of all our services,—whether it is the judiciary as in this case, or all our other services—to get a much deeper understanding of the perspective of women coming from minority communities, who do not have the opportunities to understand the wider support mechanisms that may be available to them. That is not just through language, but it is also through cultural norms of acceptance.
The noble and learned Baroness, Lady Butler-Sloss, talked about forced marriages and modern slavery. I have come across numerous cases of forced marriages, and seen the trauma and the effects of having lived within households where every single day was a day of abuse, not just by one perpetrator but by many family members. Trying to find the will to escape and then finding yourself sitting in court rooms with the whole family on one side and you alone as a survivor on the other—it is incredibly difficult to explain the long- lasting effects of that. I cannot imagine how that is ever going to leave you and your psyche.
Baroness Warwick of Undercliffe (Lab) [V]
My Lords, I will speak briefly on these amendments. It is a great pleasure to follow the noble Baroness, Lady Verma, and indeed all the speakers in this thoughtful and very practical debate.
I support Amendments 131 and 133 in particular. On Amendment 131, the Minister has already said that under no circumstances should the address be disclosed of the refuge in which the sufferer of domestic abuse resides, but we have heard from the noble Baroness, Lady Bertin, of the extraordinary lengths to which perpetrators will go to stalk or otherwise pursue their victims. We have also learned of not only the physical danger to which this exposes the sufferer but the mental fear and anguish that it perpetuates.
The Government accept the principle that an address must not be disclosed in any circumstances because of the potential appalling consequences, but unless non-disclosure is a legal imperative captured in the Bill, embedding this principle and maximising compliance with it will be weakened. Ambiguity and thoughtlessness in releasing a victim’s address will be allowed to prevail, with all the potential consequences we know that could reap.
The formal procedures of a court are intimidating enough for any citizen to think at least twice before embarking on a judicial case. How much more intimidating it must be for those who know that their very life might depend on the anonymity of their whereabouts. If they have any doubt that they can rely on the court to protect them, that in itself could be a deterrent against proceeding with their case. Putting this amendment in the Bill would be an enormous reassurance to a victim, and a greater discipline and constraint on those who could potentially release their address.
On Amendment 133, it is worth reminding ourselves of the amount of evidence we have heard about just how traumatic survivors of domestic abuse find the court process. One cannot help thinking that some of those procedures were designed, even if not intentionally, to daunt or dishearten those who did not have the greatest confidence either in themselves or in the merits of their case being understood and accepted, especially as waiting times are as long as they are. Those who have had their confidence and courage systematically beaten out of them might be forgiven for thinking that the courts are not there to help them.
From reading the debate in the other place on the Bill, I was struck in particular by a comment from Peter Kyle MP, a long-time campaigner on these issues. Having recounted the awful experiences of some of his constituents, he went on to say that in his lobbying for change
“Minister after Minister told me that a cultural change was needed in the … justice system.”—[Official Report, Commons, Domestic Abuse Bill Committee, 11/6/20; col. 271.]
The evidence submitted to us in the briefings from Refuge and other organisations suggests that there are too many such instances of judges and other professional workers in the judicial system failing to understand the dynamics of domestic abuse and so failing the survivor, who has often made a brave and fearful decision to make the accusation and come to court in the first place.
Most organisations and systems must at some time accept the need for cultural change, and it is never easy. I hope that this proposal is not dismissed on the basis that such soft skills do not belong in a court of law. The courts have come a long way but, on the evidence of the many cases that we have been told about in letters and briefings, they clearly have further to go. Putting this requirement in the Bill would be a real signal of intent to make that change. I noted what the noble and learned Baroness, Lady Butler-Sloss, said, and if the Minister is inclined to agree with her, I hope that he will take personal responsibility for ensuring that the necessary training is undertaken.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I broadly welcome this group of amendments. Although I have concerns about some of them, which I will explain, and it may be that the precise drafting of some would benefit from revision before Report, it is clear that they are drafted and tabled with a view to responding to the harsh plight of victims of domestic abuse as they go through the court system. If they have a common thread, it is about understanding and responding to the vulnerability of victims and the trauma of the abuse that they have suffered.
I will make a few points on each of the six amendments. On Amendment 131, it is plainly right that the addresses of refuges should be kept confidential. The whole point of a refuge is to enable victims of domestic abuse to feel safe from their abusers. It is of the essence that victims should feel confident that they will not be sought out and found by abusive former partners. Often such victims are with children, and the trauma that they have suffered at the hands of their abusers has left them not only protective, but scared for their own futures and those of the children who have come with them to the refuge. Courts must guard against giving refuge addresses away.
We have heard that abusers have traced victims to refuges as a result of carelessness within the court system, which has sometimes had serious results. The noble Baroness, Lady Bertin, gave us a harrowing example. It may be that the provisions of the amendment are slightly too wide, and that the assumption that refuges can be expected to have both an office and a residential address is too optimistic, as my noble friend Lady Hamwee pointed out, but the principle is one that I hope the Government will welcome.
Amendment 132 is designed to ensure that courts dealing with different cases of domestic abuse involving the same victims share information with each other. This is to enable greater co-operation between courts and to ensure that where, for example, criminal proceedings and family proceedings concerned with the same victim are continuing alongside each other, each court will know about the proceedings in the other. Again, the amendment may need some redrafting to achieve clarity, but the principle is right. However, I wonder whether an enlarged or parallel provision should be introduced requiring a similar exchange of information between courts involving the same abusers, as this amendment deals with information about the same victim.
Amendment 133, concerned with training for the judiciary and professionals in the family court, is the most important of these amendments, as my noble friend Lady Hamwee, the noble Baroness, Lady Helic, the noble Lord, Lord Rooker, and others, have reflected, though I share the hesitation of the noble and learned Baroness, Lady Butler-Sloss, about enshrining this in primary legislation. Judges generally try to keep up to date with evidence about domestic abuse and try hard to apply the law in accordance with the evidence that they hear, putting aside, as far as they can, their own prejudices. However, we must recognise that most judges and legal professionals come from a world that differs dramatically from the world that is home to many of the litigants who come before them: victims, abusers, witnesses and others. The more training that judges and professionals receive in understanding domestic abuse, the better.
The amendment as drawn does not define how the training is to be established, except that it is to be in consultation with the domestic abuse commissioner. On reflection, I think that is right. We have a commissioner- designate who is genuinely expert in this field and dedicated to achieving an improved response to domestic abuse. I believe that training should also encompass learning to recognise and respond to vulnerability and to take into account the effect of abuse-related trauma on the ability of witnesses and parties to give evidence before the court, and the quality of the evidence likely to be received. I would go a little further than the amendment and require that, before any circuit or district judge sits to hear a family case, they must have completed mandatory training in domestic abuse, as arranged pursuant to the amendment.
I regard the training Amendment 133 as more likely to be effective than Amendment 134, which would require the court to consider the vulnerability of victims of domestic abuse, who are witnesses and parties to proceedings, and the impact of trauma on the quality of the evidence that they give. This is in tune with the objects of the Bill and no one could disagree with the motivation behind it but, generally in domestic abuse cases, judges try to consider the vulnerability of witnesses and parties, and the effect of trauma. Many, even most, succeed in so doing. I hope that the view I have just expressed does not reflect complacency. It reflects the general view that judges are trying to do justice, with regard to vulnerability, sensitivity and the circumstances of particular cases. Such judges benefit enormously from training but, for them, I expect the amendment is unnecessary.
Secondly, if judges fail properly to consider vulnerability and the impact on evidence from the trauma of abuse, that stems from a lack of understanding or training to which the training amendment is directed. It cannot be properly addressed by a bare statutory requirement imposed on judges to consider these matters.
Finally—and I hope I will be forgiven some cynicism—there is the problem well known to lawyers that, if a statute requires a judge to consider two or more factors, call them A and B, the judgments of the less good judges will always state, boldly but sadly inaccurately, “I have fully considered factor A and factor B. In the circumstances, I have concluded”, and the conclusion follows, however flawed it may be, in its unappealable compliance with the statute, which is matched only by its lamentable lack of understanding.
I agree with the principle of Amendment 135 on the transparency of court arrangements, which is that every litigant who is unhappy with the result of a court hearing should leave court with full information about the appeal process. However, I do not believe that that should go into the judge’s ruling. Often, although not always, rulings in family cases are given in oral judgments delivered at the end of hearing the case. They are very important in setting out the judge’s reasoning, particularly for the Court of Appeal, but also for the parties. I have never been completely confident that the parties, who are generally shell-shocked by the proceedings, listen to every word that the judge says.
It should be incumbent on the court administration to ensure that a document setting out the appeal process, in clear terms, is given to every party and possibly others who want it, on departure from court at the end of the day. It should contain details for the court and a helpline equipped to assist with the relevant information. As the noble Lord, Lord Rosser, said in his introduction, this is a probing amendment and it could easily be met by ensuring that this information is available through administrative functions in the court.
Amendment 136, the final amendment in this long and diverse group, would impose an absolute rule on costs of contact. I find this difficult because it appears to be a provision dealing with extraneous financial matters in the context of contact, and that is something that the courts try not to do. I cannot see, for example, why a court that decided that contact between a parent and child was appropriate in the particular circumstances of a given case should be forbidden in some circumstances, though they may be rare, from directing that the other parent pay for or contribute to the cost of arrangements for that contact on the sole ground that the other parent has made an allegation of domestic abuse, or even on the ground that the parent with whom the child is to have contact has in fact been found guilty of domestic abuse.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.
I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.
The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, when adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.
Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.
However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.
As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.
I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.
Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.
As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.
I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.
The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.
In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.
Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.
I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.
The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.
The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.
In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.
I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.
Baroness Bertin (Con)
It is a huge honour to try and sum up such a rich and important debate. I made many notes, a lot of which I cannot read, so I will try to keep my remarks very brief. I thank noble Lords for their contributions and I have learnt a huge amount. I put it on record that the Government have made significant and worthwhile changes to the family court system. They have listened to the experts and been constructive in this area.
Perhaps I may respond briefly on the amendment—the only one in my name in this group. I thank my noble friend the Minister for his thorough response. He is kind, even when he disagrees with you, and I am grateful for small mercies. I noted that his position has not moved a great deal since Committee in the other place. That is a shame and I respectfully and robustly refute the charge that the amendment could somehow endanger children; I do not accept that. Wanting to keep refuge addresses completely confidential does quite the opposite. When the matter was raised by my noble friend Lord Young of Cookham the other week in another debate, my noble friend Lady Williams expressed serious concern that not keeping refuge addresses confidential could ever happen, and I believe that the MoJ has now reached out to the refuges in question, which I welcome. I therefore thank the Minister for reiterating the point that the Government are working closely with the judiciary to explore how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
I thought the noble Baronesses, Lady Newlove and Lady Helic, the noble Lord, Lord Rosser, and many others did an excellent job at explaining the remaining amendments in this group. On Amendment 132, I am genuinely shocked that there is no duty on courts to share information, so you can have a victim of domestic abuse in several processes—family courts, civil courts, criminal courts—yet there is no sharing of the information. Surely the judge needs a full understanding to assess the risk. I am not a lawyer, and I know that the law is a complicated creature, but it seems to defy basic good sense. The Minister said that the Government are going to try and change things to make the criminal and family courts run in parallel, which I welcome. This is a little awkward, because I want to do justice to other noble Lords but I do not know what they think of the response from the Minister. But I thank him for the positive remarks on Amendment 132. This sounds like a step in the right direction; improving the use of barring orders certainly does.
I think we can all agree that Amendment 133 is a key amendment and hugely important. It is a great shame that the Minister is not persuaded by primary legislation. I find myself in the unusual position of disagreeing with the noble and learned Baroness, Lady Butler-Sloss, on this. I have enjoyed all her contributions and I think she is so knowledgeable, but I say on behalf of the noble Baroness, Lady Helic, that she wants to pursue this in later stages of the Bill.
On Amendment 134, it sounds like family courts are behind the curve on trauma, and we need to do a great deal more to understand the implications.
The noble Baroness, Lady Newlove, set out a powerful case for Amendment 135. Feeling totally overwhelmed and alone are such common emotions for victims and, as the noble Baroness, Lady Verma, said, and many noble Lords echoed, we must not disempower people.
There are more conversations to be had, if I am honest. But, as I said, mine was a probing amendment, and I withdraw it.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
We now come to the group beginning with Amendment 137. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or the other amendment in this group to a Division must make that clear in debate.
Amendment 137
Baroness Newlove
“Offence of non-fatal strangulation or suffocation
(1) A person (“A”) commits an offence if that person intentionally strangles or suffocates another person (“B”), where the strangulation or suffocation does not result in B’s death.(2) A strangles or suffocates B if A impedes B’s breathing, blood circulation, or both, by doing any of the following (manually or using any aid)—(a) blocking B’s nose, mouth, or both; or(b) applying pressure on, or to, B’s throat, neck, chest or more than one of these.(3) A person guilty of an offence under this section is liable—(a) on summary conviction—(i) to imprisonment for a term not exceeding 12 months (or six months, if the offence was committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020), or(ii) to a fine, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years, or to a fine, or both.”
Baroness Newlove (Con) [V]
My Lords, Amendments 137 and 138 are in my name and the names of the right reverend Prelate the Bishop of London and the noble Baronesses, Lady Meacher and Lady Wilcox. I thank them for working with me on this, as have the noble Lords, Lord Marks, Lord Anderson, Lord Blunkett, Lord Trevethin and Oaksey, and others. I am most grateful to all noble Lords who have indicated their support to me. I am also grateful to the Government for listening to the arguments put forward on Second Reading and for meeting my colleagues on this.
I welcome the Lord Chancellor’s announcement that he wants to see this offence on the statute book, with a maximum sentence of seven years. The Government are minded to include the offence in the police, crime, sentencing and courts Bill rather than this one. I will argue that it sits best in this Domestic Abuse Bill; I very much welcome the Government being open to discussions on where it should sit and on the wording of the amendment.
This new offence should be in this Bill because it is concentrated in domestic abuse cases. One police force recently assessed a random sample of its cases featuring strangulation and found that 80% were intimate partner violence while 20% were other family abuse cases. This is clear evidence that this crime features predominantly within domestic abuse. It is important that this offence is regarded by the police and prosecutors as part and parcel of the criminal justice response to domestic abuse. Having it in this Bill will enhance the understanding that this type of offending is very much about domestic abuse. It is an offence used to frighten and have control over a person.
The amendments I am proposing would each add a new clause to the Bill to establish an offence of non-fatal strangulation or suffocation. Amendments 137 and 138 are alternatives. The first refers to all non-fatal strangulations or suffocations; the second limits the offence to those where the victim and perpetrator are personally connected, as defined in Clause 2. If the first amendment fails, the second will be next best. The first, Amendment 137, is preferable, as it would protect more women—for example, those attacked by acquaintances or strangers and those in a more casual dating situation.
Some might argue that as the Bill is for domestic abuse only, Amendment 138 should be considered. However, there are two reasons I urge noble Lords to accept the first alternative. First, it is consistent with the Istanbul convention, which forms part of the policy context of this Bill. The Istanbul convention sets out to prevent and combat violence against women in all situations, as well as to tackle domestic violence. The wider amendment is consistent with this. Secondly, the Government’s amendment, described as the “rough sex” amendment, introduced in the other place and now in the Bill as Clause 65, is rightly not limited to people who are personally connected. It covers any situation, as the Government accepted this was an opportunity to address such harm more widely. The same logic applies for non-fatal strangulation or suffocation, which affects 20,000 victims every year in the UK.
As noble Lords can imagine, being strangled is terrifying. Fear of imminent death is a primal fear—we can all imagine that—and victims of these attacks are right to be fearful. Less pressure than it takes to open a canned drink stops blood flowing to the brain. Loss of consciousness quickly occurs, normally in as little as 10 to 15 seconds. Incontinence of urine tends to happen at around 15 seconds and bowel incontinence at around 30 seconds. A strangulation can quickly be fatal if it triggers a heart attack, in which case death can occur within a few seconds.
When a strangulation is survived the victims may have other health problems, such as a fractured trachea, internal bleeding, dizziness, nausea and tinnitus. A break in the flow of oxygen to the brain causes neurological problems such as memory loss, facial droop and an increased risk of miscarriage—even a stroke several months later, as a result of blood clots. Many of these medical effects would come as a surprise to most members of the public, including the police, who therefore do not understand the seriousness of these crimes. Similarly, survivors of domestic abuse may not realise the true dangers they face.
Baroness Wilcox of Newport (Lab) [V]
My Lords, the important issue of non-fatal strangulation has been introduced comprehensively and powerfully by the noble Baroness, Lady Newlove. I commend her on her tremendous work in campaigning and lobbying to bring this issue to public attention. We support these vital amendments and our stated preference is Amendment 137 as opposed to the wider Amendment 138. However, both of the amendments would make non-fatal strangulation or suffocation a standalone offence on the statute book and should be located within this Bill.
A separate offence of non-fatal strangulation would help the police to spot domestic abuse and coercive control. This is our opportunity to help those women who have suffered this dreadful form of abuse and forced control at the hands of their perpetrator. At its heart, the Bill must be about providing services for people who have become the victims of abuse, and indeed torture, in their own home. The importance of the Bill and these measures has only grown during the coronavirus crisis as perpetrators have exploited lockdown to intensify their control and abuse. Calls to helplines and concerns have increased greatly across all the four nations of the United Kingdom.
My good friend Rachel Williams, who is from Newport, is a leading campaigner. She has set up her own charity, Stand up to Domestic Abuse. I am proud to wear the organisation’s badge through every day of these proceedings. Rachel’s abuse story is well chronicled and her support charity for survivors is simply outstanding. On the issue of non-fatal strangulation, Rachel has set up a petition to ask the Prime Minister to support its inclusion as a stand-alone offence. When I looked at it about an hour ago, the petition had secured 202,288 signatures. These are Rachel’s words:
“Strangulation is a very symbolic act of control which leaves its victim in no doubt that there is a real and visceral threat to their life. If you put your hands on someone’s throat and squeeze, the message and terror for the victim is clear. As a survivor of domestic violence, I know the impact it has.”
When Rachel knocked at my door at the civic centre asking for help and support for victims, I said that we would do our very best within the limited financial framework of a local authority in such austere times. But what I could never have foreseen a couple of years ago is that I would be in a position in your Lordships’ House where I have the privilege of speaking to improve and amend the laws of our lands so that survivors such as Rachel and support organisations will have the very best protection that can be afforded by the most appropriate legal framework.
We have such an opportunity before us today. Non-fatal strangulation or suffocation must finally become a stand-alone offence for the perpetrators of this most repugnant of crimes. I support the amendments.
Baroness Meacher (CB) [V]
My Lords, I give my strong support to Amendment 137 in the name of the noble Baroness, Lady Newlove, and I want to congratulate her on her comprehensive and extremely powerful presentation of the arguments in favour of these amendments. Of course, I wholeheartedly agree with every word that she spoke. I also want to thank our Ministers for their support for this amendment, and indeed thank the Home Secretary and Justice Secretary, both of whom, I understand, support the amendment. I thank too all those who have provided briefings for us, in particular Julia Drown, who has been absolute stalwart in support of our work on this issue.
I understand that the Government have accepted the principle of the amendment and agree that it should have general application rather than be limited to cases of domestic abuse; that is, between couples who are personally connected, albeit that the amendment should stand within the Domestic Abuse Bill. That is what I understand, and no doubt the Minister will update us on developments in the work of the Government’s lawyers, who I believe are drafting an amendment that would work in practice. It would be helpful if he could confirm that the Government support the broader amendment but also that it must be included in this Bill for the reasons already given. I do not want to repeat them.
In the circumstances, I want to keep my remarks extremely brief and will just spell out the key reasons why I feel so strongly that the amendment should be agreed. First, women who are victims of non-fatal strangulation are seven times more likely to be killed subsequently. If there is anything that we should do, surely it is to prevent murder.
Secondly, the fact is that these very serious crimes are not being dealt with effectively by our criminal justice system simply because of the peculiarity that there might not be much to observe in the way of immediate symptoms, while the medium or long-term consequences, both mental and physical, of this heinous and horrendous crime are extremely serious. Again, all that has been outlined by other speakers, so I will not repeat it.
I have a lot of sympathy for the police, who do not—of course, they cannot—handle this very well. There needs to be a very specific, stand-alone offence that they can grapple with and understand. The police are overloaded—they are very busy, as I know well from my work with the Police Complaints Authority some years ago—so all my sympathies go to them. For the police, as well as for the victims, we need to get this amendment on the statute book.
Thirdly, this is a particularly horrible way to be assaulted. The idea that it is not dealt with effectively and that people are not punished for doing it is completely unacceptable, so I say again that I very strongly support the noble Baroness, Lady Newlove, and her amendments.
The Lord Bishop of London [V]
My Lords, I thank noble Lords who have preceded me and those who will follow. I also thank the steady campaigners, researchers and wider members of civil society for their tenacity in bringing the issue of non-fatal strangulation to the forefront of the Bill. It is something so nuanced that, if addressed, it has the potential to change the trajectory of women’s lives post strangulation.
Researchers, lobbyists and specialist organisations alike have spent significant proportions of their lives trying to highlight the one thing that we all know to be true: that there is almost always more than meets the eye. That said, I am delighted to have heard that the Government are committed to addressing this issue, and it is good to have heard so many noble Lords speak in favour of the amendment at Second Reading and today.
We have heard powerful contributions from the noble Baronesses, Lady Newlove and Lady Wilcox, and many noble Lords will have received briefings and accounts of the impacts of this crime on victims. I add my voice in support of the amendment, which calls for non-fatal strangulation to be included in the Bill as a stand-alone offence.
International research by Glass showed that non-fatal strangulation by a woman’s partner was associated with a 700% increase in the likelihood that he would attempt to kill her and an 800% increase in the likelihood of him actually killing her. Data collected by organisations such as Stand up to Domestic Abuse suggests that non-fatal strangulation is not a single, spontaneous assault but a pattern used by some perpetrators.
I am sure that noble Lords have read the details of what it is like to face this type of assault. We have heard them today and previously in your Lordships’ House, so I will not repeat them. The reality is that the effect of putting this amendment in the Bill really will be a reduction in the number of cases whose details we might have to share on this matter in the future.
At present, the police too often deal with non-fatal strangulation as a tick-box exercise on a risk assessment form, rather than as a crime. Furthermore, the current law leads to perpetual undercharging or no charging at all. Work from organisations such as the Centre for Women’s Justice highlights how serial perpetrators of domestic abuse and coercive control should have an official history that reflects their potential risk to others.
Baroness Bertin (Con)
My Lords, I give my strong support to Amendment 137. I also thank the noble Baroness, Lady Newlove, for her determination and commitment on this issue and thank the Centre for Women’s Justice for all its work. I thank the Government for listening. It is right that non-fatal strangulation, for all the reasons that we have just heard, will be a new stand-alone offence. It is very encouraging that we are discussing this issue with a shared understanding. However, I hope the Government will listen again and agree that the Domestic Abuse Bill is the natural home for this amendment. The Bill has finally reached the stage where we can look forward to Royal Assent in the not too distant future. Let us take the opportunity and place this offence on the statute book now.
Having the offence in this Bill sends a powerful message that this kind of offending is concentrated in domestic abuse cases above all others. A rural police force in England selected 30 cases of strangulation at random from within its data. It found that all were cases of domestic abuse. That is not to say that there are not other situations where this form of violence is used—primarily against women and we do not forget them either—but the majority are domestic abuse cases, where strangulation is part of a wider campaign of terror and control that victims and survivors endure day after day.
It is important for our criminal justice agencies to understand this offence in its proper context as a well-established aspect of domestic abuse. This will help them recognise it and take a robust approach. It will aid increased training and better investigation techniques. We have heard that about 20,000 women suffer from this form of abuse. It is frightening, traumatic and deeply harmful. The noble Baroness, Lady Newlove, was right to set out exactly what it means. It was not easy to listen to but we need to understand it.
As a society, we have been blind to this crime for far too long. We are now finally shining a light on it and need to protect those women as soon as we can. I lost my own cousin to fatal strangulation and I know that a greater understanding of non-fatal strangulation will save lives. We must not delay this.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I join everyone who has spoken in thanking the noble Baroness, Lady Newlove, for bringing forward this amendment, for the tireless way in which she has campaigned for it and for her powerful opening of this debate. I also want to record how grateful I and other noble Lords are for the careful and sympathetic way in which the noble Lord, Lord Wolfson, and the noble Baroness, Lady Williams, have listened to the arguments and responded to this amendment since Second Reading.
I believe there is a clear consensus that the absence of a distinct offence of non-fatal strangulation is a serious defect in our criminal law, which allows many cases of appalling attacks to be treated with far too little seriousness—undercharged and insufficiently punished. We have long had an offence outlawed by Section 21 of the Offences Against the Person Act 1861 of attempting to choke, suffocate or strangle in order to commit an indictable offence. However, not only is that Act now seriously in need of replacement, but that offence does not answer the need because it criminalises strangulation only with an intent to commit an indictable offence, so leaving untouched the violent strangulation with which this amendment is generally concerned. As I said at Second Reading, this horrible form of violence is appallingly common and devastating in its physical and psychological effects. Yet because the injuries are difficult to prove, prosecutions, where they happen, are often for common assault, or ABH at most, demonstrably understating the severity the violence involved. We have heard from the noble Baroness, Lady Newlove, and all other noble Lords who have contributed of the appalling statistics and the overwhelming evidence that demonstrate how serious this form of domestic abuse is, how often it stems from or leads on to further violence, and how a history of strangulation is a tragic, but regular, predictor of later homicide.
I shall say a little about the legal aspects of the amendment and its drafting. In particular, I shall address the points raised at Second Reading by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot speak today but invites me to mention his continued strong support for the amendment and his gratitude to the Government for their commitment to taking the best possible technical advice to ensure its effectiveness.
The first point raised by the noble Lord was whether we ought to have a specific offence of non-fatal strangulation at all or whether a generic offence not confined to strangulation or suffocation would do as well. For the reasons so ably set out so far in this debate, strangulation and suffocation raise a particular issue because the violence involved is extreme and the consequences in terms of abuse and terror for the victims so serious, yet often there are very limited physical injuries to support a prosecution as a result. The New Zealand Law Commission, in its 2016 report Strangulation: The Case for a New Offence, accepted the case for a specific offence and recommended this approach. I understand that the former criminal law commissioner at the Law Commission, Professor David Ormerod, who generally favours generic offences rather than specific ones and so recommended in his 2015 on the reform of the 1861 Act, nevertheless sees a strong case for a new specific offence of non-fatal strangulation. I agree. As to the actual acts constituting strangulation or suffocation, the amendment closely follows the New Zealand legislation, the Family Violence (Amendments) Act 2018, which implemented the Law Commission’s recommendation, and there are no reports of any significant difficulties with the definition of which acts are required.
I turn to whether a new offence should be limited to the context of domestic abuse. Indeed, as the noble Baroness, Lady Newlove, explained, we are considering two versions of this amendment, one limited to domestic abuse and one general. My firm view is that the new offence should be generally applicable, as in Amendment 137, even though the evidence outlined by the noble Baroness, Lady Newlove, establishes firmly that this is generally an offence involving domestic violence. However, I fully agree with the noble Baroness that the new offence of non-fatal strangulation should not be confined to the domestic context, particularly not as limited by the constraints of the definitions in the Bill, under which a similar intentional act which did not meet the definition of domestic abuse would be left to the inadequacies of the pre-existing law.
I turn next to the difficult question of intent. The amendment as drafted now provides that A commits the offence if he “intentionally strangles or suffocates” B. In my opinion, the use of the word “intentionally” is correct and appropriate. It makes it a requirement that the prosecution demonstrate that the act of strangulation or suffocation—that is, blocking the victim’s nose, mouth or both, or applying pressure to the victim’s throat, neck, chest or more than one of these—is intentional. It does not require that the offender be shown to have a further intent of causing any particular type of harm to the victim. The necessary intention is what lawyers call a “basic intent”, rather than a “specific intent”. In my view, that is right because it is difficult to see an offender doing any of these acts without either intending to cause injury or being completely reckless about whether such injury is caused. It should not be a necessary element of the offence that the exact state of mind should have to be proved, and this follows the New Zealand Law Commission’s report.
However, when the New Zealand Parliament implemented that recommendation in that report, the word “intentionally” was supplemented by the words “or recklessly”. In my view, the addition of possible recklessness to the basic intent adds nothing, because it is hard to see the acts involved in strangulation or suffocation being unintentional. I suggest sticking to the word “intentionally” as included in the amendment.
The question also arises whether consent should be a defence against the new offence. In my view, it should not, and the removal by Clause 65 of the defence of consent to the infliction of serious harm for the purpose of sexual gratification points the way. I can see no merit in permitting a defence of consent, which would doubtless lead to frequent court disputes when the defence case would involve an assertion that the victim consented to her own strangulation. I cannot believe that that would be right.
On the last question raised by the noble Lord, Lord Anderson, the sentences proposed lie somewhere in the middle of the range applicable to similar offences around the world. They seem to me to fit in with our general sentencing guidelines. Setting maximum sentences is always an art and not a science. The sentences proposed are, of course, maximum terms of imprisonment, and actual sentences in practice always vary with the facts. However, this amendment seems to me to have the tariff about right.
Finally, our Law Commission and Professor Ormerod, with his wide experience in the field, have both been consulted as to the formulation of a new offence, and will continue to be so. Professor Ormerod has expressed his willingness to assist the Government and the House with further consideration of the details of a new offence before Report stage. I express the hope that the Government and we will take advantage of that generous offer.
Baroness Redfern (Con) [V]
My Lords, I thank my noble friend Lady Newlove for her powerful introduction to this standalone offence. I am pleased to have the opportunity to take part in the debate and to give my support to the many victims who have endured violence—for them, it has been a long wait for justice.
I rise to speak to this amendment, which addresses the offence of non-fatal strangulation or suffocation whereby a person commits such an offence if they intentionally strangle or suffocate another person but it does not result in death. This must be recognised as a distinct offence in its own right and not just treated as common assault, as has happened in so many cases, particularly given that many victims display hardly any external signs of abuse even after serious assault. Crimes of strangulation and asphyxiation are the second most common method, after stabbing, of killing in female homicides. The amendment would also help the police identify the harm which has occurred, thereby enabling them to respond appropriately to this method of domestic abuse. This offence should be embedded in the Domestic Abuse Bill and should carry a maximum term of imprisonment of seven years.
Non-fatal strangulation is used as a weapon to exert power and control and to instil fear in an abusive relationship. Most victims experience a real fear that they will die, and many go on to suffer long-term mental health issues.
Given the aims of the Bill, this amendment provides us with a real opportunity to save lives. We must not miss this opportunity to introduce the offence of non-fatal strangulation or suffocation in the UK. We must do all we can to protect victims and help them to recover and rebuild a life free from abuse.
Baroness Crawley (Lab) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Redfern. I support the important Amendments 137 and 138, particularly Amendment 137, in the names of the noble Baronesses, Lady Newlove and Lady Meacher, my noble friend Lady Wilcox and the right reverend Prelate the Bishop of London. I am pleased to be in the company of so much wisdom and experience.
The noble Baroness, Lady Newlove, as we know, is the distinguished former Victims’ Commissioner, and I understand that Dame Vera Baird, the present commissioner, and Nicole Jacobs, the domestic abuse commissioner designate, are also committed to these amendments. The noble Baroness has said today that the Police Superintendents’ Association—comprising all chief superintendents, who are in charge of public protection units across the country, which will include domestic abuse specialist officers—also support the amendment. It sees the benefits of a stand-alone offence of non-fatal strangulation or suffocation to charging regimes, to more serious custodial sentences and to better police training and information.
It is very good news that the Government are now openly in favour of filling this gap in the law in future legislation, but our argument today is that we have a completely appropriate Bill in front of us now that could incorporate these amendments and could get this offence on the statute book this year, with all that that could imply for victims and survivors. The highly respected charity SafeLives estimates that 37% of high-risk abuse victims experience non-fatal strangulation. Research in America, where 37 states have introduced a specific offence, estimates that victims of non-fatal strangulation are seven times more likely than non-victims to be killed in domestic abuse incidents, as the noble Baroness, Lady Meacher, has said. New Zealand and Australia have also been proactive in this area of law. The Centre for Women’s Justice has argued that this is a gender-specific crime that should be recognised in the Bill.
Dame Vera Baird and Nicole Jacobs, in a joint statement, have called attention to the fact that this terrifying experience of non-fatal strangulation or suffocation can cause significant long-term mental and physical trauma, as the noble Baroness, Lady Newlove, has so powerfully described, and that at present the law is not fit for purpose. Non-fatal strangulation is a common feature of domestic abuse and a well-known risk indicator, yet, given the inadequate tools available to them at the moment, the police are often only able to deal with it on a risk assessment form rather than as a crime. When a charge is brought it is often common assault, which does not reflect the severity or hidden scale of the offence, as the noble Baroness, Lady Redfern, has said.
Ultimately, non-fatal strangulation is a highly effective tool of power and control, used to engender fear and terror in families, and is no doubt being used today with enthusiasm by perpetrators behind the closed doors of another Covid lockdown. There is really no time to delay in coming to the aid of such vulnerable victims and survivors. We need to see these amendments incorporated into this Bill, rather than waiting for future Bills, especially in these very uncertain times.
I am sure that the Minister, who appears to be a good listener, recognises the urgent need to resolve this matter and to fill this gap in the law. I look forward to his response.
Baroness Finn (Con) [V]
My Lords, I speak in support of Amendments 137 and 138 and pay tribute to my noble friend Lady Newlove and many others for their tireless work and campaigning. I, too, thank Julia Drown for her help and support, and I very much welcome the Government’s acknowledgement of this issue and thank Ministers for their support.
I stress that this is the right Bill for this offence: non-fatal strangulation is about fear, control and a toxic mix of physical and psychological abuse, and it is often done with the express intent and insidious subtlety of evading detection. As such, it can be protracted and cause lasting and even permanent harm. Crucially, the current law is letting victims down; this Bill is our chance to put that right and protect them.
Many other noble Lords have already spoken about the horrific nature of non-fatal strangulation, but the current problem of undercharging highlights that the true nature and intent of the crime is not fully understood. As always, context matters: the current narrow approach not only limits the sentencing options but has other serious consequences, as it impacts on future risk assessments and public protection decisions. These include future bail applications, sentencing decisions—including dangerousness determinations—and Parole Board decisions.
As the seriousness of the crime is not currently understood, neither, unfortunately, is the management of its consequences. This is particularly the case when it comes to contact arrangements for children. To protect the welfare of children, these arrangements should reflect the seriousness of the crime; unfortunately, they do not.
I am conscious that, to tackle non-fatal strangulation as effectively as possible, we need all relevant agencies to work together. Early intervention is needed to mitigate damage and even save lives. Unfortunately, current understanding of symptoms and consequences will likely lead to cases being missed and narrow or absent diagnoses offered. If those in the health service seeing patients with the relevant physical and psychological conditions are conscious of the links to non-fatal strangulation, the problem can be picked up earlier and the victims supported.
This would not only save the victims from further and more serious harm; it would also be better for society, as the earlier intervention would be easier and more cost-effective, compared with dealing with the horrific further abuse and deaths of victims. In many of these cases, this will be about protecting children as well as the victims themselves.
It is shocking that, in this country, thousands of victims experience the trauma of non-fatal strangulation every year. Given that the current criminal justice system is clearly not able to protect these victims, we cannot afford to let this Bill pass without addressing this issue. We all know how commitments to introduce something in a future Bill can get derailed through no fault of those making those commitments. There is a suggestion that this new offence could go in the police, crime, sentencing and courts Bill, but that is not the Bill before us now; it has not even started its journey in the other place, and it may well be delayed for months into the future.
We need to get this right, and there is no reason why this offence cannot be included in this Bill to get the victims the protection they need now. If we miss this opportunity to introduce this offence, many women will die, others will suffer unnecessarily and we will be behind most of the English-speaking world on domestic abuse protection.
The UK has been rightly proud of its leading role on the world stage on gender-based violence over many years; this amendment is needed to ensure that we stay ahead and do all we can to protect victims. Rather than have the uncertainties of a future Bill, we can address this issue now in a Bill that will come into law very soon. I urge the Government and Ministers to work with my noble friend Lady Newlove and to include this new offence in this Bill.
Baroness Bennett of Manor Castle (GP) [V]
I join every speaker in this rather large group of speakers in offering my support for Amendments 137 and 138, with a preference for 137. I join all of the others in paying tribute to the noble Baroness, Lady Newlove, for her very hard work on this issue. However, when the idea of a new offence was first put to me, I started from a position of scepticism. We all know that there are far too many cases in history where Governments who are wanting to be seen to be doing something say “Oh, we will have a new law and create a new offence”.
However, when I looked at the evidence and saw the extensive briefings and data assembled by campaigning groups and NGOs, I found that there is clearly a case. There is a specific set of behaviours that constitutes an offence. The case is made very clearly that non-fatal strangulation and suffocation is not generally a failed attempt to kill, but rather a deliberate attempt to control and exert power. The law currently has no real proper way of dealing with that. The fact that there is little visible injury in many cases means that at best it may appear as a charge of common assault, and many others have pointed out how inadequate that is. It is also worth pointing out that it means there is a six-month limit for charges being brought. We know that domestic abuse is very often disclosed only after a large number of incidents have occurred. It also means that, as a summary offence in a magistrates’ court, it does not get the level of attention and resources that this proposed new offence would attract with the charges.
The other point which has not been made but should be, is that I very much do not believe in reinventing the wheel in terms of law and government policy. We can look around the world to see other places that have been leading on this. Reference has been made by the noble Baroness, Lady Crawley, to the 37 states in the US which already have comparable laws, and most Australian states do.
The real leader in this has been New Zealand. I note that this started with the Aotearoa—New Zealand—Law Commission 2016 report, which in December 2018 led to its introduction of a new law. I would imagine that the Minister is well aware of the recent report from the Chief Victims Advisor to the New Zealand Government to the Centre for Women’s Justice, which notes that in the first year after the offence was brought in, there were 2,000 charges—most occurring in a domestic violence context. A calculation has been made that, comparing our populations, that means in the first year we could see 26,400 charges in the UK. Of course, no two countries are exactly comparable, but I think that rough comparison tells you that if we delay introducing this charge, there will be thousands and thousands of women who will not have the protection of the law who should and could have the protection of the law if it is included in this Bill. It is very good to hear that the Government are listening on this issue, but the case for action now is overwhelming. I commend Amendment 137, in particular, to your Lordships’ House.
Baroness Featherstone (LD) [V]
My Lords, I greatly support Amendment 137 and thank the noble Baroness, Lady Newlove, for such a powerful and comprehensive introduction, thus making it necessary for me to make only a few brief remarks. During my time at the Home Office, I remember a particular incident that demonstrates the attitudes at play in the issues before us.
In 2014 a so-called pick-up artist, Julien Blanc, was due to visit the United Kingdom giving lectures to men on how to successfully pick up women and get them into bed. On Twitter, the photo he used to advertise his tour showed Blanc with his hand around the throats of women. He then tweeted the photo with the hashtag #ChokingGirlsAroundTheWorld.
I spoke out, as my responsibility was for tackling violence against women and girls, to say how concerned I was by the sexist and abhorrent statements Julien Blanc had made about women and that if he was allowed to perform in the United Kingdom, I had no doubt cases of violence and intimidation of women would follow, because his thesis was that physical aggression made you more attractive as a man and would give you more success and more sex. Someone who, in my view, wishes to incite sexual assault should not be granted a visa.
I simply use this as an example of the mindset that is out there that illustrates how women are in jeopardy. In days gone by, that mindset echoed down the corridors of our judicial system; to an extent, it still does so, because we are debating it today. It is part of the history of women being blamed for their own rape. Not that long ago, a woman’s previous sexual history was used to exonerate a male rapist. There is a long tradition in matters sexual to blame the woman for her own downfall: she wore a short skirt or a low top; she was asking for it, and so on. It put the onus for male behaviour on to the woman.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, like other noble Lords I pay warm tribute to the noble Baronesses, Lady Newlove, Lady Wilcox, Lady Meacher, and the right reverend Prelate the Bishop of London for their tremendous campaign to deal with this abhorrent crime. It is so pleasing to know that the Government have agreed to put this offence on to the statute book.
I cannot really add to the extraordinary speeches we have heard tonight but I give my support to the noble Baroness, Lady Newlove, in proposing why this Bill—as opposed to the police and sentencing Bill—is the right vehicle for this offence. We have heard in this debate and at Second Reading about the issues facing the police; the problems they have experienced in giving the right attention to non-fatal strangulation and, subsequently, the undercharging of the offence. Surely then, if we want to change this around, it is better for this new offence to be part of a cohesive package of measures in the Domestic Abuse Bill. When the Bill is enacted—as it will be in a few weeks’ time—accompanying the rollout of the new legislation will be a package of training and support measures, so that people in the field are prepared for it. It also makes sense for the police that it is dealt with as a cohesive package of measures.
The third reason why it should be in this Bill is the one spelled out by my noble friend Lady Crawley: we are dealing with an abhorrent crime. This Bill, with its huge support around this House and in the other place, will be law in a matter of weeks. Why wait for a new Bill, which would take months to come through and be enacted? Ministers have shown that they are listening. It is much appreciated. I hope they will listen to our arguments that this Bill is the right vehicle.
Lord Lucas (Con) [V]
My Lords, I too welcome these amendments. However, if this law is going to be passed it should be accompanied by clear advice for the young. Having been guided around TikTok by a young, adult female, there seems to be something of a fashion for strangulation among young women. They say, “I like this”; they say that a boy who will not do it is a pussy, not sexy enough, not interesting enough and not man enough to do what the girl wants. Under those conditions, it is really important that the Government issue clear, unambiguous and easily found advice on the consequences that the introduction of this amendment would have for that sort of activity. I would be grateful if my noble friend would let me know what the Government’s intentions are in this regard, in writing if not this evening.
Lord Blunkett (Lab)
My Lords, the Committee has heard some extremely powerful and focused speeches this evening. I add my voice to those commending the noble Baroness, Lady Newlove, and the signatories of these amendments, and give my support to Amendment 137. Given what the noble Lord, Lord Lucas, has just said, I hope that the online harms Bill will deal with social media outlets that perpetrate the kind of messages that he enunciated.
The noble Baroness, Lady Newlove, and all those who have spoken, have done so with clarity and unusual brevity for the hybrid House; I will try to emulate that. I have two things to say. First, women police officers who have spoken to me are crying out for this focused and clear piece of legislation, as enunciated in Amendment 137. As the right reverend Prelate the Bishop of London said, they do not want a tick-box approach. They want to change the relevant form—124D—to be able to obtain the Crown Prosecution Service’s direction to take those who are perpetrating this crime through to a successful criminal prosecution. As has been said so often this evening, this is clearly about domestic abuse.
Secondly, why should this Bill be the vehicle to take this forward? There are two reasons. One is that it is self-evident from everything that has been said, the briefings that have been received and offline discussions, that everyone accepts that this legislation is needed and is needed now. There is no reason whatever to delay until another criminal justice or sentencing Bill which may take its turn after a forthcoming Queen’s Speech, somewhere down the line, where this amendment would have to be moved all over again. We would have to go through all the same campaigning, representations and speeches to gain something that the Government themselves have thankfully conceded is a necessary improvement to the law.
I have one plea for the Minister. He has taken to this House like a duck to water, but there is one lesson that those of us who have been around in politics know all too well: you do not ask your own colleagues in another House to vote down something that they know is eminently sensible and required, in some vain hope that they will forgive you for not having done it as quickly and effectively as possible because someone in the legislative committee of government—it changes its name from time to time—has decided that they do not want to have any further substantive amendments to the Bill. We all know that this would be arrant nonsense: the Minister knows it, and the noble Baroness, Lady Williams, who has been extremely helpful on this, knows it. I think that the noble Lord, Lord Marks, in his erudite speech, indicated that even the noble Lord, Lord Anderson, has changed his mind since Second Reading. I am glad if he has, because I was going to refer him to the excellent Second Reading speech by the noble Lord, Lord Young of Cookham, about his experiences in 1975.
All of us can coalesce and praise the Government and applaud the campaigners, particularly the noble Baroness, Lady Newlove, for what is tonight a unified approach to dealing with a horrendous crime, which has led to so many deaths and can be stopped from doing so in the future by a single agreement by government Ministers.
Lord Harries of Pentregarth (CB) [V]
My Lords, I speak briefly in support of Amendments 137 and 138, especially Amendment 137. It has been introduced extremely powerfully by the noble Baroness, Lady Newlove. I do not think that any of us would be here at this stage of the evening, late in the Bill, if we were not absolutely convinced of the importance of a stand-alone offence of non-fatal strangulation, and of course the Government also recognise this.
Perhaps we could pause briefly to pay tribute to, first, those victims of domestic violence—particularly those affected by non-fatal strangulation—and their bravery in coming forward, to the campaigning groups that have been willing to take up the issue on their behalf, and to the parliamentarians, both in the other House and in this place, who have been willing to respond to it. In a dark time, it is good to celebrate the fact that something is working in our democracy in this kind of way.
The key issue this evening for the Government to face is not whether there should be such a stand-alone offence—I think everyone is convinced of that now—but whether or not it should be in this Bill. It seems to me that the Minister has to face two real questions put forward by the noble Baroness, Lady Newlove, and also very powerfully by the noble Baroness, Lady Wilcox of Newport, the noble Lord, Lord Hunt of Kings Heath, and others. First, if 80% of non-fatal strangulations take place in the context of domestic violence, is there any reason at all why it should not be in this Bill? That is where it belongs. Secondly, as was said by the noble Lord, Lord Blunkett, and many others as well, the police are crying out for something clear and associated with this Bill, because it will both raise awareness of this terrible form of cruelty and ensure that there is appropriate training in order to help the police to recognise it.
I very much hope that, when the Minister comes to respond, he will be able to look at these two issues in particular and agree that there is a proper place for this in the Bill.
Baroness Burt of Solihull (LD)
My Lords, I commend the noble Baroness, Lady Newlove—and other noble Lords, but particularly she—on her determination and her excellent speech in explaining the horrific nature of this crime and its repercussions. Like many noble Lords, I was delighted to receive a letter from the Minister, the noble Baroness, Lady Williams, regarding the Government’s willingness to introduce a new offence of non-fatal strangulation on to the statute book as soon as possible, albeit not within this Bill.
I had thought that the Minister would be at the Dispatch Box this evening, so I am going to put a number of questions to the noble Lord, which I hope he will do his best to answer, although of course he cannot stand in the Minister’s shoes. Can he tell us what the Minister meant by
“a commitment to consider a new offence of non-fatal strangulation”?
Are the Government going to introduce one or are they not? Something a little bit definite would be very much appreciated. Could the noble Lord elaborate on what she meant by making the offence “proportionate”? She spoke of ensuring that more convictions can be achieved, but can he please give any indication of what this might look like?
Lord Wolfson of Tredegar (Con)
My Lords, first and foremost, I offer my sincere thanks to my noble friend Lady Newlove, the noble Baronesses, Lady Meacher and Lady Wilcox, and the right reverend Prelate the Bishop of London for the clear case they have submitted today before the Committee on why the offence of non-fatal strangulation is necessary. All the matters that we have discussed today are important, but this may well be the most important. In that context, I hope noble Lords will forgive me if I do not acknowledge each of the contributions individually, both because of time and because, if I may say, many of the contributions were to the same effect. I will seek to respond to the substantive points made without always a personal reference; I hope I will be forgiven for that.
I must, however, make a personal reference to my noble friend Lady Newlove. I join with others in paying sincere tribute to her for the way in which she has promoted this issue. She explained how non-fatal strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it is often used as a method of control and, to adopt the phraseology of the noble Baroness, Lady Wilcox of Newport, there is a real and visceral effect. I also mention in particular the personal and very moving speech by my noble friend Lady Bertin, with her mention of some circumstances very close to her.
As noble Lords will have noted, there are two amendments on non-fatal strangulation before the Committee. Amendment 137 would have general application: it would apply to all cases where non-fatal strangulation or suffocation has occurred, including cases where non-fatal strangulation or suffocation featured as a factor during a domestic abuse incident. By contrast, Amendment 138 creates the same offence, but the application is limited to cases of non-fatal strangulation or suffocation where this occurs in a domestic abuse context. The maximum penalty for the new offence in each proposed clause is the same—that is, on conviction or indictment, seven years’ imprisonment or a fine, or both.
I am aware that the proposal to create a stand-alone non-fatal strangulation offence stems from campaigns conducted last year by the Centre for Women’s Justice and We Can’t Consent to This. Specific clauses to create a new offence were tabled in another place, although they were different to those before us today. Those proposed clauses were, however, withdrawn on Report in the other place and were not put to a vote.
Before setting out the Government’s position on this matter, let me start by saying that we entirely sympathise with and fully understand the strength of feeling. We unequivocally support the intention behind these amendments and have given a firm commitment to legislate for a new offence of non-fatal strangulation. I hope that, as the right reverend Prelate the Bishop of London explained, this will indeed lead to a reduction in the appalling details that we may have to hear in the future. In answer to my noble friend Lady Redfern, that would be a stand-alone offence.
Several contributors have mentioned the position in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA have created a non-fatal strangulation offence. Those offences have been cited by the two groups that I mentioned as offering a basis on which any new offence in England and Wales could be modelled. Those stand-alone offences, however, differ across those jurisdictions. Some apply widely but are dependent on certain factors being met, such as the victim not giving consent, or the act causing them to lose consciousness. Other variations of the offences are narrower in scope, in that they are restricted to instances of strangulation that occur in a domestic abuse context. Those offences are not without criticism. Some people claim that they are too broad and can capture behaviour that is not intended to harm and should not be criminalised.
It is also worth pointing out that the offences in those jurisdictions have not been placed on the statute book without significant prior review to assess their impacts on other areas of law. In addition, most of those legislative measures tend to be accompanied by a package of non-legislative measures—for example, programmes for seeking to change perpetrator behaviour, toolkits for the police to assist in identifying non-fatal strangulation cases and guidance for agencies to support victims of non-fatal strangulation.
I also draw the attention of the Committee to the current law and how non-fatal strangulation is currently captured. Such behaviour can be captured, depending on the seriousness of the crime, under offences ranging from common assault and battery to attempted murder. However, in addition to those offences, there are others that can cover non-fatal strangulation and suffocation. For example, it can be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. Additionally, a specific offence under Section 21 of the Offences Against the Person Act 1861 makes it an offence to attempt to choke, suffocate or strangle any person, or to choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance. That offence also requires there to be an intention by the perpetrator to commit another indictable offence.
It is that range of offences that initially led the Government to believe that the law was sufficient in covering the diverse circumstances and levels of seriousness that may be involved in non-fatal strangulation cases. As the noble Baroness, Lady Bennett of Manor Castle, set out, one would not want to create a stand-alone offence if it were not necessary to do so. However, we have now been persuaded that this may not be the case.
We are also aware of claims of evidential difficulties in prosecuting any allegation of strangulation, particularly if there is no—or insufficient—evidence of injury, not even reddening or minor bruising to the skin. Further, as the noble Lord, Lord Marks, pointed out in relation to the Section 21 offence, there is the additional requirement for evidence that another indictable offence had been intended, and that may create difficulties.
Our concern had been that the same difficulties would apply to any new offence, as there would still be a requirement for proof beyond reasonable doubt that a serious offence was intended. We have also been concerned about the risks associated with creating a new offence and that it could limit the circumstances covered and create additional evidential burdens when compared with existing offences.
More importantly, as was pointed out by a number of contributors, non-fatal strangulation is relevant to and found in, but plainly not limited to, domestic abuse circumstances. Although I understand and accept that it is more likely to occur in a domestic abuse setting, it is nevertheless the Government’s position to ensure that if we create a new criminal offence, it applies equally to all parts of society, does not create any loopholes, or conflict or impact on other parts of the legal framework.
I turn now to the detail of the amendments: as drafted, both are deficient and could not be accepted by the Government. Importantly, both amendments seek to create a new offence to criminalise conduct that is already unlawful. In addition, the proposed maximum penalty of seven years’ imprisonment for conviction or indictment is problematic—the level of the penalty needs careful consideration. Our main concern here is that seven years exceeds the maximum penalty for serious offences such as GBH, when the injury caused by non-fatal strangulation may be significantly less than the injuries that amount to GBH.
There are other significant problems. The amendments do not deal with the element of consent, do not consider any exemptions and do not provide explanation of how they would work with, and alongside, the current legal framework. The amendments are also limited to a person’s breathing, or blood circulation, or both, being impeded manually—by hand or through the use of an aid. We are, however, aware of offences of this nature where a person’s breath or blood circulation has been impeded in other ways, such as the use of other body parts—a knee placed hard upon a neck, for example—or, simply, using bodyweight.
As noble Lords will have seen in the media over the weekend of 9-10 January, the Government have now committed to creating a new offence of non-fatal strangulation, for which the noble Baroness, Lady Meacher, characteristically generously, was thanking Ministers. It will be important, however, to ensure that any new offence is proportionate—I hear the question from the noble Baroness, Lady Burt, and I will come back to it—allows for more prosecutions to be brought and for convictions to be secured. There is a number of legal and technical issues to be addressed for this to be achieved that are not addressed by the amendments as currently tabled.
The noble Lord, Lord Anderson of Ipswich, as has been said, rightly pointed to some of these issues on Second Reading, and we should not underestimate the challenges of getting this right. I am grateful to the noble Lord, Lord Marks, for passing on the later comments from the noble Lord, Lord Anderson. I can say, particularly given his reference to Professor David Ormerod, that officials have already taken up the offer of meeting the learned professor. They have had initial discussions with him and will continue to have such discussions, which I am sure will be extremely useful.
As I am sure noble Lords will agree, it is important for any new offence to work in practice and not pose difficulties for other parts of the law. In creating any new offence of non-fatal strangulation, the Government will have to consider several factors. Let me set out just four. First, the Government will have to consider whether the behaviour should be captured through a single offence or through two offences to capture lower-level and more serious cases of non-fatal strangulation. Secondly, we have to define the term “strangulation and suffocation,” and consider whether any terminology about serious harm requires definition. Thirdly, although I heard what the noble Lord, Lord Marks, said, we have to consider the issue of consent—when consent becomes invalid is a notoriously thorny legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments.
Baroness Newlove (Con) [V]
My Lords, I thank everyone who has spoken in support of these amendments. It has been quite emotional listening, and I am very grateful for the praise, but it goes to the great team behind me. I also pay tribute to my noble friend Lady Bertin for her contribution, which was quite personal. As someone who has gone through the criminal justice system and who knows what it feels like to speak from the heart, I thank her.
I was very grateful to the Minister for his winding-up speech and his answers to questions. I agree with the noble Lord, Lord Blunkett, that he seems to be a very good listener, and I am very grateful for that, but when one listens to judgments, which I have done in the appeal court, one always needs to pay attention to the last few paragraphs. I am a little disappointed because I heard words that seem to go far away from what the amendment seeks to do in this important Domestic Abuse Bill. The Minister suggested that he had concerns that seven years’ imprisonment exceeded the maximum penalty for GBH. The amendment suggests seven years as a maximum as that is what the Secretary of State for Justice said would be appropriate. It is the maximum for the offence, given its coercion and control elements, and it may well be appropriate to have a higher maximum penalty than for grievous bodily harm.
The amendment covers instances of putting a knee on a person’s throat, as it covers applying pressure to a person’s throat. These examples demonstrate that we have thought very carefully about these amendments. I agree that we can work together and look at the right amendments, but I feel that we are now looking at non-fatal strangulation being placed further down the legislation programme in a police and sentencing Bill. The commitment is a very grey area because it can go on for as long as a piece of string. I ask noble Lords to bear with me as I am not a lawyer, so I do not speak in that terminology. I come from passion and from going through the system and listening to victims and survivors of this horrendous crime.
I have listened to the Minister. He is a good listener and a careful lawyer; that is what the survivors of this horrendous, repugnant offence want him to be. I ask the Government to place non-fatal strangulation in the correct Bill—and the correct Bill is the Domestic Abuse Bill. I do not want any more blood on my hands knowing that non-fatal strangulation is going to have to wait to go into another Bill. How will the Government face families who have lost a loved one when strangulation has been a pattern in a relationship? At this stage I will withdraw the amendment but, if we can make more progress before the next stage, it would be welcome. I draw attention to the fact that I may test the opinion of House on Report, because this matter has to sit in the Domestic Abuse Bill, for all the survivors listening to this debate. I beg leave to withdraw the amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, it has been agreed that a short break of 15 minutes would be welcome.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 139. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 139
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b).(8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, like others, I want to express my gratitude to my friend, the noble Lord, Lord Wolfson, for his generosity in giving time to discuss my amendments with me and those supporting me in seeking reform in a place where it is needed. I am grateful that he heard me and listened. I do not know what the response will be, but I ask him to listen again very carefully, because this is a matter where justice really should say that there must be some sort of conformity in law available in what I would say are very comparable circumstances.
It is important to remember that domestic abuse can lead to death. We have just heard a very powerful debate about strangulation, which really emphasised the ways in which those who have experienced non-fatal strangulation described how they felt they were going to die—that they could not breathe and somehow were losing consciousness. Of course, that is what happens if the pressure is continued. We also heard the statistic that one in seven of the women killed after a history of abuse have experienced strangulation. Let me tell you that this one in seven statistic is based on the circumstances where women have already given accounts to others—to their doctors, family members and lawyers—about experiences of strangulation. There are many women who have not given those accounts because of the shame still associated with domestic violence. Some of us have acted in cases involving fatality; one can rely only on the fact that strangulation is a very common feature in the patterns of domestic violence that lead to death.
Today, I will speak about a different set of circumstances from those that have engaged the House up until now. One of the tragic outcomes of domestic violence and abuse can be that the person at the receiving end of it ends up being the person in the dock, having taken the life of their abuser in the end. This happens rarely, unlike the other way around, where two women a week are murdered in this country by a spouse or partner. The statistics show that the number of women killing abusers is very small.
I can draw from my experience—it may be that my noble friend Lady Mallalieu has the same experience—as a criminal lawyer and a Queen’s Counsel for 30 years this year: the women I represented in homicide cases have invariably had a background of abuse, and one of the patterns or things that they describe in the histories that they give is fearing for their life on occasions. The women who end up killing a partner who has abused them have almost invariably felt that they were going to die on many of the occasions when they were assaulted previously.
It is important to remember that, when an accused person ends up in the dock, they can be wrongly convicted because of the law’s inadequacy—remember Sally Challen, a case that we have spoken about before in this House. This was a case in point where gaps in the law had failed a woman because she was convicted initially of murdering her husband before coercive control, which she had suffered for years, was understood properly by the courts.
In a high percentage of the cases that I have dealt with where women have killed a partner, pleading self-defence should have been available to the accused—the woman—but she has ended up seeking recourse in the fact that, very often, because of long-term abuse, women end up suffering from post-traumatic stress disorder of some kind or another, or depressive illness. Those are the tolls that domestic abuse takes on victims. It is one of the great scandals of our system that we do not often think about the impact of things relating to women and domestic abuse until pretty late in the day.
A great deal of thought has gone into the amendment that I am presenting to the Committee today. It looks at self-defence and the objective test of reasonableness that is applied in self-defence, and I shall explain in a minute what that means.
Baroness Hamwee (LD) [V]
My Lords, I do not know whether the noble Baroness, Lady Kennedy, was intending not to speak to her next amendment, which is grouped with this one, but perhaps I will, though it will not be as good a speech as she would have made. This is another group of amendments that I would say seeks to apply up-to-date thinking to bring the law up to date. I am pleased to have been able to add my name to the noble Baroness’s amendments because I always want to be on the same side as she is; I think her middle name must be “Indefatigable”.
Parliamentarians learn from experts by experience. I think we have used that phrase already today. That does not mean being uncritical or bringing a hearts-and-flowers sentimental approach to things but being open to really listening to experiences. We are lucky to have in this House experts with another sort of experience—the lived experience of applying professional expertise in acting for clients—so they have a well-informed perspective. Clearly, the Minister who will be replying—he is not being given much time off today—to yet another group of amendments has been applying his own expertise as well as having his brief. It has been very refreshing to listen to him.
Section 76 of the Criminal Justice and Immigration Act 2008, which would be amended by Amendment 139 is—it says so in terms—intended to clarify the operation of the common law defences of self-defence and defence of property. Those two were very closely linked in the minds of the public in the reaction to reports of Englishman Tony Martin defending his castle. This brought about the householder defence but it is, in fact, just about self-defence, and so is this amendment, although one might substitute the notion of home as a haven rather than as a castle, as it was referred to in the Martin case. The amendment uses Section 76 to address whether the degree of force is reasonable in the circumstances but—or maybe “and”, as in the householder case—does not allow force which is “grossly disproportionate” in the circumstances as the person using the force believes them to be. This is why this is so much a matter of bringing the law into line with up-to-date thinking about domestic abuse, in particular coercive and controlling behaviour.
We have already debated, and will go on to debate in other amendments, the impact of such abuse on the whole person. It is a traumatic response that goes far deeper than a black eye “because I walked into a door, silly me”. I am not going to repeat the amendments and arguments that we have already heard today, because noble Lords will hear them in the context of the days of debate—we have had several days of debate—on this issue. My relative brevity on this amendment does not mean that I support it any less strongly.
I turn to Amendments 140 and 145. Amendment 145 is very long but is, if you like, consequential on Amendment 140. This is modelled on the statutory defence in the Modern Slavery Act, which recognises that a perpetrator may actually be a victim of modern slavery. In this amendment, the compulsion to commit offences is attributable to being a victim of domestic abuse and having no reasonable alternative. The provisions are adjusted for those under 18. Similarly, this amendment uses up-to-date thinking about what drives a woman—it is usually a woman—to offend. I cannot read my writing. I have written “significant”—I hope I am not leaving out a significant point.
The Modern Slavery Act defence was in the independent review of the Act, whose findings were accepted by the Government as striking the right balance between protecting victims and, in that case, preventing opportunistic misuse. There was careful consideration of the reported difficulties in disproving the defence to the criminal standard, but the review panel was satisfied that the jury system which applied was appropriate. The Government said they would keep this under review, as they should.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
The noble Baroness, Lady Jones, has withdrawn, so I call the right reverend Prelate the Bishop of Gloucester.
The Lord Bishop of Gloucester [V]
My Lords, I will speak to Amendments 139 and 140, to which I have added my name. I draw attention to my interests set out in the register. It is an immense privilege to support the noble Baroness, Lady Kennedy; I am grateful for her immense wisdom, knowledge and experience. I am also grateful to the noble Baroness, Lady Hamwee, for her excellent and candid laying out of the issues. It is a privilege to follow her.
In my role as Anglican bishop for women’s prisons and my recent appointment as Anglican bishop for the whole prison estate in England and Wales, I have made prison visits and spoken with prisoners, volunteers and staff, including governors and chaplains. As president of the Nelson Trust, I have heard first-hand the positive impact of trauma-informed practice in its excellent work with women serving their sentences in the community and women leaving prison.
Over the past few years, I have spoken with charities, organisations and community workers. In all those conversations, common themes emerge. One is the so-called revolving door of short custodial sentences, leading to catastrophic consequences for a woman and her family and often exacerbating a downward spiral into more serious offences and an inability to secure employment. A second theme is the number of women coming into contact with the criminal justice system who have experienced domestic abuse and previous trauma, and how this becomes a driver for their offending—in some circumstances, defending themselves against their abuser, as we have heard.
Women become trapped in a vicious cycle of victimisation and criminal activity. Their situation is often worsened by poverty, substance dependency or poor mental health; almost 60% of women supervised in the community or in custody who have an assessment have experienced domestic abuse. The true figure is probably much higher.
The Nelson Trust recently shared with me a painful example of this complex issue and how important it is to have a trauma-based approach. During the first lockdown, the Nelson Trust was called on a point-of-arrest referral scheme; if a woman is arrested and identified as vulnerable, she can be referred to organisations such as the Nelson Trust for support. A woman had been arrested as a perpetrator of domestic abuse and was very distressed. At the women’s centre, they found she was covered in bruises; she had experienced horrific sexual and physical violence during lockdown. She had taken to alcohol to cope with the abuse, and then retaliated against her abuser and ended up in custody. In this case, the Nelson Trust was able to help the woman access a refuge and enabled her to leave her abusive partner.
Another story I heard was of a woman serving a sentence for murder after retaliating against her abusive partner who had assaulted her for many years, including when she was pregnant with their child. Recently, the Nelson Trust advocated for a vulnerable woman who had retaliated against her partner after years of psychological abuse. She was acquitted, but many like her are not.
These amendments provide an opportunity to extend much better legal protection to the victims of domestic abuse whose experiences lead them to offend. At the moment, there is very little legal protection within the system to allow those victims to be diverted away from the criminal justice system to vital support. There is much overlap in the criminal justice system between the victims of crime and those who are the perpetrators.
Last year, a report by the All-Party Parliamentary Group on Women in the Penal System, of which I am an officer, uncovered cases of women contacting the police to report domestic incidents, only to end up being arrested themselves. The Howard League for Penal Reform asked one police force to analyse its data on arrests of women and girls over a two-year period. It turned out that almost three-quarters of the women who had been arrested had previously come to the attention of the police as victims of violence or sexual violence. More than half of them had been victims of domestic abuse. Obviously, much more needs to be done with police forces and diversion work, as well as changing the law.
I am not a lawyer, but I am a passionate supporter of trauma-informed interventions and doing all we can to recognise the root causes and drivers of criminal behaviour. As a Christian and as a Lord Spiritual, I am committed to a legal framework that emphasises restorative and reparative justice. I wholeheartedly support these amendments and I look forward to hearing the rest of the debate.
Baroness Hodgson of Abinger (Con) (V)
It is a privilege to follow the right reverend Prelate the Bishop of Gloucester. I shall speak to Amendment 140 and I congratulate the noble Baroness, Lady Kennedy, on introducing it so ably and eloquently. I also thank the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Gloucester for speaking so strongly in support of it.
At Second Reading and in Committee, we have heard powerful speeches about dreadful personal experiences. They are stark reminders of the horrific impact that domestic abuse has not just on the individual, but, through the ripple effect, into the family across the generations and then on into the wider community. The noble Baroness, Lady Kennedy, has rightly highlighted the fact that domestic abuse can lead to desperate events where victims who were seeking to defend themselves end up in the dock, having been accused of committing a crime.
Research by the Ministry of Justice suggests that many prisoners have experienced or witnessed domestic abuse as children, and that these prisoners are more likely to be reconvicted within one year of release. The 2019 report of the Prison Reform Trust, There’s a Reason We’re in Trouble, cites domestic abuse as a driver of women’s offending. It sets out that 57% of women in prison report having been victims of domestic violence. More than half, at 53%, report having experienced emotional, physical or sexual abuse as a child, compared with 27% of men.
I can well remember visiting Holloway prison and talking to some of the women about their experiences. The report goes on to highlight the fact that women often encounter a culture of disbelief in the criminal justice system about the violence and exploitation to which they have been exposed. Alternatively, they may not be able to reveal what they have been through, and many women feel that they cannot support criminal proceedings against their abuser. As one woman commented in a discussion, “You’re too scared to charge him because you know you’ll get a worse time when he comes out.” All this means that women can become trapped in a vicious cycle of victimisation and criminal activity. Their situation is often worsened by poverty, substance dependency or poor mental health.
My noble friend the Minister argued at Second Reading that a number of defences are already potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. I hope that this debate will make the Minister pause and think again, because the present situation is very unclear. In the meantime, we are told that it is being monitored. Can he advise the Committee of when an assessment was last made, and will he make the report of the results available in the Library of the House?
Lord Bradley (Lab) [V]
My Lords, declaring my interest in the register as a trustee of the Prison Reform Trust, I will make a brief contribution to wholeheartedly support Amendments 139 and 140, proposed my noble friend Lady Kennedy and other noble Lords. She introduced them expertly and I will not attempt to replicate any of that excellent material. As the Committee heard, the amendments would provide essential new protection for survivors involved in alleged offending which results from their experience of domestic abuse.
Members of this House will be aware, as I am from my 2009 report on mental health, learning disabilities and the criminal justice system, of the particularly high prevalence of mental health need among women in prison. It is getting worse. Ministry of Justice safety in custody statistics tell us that the annual rate of self-harm incidents for women in prison nearly doubled between 2012 and 2019, from 1,558 to 3,130 incidents per 1,000 women. This compares to an increase among male prisoners from 201 self-harm incidents per 1,000 men in 2012 to 650 in 2019. As we know and the Committee has heard tonight, the majority of these women are likely to be victims of domestic abuse and other forms of violence against women.
Further, women with a learning disability are more likely than those without to experience domestic abuse. Too little is still known about women with learning disabilities in prison, but they are likely to be far more over-represented compared to those in the community. A recent research report, published in 2018 by the Prison Reform Trust and KeyRing, entitled Out of the Shadows found that, of 24 women with learning disabilities who were in contact with or on the edge of the criminal justice system, most were driven into offending as a result of abuse by men. For example, this included one woman who had been repeatedly drugged and abused by her partner before retaliating and finding herself sentenced to prison. For some of the women, their learning disabilities may have been the result of traumatic brain injury, which is not always assessed and identified successfully.
The Government have acknowledged the strong links which often exist between women’s offending and their experience of abuse. However, I do not feel confident that the strong links are properly taken into account in criminal proceedings. The evidence presented by the Centre for Women’s Justice, the Prison Reform Trust and others suggests that practice on the ground is, at best, inconsistent and that many women do not even feel confident to disclose the abuse until they reach the relative safety of prison after they have been convicted. This is surely not good enough. It is certainly not clear to me why these survivors should not be entitled to the same level of protection as, for example, trafficking victims who are forced to offend as part of their exploitation, or householders facing an intruder in their home, as in the Tony Martin case, referred to so eloquently by my noble friend Lady Kennedy.
We have heard from the Government that they want to strike the right balance in dealing with these women as suspects and defendants. I therefore urge the Government to afford them the legal protection that they deserve from our justice system. It may well be a complex task, but it is surely not beyond us or our justice system.
Lord Paddick (LD) [V]
My Lords, as the noble Baroness, Lady Kennedy of the Shaws, has so clearly explained—and I pay respect to her enormous experience over decades in this area—Section 76 of the Criminal Justice and Immigration Act 2008 raises the threshold from disproportionate to grossly disproportionate before the force used by a householder for the purpose of self-defence can be considered unreasonable.
The fear generated by being attacked in your own home—the visceral reaction, the instinct to defend yourself and your property in such circumstances—is considered so strong that using disproportionate force to defend yourself is considered to be reasonable in the domestic setting. While it can be argued that there should be no distinction and that reasonable force in the circumstances should be enough, Parliament decided that being attacked in your own home sets apart this kind of self-defence from other situations. The Minister will not be surprised to hear me use the same expression as the noble Baroness, Lady Kennedy: what is sauce for the goose is sauce for the gander. What was seen, at least by the tabloid newspapers, as the “Englishman’s home is his castle” provision in Section 76 of the 2008 Act should equally apply to what will in most cases be a woman defending herself against domestic abuse.
I have personally been in both these scenarios. I have cowered behind my front door as a violent stranger tried to kick down the door of my flat; thankfully, the police arrived before the door gave way. I have also cowered as my violent partner kicked and punched me. The fear caused by not feeling safe in your home is truly terrifying, especially when you are being physically attacked. The fear I experienced was similar in both cases, but the latter was far more frightening. Being attacked by a random stranger does not hurt as much as being attacked by someone you have allowed yourself to be vulnerable with, and who has subjected you to coercive and controlling behaviour over a number of years.
Throughout the passage of the Bill, I have been keen to ensure that male victims and those in same-sex relationships are not forgotten. Even here, we are talking about someone who is physically weaker being attacked in their own home by a stronger person. In most cases, but not exclusively, this will be male violence against women. If she is to defend herself against a much stronger man, her options are limited and she may have to resort to using a weapon—for example, as the only way effectively to defend herself, or simply because of the instinctive reaction to grab whatever is available, such as a kitchen knife.
It is not difficult to envisage how such a use of force might be considered disproportionate but understandable, particularly if you fear for your life in circumstances such as we heard described when considering the previous group of amendments, and which the noble Baroness, Lady Kennedy, explained. It might be considered disproportionate, but not grossly disproportionate. Can the Minister explain why this amendment should not be accepted, in the light of the higher standard of acceptable force available to a householder under attack from a burglar?
Awareness has recently grown of how prolonged and sustained abuse can turn a victim into an assailant. As my noble friend Lady Hamwee has explained, Amendment 139 and the subsequent amendment would bring the law into line with these recent developments. As the right reverend Prelate the Bishop of Gloucester has explained, a trauma-based approach needs to be adopted. There clearly needs to be a change of culture in the criminal justice system in this respect, as well as a change in the law.
The mental health impact on women prisoners has been clearly set out by the noble Lord, Lord Bradley. As my noble friend Lady Hamwee has explained, Amendment 140 is almost identical to Section 45 of the Modern Slavery Act 2015. In the same way that I believe the burden of proof lies on the Minister to show why Section 76 of the Criminal Justice and Immigration Act 2008 should not apply to victims of domestic abuse in relation to Amendment 139, I ask the Minister why Amendment 140 should not apply to victims of domestic abuse when a very similar statutory defence is available to victims of slavery and trafficking. The Government must come up with very strong counter-arguments if these amendments are not to be accepted.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.
The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.
Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.
Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.
We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.
Lord Wolfson of Tredegar (Con)
My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.
In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.
Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.
In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.
Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.
It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.
There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
I have received requests to speak after the Minister from the noble Baroness, Lady Bennett of Manor Castle, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I call the noble Baroness, Lady Bennett of Manor Castle.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the House for the opportunity to ask this question, which applies to all these amendments but particularly to Amendment 139, to which my noble friend Lady Jones of Moulsecoomb is a signatory. She was unfortunately unable to take part in this debate.
My noble friend would have referred to the fact that the Covert Human Intelligence Sources (Criminal Conduct) Bill allows blanket legal protections for undercover police and informants. The forthcoming overseas operations Bill creates similar new protections against prosecution for military personnel acting overseas. The Government have fought intensely for these protections against prosecution for the police and the military; they have fought against many attempts in your Lordships’ House to reduce or check these protections. In that context, how would the Minister explain—having granted such broad protections to the police and military, even in cases of fundamental wrongdoing—why the Government should refuse what are comparatively far more limited legal defences for survivors of domestic abuse, particularly with such well thought-out and well drafted amendments by the noble Baroness, Lady Kennedy of The Shaws?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for that question. I do not wish to be thought flippant in any way, but the short answer is that the situations are different, and therefore you have different considerations and different legal results. However, if she will permit me, given that I am not personally acquainted with that sort of detail—certainly of the overseas operations Bill—to respond to her this evening, I will add to my reply in writing.
Lord Paddick (LD) [V]
My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?
Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.
Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.
Baroness Hamwee (LD) [V]
My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?
The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.
Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.
We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.
I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.
I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.
I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.
I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.
What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.
Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.
The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.
I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group consisting of Amendment 141. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this amendment to a Division must make that clear in the debate.
Amendment 141
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services
(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B.(2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B's usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that— (a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this amendment, in my name and the names of my noble friend Lady Jolly and the noble and learned Lord, Lord Garnier, addresses an extremely serious issue that affects far more lives than noble Lords might have expected. Psychotherapists and counsellors are not in any way regulated by law. In opening a debate on this issue on 2 March last year, my noble friend Lady Jolly pointed out:
“The terms ‘counsellor’ and ‘therapist’ are not protected. All of us could call ourselves such”.
She also pointed out that there is
“no assurance of the level of training or competence … nor a redress system to access should something go wrong”.—[Official Report, 2/3/20; cols. 468-69.]
We should all be clear that this amendment is not a criticism of the work undertaken by many straightforward, honest and understanding therapists and counsellors up and down the country, who are dedicated to helping their patients or clients address difficult issues in their lifw and get through particularly troubling periods. Nothing I say is intended to disparage their commitment or undermine their work. However, it is a tragic reality that a combination of this lack of regulation and the cruel techniques of coercive control adopted by some who offer so-called therapy and counselling services leads to many—mostly young—lives being, quite literally, ruined.
There is a pattern to these cases of abuse: charlatan therapists or counsellors secure clients—usually young and always troubled people—and proceed, over a period, to take over their life. Sadly, the typical case involves such so-called counsellors persuading their clients, quite without foundation in fact, that they have been dreadfully wronged or abused by their parents or families during their childhood. They generally implant entirely false memories in those clients. As the clients come to believe, under an insidious form of persuasion, that these false memories represent reality, they are led to blame their parents and families for all that has gone wrong in their life and all that troubles them. In this way, the clients involved are gradually alienated from their parents and families in a sinister process of coercive control.
The well-known and well-documented phenomenon of transference, originally explored by Sigmund Freud in the 1890s, plays its part in this sad process. It involves the clients projecting on to the therapist or counsellor feelings that they originally held towards a parent or other important figure in the client’s early life. The clients’ parents and other close family and friends are supplanted by the counsellor in the client’s affections by a learned dependence on them.
In our debate last March, I said that such clients are
“brainwashed by unscrupulous and controlling individuals. These charlatans play on their clients’ suffering, deluding them into a false belief in their treatment”—[Official Report, 2/3/20; col. 477.]
Everything that I have read and learned since that debate in relation to this issue and in preparing for this debate has strengthened my concern not only that that description was fair but that I underestimated the extent of the problem.
These issues have been widely recorded in the press and I will not detail them now, but I will repeat a question posed in the Daily Telegraph not long ago:
“What made two seemingly happy young women from loving homes sever all contact with their families and friends, renounce their inheritances and vanish into thin air?”
The journalist investigated how
“a self-styled ‘personal development coach’ digging for ‘forgotten’ childhood memories opened a door to catastrophe.”
The article went on to describe how a rogue counsellor had ruined two young lives in the way I have described, pointing out that there had been absolutely nothing the courts could do about it, given that the clients were adults—although they were young. The law offers no protection whatever for the victims of what is so clearly abuse by coercive control. The fact that such counsellors often charge their clients substantial fees, as the rogue counsellor did in those cases, only serves to make the matter worse.
Our amendment would introduce the following offence:
“Controlling or coercive behaviour by persons ... providing or purporting to provide psychotherapy or counselling services”.
The proposed offence is closely modelled on Section 76 of the Serious Crime Act 2015, which covers “controlling or coercive behaviour in an intimate or family relationship”. The definition of coercive and controlling behaviour in that Act is mirrored in this amendment, and the definition of the required relationship for the Act is mirrored in Clauses 1 and 2.
As the noble Lord, Lord Astor of Hever, who would have liked to speak today but is unable to do so, said when we debated this issue last March:
“Section 76 of the Serious Crime Act covers domestic abuse. The Government accept that individuals can be coercively controlled, and they have rightly made it illegal for a spouse, partner or parent to coercively control somebody with whom they have a relationship—that is an imprisonable offence. However, in the case of coercive control, the law does not apply equally to everyone. A person coercively controlling their daughter would be breaking the law, but the same person coercively controlling someone else’s daughter is not covered by the law. There does appear to be a gap in the law, so will the Government look into this?”—[Official Report, 2/3/20; col. 472.]
The logic of that question is inescapable. This amendment is directed to filling the gap identified by the noble Lord, Lord Astor. The gap has been filled by legislation in France, Luxembourg and Belgium. The French litigation broadly criminalises persistent or repeated pressure on a person which abuses a vulnerable person’s weakness or abuses a person in a state of psychological dependency resulting from serious or repeated pressure or techniques used to affect their judgment in a way which is seriously harmful.
I have been grateful for the support of the noble Lords, Lord Astor of Hever, Lord Fairfax and Lord Dannatt, and my noble friend Lord Alderdice and others, who have not been able to speak tonight. Numbers of noble Lords have told me that they know families and young people who have fallen victim to the actions of charlatan psychotherapists who would be liable to be prosecuted for the new offence proposed by this amendment.
My hope is that the Government will agree to legislation reflecting this amendment and that it will be supplemented in the future by provisions requiring psychotherapists and counsellors to be licensed and regulated, with a register of qualified members, recognised qualifications and a clear statement of ethical standards. Meanwhile, serious cases where charlatan psychotherapists and counsellors are guilty of coercive control which is plainly abusive should be met by their prosecution for a criminal offence, as set out in this amendment. I beg to move.
Lord Garnier (Con) [V]
My Lords, I apologise for not taking part on Second Reading, although I have read the Official Report. I also apologise for keeping my noble friend the Minister, new to his job, a bit longer at the crease.
Amendment 141 proposes a new clause that is within the scope of the Bill, but its value is not dependent on the Bill. The wording and effect of Amendment 141 is self-explanatory but, if it needed any further elaboration, the noble Lord, Lord Marks of Henley-on-Thames, has just provided it in his excellent speech. I cannot improve on what he said, but now is the moment when Parliament must at last legislate to outlaw the quack counsellors who predate on vulnerable people through controlling or coercive behaviour, and to provide some sort of protection to their victims or intended victims.
I have been concerned about these quacks and trying without success to get the Government to legislate for some years. I worked with Oliver Letwin and Tom Sackville, two former Ministers, as well as parliamentary counsel and Ministry of Justice officials with the support and encouragement of David Cameron, who had a constituency interest in the matter. I spoke about these quacks at Report on the Modern Slavery Bill in November 2014 and the Serious Crime Bill in February 2015 when I was a Member of Parliament, and then again in your Lordships’ House on 2 March 2020 in the debate on the unregulated treatment of mental health, initiated by the noble Baroness, Lady Jolly. Now, thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Jolly, again, and the other contributors to this debate—as well as my noble friend Lord Astor of Hever, who spoke in the debate last March about the Serious Crime Act—we are making real progress.
We have laws to protect children and those under a mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute those who dishonestly take old and frail people’s money, but we leave unprotected adults who may succumb to pressure exerted on them by others of malevolent intent because their exploitative activities currently do not come within the criminal law.
From the outset, I have had in mind some young, adult women whose experiences were brought to my attention by their parents and families. In essence, they had been brainwashed or suborned by quack counsellors. They persuaded these young people to break off all contact with their families, infected them with false memories and got them to pay fees for the so-called counselling. Some of these young women were well-off and suggestible but all of them, for no apparent reason, broke off all contact with their families.
As the noble Lord, Lord Marks, has just said, France, Belgium and Luxembourg have laws to criminalise the behaviour of predatory charlatans who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that their laws do not conflict with those articles of the ECHR that protect the right to private and family life, the right to freedom of expression and association, and the right to freedom of thought, conscience and religion. To take the French example, in that jurisdiction it is an offence punishable by imprisonment and very heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness or infirmity, to a psychological or physical disability or to pregnancy is apparent or known to the offender. It is also an offence to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act, or abstain from acting, in a way seriously harmful to him.
Amendment 141 is clearly different but, I believe, as useful. One way of considering whether the proposed defence in Amendment 141 would work is to ask oneself the following questions. Would it be prosecutable in theory and in practice? Could each of the elements of the offence be proved in a real-life example? Would the measure deal with the mischief that was identified, and would it catch no one else? The answer to those questions is yes. How would it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? It need not do so. Would it allow the mentally capable who want to give away their fortunes and leave their families to do so? Of course it would. Would it make sufficiently clear what was criminal behaviour and what was not? Would it comply with the European Convention on Human Rights? Yes, it would. What effect would it have on religious freedom, or freedom of expression or association? In my view, none at all.
The victims of these bogus therapists have been waiting far too long for Parliament to help them. The amendment is humane and practical, and it has nothing whatever to do with party politics. If the laws of France, Belgium and Luxembourg can protect the people that this amendment seeks to protect, the law of England can and ought to do so as well. Amendment 141, or something like it, should be added to the Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am afraid we have to leave it there for this evening.