Criminal Justice and Courts Bill

Debate between Baroness Benjamin and Baroness Howe of Idlicote

Wednesday 23rd July 2014 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I also support the noble Lord, Lord Low, and other noble Lords on Amendment 55A, which will help meet the needs of a vulnerable group of people. As we have heard, they are children and adults dependent on someone who is sent to prison. This amendment is supported by the Families Left Behind campaign, which includes a number of organisations that offer support to the children and families of offenders through direct provision of services, advocacy and research. One such organisation is the children’s charity Barnardo’s, and I declare an interest as one of its vice-presidents.

In an Oral Question last year, I asked the Government to give consideration to this issue by putting measures in place to protect vulnerable children. Barnardo’s has found that children of prisoners are a highly vulnerable group who are twice as likely to experience depression and problems with mental health, alcohol and drug abuse. They are more likely to live in poverty and poor accommodation or to be part of the care system. We have recently been hearing about how many children and young people have been abused while in care—something which destroyed their lives for ever and imprisoned them. Sadly, many of these young people go on to offend and are disproportionately represented among young offenders. These children suffer through no fault of their own.

The reasons for parental imprisonment often relate to family problems, including domestic violence or drug and alcohol abuse. This is not a perfect environment for any child to be brought up in. It can seem to them that the whole world is against them. Despite all this, there is currently no requirement to identify any child or dependent adult that an individual remanded or sentenced to prison may be leaving behind. Believe it or not, there is not even the slightest check on arrangements for their safety, care or well-being. Therefore, these children—as we have heard, there are around 200,000 of them—are unlikely to be offered any targeted support because often there is no record of them and no requirement to identify them. Disturbingly, they are not known to children’s services.

This is why Barnardo’s and the Families Left Behind campaign call for the introduction of a statutory duty on courts to ask whether an individual has dependants when they are sentenced or held on remand, in order that it can be confirmed that appropriate care arrangements are in place. This will not impact on courts’ resources or create any additional work. It will just be a case of asking two simple questions. Barnardo’s has found that defendants will not necessarily volunteer this information without being asked.

Therefore, I ask the Minister whether the Government will create a statutory duty on courts to identify defendants who have children dependent on them. By collecting this data, we will be better placed to detect vulnerable children with a parent in prison and ensure that these children get the support they need. Like the Families Left Behind campaign, I believe that Amendment 55A will ensure that children and adults are better protected when their loved ones are in prison.

[Baroness Howe of Idlicote]

My Lords, I, too, have had correspondence from those very concerned about this issue. I do not intend to take up your Lordships’ time by going further into this whole matter, but in as far as this is not already in place it clearly needs to be, and the sooner it is put into effect the better. I am still rather surprised that it does not exist automatically as a natural procedure in court.

Children and Families Bill

Debate between Baroness Benjamin and Baroness Howe of Idlicote

Wednesday 29th January 2014 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I ask noble Lords to consider the following points as we debate these amendments. More than 800 children visit their doctors every day due to the serious effect of second-hand smoke exposure, according to research published by the Royal College of Physicians. The survey also highlights that 65% of parents who smoke admit to doing so in the car with their children and other people’s children present, and that 75% of smoking parents were shocked to hear that second-hand smoke affects the health of so many children. If they had not been asked that question they would not have been aware of this, so they really need to be educated.

Asthma UK has stated quite clearly that second-hand smoke is a major trigger for asthma attacks, making the symptoms even worse. It believes that if we take action to reduce second-hand smoke, we will be a step closer to a world where asthma begins to be no longer a daily struggle, or where no one dies from that condition. The children’s charity Sparks—I declare an interest as one of its trustees—spends millions of pounds on research to eradicate asthma among children, a condition which is growing daily. Sparks dearly believes that if we take action to protect children from second-hand smoke, that will be helpful to children. So let us give careful consideration to what action we should take to protect children from the result of second-hand smoking and act robustly in the best interests of the child.

[Baroness Howe of Idlicote (CB)]

My Lords, I very much support the aims behind Amendment 62, and indeed an awful lot of what the noble Lord, Lord Hunt, said about doing something really firm to prevent smoking in cars when children are present. This amendment certainly seems a sensible and straightforward way to ensure that all children have a healthy start in life, without the harmful influence of tobacco smoke in their young and still developing bodies.

We have heard that opponents of the proposed ban on smoking in cars have argued that legislation on activity in private vehicles would constitute an invasion of people’s private space. The noble Earl, Lord Howe, even said in Committee on this amendment that although smoke-free public spaces legislation has proven to be extremely successful in reducing people’s exposure to second-hand smoke,

“it does not automatically follow from that that it is right to extend the scope of legislation to cover private cars”.—[Official Report, 20/11/13; col. GC 412.]

However, in the case of child protection, this may not be such a stretch of the imagination. My noble friend Lady Howarth absolutely spelt out that the issue of child protection is a perfect example of this distinction playing a secondary consideration to the well-being and health of the child. Children are protected by the law from abuse and neglect wherever they are.

I have heard about the impact that tobacco smoke has on the health of children. We have all heard about it. Their bodies are still developing and they are much more likely to be affected by smoke-related illnesses than their adult counterparts. A Royal College of Physicians report estimated that smoking around children causes more than 20,000 cases of lower respiratory tract infection; 120,00 cases of middle-ear disease; at least 22,000 new cases of wheeze and asthma; 200 cases of bacterial meningitis; and 40 sudden infant deaths—one in five of all SIDs.

We know that only a proportion of people continue to smoke around children, so the level of illness in children due to second-hand smoke is staggering. It would be difficult to impose such a law on the home—we have heard this already—but we can do something about children's exposure to smoke in cars. We also know that tobacco smoke pollution levels in vehicles can be 23 times greater than in a house. I am talking, of course, about a car with a roof on it. Moreover, when a child is strapped into the car, they do not have a choice about leaving the room—a choice possible, at least for some children, in their home—when adults are smoking.

More needs to be done to protect children from avoidable harm, whether this harm takes place in private vehicles or in public spaces. Moreover, there is also a precedent for banning smoking in vehicles. Cars are already recognised as potentially dangerous spaces for second-hand smoke exposure due to their confined spaces. This is why smoking has already been banned in all vehicles used for the purpose of work in the UK since July 2007. It is surely astounding that we cannot do something effective to protect children as well. There are no restrictions on smoking in private vehicles with children present. I believe fully that this needs to change.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Benjamin and Baroness Howe of Idlicote

Wednesday 7th March 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I agree with other speakers that during the passage of the Bill we have heard many heart-warming speeches on the importance and the practical benefits of helping people with a disability. I very much support what the noble Baroness, Lady Doocey, and others said in this debate. The Bill will lead to something like 75,000 children and young people aged under 25—it is the raising of the age level that my amendment addresses—losing access to legal aid each year.

Research by JustRights shows that as many as 80 per cent of these young people, as well as being vulnerable on account of their age, fall into one or more additional categories of vulnerability, such as being a lone parent, a victim of crime, or having a disability or mental health problem. How are these young people expected to cope when they have problems if they cannot obtain legal aid? They will not have families to back them up and give them advice, which other youngsters at least may have.

Amendment 21 has modest aims. It seeks to protect legal aid only for the most vulnerable of these young people, including those with a disability, those who have been in care and those who have been victims of trafficking—which, alas, is a growing trade. It is hard to think of groups of people who are more vulnerable than they. Of course, I wish we could retain legal aid for all young people. Youngsters are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. Therefore, it will be important that we do our best for this group. This applies particularly to vulnerable young people who are more prone to experiencing multiple and severe problems and who are therefore far more likely to require specialist legal intervention to prevent their situation escalating and spiralling out of control.

It is vital that all vulnerable groups listed in the amendment are protected. However, I will say a few words about young people with a disability. Amendment 21 would protect young people with a physical or mental health impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. We know that disabled young people are more likely than other young people to experience very complex legal problems, and are also more likely than older people with disabilities to experience them. There are significant precedents for extending additional protection to this group, in recognition of the fact that they may need this help. For example, the Connexions service, which was set up to provide help and advice to young people aged 13 to 19, extended this help to young people up to the age of 24 who had a disability or learning difficulty. It did so because it saw that it was practically needed.

JustRights gave me a case study about which I will tell noble Lords. Chantelle was 18 when she came to a law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college. They were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but that had been refused. The law centre helped Chantelle to appeal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded lower rate care and higher rate mobility for DLA. She swapped her mobility payment for a Motability car and passed her driving test. She now has a place at university and will be able to drive herself there each day. That will make a huge difference to her independence and quality of life, but think also of the extra sum of money it will save the rest of us if she is able to qualify and earn her own living.

What will the consequences be for these young people if they cannot get advice? Research by Youth Access has shown that vulnerable youngsters are significantly more likely than the population as a whole to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. It has calculated that each year 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year, much of which could be avoided if they had received better support.

It cannot make any sense to deny vulnerable young people access to the legal advice they desperately need to resolve their problems and turn their lives around, so I very much hope that everyone will support my amendment, Amendment 21, when we come to it, and the other amendments in this group, all of which make very important points. Above all, I hope the Minister and the Government will have listened and will take action as a result.

[Baroness Benjamin]

My Lords, I have put my name to Amendment 46, which would maintain legal aid for all children. I thank the other noble Lords on all sides of the House for putting their names to this amendment. I have also put my name to Amendment 21, along with the noble Baroness, Lady Howe, who has spoken eloquently and passionately, as always.

To illustrate the reasons why I have put my name to these amendments, I shall give three stories, which are supported by the Children’s Society, that were told by young people about their experiences of attending court. They are about migrant children who had to go through immigration cases.

“I felt very scared, terrified in fact. It was such an official atmosphere, and I felt small and vulnerable. You know that decisions that affect the rest of your life are made in this one morning, and I just felt so scared knowing that”.

“I had a solicitor and she had explained what was going to happen before we went, but even that could not have really prepared me. I was lucky because I had a solicitor. I had a barrister at court who was able to argue for me. Without him I don’t know how I would have coped”.

“The Home Office person made me feel scared and the whole time kept on saying I was lying and that I should return home; this made me feel upset and angry as I knew that I was telling the truth. My barrister was great though and kept on arguing back about my case”.

This convinces me that a different approach is needed when it comes to children because children are fundamentally different from adults. They generally have a lesser capacity to make complex decisions that will affect their future and will not always be able to understand the full consequences of their decisions and actions. Equally they do not have the capacity to represent themselves effectively in legal proceedings or to engage in detailed evidence gathering to support their case.

The Children’s Commissioner for England, Dr Maggie Atkinson, has said:

“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings. Failure to afford children effective access to justice in cases engaging their civil rights and obligations will be in violation of Article 6 ECHR. It will also—even in immigration cases that do not benefit from the protections of Article 6—prevent them from being afforded their substantive rights and an effective domestic remedy for breaches of those rights”.

The Government have recognised that children need special consideration. As my noble friend Lord McNally said in response to a Question on legal aid:

“As far as possible, our intention is that, where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]

However, in reality the Bill will remove legal aid from 6,000 civil justice cases in children’s names each year, compared with provision in 2009-10. In a letter to the Times, the top six UK children’s charities pleaded with the Government not to abandon these 6,000 children, who will have no other choice but to represent themselves in court, with no one to protect them and manoeuvre them through the legal system. The Government have not explained why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year.

While there is provision in the Bill for,

“Children who are parties to family proceedings”,

and cases involving the,

“Unlawful removal of children from the United Kingdom”,

by their parents and, most recently, for some clinical negligence cases, legal aid is not to be provided if they are party to legal proceedings generally: for example, in immigration, welfare, housing, education and the majority of clinical negligence cases. Surely in our society it is unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for their legal advice and representation, will be expected to present their own case in an adult legal system as a litigant in person—something many adults would struggle to do effectively.

It is also worth highlighting that legal aid is already restricted to those who cannot pay for legal assistance by any other means and therefore provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Ending legal aid for whole areas of law will affect the poorest and most vulnerable and marginalised families. Many children are likely to suffer as a knock-on effect of limited access to justice for their parents and carers. This will be particularly important in areas such as housing, welfare, immigration and debt, where children are affected by their parents’ lack of financial resources and ability to navigate the legal system, which may be hindered by a number of factors, such as parental disability, language barriers, poverty and mental health issues.

The Justice Minister has stated that there will be a safety net in the form of the exceptional funding scheme. This would come into play; if not, giving legal aid would breach individual rights under the Human Rights Act 1998 or European Union law. However, the Government have not published details of the full scope of the new scheme or how it will function. I would be grateful if the Minister could enlighten us as to how this will work, to put our minds at rest.

The impact assessment states that the Government anticipate that only 5 per cent of excluded cases for education will gain exceptional funding, and no cases for immigration will. The Children’s Society has estimated that just over 4,000 cases involving under-18s will be excluded from scope and will not receive exceptional funding. If the Government intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower or more costly process or, worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children and young people.

The Minister stated very strongly that in civil cases claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. He said:

“The civil justice system as a whole does not generally require children to act on their own behalf”.—[Official Report, 16/1/12; col. 447.]

However, here are some very clear illustrations of how that is not always the case. For example, a young person—let us call her B—was sent to the UK when she was 12 years old to stay with her uncle. Almost as soon as she had arrived, the uncle sexually abused her, which continued until she ran away from home when she was still a teenager. During this time she attended school and achieved good GCSE results. After running away, she reported her uncle to the police and he was arrested. He was convicted on several counts of rape and sentenced to five years.