Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 7th March 2012 Lords Chamber

Much though I commend the spirit behind the amendment, for the reasons I have given the House should not be seduced into thinking that it is a safe way to deal with the hardship, injustice and unfairness that so many noble Lords have said that the Bill will otherwise produce.

[Baroness Butler-Sloss]

My Lords, I invite the House's attention to Amendment 45, which is rather oddly placed in this group and which, I suggest, stands separate. It relates to family proceedings in which, I remind the House, the welfare of children is paramount under Section 1 of the Children Act. I have identified a very limited and specific issue, where the child has suffered or is at risk of suffering significant harm. The purpose of the phrase “significant harm” is that it relates to that part of legislation covering children which deals with care proceedings. There are circumstances where the serious risk to a child does not emerge with the social worker but in private law proceedings.

Under the Bill, all private law cases, other than domestic violence, are expected to go before a mediator to try to settle a very large number of them, as I sincerely hope will happen, but not all cases are susceptible of mediation. Among those not susceptible of mediation are cases where the mediator finds there is a serious risk to the child. That may be because issues have arisen more than 12 months ago, so that legal aid will not be available. Trained mediators may pick up a situation where one of the parents has a major personality problem or suffers from mental health issues. Unless there is a decision by a court, there will almost certainly not be legal aid. The amendment asks that the mediator can alert the appropriate authorities to grant legal aid where the child is at significant risk. Otherwise, there may be no opportunity for legal aid to be granted. The two parents will battle their way, floundering in the Family Court, while the child remains at significant risk until a judge or magistrates are able to pick up the case at a very much later stage. I must warn your Lordships that the courts will be utterly clogged by litigants in person. It will probably be many months before this sort of case is heard by a judge or magistrates as a private law case. It will not have been picked up by social workers at all, and the child will remain at risk.

I have had discussions with the Lord Chancellor about this matter and I know that his people have been looking at it. They do not see it as a serious a risk as I am afraid I do, and I very much hope that in due time your Lordships will support the amendment.

[Lord Cormack]

My Lords, I shall not detain your Lordships for long. I do not suppose that a single Member of this House would dissent from the proposition that the hallmark and guarantor of a free society is the rule of law. The theme that has run through this debate in many powerful and some exceptionally moving speeches has been simply that you cannot have the rule of law if access to the law is denied to some of the weakest in our society. That is the theme of this debate and it has come out time and time again. I was deeply moved by the very brave—I use that word deliberately—speech of my noble friend Lord Newton, but others have emphasised the point and added further to it.

If, when the Minister replies, he cannot give us a totally satisfactory answer, I very much hope that he will at least say that he will return to this matter at Third Reading, having had conversations with some of those who have made such valid and pertinent points. I do not include myself among them; I do not begin to compare in expertise with the noble and learned Baroness, Lady Butler-Sloss, or others. I hope that when it comes to Third Reading we shall have a measure that shows that the weakest have not been neglected or denied that access to the law which is their right as much as it is ours.