Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 7th March 2012 Lords Chamber

Moved by

[Baroness Butler-Sloss]

34: Schedule 1, page 129, line 13, after “from” insert “or within”

[Baroness Butler-Sloss]

My Lords, there are three amendments here that relate to internal child abduction. Noble Lords may well know that international child abduction is governed by the Hague convention, to which the United Kingdom is a signatory. There is a well established procedure for dealing with a child wrongfully removed from any part of the UK to a foreign country. There are emergency hearings before a High Court judge and the attempt at recovery process then takes over. That process is well known and well established.

There is no such procedure for internal child abduction within the UK, although we operate three separate legal processes in the three jurisdictions of England and Wales, Scotland and Northern Ireland. A child may be taken wrongfully from Exeter to Belfast, Glasgow or even Carlisle, which may be just as upsetting or traumatic as abduction to France or Sweden. Removal from home, school, friends and security, and fleeing with a parent who is often acting irresponsibly and removing the child wrongfully, is certainly not in the best interests of the child. It is also traumatic for the left-behind parent, who has no idea what happened to the child or even whether he or she will ever see that child again. The decision for a child’s future should be made sensibly and responsibly.

Where there are two parents, each with parental responsibility, one parent cannot up and go with the child to live elsewhere without the consent of the other parent—I do not think that all parents know that—and even more so when the parents are separated and one parent has a residence or custody order. Under the Bill’s proposals, though, there is no provision for legal aid for the left-behind parent to find out where the child has gone, whether the child is safe and how to put into effect a process similar to that employed if the child has gone abroad. Quite simply, I am asking that there should be exactly the same process internally within the United Kingdom as there is externally for abduction to a foreign country.

I am extremely grateful to the Lord Chancellor, who asked to see me on this issue, and to the Minister for seeing the noble Baroness, Lady Shackleton, and the chairman of the Family Law Bar Association. As I understand it, the Government recognise the problem and that it requires a solution. I suspect that the only issue between us is how far they will go, because there are two aspects to the issue of internal child abduction: one is the recovery of the child but the other is the prevention of the removal of the child. Consequently, one needs both the prohibited steps order or a specific issue order and the location order, sometimes called “seek and find”, or a recovery order involving the tipstaff and the police—the police will not act unless there is an order—asking various agencies for addresses and going through the well known process that happens internationally but not nationally.

There is no reason why the international system should not apply internally, and I understand that the Government accept that. It is important that the whole process should be applied. I make it clear that it is intended only to stop the child being removed, to get the child back or at least to know that they are safe and properly cared for. It is not intended to be a backdoor entry into private-law family cases. Everyone understands that in a situation in which it is known where the child is—perhaps a social worker in the area finds the child with grandparents and says that the child is perfectly safe—the legal aid will drop at that moment. It would be the responsibility of the left-behind parent or the parent who has wrongfully removed the child to go to court. They would then be on their own, like any other couple in dispute over their children.

The process for which I seek legal aid is purely and simply connected to potential or actual abduction. I repeat without apology that I am asking for the process for abduction throughout the United Kingdom to be exactly as the same as the international process under the Hague convention. I beg to move.

[Lord Beecham]

My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.

I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.

That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.

Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.

I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.

If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.

[Baroness Butler-Sloss]

I am very grateful to the Minister for what he has said, although it does not go quite as far as those who undertake these cases nowadays feel is necessary. I have had extensive experience of these cases as only High Court judges tried them in the past. I think that only High Court judges or deputy High Court judges try the international ones nowadays. That is an indication of the importance that is attached to these cases.

Given where the noble and learned Lord comes from, I have to say that in the past there have been real problems in getting a child back from Scotland who has been removed by a parent without the consent of the other parent. The process is not simple. I have not had a similar experience with Northern Ireland, but I am sure that these cases must arise there occasionally. As noble Lords know, those are different jurisdictions; that is the problem. I am very happy with where we have got so far, but I would like to get a little further. I am grateful for the opportunity to continue to discuss this matter not only with the noble and learned Lord but with his officials. In the mean time, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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Moved by

[Baroness Butler-Sloss]

41: Schedule 1, page 130, leave out lines 42 to 45 and insert—
““abuse” means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional, and including acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;”

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Moved by

[Baroness Butler-Sloss]

43: Schedule 1, page 131, line 31, at end insert—
“( ) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)—
(a) a relevant court conviction or police caution;(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction; (c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence;(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim from violence by the other party;(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;(f) a medical report from a doctor at a UK hospital confirming that the applicant has injuries or a condition consistent with being a victim of domestic violence;(g) a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence; (h) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant who is the victim of the abuse;(i) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;(j) a letter of support or a report from a domestic violence support organisation; or(k) other well-founded documentary evidence of abuse, such as from a counsellor, midwife, school or witness.”

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Tabled by

[Baroness Butler-Sloss]

45: Schedule 1, page 133, line 3, at end insert—
“Exceptional family proceedings(1) Civil legal services provided in relation to a family dispute with respect to the upbringing of a child, including orders mentioned in section 8(1) of the Children Act 1989 (residence, contact and other orders) and special guardianship orders under that Act, where an assessor for mediation (competent to carry out publicly funded assessment) certifies that the case is unsuitable for mediation having regard to any significant harm which the child has suffered or is at risk of suffering; and in this paragraph “family dispute” has the same meaning as in paragraph 12.
Exclusions
(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.”

[Baroness Butler-Sloss]

My Lords, I have already spoken to this amendment, which, as I said, was rather oddly included in the first group of amendments. I am not entirely sure what the Minister was offering. I would therefore like to read Hansard rather carefully to find out what he was offering and, if necessary, bring the amendment back at Third Reading if I am not happy with his comments, as I fear I may not be. For the moment, however, I shall not press the amendment.

Amendment 45 not moved.

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[Lord Beecham]

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

[Baroness Butler-Sloss]

My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.

[Lord McNally]

My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.

However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others—in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant’s income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.

On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.

In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.

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Moved by

[Baroness Butler-Sloss]

69: Schedule 1, page 138, line 20, at end insert—
“Victim of trafficking of people for exploitation(1) Civil legal services provided to a victim of trafficking of people for exploitation for—
(a) a claim for compensation in the Employment Tribunal, or(b) a claim for personal damages relating to being trafficked for exploitation.(2) In this paragraph “victim of trafficking of people for exploitation” means a person who has been identified as a victim of—
(a) an offence under section 59A of the Sexual Offences Act 2003 (trafficking people for sexual exploitation); or(b) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for labour and other exploitation).”

[Baroness Butler-Sloss]

My Lords, I declare an interest as co-chairman of the human trafficking parliamentary group and as a trustee of the Human Trafficking Foundation. This is a very specific and limited amendment, which seeks to help the victims of human trafficking who have escaped.

We have two groups in mind. The first is those who manage to get away from domestic slavery. Quite often somebody from the Indian sub-continent, further east or the Middle East comes to this country thinking that they are going to work in an ordinary way. However, they find that they become a slave, working seven days a week for no pay and sleeping on the floor, and they are unable to leave the house. When they eventually escape—a certain number of these cases come up from time to time but not very many—some of them manage with the help of a law centre to get to an employment tribunal, where there are pro bono lawyers who sometimes achieve quite large sums for them by way of compensation. If the legal aid sought here, which is for legal advice and assistance to reach the door of the court, is taken away from the law centre on behalf of the individual who is exploited for domestic or labour reasons, then that individual will not get that advice. They will be foreigners, they will have no idea how to get to the employment tribunal and, quite simply, their rights will have been totally overlooked.

The second group, where cases arise perhaps less often, concerns those who are exploited for sexual reasons—generally prostitution—and who are generally but not always women. They escape and sometimes manage to find the person who has trafficked them for sexual exploitation. They manage to get to the county court or occasionally the High Court—again, with the help of a law centre, which puts the case together—and at court they will find a pro bono lawyer.

Therefore, it is advice and assistance that the amendment specifically seeks. I recognise that there is a difficulty in how best to identify a victim of human trafficking or a,

“victim of trafficking of people for exploitation”,

the phrase used in the amendment. I had originally thought of referring to someone who had been identified by the national referral mechanism, but I was then warned that that mechanism was not an identifiable entity from the point of view of legislation. That is why I have used the wording as it appears in the amendment.

I am extremely grateful to the Minister and particularly to those behind him, who have indicated to me that the Government are sympathetic to this issue, but the question remains—and I understand it entirely—of how best to identify victims. However, I understand that what I am asking for is, at the moment at least, being sympathetically considered by the Government.

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[Lord Wallace of Tankerness]

My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.



On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.

My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.

It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.

[Baroness Butler-Sloss]

I am very grateful to the noble and learned Lord for his very constructive and heart-warming words. It is only right that I should congratulate the Government on their strategy. The only point about strategy is its implementation, so I warn the noble and learned Lord that I shall continue to battle to implement the strategy, which is excellent in outline. However, this is a very good step forward. I look forward to further discussions with the noble and learned Lord and his team. In the mean time, I am very happy to withdraw the amendment.

Amendment 69 withdrawn.