Children and Families Bill

Baroness Butler-Sloss Excerpts

Monday 21st October 2013 Grand Committee

[The Earl of Listowel (CB)]

My Lords, I support Amendment 56 in the name of my noble friend Lord Northbourne, and regret that I failed to add my name to it. When I looked at the figures for the United States recently, I discovered that a third of boys, and two-thirds of black boys, were growing up without a father in the home, which is a pointer to where we might end up if we do not adopt my noble friend’s amendment. I have had the privilege of working with young people. I have worked with young people in hostels and boys have “adopted” me as their father. I have spoken with young men working in those hostels about what it was like for them to be brought up by their mothers on their own, and how guilty they felt about the burden they had put on them. The honourable Andrea Leadsom MP, who does such great work around early years provision, highlights the concern that when mothers bring children up on their own they risk feeling overwhelmed by that burden and withdraw their emotional support for their children.

I believe that this provision is already law in France and several other European countries. This is such an important issue that I hope the Minister will give a positive response. President Barack Obama grew up in a household without a father. Your Lordships may remember the speech he made as a senator in 2008.

He said:

“But if we are honest with ourselves, we’ll admit that … too many fathers … are … missing—missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know how true this is in the African-American community. We know that more than half of all black children live in single-parent households, a number that has doubled—doubled—since we were children. We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioural problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it”.

That is the end of the quotation from his speech.

I hope that the Minister can give a very positive response to my noble friend’s amendment. Parents sticking together and sticking with their children is vital to the well-being of all our children. In my experience, children who do not have parents or carers who stick with them are unlikely to stick at friendships, at being husbands or wives or at jobs or difficult tasks themselves. I support my noble friend, and I look forward to the Minister’s response.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, support the principle behind the noble Lord’s amendment. In Section 3(1) of the Children Act 1989, “parental responsibility” means,

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

As has been said, one of the saddest things is that when parents separate, a substantial number of fathers walk out—very often for good reason—but in doing so they abandon their children. I regret that I have not checked the percentage but it is large, something like 60%. I believe that in the Children Act there should be something to remind the public that those rights, duties and responsibilities include that which the noble Lord has set out.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I support the overall aim of the noble Lord, Lord Northbourne, that the Bill should address the importance of engaging people in what parenting means before they become parents. When I was Minister for Social Exclusion I had the enormous privilege to have a look at some of the evidence-based programmes around parenting. I recommend that Ministers have a look at a programme called Teens and Toddlers, which I encouraged local authorities to adopt. Young people identified by their teachers as probably vulnerable to becoming young parents were put on to this programme, which lasted for about 12 weeks. The youngsters thought that the programme was quite good because they got out of school for one day a week. In the morning they would care for a particular child in an early-years setting, week in and week out, so they got to know that child and discovered that the process was not as simple and straightforward as it might have been made out to be. They found that some children were really quite difficult, even at that very early age. I met two or three groups of young people who were engaged in the programme, as well as some who had done it some years before, and they said things like, “It was very clear that no one else spent any time with this child, so the child never looked at me for weeks”. They learnt an enormous amount. They learnt that children need feeding regularly, that they make a noise, and that they are expensive. After the session with the children in the early years setting, there would be group sessions with their peers and the tutors who were running the course. They would explore what it was all about. Many of them had never been parented; they had been parented by siblings. In particular, some of the young women involved had to look after their own young siblings.

I loved, enjoyed and was fascinated by the sessions. I met some of the young people who had been on the first course to be run in this country around eight years earlier, in the London Borough of Greenwich. Of the dozen young people who had been on that course, not a single one had become a parent. They all said, “We have learnt so much from doing the course and we knew that we had choices. We made the choice to be sensible and that we would not have a child early”. I remember one young black woman saying, “I will be 24 before I have a child because I want that child to succeed and I want a life as well”. She had learnt that from this programme, and it is exactly what the Government should be encouraging. Young people should learn about the seriousness of being a parent. Yes, it can be joyful, but it is expensive, it restricts what you can do, and it takes real knowledge and understanding of what you are doing to be a good parent. When we do not take that seriously, we are colluding with the issue of children being born into dysfunctional families. We know what can be done, so it is about time that we took the steps to ensure that things are done so that fewer children are born into families where the parents are simply not ready or capable at that point of parenting.

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[Baroness Howarth of Breckland (CB)]

I may be a lone voice here but, much as I agree—who cannot agree?—with the essence of what the noble Lord, Lord Northbourne, has said, I do not view legislation as the answer. I am sure that the Minister will say that we have a plethora of legislation. I have worked in this field and I could list it but I will not do so because it would take all the time in the world. The important message that we should take from the amendment in the name of the noble Lord, Lord Northbourne, is how vital it is that we should do what the noble Baroness, Lady Massey, has been saying for so long. We still are not doing well in terms of PSHE and helping young people and children to understand as early as possible what it is to be a parent, to be part of a community and all that you have to do as a citizen. Teens and Toddlers is still going and the programmes through which young people learn at first hand about bringing up children are very important.

However, I believe we live with a myth that modern young men are all the same, which we need to face if we are to deal with some of these issues. The young men I deal with, and I am sure that the noble Lord, Lord Ramsbotham, deals with, who end up in prison or in serious difficulties certainly are not among those who see themselves as hands-on in childcare. They see themselves as at the football match, the pub or an alternative. Until we are able to get programmes that work directly with such young men, we will not make a difference to them while they are growing up. We should forget the myth that all young men are the same, particularly in understanding the wide range of cultures. The noble Earl, Lord Listowel, mentioned young men from certain cultures. There are difficulties in many different groups and we have to be sensitive to all that.

I say to my noble and learned friend Lady Butler-Sloss that I do not think that there are many good reasons for men walking out on their families. They do it because they have not been helped to face up to those issues. However, the courts are getting tougher in ensuring that they face up to their responsibilities, which I am pleased about. I know that CAFCASS has been working for a considerable time on trying to make parents face up to what they will do to their children if they leave them.

Although my heart is with what the noble Lord, Lord Northbourne, has said, we need to get on with the practical application and the proper support for good social work intervention that will make a difference, rather than have yet more legislation on the statute book.

[Baroness Butler-Sloss]

Perhaps I may say that I had no intention of saying that it was right for young men—or older men—to walk out on their families. They may be justified in walking out on their spouse or partner, but to leave the children behind, or not to look after them, is unacceptable.

[The Earl of Listowel]

May I, too, just say that while I agree that all my noble friend spoke of is vital if we are to change the culture, might not legislative change of the kind that he is proposing also be helpful? It may of minor assistance, but given that this is such a grave matter, might it not be worth pursuing?

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[Baroness Howarth of Breckland]

I rise very briefly to support this amendment, and to ask for it to be looked at in a broader context of social policy. The noble Lord, Lord Ramsbotham, talked of young men in prison. I want to give one example—something I heard last week—which relates to how young people can learn. I was told of a hostel for young women with their babies that was closed, probably for financial reasons. The young women and their babies were dispersed. Six of them were at university, and no consideration was given to this fact, to the support they received at the hostel or to what would happen to them in future. If we are thinking about how we can ensure that each generation gets the support they need, that story is a good example of how broader policy could make a difference.

[Baroness Butler-Sloss]

My Lords, for the reasons already given, which I will not repeat, I, too, support this amendment.

[Baroness Howe of Idlicote]

My Lords, I was intending to support Amendment 57 when we spoke earlier on Amendment 56. However, it is clearly essential that governors, sponsors, head teachers—those responsible for what goes on in the school—are alert to what is set out here. The point I make about this—others have made it too —is that there are a lot of amendments dotted all over this paper referring to different aspects of what we are discussing, so we are going to come back to this again and again. The ear-bashing and encouragement that the Minister has had will help to indicate the right way of making these important issues completely plain. It is crucial that what the school stands for is made clear to the pupils. I could not be more supportive of the importance of getting that principle across.

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[Baroness Butler-Sloss]

My Lords, I entirely support what lies behind what the noble Baroness, Lady Jones, has said. Amendments 58 and 59 may go most of the way. Amendment 60, to which I speak, was proposed by the Bar, which is why I have put it forward. It is important that the Government understand that there are difficulties. The Child Abduction and Custody Act 1985 incorporates the Hague convention of 1980. I have spent a great amount of time as a High Court judge and in the Court of Appeal on the Hague convention. Under Article 5,

“‘rights of custody’ shall include rights relating to the care of … the child and, in particular, the right to determine the child’s place of residence”.

I congratulate the Government on their bravery as regards arrangements. Having tried cases with mothers and fathers, I do not believe that the proposal will work any better than custody and access or residence and contact. It is not the words but what happens to the child who gets one or other parent, or sometimes both parents, absolutely up in arms.

The difficulty is that the decision under the Hague convention is not made in England if an English child has been abducted. There has been a particular decision, with which I will not bore the House, except to say that where the applicant’s right of custody is an issue the question should not be determined by the English court unless it is unavoidable. It is a matter for the court where the child is taken to, where the other parent goes to that court through the arrangements in this country and says that this parent has lost the child because the child, in respect of which he or she has a right of custody, has been removed from this jurisdiction. The court of the jurisdiction where the child is found makes the decision on whether the right of custody has been breached.

As the noble Baroness, Lady Jones, has said, these are complicated cases. It is very often difficult in some countries to get that country to accept that nationals of that country were resident in this country. Therefore, while they may have been in Germany, they may not particularly want to send their children back although they had been resident here. Guatemala is a country that I particularly have in mind. Under the Hague convention, they should come back but if there is some uneasiness about what is meant by “arrangements”, it is a marvellous opportunity for the foreign court to say, “We are not satisfied on rights of custody, so we will keep the child here”. That is exactly what the amendments of the noble Baroness, Lady Jones, and my amendments are intended to deal with.

I do not mind whether the amendment drafted for me by the Bar or any other amendment is preferable. I would like to see an interpretation of the words “rights of custody”. It should be stated that arrangements made in respect of either parent equal—but put, obviously, in more legalistic language—a right of custody. I hope that the Government will accept that both the noble Baroness and I have got a really important, highly technical point that may have an adverse, practical effect on English and Welsh children being taken unlawfully out of the jurisdiction.

[Lord McNally]

If there is anything likely to chill the marrow of a non-lawyer Minister, it is the noble and learned Baroness, Lady Butler-Sloss, saying that the amendment that she is proposing is highly technical and important. I have no doubt about that and will try to deal with it with due thoroughness, well aware that the noble and learned Baroness is far more well read in the Hague convention than me.

I am advised that the Hague convention gives a wide interpretation. It is intended to predict all the ways in which custody of a child can be exercised. It is not just orders concerning residence that count; it is also rights arising from the operation of law and agreements between parents which have legal effect under our law. The child arrangements order will make it clear that other jurisdictions will consider where a child lives and has contact as evidence in determining whether an individual has rights of custody.

I welcome the support expressed by the noble Baroness, Lady Jones, for the government amendment, which is purely consequential. Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a reference to contact and residence orders. The amendment simply updates that to refer instead to child arrangements orders.

The remaining amendments relate to the recognition of the child arrangements order at international level. I agree with noble Lords that we must ensure that the order is recognised and enforced at international level in the same way as existing contact and residence orders. I welcome the thought which has been given to this issue.

The introduction of the child arrangements order stems from a recommendation of the family justice review. It seeks to move away from language which reinforces the perception that one parent is more important than the other. In terms of content, the court will, as now, be able to set out clearly in an order the person or persons with whom a child lives, spends time or has other types of contact, and when.

While the amendments which have been tabled do not change the scope of the child arrangements order, Amendment 58 would increases the focus on its distinct elements. In doing so, it risks undermining one of the key aims of the order, which is to shift the focus away from parents’ perceived rights on to the rights and needs of the child.

Amendments 59 and 60 relate more explicitly to the recognition of the order under the 1980 Hague convention. “Rights of custody” are a key concept under the convention and include rights relating to the care of a child, in particular the right to determine a child’s place of residence.

In considering whether there has been an unlawful removal for the purposes of the convention, a court will first establish what rights the applicant had under the domestic law of the state in which the child was habitually resident. What matters is what rights are recognised by that law, not how those rights are characterised.

The specific content of relevant decisions and orders, such as child arrangements orders that specify with whom a child is to live, will provide evidence as to the rights that a person has in respect of a child. However, the question as to whether those rights are properly characterised as “rights of custody” is a matter of international law. The phrase “rights of custody” is not confined to any national meaning, and it would not be appropriate to try to dictate the meaning of an international concept such as this in our law. I assure the Committee that we will be making full use of existing international groups and channels to raise awareness of the new order and ensure that it is properly understood. For that reason, I urge noble Lords to accept the Government’s amendment.

I say again that what I say here is not plucked out of the air; it is the result of considerable thought and advice from government lawyers and is on the basis of advice from the Norgrove studies. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, suggested that we might possibly be causing confusion by what we are doing. I suggest that we meet between now and Report—I am getting a long list of engagements now, but it is important to get this right—and discuss this. If the Government’s expert lawyers persuade me that noble Lords are wrong, then on Report I shall try to persuade the House that they are wrong. However, if noble Lords convince them that there is confusion here, that is the last thing that the Government want out of this legislation. In that spirit, I hope that the noble Baroness will agree to withdraw her amendment.

[Baroness Butler-Sloss]

I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.

[Baroness Jones of Whitchurch]

I have to say I was beginning to feel very disappointed in the Minister’s response until he said that maybe we could meet—and I am very happy to take up his offer—because I felt that he was not really addressing the concerns that have been raised. They are not just the concerns of non-lawyers like myself or my colleagues; they are the concerns of some fairly major players in this sector including, as I said, the Family Law Bar Association and the Children’s Commission for England, while obviously the noble and learned Baroness, Lady Butler-Sloss, is an expert in her own right. This is not a political point but a practical one: it is about what is in the best interests of children and what can best protect them in international custody disputes. As I understand it, “rights of custody” has a particular resonance and respect around the world, and I am not sure that the new phraseology that we are putting in its place does that. I still need to be persuaded of all that, but maybe we can do that in a meeting with the Minister. I will happily take up his offer to explore it further in that context. I therefore beg leave to withdraw the amendment.

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[The Earl of Listowel]

My Lords, the conclusions arising from the important research of Dr Julia Brophy are:

“(a) The needs of courts for skilled and experienced practitioners able to produce analytical, evidence based, forensically driven reports which meet the court’s timescale required, and … (b) The realities of resources limitations for some local authorities … In this context, utilising the skills and expertise of independent social workers both pre and within proceedings is likely to remain necessary if courts are to meet current challenges and move forward with appropriate speed and confidence and to do so in a manner which reflects a court practice which is without fear or favour”.

I want to ask the Minister whether the regulations now meet the recommendations made by Dr Brophy and, if not, what amendments he may be considering. Perhaps I may apologise once more to the Minister and the Committee for giving short notice of this debate. If the Minister would prefer to write to me, I will quite understand.

[Baroness Butler-Sloss]

Since this issue has been raised, I am going to jump on the bandwagon just to say that very difficult cases are tried by designated and senior judges and family judges of the High Court where expert evidence is absolutely crucial. I have to say that I have tried cases where I have ended up with 11 expert witnesses on shaken babies with subdural haematomas and so on, asking whether it was the parents or a parent, or whether it was an accident. These are extremely difficult cases. We were greatly assisted by CAFCASS and sometimes assisted by social workers, but even in these difficult cases, the social workers came and went. In some cases there was no consistent social worker to put in a consistent, high-quality report from their point of view. Again and again, High Court and senior circuit judges have asked for an independent social worker, which the local authority has been only too grateful to agree to. That is because the authority knows that in these difficult cases it has not actually been able to do the job itself.

In an ideal world, of course, independent social workers are not needed, but we live in a far from ideal world with children at extraordinary risk of physical injury as well as sexual injury. Here it is physical injury with which I am concerned. Again, as the noble Earl has just said, we need the doctors. I am not sure what the doctors are likely to be paid, but from the point of view of a senior consultant, it is derisory. There is a limit to pro bono, particularly if a doctor has to be in court for a day or two days. Quite simply, these really difficult cases will not be properly tried if they do not have the right experts.

Norgrove was absolutely right to want to cut it down. In the majority of cases it would be quite wrong to go in for the luxury of lots and lots of experts. I am concerned only about the small minority of extremely difficult cases, where the current system is not going to be just to the child, whose welfare, ultimately, is paramount.

[Baroness Tyler of Enfield]

My Lords, it is terribly important that this debate is kept in perspective. The noble and learned Baroness, Lady Butler-Sloss, has done that very well, making it clear that we are talking about a very small number of cases, involving very difficult issues, where of course an expert’s advice will be very helpful.

More broadly, I very much support the thrust of what David Norgrove said in the report of the family justice review and it is really important that we are seen to be limiting expert evidence to what is really necessary to decide, so that the judges narrow it down to the key issues where we need that expert advice and it does not add to yet more reports, with all of that adding to delay.

The noble Earl, Lord Listowel, quoted Anthony Douglas, the chief executive of CAFCASS. I declare an interest as chair of CAFCASS. In the intervening period I have had the opportunity to have a quick word with Anthony Douglas and the context in which he made those remarks is one in which we have done a lot of work to ensure that both local authority social workers and CAFCASS guardians are working up to the absolute limit of their professional knowledge and capacity, and that you need an expert report only in that very small number of cases which take them beyond their limits.

I have spoken recently to groups of CAFCASS practitioners who tell me that they now feel empowered and have renewed confidence because in the majority of cases their expert advice, analytical skills and the assessment that they can offer to the courts are being accepted as expert social work opinion and advice. Sometimes recently they have felt that their professionalism has been questioned, which is a danger when we have too many of these expert reports. So I hope that we can conduct this debate with a sense of perspective and balance, while understanding that we are talking about a small number of cases where we need those expert reports to deal with very specific issues.

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[Baroness Benjamin]

My Lords, I have put my name down to this amendment because the NSPCC has raised huge concerns with me. It feels that the implementation of a 26-week time limit could make the operation of evidence-based interventions that take longer than the specified time limit more difficult; for example, in situations where parents are seeking treatment for substance misuse or domestic violence or when family members come forward late in care proceedings when the real risk of a child being taken into care becomes apparent. The NSPCC believes that we must ensure there is sufficient time for the appropriate assessments to take place.

The noble Baroness has already mentioned programmes such as the NSPCC’s infant and family team. That programme is significant as it informs professionals and helps courts decide whether maltreated children can be reunited with their birth family or should be placed for adoption with their foster family. It also assists parents in addressing the problems that they might have had as children. However, this important and emotional work requires between 12 and 15 months before a final recommendation is made. Although the Bill provides for eight-week extensions, continually adding these on to the six months causes a large amount of uncertainty for parents whose own early traumatic experiences are being explored to help them reflect on the origins of their present difficulties, and ultimately may have an adverse effect, not to mention increased administration pressure.

When I was told the following story of a young mother, it showed me just how important the NSPCC’s infant and family team can be to the well-being and happy outcome of a family in difficulty. Two years ago, Kesha’s eight children, aged between one and 13, were removed from her on the grounds of neglect. The children were split among different foster carers and she saw them for only an hour every other week. Kesha says:

“When I first began working with the Infant Team I had a bad attitude, but soon, I loved it. We had parenting sessions that really helped me, and I watched videos of parents and kids which helped me understand my kids’ needs more and how to meet them and build a sense of security so they know they can come to me. The Infant Team also asked me about when I was young. It felt like my mum leaving at a young age meant I couldn’t trust people. They helped me to be myself more and start trusting people, and I began to open up to my kids more, and my relationships with them got better. The Infant Team want you to get your kids back. I didn't want my children to have to grow up without their mum like I did. I love them too much. I fought hard to get them back”.

It took Kesha a year and a half to get her children back, but by working hard and with the right support, they have been successfully reunited.

The NSPCC and others agree that there are lots of cases that need to be speeded up, but that should not be done at the expense of limiting interventions that could be effective in dealing with family problems, so that children can stay at home when it has been proved to be safe for their well-being. These cases cannot be forced into a prescribed timeframe, as the NSPCC believes that this could be damaging. It is seeking commitments as to how the Government will address this potentially negative impact and ensure that cases are not shoehorned into a structure that will not be beneficial. There needs be more flexibility and I believe that this, in turn, will not undermine the policy intention. The amendment will provide greater clarity about the length of care proceedings when longer timescales are needed to meet the needs of the child. I know that that is what all noble Lords here ultimately want.

[Baroness Butler-Sloss]

My Lords, I regret to say to the noble Baroness, Lady Jones, that I do not agree with her amendment. I have discussed this with the President of the Family Division and with Lord Justice Ryder, who has been leading the modernisation of the family courts over a number of years—even when I was there, which is now eight years ago. This is one of the major planks of the Norgrove report. The president and Lord Justice Ryder, together with other judges, are extremely concerned about the idea that the 26-week limit should be breached. They see it as an opening for some judges simply to take longer. Certainly until very recently, we know that decisions have been taking 48 to 50 weeks. For a child to have to wait for a year for a decision on whether it can stay with the family or should go into care is half a year too long. This is what Norgrove wanted: dramatically to reduce the time.

The NSPCC has been lobbying me as well and I have heard the touching story, but I am afraid that I sent an e-mail saying that in this particular instance I do not agree. If one looks at Clause 14, which is the subject of this amendment, one can see that under new subsection (5) onwards, there is an opportunity for extensions of eight weeks. However, if there is an open book, there will be judges who allow it to remain open, whereas if you have to be ready to go back after each period of eight weeks, that has a marvellous effect on getting on with what needs to be done.

I also notice that under new subsection (9) the Lord Chancellor can change the 26-week period, while new subsection (10) states that the rules of court may provide for changes. I have absolutely no doubt that the rules committee and the senior judiciary, particularly the Family Division liaison judges on each of the circuits, will check on the designated family judges in the care centres. If there are cases where the decision has been too speedy, I have no doubt at all that the system will be able to see that, which provides an opportunity to decide at that stage whether there needs to be an extension. But, for the moment, I ask the Minister to stand firm on this one.

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[Baroness Butler-Sloss]

My Lords, I am extremely sad to have to disagree with the noble and learned Lord, Lord Lloyd. I am also indebted to the noble and learned Lords, Lord Hope of Craighead and Lord Phillips of Worth Matravers, for what they would like to have said, but they are both unable to be here today.

It is important to realise that there are two views of the judiciary, of the academics and of the lawyers, not only the view put forward by the noble and learned Lord. The first view is that of seven Supreme Court judges. Normally in the Supreme Court they sit in a five-judge court. In this case, no doubt because it was either the seventh or eighth case, they sat as a seven-judge court. I have the highest possible regard for Lord Justice McFarlane, but two of the judges of the Supreme Court were family judges of even greater experience and expertise than him. Both those judges, both of whom are family practitioners and both of whom have worked with me, were absolutely unanimous with the other five that the decision to which the Supreme Court came was the right one.

There are two issues. One concerns a situation where there has been no significant harm to the child, or in Re J, the case with which we are concerned, three children. However, there was very significant harm to one child who died. In that case, the mother and the father were the only possible perpetrators. Under the current law, it did not matter which of them had killed or injured the child. The child may have died of asphyxia from being rolled on to in the bed—the child was lying in the bed with the parents, which is a terrible habit. This child had been seriously injured before it died. Those are the facts. The mother, during the time she lived with the father, was in that pool of perpetrators and it was clearly not safe for the older child, born while the parents were engaged in the process of care, to live with them. They then parted and went to live with different people. The mother eventually went to live with a man who was the divorced father of two children who lived with him, and with him she had two further children. The pool was then a different pool, not the pool of two perpetrators, one of whom was bound to have done it, but a different pool in which nothing had happened so far. The judges in the Re J case said that there had to be some evidence from which to infer the likelihood of significant harm in the new group, and it could not be said that the mother had injured or helped to kill the child when she lived in the other group, where she and the father were the obvious suspects. In Re J, the seven Supreme Court judges, who were unanimous, said that you had to have some evidence to cross the threshold. Unfortunately in that case the only issue that the local authority presented to the Court of Appeal and to the Supreme Court was the fact that the mother was in the area pool of perpetrators; no other facts were presented at all.

The alternative view put forward by the noble and learned Lord was one he put forward in the earlier case of Re H, where he was in the minority; the majority found against him. In that case, there was a girl of 16 who the elder sister of younger children. The girl said that she had been raped by the stepfather. In the criminal proceedings, he was acquitted. In the family proceedings, the judge said he was not satisfied as to the appropriate standard that the stepfather had raped this girl, but there was a strong suspicion. In that case the Court of Appeal and the Supreme Court held that they could not infer sufficient facts to say that the other children were at risk.

The noble and learned Lord referred to another judgment by that great judge, the noble and learned Lord, Lord Nicholls of Birkenhead, who gave a leading speech in a case called B, or A, which I was on in the Court of Appeal. It involved three people; namely, the mother, the father and the childminder. In that case, the noble and learned Lord said that in relation to those three in that pool where the child was injured—I think that the child died—clearly it was “grotesque” to say that because they could not prove which of the two, or possibly three including the childminder, had actually committed the injury, they should not take steps to protect the children.

However, that is not the present case. In that case, it was the pool of potential perpetrators, one of whom had done it. In this case, the mother had moved away. The noble and learned Lord, Lord Phillips of Worth Matravers, raised an interesting point. He asked whether there were any recorded cases where the only evidence was that the mother or father had moved from the pool of perpetrators into a subsequent pool where the current law meant that nothing could be done and the child had suffered. I have to say that I have not heard of such a case. I do not think that there is such a case because it would undoubtedly have been referred to in the later cases, particularly in Re J. I thought that the noble and learned Lord, Lord Phillips, made an extremely pertinent point that there was nothing to show that the current law has been to the detriment of children potentially at risk.

The noble and learned Lord, Lord Hope, pointed to the crucial fact that the mother in Re J was in a new pool. No one has suggested that the father of the other children had ever committed any offence. He was a totally respected man. In his note, the noble and learned Lord said that the fact that the mother was in the earlier pool of perpetrators was relevant, but by itself that was not sufficient. He went on to say that it could be relied on, together with any other facts or circumstances that might be relevant, to support the conclusion that the three other children in Re J were likely to suffer harm.

It is interesting that there are other important factors that neither the Court of Appeal nor the Supreme Court were allowed to deal with. The first factor was that the mother was very young when she was living with the man and the child died. Secondly, it was a new relationship with a totally respectable person. Thirdly, there were two further children and she was much more mature. There were factors against her which they did not take into account; namely, that she had colluded with the man in the first case. If they had taken that into account, they might well have crossed the threshold. Unfortunately, those facts were not taken into account.

Therefore, as I understand it, this is a sole issue that is unlikely and, as the noble and learned Lord, Lord Hope, said, it is extremely rare. The noble and learned Baroness, Lady Hale, who is one of the great family experts, and Lord Wilson, were both satisfied in this case that the threshold was properly not crossed. Lord Reed said in paragraph 98 of Family Law Week that if the current law as stated in this case was causing consternation, it would appear to be an overreaction because the one clear-cut point was not one that was likely to come up very often, if at all. I am extremely concerned that we maintain a balance between the right of children to their own family, the right of parents to family life and their own child, and the crucial importance of the protection of the child where there is danger to that child.

The very delicate balance in Section 31 has been studied and subject to the most careful judgments by the Supreme Court. I think it is a little unjust to the Supreme Court that while the noble and learned Lord, Lord Lloyd, spent a lot of time on what Lord Justice McFarlane said, he did not quote a single passage of what anyone in the Supreme Court said. They are worth reading and they have a very good point. I would say to noble Lords that we have to be careful to protect families from too ready an interference on the part of the state unless there is sufficient evidence to take the child or children away.

[Baroness Howarth of Breckland]

It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question.

[Baroness Butler-Sloss]

I have to say that in my experience as a family judge, speaking perhaps as the only family judge present, although of course the noble Lord, Lord Ponsonby, is a family magistrate, those judges would be issuing care proceedings immediately and removing the child while they debated whether the issue could be concluded in favour of the local authority’s view at the care hearing. On the interim care proceedings I have no doubt about the protection issues. Based on this, they would remove the child.

It is also interesting to note that despite some very strong attacks by two well known and respected family academic lawyers, another well respected family academic lawyer, Andrew Bainham, a reader in family law at Cambridge, has gone exactly the wrong way and has taken the view that the Supreme Court was right.

The last point I want to make is this: are we really right to change the point at which the threshold should be crossed, something on which seven Supreme Court judges have reached a conclusion with the greatest possible care? I urge the Committee not to do so.

[The Lord Bishop of Chester]

My Lords, at the risk of lowering the tone of this extraordinarily learned exchange, in the church we face a similar issue when trying to discern when someone poses a potential risk but nothing can be proved. It is a difficult line to establish. In the drafting of this amendment, my eye has been caught by the juxtaposition of the words “likely” and “possible”. I wonder whether there is a better way of phrasing it. The noble and learned Baroness, Lady Butler-Sloss, used the word “might” at one point, but interestingly then corrected herself and said “was likely to”. There is a real difference between someone being assessed as “might” be a threat and “is likely to” be a threat. I think that I come down on the side of the noble and learned Baroness. However, it is good to know that the lawyers have only two views in these situations.

If this comes back, I hope that we will be able to look at the phraseology. To deduce that something is “likely” from a certain level of possibility seems to carry a stigma that we should not attach unless we really have to do so.

Justice: Legal Advice

Baroness Butler-Sloss Excerpts

Monday 11th March 2013 Lords Chamber

[Lord McNally]

He continually talks about what is going to happen. As my noble friend has just said, let us see what happens. As I indicated, we are making a number of changes. Of course I understand that there are difficulties for organisations such as Shelter and the CAB. We have tried to give assistance in those adjustments. It is extremely difficult to give precise responses to predictions of catastrophes that may or may not happen. I can say to my noble friend that we will keep these matters under review. As noble Lords on those Benches will remember, on their instructions we inserted into LASPO a clause that allows review of the impact of the changes that we have made.

[Baroness Butler-Sloss]

My Lords, I will not ask the Minister about legal aid, but is he aware of the increased importance of law centres and citizens advice bureaux advising unrepresented litigants, of which there will be an enormously increased number come April? What are the Government going to do to help them advise unrepresented litigants?

[Lord McNally]

Yes, my Lords, I am aware of that, but one of the points I have made continually through this is that the CAB and the law centres will have to adjust to a situation where the amount they have at their disposal is a lot less, just as my department and local authorities have had to do. That is a fact of life. As I have said on a number of occasions, we are a lot poorer than we thought we were four years ago. Citizens Advice has been extremely successful in lobbying and, as I have indicated, we have made more funds available. For example, my right honourable friend the Lord Chancellor has announced today that we will be giving further aid to the CAB at the Royal Courts of Justice to help with the particular work it is doing in this area.

Defamation Bill

Baroness Butler-Sloss Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Faulks]

My Lords, I agree with my noble friend Lord Lester. It is possible that the House may remember the contribution that I made to the first debate when I drew the House’s attention to the protocol, which does very much what the amendment seeks to do. Under the current law it is perfectly possible, and indeed it happens on a regular basis, that a court will rule on a preliminary basis and will strike out claims, either pursuant to the CPR or under the inherent jurisdiction. They will manage the case so that preliminary matters are heard—for example, an issue as to meaning—without a full-scale trial. Judges and masters are experienced in dealing with this, and that is a matter that should be left to the protocol and to the masters to develop as a matter of practice. With respect, it is not a matter that should be put in the Bill.

[Baroness Butler-Sloss]

My Lords, I support what the noble Lords, Lord Lester and Lord Faulks, have said. I have to admit to having been a judge, but not a judge who tried this sort of case. I believe that this is a matter that should be left to the judiciary, and the amendment is overemphasising something that really does not need to be done.

[Lord Marks of Henley-on-Thames]

My Lords, while the noble Baroness, Lady Hayter, is right to say that costs and early resolution are vital, I suggest that this extra strike-out provision is entirely unnecessary and, further, that it would introduce added uncertainty by bringing in a gloss on the serious harm test in Clause 1. In addition, it would add complexity to Clause 3 by introducing another test for whether or not there should be a strike-out. As has been said, the court is already able to strike out a case that has no merit; indeed, the noble Baroness, Lady Hayter, conceded that. It is right at the heart of these reforms that the Government propose to introduce an early resolution procedure in the rules, so I cannot see why the amendment should be necessary.

Legal Services Commission

Baroness Butler-Sloss Excerpts

Tuesday 29th January 2013 Lords Chamber

[Lord McNally]

My Lords, I am always fascinated by the way in which the noble Lord dismisses £650,000 as a mere bagatelle, but let us also look at the facts. This scheme for funding such bodies was introduced in 2000 and the three bodies in this consultation were awarded three-year contracts at the end of the previous Administration. Since then, we have twice extended their contracts by one year so that what was originally a three-year contract became a five-year contract. However, as I have explained to the House before, I am afraid that we have to concentrate limited funds on bodies that are giving sharp-end legal aid advice. These three bodies, particularly the Advice Services Alliance and the local Law Centres Network, are umbrella bodies that do not give such advice. Therefore, although in happier days they could win such contracts and do such work, there is simply no money.

[Baroness Butler-Sloss]

My Lords, is the Minister aware or does he appreciate the significance and importance of the Royal Courts of Justice citizens advice bureau? Having been a judge in that court for many years, I had personal experience of the advantages of the citizens advice bureau looking after unrepresented families in my court. Does the Minister realise that taking away the core funding at this moment, when the Government are also taking away legal aid for private family cases, is going to leave the public and the courts in absolute disarray?

[Lord McNally]

The CAB at the Royal Courts of Justice is able to apply for legal aid contracts in the normal way for the part of its work that is directly legal aid work. As regards broader CAB work, the Government have carried out a number of initiatives to provide funding while voluntary organisations make the transition to a much more difficult economic climate. I very much appreciate the record and work of the Royal Courts of Justice CAB in providing legal advice to individuals. However, I can only say to the House—as I have done frequently as we have gone through this exercise—that we are concentrating our resources on the sharp-end providers and will continue to do so.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I understand that Amendment 5, to which I wish I speak, arises in particular out of concern that the House may unintentionally have been misled on Report. I support the noble Lord, Lord Avebury, on Amendment 5. I fully understand the argument deployed by the Government on Report—it would be absurd to allow a person regarded as dangerous back into the country in order to pursue an appeal. My concern is that legal practitioners understand the policy of the Home Office to be to wait until a person with leave to remain travels abroad before then making the decision to curtail their leave, with the express intention of depriving them of the right of appeal from within the United Kingdom. That seems to be difficult to reconcile with the rule of law. I ask the Minister in his response to Amendment 5 at least to give the House an assurance that decisions to curtail leave to remain will not be deliberately delayed until a person travels abroad, with the intention of depriving them of a right of appeal from within this country.

[Baroness Butler-Sloss]

My Lords, I declare an interest as co-chair of the human trafficking parliamentary group. If there are reasonable grounds for someone being understood to be a victim of trafficking, it would be extraordinarily unjust and contrary both to the Council of Europe’s convention and the directive of the European Union, to both of which the Government are signatories, to treat that victim in the way that it is possible that he or she would be treated if the amendment were not passed.

[The Earl of Listowel]

My Lords, I would be most grateful if the Minister could clarify the position, raised by the noble Lord, Lord Avebury, regarding this sudden moment of transition at the age of 18. I would appreciate him reassuring the House that the Government do not consider there to be a single cut-off immediately after the child moves past the age of 18 but that there is humane consideration of a young person’s need for a transition into adulthood. With young people who have been traumatised—for instance, those who have been trafficked—one sees that their development may well be delayed and one has to allow for that. In the Children (Leaving Care) Act, we see special consideration being given to their needs, because of their early trauma, up to the age of 21 and, in some cases, until the age of 25. We need to pay attention to the developmental needs of children and to recognise that some children, particularly those who have been traumatised in their early life, need more care and attention as they make that transition into adulthood.

--- Later in debate ---

[Lord Goodhart]

My Lords, I am going to take a rather unusual position on this and say that I am afraid I do not agree with Amendment 3. I was considerably involved in the drafting of the Constitutional Reform Act 2005 and I had no objection at that time to Sections 48 and 49, which are now objected to in this amendment. The reason why I do not welcome this amendment is that the chief executive is an administrator, not a judge. That being so, I see no serious reason why Lord Chancellors should not continue to be involved in the proceedings of Sections 48 and 49 as they now are. The administration of an issue which involves both those in charge of costs and those in charge of the law needs to recognise the real issues here because of the way in which the funds get to the Supreme Court.

I am in general a strong supporter of the two former judges who have put their names to this amendment and of the noble Lord, Lord Pannick, but in this case I fail to be able to agree with them as they would clearly like.

[Baroness Butler-Sloss]

My Lords, although this may seem to be a technical point to some Members of the House, it is actually a matter of very considerable importance. It is wrong in law and it is constitutionally inappropriate. I am very surprised that the noble Lord, Lord Goodhart, who is an excellent lawyer, has not picked up either of those points. I have to say that the Minister, the noble Lord, Lord Ahmad, got it wrong, and it is important to get it right. It is important to preserve the separation of the judiciary, and I speak as someone who is not a member of the Supreme Court and was not a member of the Judicial Committee. However, the separation of the judiciary from the Executive is crucial at every level, so to have the chief executive of the Supreme Court answerable to the Lord Chancellor and not to the president of the Supreme Court is, to say the least, an anomaly. Also, rather more seriously, it is incorrect. This needs to be put right, otherwise there really will be a perception that the Lord Chancellor not only controls the finances but controls the person who controls the financing of the Supreme Court. I strongly support this amendment.

[Lord Goldsmith]

My Lords, I am the first Member to speak to this amendment who was a member of the Government at the time that the Constitutional Reform Act 2005 was passed. I support the amendment, as I did on Report, at which point I gave the House an anecdote to illustrate why I think that it is right. It is because of the risk of the perception of a lack of independence, about which the noble and learned Lord, Lord Phillips of Worth Matravers, and others have spoken. I do not want to repeat what I said at the previous stage but, in the light of what may be said by the noble Lord, Lord McNally, it is right to remind ourselves how the Constitutional Reform Act came about.

The Act did not come about—how can I put this politely?—in the most orderly way, and the consequence was that we rather scrambled to get to the conclusions. I am happy to see my noble and learned friend Lord Irvine of Lairg in his place and I should say that a number of noble Lords were involved in the process. However, it does not surprise me that, despite those valiant efforts, in the end we did not get the legislation completely right, and this is a provision which we did not get completely right. If we had known about the examples to which the noble and learned Lord, Lord Phillips of Worth Matravers, has at least referred, if not identified, and if the risk could have been seen that the chief executive somehow being responsible to the Lord Chancellor might lead to the view that the Supreme Court was in some way connected to the Government so that the Government were able to influence its decisions, we would not have included this provision. Therefore, despite the time spent on the Bill, in the end much of it was done through discussions between my noble and learned friend Lord Falconer of Thoroton and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, although a lot also happened on the Floor of the House. If the only thing that was not quite right was this particular provision, it was still a considerable triumph, but I hope that the noble Lord, Lord McNally, those behind him and of course ultimately the Lord Chancellor will see that this is a small but hugely important change that will do no harm at all to any of the issues of administration.

The Lord Chancellor is not responsible for the finances of the Supreme Court, a point that was made clear by my noble and learned friend Lord Falconer in, I think, the very passage to which the noble and learned Lord, Lord Phillips of Worth Matravers, referred. What would happen is that a bid would be put forward that could not be altered and it would then come directly from the Consolidated Fund. I do not think that there is anything to be accountable for. For those reasons, I strongly support the amendment.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

[Baroness Butler-Sloss]

My Lords, I apologise for arriving late at this part of the debate. I did not propose to speak and hold no strong views about this amendment, but I have to rise just to deal with a point made by the noble Lord, Lord Pannick. He said that judges neither need nor deserve any protection. That is true in general, but I think he has overlooked the fact that certain judges get death threats. There are groups of judges, of which I happen to be one, who during their time as a judge received a number of death threats. In my case they came both from people who could recognise me because they had appeared before me in court and from those, such as Fathers 4 Justice, who not only made death threats against me but, I must tell your Lordships, also threatened to kidnap my dog, which I thought was much more serious than the death threat against me. More serious than the threats that either I or the family court judges receive are those made against judges in terrorist trials. They absolutely need and deserve protection, so I take issue with the noble Lord, Lord Pannick.

[Lord Pannick]

I entirely agree that judges deserve all the protection necessary in those circumstances. However, the press and broadcasters are perfectly entitled to publish photographs of the judge who has heard the terrorist trial or any other sensational case. This amendment would have no impact in that respect.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I, too, have been burgled and I have absolutely no sympathy with burglars, but this amendment goes too far. I am very concerned about proposed new subsection (5A), under subsection (2) of Amendment 113C, as regards using the words “grossly disproportionate”. As the noble and learned Lord, Lord Morris of Aberavon, has just asked, how on earth would one advise a jury—I am glad to say that I was not a criminal lawyer but I did a little crime—that you can be disproportionate but not “grossly disproportionate”?

I share the view of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, that it is contrary to the European Convention on Human Rights. I believe it is a matter that would end up in Strasbourg if we were not extremely careful. The Government—I can see for the best of intentions—are just going too far.

My recollection about the Martin case, which I read only in the press, is that he was shot in the back, which would be “grossly disproportionate”. Obviously, one could see why he did not get the existing protection that the Lord Chief Justice has given and that is in the standard advice to juries, as the noble Lord, Lord Pannick, read out. We do not need to go further. To go further will cause real trouble.

[Lord Goodhart]

My Lords, I regret that I cannot support this new clause. I agree entirely with what the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, and a number of other practising lawyers have said. I regard this matter as very unsatisfactory. I have not practised as a barrister in recent years but I practised in the past and this proposal is unsatisfactory.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:

“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.

I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.

Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.

The impact assessment also acknowledges that because community orders must be,

“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.

This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.

Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,

“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[Official Report, 13/11/12; col. 1428.]

I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.

The Minister also stated:

“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]

Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.

The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.

My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:

“Let us be clear: of course the five principles are intact”.

However, he went on to say,

“why bring legislation if we do not intend to change things?”

Hansard then reports him as saying:

“We do intend to chance things”.—[Official Report, 13/12/12; col. 1432.]

I do not think it meant that.

My noble friend twice said that it was “not the Government's intention” to,

“jeopardise the prospect of rehabilitation”,

or to,

“detract from the court's existing obligation to have regard to the five purposes”.—[Official Report, 13/11/12; col. 1435.]

It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.

[Baroness Butler-Sloss]

My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Pannick]

My Lords, I support the amendment. One of the great defects in legal reform is the piecemeal nature of the exercise. As holes appear they are filled in. No doubt we do not need an autumn and spring statement on the legal state of the nation, but a periodic review would, in my opinion, be very helpful in focusing attention on the system as a whole. I very much hope that the Minister will accede to that proposal.

[Baroness Butler-Sloss]

My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.

[Baroness Butler-Sloss]

I understood it not to be annual but to be periodic. Annual would be too frequent.

[Lord McNally]

Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.

We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.

As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.

Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.

The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.

However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.

In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.

In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.

The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.

Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.

I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.

--- Later in debate ---

[Lord Carswell]

My Lords, Plato said:

“Wise men talk when they have something to say; fools because they have to say something”.

I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.

I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.

The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.

From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.

I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.

[Baroness Butler-Sloss]

My Lords, I am an early example of judicial diversity. I became at one time the senior woman judge in the country until the noble and learned Baroness, Lady Hale, became a member of the Supreme Court. It is inevitable, therefore, that I would support flexibility, but I do not support the term “part time”.

I combined being a judge at four different levels, including the Court of Appeal but not the Supreme Court, with trying to manage childcare. I did not seek time off, but I can see the advantages of having it from time to time. I certainly do not see the need to have it on a weekly basis. For the reasons that the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, have already set out, I question how far it is sensible to try to go along the path that the Government wish to pursue. There are real problems about it, certainly in relation to the senior judges. There will inevitably be an adverse impact on full-time judges if they have genuine part-time judges sitting in the Court of Appeal with them. It may be that the Supreme Court, where I do not have experience, does not sit very much more than two or three days, but it is not at all unusual to sit in the Court of Appeal for more than a week. Which judge who is genuinely part time—say, doing three days a week—would be able to take on a case of any length? It would mean that a full-time judge would have to take those cases. Inevitably, there would be a degree of resentment and, indeed, as the noble and learned Lord, Lord Carswell, said, a part-time judge might not feel part of the party.

I sat in the Court of Appeal on a number of long cases. If, when I was President of the Family Division, I had been asked whether some of my 19 judges could work part time or on flexible working for two or three days a week, with High Court judges being sent out on circuit sometimes for as long as six weeks at a time as Family High Court judges, it would have been, as Sir Anthony May said to the noble and learned Lord, Lord Woolf, a nightmare. I would not like the next President of the Family Division even to have to contemplate such a thing among the duties that he or she might have to take on. In suitable cases, there is no doubt that there can be flexibility. If people are in difficulties, they should be accommodated, and they are accommodated. Many years ago I recall a High Court judge whose wife had died unexpectedly and he was left with young children. Very considerable accommodation was made so that he was able to deal with his rather traumatic family life as well as continuing to sit as a High Court judge.

I would also say that the concept that the top court in the country is going to be part time is rather odd. What would be the message going out to the public—that the judges who matter most in the country are actually part time? I find that very odd indeed. Following on from what other noble Lords have said, I think that diversity can be achieved for women and for ethnic minority men and women who have not yet been referred to, although I hope that a number of them will come through to the Supreme Court—some of them certainly deserve to do so in due course. The flexibility that noble Lords have been talking about can and ought to be achieved without using the term “part time” as it sends out entirely the wrong message to everyone within the judiciary and those without.

I am particularly concerned that the Judicial Appointments Commission may feel obliged to appoint part-time judges because that is what it says in the legislation. If the commission appoints judges and then allows the Lord Chief Justice, the heads of other divisions or the President of the Supreme Court to be understanding when a particular judge wants to take some time off, that is infinitely preferable. I will not say any more about the fact that in any event this is not going to happen, probably for a generation.

--- Later in debate ---

[Lord McNally]

I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.

[Baroness Butler-Sloss]

I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.

[Lord McNally]

No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

Child Abuse: Waterhouse Inquiry

Baroness Butler-Sloss Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord McNally]

It is true that there is now a large number of inquiries. The noble Baroness says 10 and my brief says nine, but I take the point. The Government did not rule out an overarching inquiry, but there is a time to pause on this. Some of the accusations have been put into perspective by rushing to judgment in an overheated way, through Twitter and the new technologies that we live in. Those in authority need to have confidence. We are talking about child abuse; a very serious crime, which people who have evidence of should report to the police. It is not a responsibility of judicial inquiries to find wrongdoers. It is for the police, and if there are people with evidence, they should take it to the police.

There is public concern about whether Waterhouse missed anything. We have asked a distinguished judge to do a specific task in relation to that: to look at whether any specific allegations of child abuse were missed by that investigation and then to make recommendations to the Secretary of State for Justice and the Secretary of State for Wales. That is the right place to be in.

[Baroness Butler-Sloss]

My Lords, I read the report. I was a colleague of Sir Ronald Waterhouse. He produced, as both the noble and learned Lords have said, an impeccable report. If the terms of reference were, “Are there allegations that were not put to Sir Ronald that have now arisen?”, they would be acceptable. However, the Government have—and the Minister really should be taking this on board—cast aspersions on the report suggesting that he did not do a good enough job. If the terms of reference are changed, which I would ask the Minister to do, to say that any allegations not made to Sir Ronald Waterhouse should be investigated, I suspect the House would be a great deal happier.

[Lord McNally]

My Lords, three of our most distinguished judicial Members have spoken out very strongly about Sir Ronald Waterhouse’s integrity. I associate myself completely with them. That was not the situation we faced. We faced growing public concern about whether child abuse allegations had not been investigated. The judge in charge of the new inquiry is taking time to look carefully at what she needs to do the job and will look again to see whether the plethora of allegations that are around need re-examining and whether something was missed in the details of inquiry. I do not accept that that impugns the integrity, processes or findings of the original report. We dealt with a situation of real public concern. I hope the way Mrs Justice Macur now takes it forward will meet that public concern.

I repeat that I associate myself entirely with the comments of senior judicial colleagues about Sir Ronald Waterhouse and his work. It is important to get this on the record. We are indebted to the senior judiciary for so often being willing to take on these very difficult tasks on behalf of society as a whole.

Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.

I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.

I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.

The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.

When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.

[Baroness Butler-Sloss]

My Lords, I put my name to Amendment 5, but I strongly support what the noble Lord, Lord Ramsbotham, said and his Amendment 1 to take the whole of this out. I am also happy to support Amendments 4 or 6. I shall make the very obvious point that every community order will be, for the offender, a form of punishment because it is mandatory. You do not need to use the word “punishment” because it is implicit in a community order. I am sorry to say it again, but since the Government have put a form of punishment as part of a community order, as if a community order was not a punishment, I find this extremely difficult to follow. The terms are in conflict with each other in this proposal by the Government. I had not seen it that way to quite the same extent as I did looking at this today. For goodness sake, why put it in? It is sad that the Government seem to need to use the words “punitive” and “punishment” when it is already clear that a community order is punishment because it is an order that whoever receives it will have to obey. If that particular offender does not obey a community service order, he or she will be punished for failure to obey a punishment that has already been imposed. In my view, the words “punitive” and “punishment” are unnecessary, inappropriate and profoundly unattractive. Like the noble Baroness, Lady Hamwee, I wonder whether this is gesture politics. I very much hope it is not, but she made a point that this House ought seriously to consider.

I do not mind whether we use the word “particular”, as the noble Baroness, Lady Hamwee, said, instead of “exceptional”. Preferably, perhaps, we could do what the noble and learned Lord, Lord Woolf, said, which would be to take the word out altogether. The noble Baroness, Lady Linklater, has suggested using “special”. The point is that “exceptional” should not be there for the reasons that the noble and learned Lord has already given. I do not mind how it is altered but the word exceptional has to come out.

The Government have to listen to the people in this House who spoke last week and today and said that this will not do. As I think I said previously, I urgently and respectfully suggest to the Ministry of Justice that this is an unsuitable way to be going ahead. As I have already said, it is profoundly unattractive. The words “punitive”, “punishment” and “exceptional” should be taken out. The Government should recognise that a community order is a punishment. They should not just look to the lobby of the press or the public, but should do what is right.

Claims Management Companies: Unwanted Text Messages

Baroness Butler-Sloss Excerpts

Monday 5th November 2012 Lords Chamber

[Lord McNally]

If the noble Lord means complaints about the rogue calls, I do not know, because this Question is not about the rogue calls. In my letter, I will cover it. On the question of texts, the Information Commissioner has announced that he is preparing to levy some very heavy fines on people who abuse the system with texts. But I will make the question on unasked-for calls part of my inquiry and put the reply in the Library of the House.

[Baroness Butler-Sloss]

My Lords, would the Minister add e-mails? I get an enormous number of e-mails every day, generally about PPI but about a whole lot of other things, too. They all seem to be done at about three in the morning. E-mails are just as serious; I spend such a lot of time just deleting all these e-mails on a daily basis. Would the Minister add e-mails to texts and phone calls? I also get the texts and the phone calls.

[Lord McNally]

I agree; I know what absolute anger this matter causes. It sometimes raises a groan when Ministers announce the following, but a cross-industry working group has been set up led by the Direct Marketing Association and including the MoJ’s claims management regulator, the ICO, Ofcom, the Telephone Preference Service, the OFT and the Advertising Standards Authority. They are looking across the piece at what is undoubtedly a nuisance.