Domestic Abuse Bill

Debate between Baroness Butler-Sloss and Lord Marks of Henley-on-Thames

Wednesday 21st April 2021 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will speak briefly on this Motion because we are well on course to achieve what we set out to do. I commend the noble Baroness, Lady Helic, for the commitment and assiduity with which she has pursued this topic in the face of assurances that, at times, have seemed to her complacent and misplaced. The seriousness with which this topic is now being addressed is a credit to her and many others.

I understand and accept entirely the Government’s concerns about judicial independence. Indeed, noble Lords will know that I have argued the case for it on any number of occasions in this House. I am not sure that either the amendment we put forward or the Motion that is now there in its place would have compromised judicial independence to the extent that the Government thought. However, we accept that judicial training is a matter for the judiciary. We also accept that, for many years, judicial training has been mandatory on induction and on a continuing basis for judges sitting in family cases, but it is important to ensure that such training is comprehensive, up to date and, above all, successful. That, I believe, is an objective we all share.

It is also important to recognise that there has been a problem with domestic violence victims feeling that they have been treated unsympathetically by the courts in the past. There is a deeply held feeling that the trauma that they have suffered has been insufficiently recognised, and that the particular trauma involved in court processes and reliving the violence that they have suffered has not been properly addressed. A great deal of evidence to that effect has been given in speeches to this House during the passage of the Bill.

We have made significant progress with the Bill towards making the courts more humane places for domestic violence victims. We have been assisted enormously by the many groups and individuals who have briefed us, particularly Women’s Aid, Claire Waxman —the Victims’ Commissioner for London—and many others. We are very grateful to all of them for their insights and suggestions.

There is room for much more progress. I am particularly concerned to see faster progress towards more judicial diversity. Throughout the debates on this Bill, it has been clear to all of us that ethnic-minority victims and parties to proceedings have suffered unduly from the difficulties and hardships caused by domestic violence. I believe that many share my view that a judiciary that more clearly represents the people who appear before it—in colour, background, age and gender—would appear, and be, more attuned to the challenges and traumas that victims face.

Throughout this process the noble Lord, Lord Wolfson, has been ready to meet us and listen to the concerns expressed. I am extremely grateful to him for all his help. We are particularly heartened by his assurances today, passed on through him from the senior judiciary, not only to the effect that there is a strong commitment to improved judicial training but also to the effect that considerable emphasis is placed on domestic abuse training. Particularly important is his telling us that the Judicial College already has in hand arrangements for judicial training in the light of both the provisions of the Bill and, no doubt, the discussions in this House and the other place concerning them.

In the clear expectation that judicial training directed at addressing the particular difficulties facing domestic violence victims is a high priority, I welcome the progress that we have made and agree with the decision made by the noble Baroness, Lady Helic, not to divide the House on this Motion.

[Baroness Butler-Sloss (CB) [V]]

My Lords, this amendment is understandable but misconceived and I am relieved that it will not be put to a vote. I declare an interest as a former chairman of the Family Committee of the Judicial Studies Board, which was the forerunner of the Judicial College.

I have recently been in touch with the Judicial College to find out what training there is at the moment and what is intended when the Bill becomes law. I hope that the House will bear with me as I bring noble Lords up to date. I propose to say quite a lot, despite noble Lords having heard from the Minister. I do not accept that the current training is not working. The Judicial College trains all judges at every level and all magistrates sitting in the criminal and civil courts. Judges and magistrates are identified as appropriate to sit in particular work such as domestic abuse, and they are ticketed to do so only after they have had sufficient training. They are not allowed to sit until they have had that training. The training involves a three-day induction course in a residential setting, followed by continual professional residential training throughout their time as a magistrate or judge.

The training in domestic abuse includes hearing from victims and victim organisations. A lot of online extra information and advice is also sent to judges and magistrates. However, the Judicial College is only part of the training. The president sets out instructions to judges in practice directions. PD12J, updated in 2017, which I have no doubt will be updated again, sets out how family cases involving domestic abuse should be tried. The Court of Appeal sets out instructions and advice on how to approach and try domestic abuse cases. An important judgment for the Court of Appeal, Re H-N and Others (children) (domestic abuse: finding of fact hearings), was given earlier this year. The three members of the court were the President of the Family Division, the chairman of the Judicial College and a member of the criminal sentencing panel, all of whom are involved in the training of family and criminal judges and magistrates. The president himself takes a personal interest in the training of family judges.

The House may be interested to know that in the H-N case, the Court of Appeal invited the various victims’ organisations, such as Women’s Aid, to be represented at the court and to give their views, which were carefully listened to by the court—and that was shown in the judgments. In the H-N case, the president set out some statistics which showed that 1,582 full-time family judges, some part-time family judges and 2,744 family magistrates sat in family cases in England and Wales. The president said that it is thought that domestic abuse allegations are raised in at least 40% of cases in which parents dispute the future of their children. That means that domestic abuse issues are raised in about 22,000 child cases each year. In addition, the courts received last year 29,285 applications for injunction orders seeking protection from domestic abuse.

It is obvious, as we have heard during proceedings on the Bill, that some judges get it wrong. That is obvious from the H-N case, where in four cases things went wrong. It is helpful that the Court of Appeal saw that and put it right. However, from the large number of cases tried by the courts, there are very few appeals to the Court of Appeal and I would suggest, despite what has been said—particularly by the noble Baroness, Lady Helic, who said that the training is not working—that only a comparatively small number of people have in fact had bad experiences and that most judges have got it right.

I am told by the Judicial College that the domestic abuse training is being updated in the light of the forthcoming Act and instructions from the most recent Court of Appeal cases such as H-N and several others. The new Act will become an integral part of the family training of judges at every level, and of magistrates. It will form part of the courses taken by the judges and magistrates trying criminal cases as well. It is across the board. The president has also set up a private law working group which includes domestic abuse. There is, therefore, a great deal of information, guidance and instruction to judges and magistrates on how to try domestic abuse cases, which it is their duty to follow, and they are given the training to do so.

It is not in my view that there is a lack of good training; it is that some judges do not seem to have benefited from it. I cannot see how any statutory guidance from the Lord Chancellor will improve how judges deal with such cases. It is a matter of trying to make sure that the limited number of judges who do not do well enough will do better. Much of that comes from appeals to the Court of Appeal, which can put the matter right and give sensible and helpful advice.

I am relieved that this matter will not go to a vote because, although I have not dealt with it, this is also, as the Minister has said, a constitutional issue of judicial independence. I hope that the House will now be satisfied that the Judicial College is doing the best job that it possibly can and will, with the new Act, do somewhat better.

European Union (Withdrawal) Bill

Debate between Baroness Butler-Sloss and Lord Marks of Henley-on-Thames

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

[Baroness Butler-Sloss (CB)]

As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.

Criminal Justice and Courts Bill

Debate between Baroness Butler-Sloss and Lord Marks of Henley-on-Thames

Tuesday 9th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.

We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.

The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.

My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.

Defamation Bill

Debate between Baroness Butler-Sloss and Lord Marks of Henley-on-Thames

Tuesday 5th February 2013 Lords Chamber

[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.