Family Court

Lord Keen of Elie Excerpts

Monday 9th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall now repeat in the form of a Statement the Answer to an Urgent Question tabled in another place on family courts. The Statement is as follows:

“I am grateful to the honourable Member for the chance to update the House on this important issue. The issues at stake in family proceedings are sensitive and often complex, and the decisions of the court can have far-reaching implications for the individuals involved. The presence of domestic abuse only exacerbates an already traumatic situation. That is why the Government have already taken steps to make sure that victims of domestic abuse in the family justice system have support and protection. We have protected legal aid for individuals seeking protection from abusers; we continue to invest in the court estate to improve both the physical security of family courts and the emotional support available for users; and we have placed renewed emphasis on training for those who work in the family justice system, making sure they understand the nature and impact of domestic abuse, and act appropriately when they encounter it.

But we know that there is more to do. As my colleague the Minister for Victims, Phillip Lee, made clear when these matters were debated in Parliament on 15 September, this Government are determined to improve the family justice response to domestic abuse and we have been working closely with the judiciary and others to consider what additional protections may be necessary. We are particularly concerned about the fact that unrepresented alleged perpetrators of abuse can directly cross-examine their alleged victims in family proceedings. I want to make family court processes safer for victims of domestic abuse so that they can advocate effectively for themselves—and for the safety of their children. That cannot happen while a significant number of domestic abuse victims face cross-examination by their abusers.

The Justice Secretary has therefore requested urgent advice on how to put an end to this practice. This sort of cross-examination is rightly illegal in the criminal courts, and I am determined to see it banned in family courts, too. We are considering the most comprehensive and efficient way of making that happen. That will help family courts to concentrate on the key concerns for the family and always put the children’s interests first—which is what they are supposed to do. This work, which is being fast-tracked within the department, is looking in particular at the provisions in the criminal law which prevent alleged perpetrators from cross-examining their alleged victims in criminal proceedings, and we are considering how we might apply similar provisions in relation to family proceedings.

Members will appreciate that such a proposal requires thought, but we want to resolve it as soon as possible. We will make further details available shortly, once the work is complete. I would like to thank the President of the Family Division, Sir James Munby, who has argued passionately that this practice should be outlawed for good”.

[Lord Beecham (Lab)]

My Lords, while the Secretary of State’s announcement is welcome, this issue was highlighted in a report in 2014, and was pursued by the All-Party Parliamentary Group on Domestic Violence, which, in a report last April, listed seven recommendations, including one on this issue, none of which appears to have been implemented. In 80% of cases in the family court, one or more parties is unrepresented, a major problem being access to legal aid. How much has been saved on legal aid in the family courts, given the minimal grants of exceptional funding in domestic violence and abuse cases? In the first six months of last year, only five out of 125 applications for exceptional funding were granted. Will the Government now act on the other recommendations of the all-party parliamentary group? Do they have a view on the perhaps more controversial proposal of Sir James Munby for family court hearings to be in public, for which he is proposing a trial run?

[Lord Keen of Elie]

We are, of course, aware that this has been a matter of concern. That is why we are determined to address it as urgently as we can. On the matter of legal aid, clearly there are many circumstances in which individuals will seek to represent themselves in family proceedings. Even where that is done, there has to be some degree of control over their conduct. I believe that everyone in this House would agree with that. I point out that we spend in excess of £1.5 billion a year on legal aid. That was the figure for last year. We have increased the availability of legal aid in domestic violence cases—for example, by increasing the period during which evidence of abuse can be produced from two years to five years. As regards the other recommendations under consideration, I invite the noble Lord to await the outcome of the urgent work being done by the department and the conclusion of that work.

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

My Lords, we too welcome the Secretary of State’s announcement. Direct personal cross-examination of alleged victims of domestic abuse by their alleged abusers is unacceptable and must stop. It causes distress and damage to victims and their children and deters victims from seeking protection and redress from the courts. It has become more common with the reductions in legal aid.

Can we be assured that the department’s work will be both swift and thorough and will address a range of possibilities: questioning through a court-appointed lawyer or other third party; strict limits on the ambit of cross-examination to restrict it to what is necessary and relevant; comprehensive witness support; and the use of video links so that parties are in separate rooms? Will the department also establish a procedure to ensure that in future, when a judge in a position such as that of the President of the Family Division presses for a change, as Sir James Munby has pressed for a change in this area since 2014, they are listened to? We should not have to wait for a newspaper campaign, however creditable, to ensure that change happens.

[Lord Keen of Elie]

I am obliged to the noble Lord. Of course we are concerned about the distress that can be caused to victims as a result of cross-examination in cases of this kind. The investigation, inquiry and work that the department is undertaking in this regard will be swift and thorough. It would not be appropriate for me to anticipate the outcome of that work at this time, but clearly a number of options will be available. For example, one can take some guidance from what happens in the criminal courts, where the judge may determine what questions are to be put to a witness, may decide to put those questions to a witness himself, and the circumstances where the judge may determine that a third-party advocate should instead be employed to put such questions. However, as I say, I do not seek to pre-empt the urgent and swift investigation and determination that is being undertaken at present.

[Lord Mackay of Clashfern (Con)]

I should have thought that the principle which precludes the victim in the criminal courts being cross-examined by the alleged abuser would apply equally in the family court. That principle should apply. Will the Minister confirm that cross-examination is intended to be an opportunity to ask questions to ensure that the tribunal has a proper balance on the facts and is not an occasion on which to offer insults to the party being cross-examined?

[Lord Keen of Elie]

I am obliged to my noble and learned friend, who has a great deal more experience in these areas than I would ever hope to achieve. Clearly, the purpose of cross-examination, whether it is to challenge credibility or reliability or a particular account, should be pursued by way of questions. It is not an opportunity to make statements to the court or to give evidence and should never be an opportunity to resort to abuse, whether of a victim, a witness or the court itself.

[Baroness Burt of Solihull (LD)]

My Lords, this issue is widespread, serious and urgent. Research by Women’s Aid found that one in four women in this situation faced direct questioning from their alleged abusers. We welcome the urgency of the Government’s review, but does the Minister agree that some things could be done now without the need for legislation—for example, having the victim and the alleged abuser in different rooms, with questions being put via a video link? Will the Minister commit to look at what the Government can do now, and place whatever legislation is necessary before Parliament at the earliest possible moment? Will he also look at what can be done in the interim?

[Lord Keen of Elie]

I am obliged to the noble Baroness, who makes a very good point with regard to how we may attempt to tackle this matter, by way not only of legislation, be it primary or secondary, but also by way of the procedural rules which apply in the context of family cases. That will be looked at in the context of the present review and work. If we consider that steps can be taken, we will make representations to the judiciary so that it can properly examine how these procedural rules can be considered. I understand that the President of the Family Division has arranged that certain work should be undertaken with regard to children in the context of the procedural rules.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I sit as a lay family magistrate in Greater London. Sir James Munby has introduced Practice Direction 12J whereby abusers cannot cross-examine people in court. However, my experience is that while the parties in the family court are very often unrepresented for various reasons, not least because they have not applied for legal aid, there are other opportunities for interaction and potential abuse in the court system, not just in the courtroom itself. Therefore, while I welcome the emergency review announced recently, I think that there needs to be a more wide-ranging review of the family court process as a whole if one is to address these issues. It is certainly my experience that the practice directions that we operate in Greater London prevent the sort of cross-examination which a lot of pressure groups are talking about. The issue is about the wider context. I hope that the Ministry of Justice will expand its review of the family court practices.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord, who makes a sensible observation about the fact that this extends beyond the immediate issue of the cross-examination of vulnerable witnesses and victims. We continue to invest in improving the court estate to improve physical security in the family courts, which is important. In addition, we have placed renewed emphasis on the training of those who work in the courts in order that they are alert to the sort of issue the noble Lord alluded to, and that work is ongoing.

[Baroness Newlove (Con)]

My Lords, while this news from the Government is welcome, and for the work I do as Victims’ Commissioner, the important word for victims of the horrendous crime of domestic abuse is “swift”. Coercive behaviour by perpetrators in our family courts is so rapid that we need to work quickly to ensure that we protect these victims. It disheartens me to hear about families being broken up. In the Secretary of State’s Statement she says that it is about the child. I visited the grooming victims in Rotherham and parents of these children who have been groomed, and the coercive behaviour, the courtrooms and the Cafcass officers—who are supposed to think of the child—have actually broken the family relationship between the mother and child. So while we work to make this swifter, I want to ensure that the Government look at the wider approach, ensure that there is proper training and make that swift, because at the moment victims have no protection whatever. They go into a different courtroom, having gone through the criminal courtroom, and it would be good if we could make the criminal court transfer issues to the family court so that it gets the evidence quickly to support the victims of domestic abuse. The coercive behaviour is horrendous for these victims.

[Lord Keen of Elie]

I am obliged to my noble friend. Of course, it is necessary to maintain a fairly clear distinction between criminal process arising out of criminal acts and the consequent need to deal with the family consequences in the context of civil proceedings that involve divorce, separation, custody and access to children. The primary interest is always the children themselves, but let us remember that when we talk about abuse, we are not just talking about the abuse of a partner. Sometimes, unfortunately, we are dealing with the abuse of the children of the family unit itself and the coercion against the partner to avoid disclosure of that abuse. Therefore, we have to look to the partner and the children as all being potential victims in these circumstances.