Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 23rd January 2023 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too welcome this SI. I declare that I sit as a family magistrate in London and I am currently chairman of the Greater London Family Panel, which means that I represent about 300 family magistrates within Greater London.

A very concentrated amount of expertise has been displayed in this short debate. I have to say my noble friend Lord Bach was really quite shameless in his flattery of the noble and learned Lord, Lord Bellamy, no doubt trying to get him to go further along the lines of these SIs, because we are, of course, all pushing in the same direction.

My noble friend Lady Drake spoke about the importance of kinship care. She gave the example of public law and private law special guardianship orders and explained how they are playing an ever-greater part in the type of disposals we deal with in family courts. It is very interesting for me, with my magistrate’s hat on, to see how different local authorities access SGOs and how they vary across the country as well as across London. It is good that, in that aspect of the SI, there is some more money available for legal aid support for people going for special guardianship orders.

The noble Baroness, Lady Tyler, who of course has real expertise in this matter, not least because she was a previous chairman of Cafcass, spoke about the importance of early intervention. I know the noble and learned Lord, Lord Bellamy, is also very keen on early intervention. It needs to be funded and co-ordinated. I know that both Sir James Munby and the current president, Sir Andrew McFarlane, are very keen to try to divert as many cases—particularly private law cases—away from family court as is practical.

It has to be said that about 80% of the private law cases we see in family court have domestic abuse allegations. If you make that allegation, it is not suitable for mediation and, depending on how serious the allegation is, it can make for a much more protracted court procedure. It is a difficult thing to do, but trying to move the cases is the right direction, if I can put it like that.

The noble and learned Lord, Lord Bellamy, also spoke about expanding legal aid for domestic abuse protection orders—of course, we are now in the criminal sphere—and how these types of orders may in some ways replace other types of interventionist orders, in both the family and the criminal courts: non-molestation orders in the family court, and restraining orders in the criminal court. When he gave his examples, he talked about tagging and various interventions for people who are potentially going to be put on domestic abuse prevention orders, but I am not clear whether there is any legal aid for advice for people who are potentially subject to those orders.

I say this because of one case that I dealt with remotely. It was an application for a domestic abuse protection notice, and there was no defence lawyer. The prosecuting lawyer, who was actually a part-time judge, advised that we as a court should put in place a domestic abuse prevention order, with no findings made by the court. As I chaired that session, I felt duty-bound to say to the defendant that, if that were put in place and he were to break it, there would be a criminal conviction. He pointed out to me that, by profession, he was a primary school teacher and the very fact of this order being put in place, with no findings of guilt, was enough for him to have to tell his head teacher. Who knows what would have happened to his career in that light. So that young man needed proper advice, and, in the end, I, as a magistrate, gave him it, not the other lawyer in that case. I am not sure that that was appropriate, and I could see how that scenario could easily have gone wrong if the young man had not received appropriate advice.

Nevertheless, as I said, we welcome this SI, which pushes in the right direction. I look forward to similar SIs in the future.

[Lord Bellamy (Con)]

My Lords, I warmly thank noble Lords for their various interventions and points. I will take back the last point from the noble Lord, Lord Ponsonby, on domestic protection orders and have a look at it. We understand that legal aid is available for advice on domestic abuse protection orders. Whether the gentleman in question would have qualified for legal aid may be another matter, if he was a teacher. There may be an issue here, and I will explore this a little further to make sure that we are covered on that kind of point.

On the wider issue, I hear with interest and sympathy the remarks of the noble Baroness, Lady Drake, on legal aid for special guardianship orders in public law proceedings, particularly early advice for kinship carers. That will be a feature, among many others, of the review of civil legal aid generally that we are about to embark on. I am afraid that flattery, which is completely undeserved in this context, is one of the things that does not move the Government, particularly the Treasury, in any direction, so, as your Lordships pointed out, we are taking small steps and coming at various issues perhaps somewhat obliquely and in sequence, with a view to tackling problems as best we can as they arise. We will continue to try to address gaps of the kind that the noble Baroness identified. The Government are very happy to have gaps pointed out to them so that consideration can be given to those matters. Clearly, special guardianship is very important; whatever you may think of the pros and cons of the apparent decline in adoption, there is no doubt that special guardianship has assumed a greater importance. We need to reflect that in our underlying structures.

Family law generally is perhaps slightly outside our discussion today, but this Room is so brimming with expertise on the subject, particularly the experience of the noble Lords who sat on the Select Committee we discussed, and of the noble Lord, Lord Ponsonby, who is one of the most experienced magistrates in this area one could hope to meet.

We need to address a whole range of interconnected issues: signposting, so that people know early on where they can get help; early advice; how you manage dispute resolution and the best means of it, bearing in mind the committee of this House’s comment that mediation may not always be the best solution, as there may be other possibilities. We need to think of the difficulties facing local authorities and those facing Cafcass. There is a huge mosaic of matters that we need to think about. I am not in a position today to make any promises on behalf of the Government, but I can assure noble Lords that these matters are on the radar and that we will take them forward as best we can and as soon as we can.