Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, in Committee, we heard the very moving testimony of the noble Baroness, Lady Meyer, whose children were abducted by their father and kept in Germany with very little contact between them and their mother. It appears that, during that separation, the father turned the children against her. It is a shocking and upsetting case of parental abduction. I pay tribute to the noble Baroness for her campaigning work on parental abduction. A friend of mine in Oslo, who has shared custody, is having the relationship between him and his son poisoned by the mother.

As my noble friend Lady Brinton said, such behaviour is already covered by Clause 1(3)(c) and (e) and subsection (5) of the Bill as it stands in a way that economic abuse is not. Parental alienation amounts to controlling or coercive behaviour and psychological or emotional abuse. It includes, as the noble and learned Lord, Lord Mackay of Clashfern, has said, conduct directed at another person—for example, the victim’s child.

As the noble Baroness said in Committee, using children as weapons in a war by one parent against the other can equally apply to mothers seeking to alienate fathers as to fathers seeking to alienate mothers. It can inflict damage on both parent and child. I fundamentally disagree with the noble Baroness, Lady Bennett of Manor Castle, that this a gendered issue.

In Committee, the noble and learned Baroness, Lady Butler-Sloss, who has a wealth of experience, said that it is important to leave discretion over contact and parental alienation to the judges. She reinforced that this afternoon. As she said, there are two types of case: one where a child witnesses abuse and turns against the perpetrator, and the other, where there is a malicious attempt to turn a child against a parent. Abusive behaviour turns children against abusers.

As with many areas of domestic abuse, the issues here are complex, and there are both advantages and disadvantages to the noble Baroness’s amendment. In Committee, my noble friend Lady Brinton quoted from a Ministry of Justice report which cites:

“Fears of false allegations of parental alienation are clearly a barrier to victims of abuse telling the courts about their experiences.”


The domestic abuse commissioner-designate has talked about

“the potential for the idea of ‘parental alienation’ to be weaponised by perpetrators of domestic abuse to silence their victims within the Family Court.”

The noble Baroness, Lady Meyer, said that the justice system needs to be better equipped to deal with these issues. As my noble friend Lady Brinton said, the House will consider in Amendment 44 whether there should be mandatory training, so that magistrates and judges at all levels might be better trained in this and other areas of domestic abuse. I accept that the noble and learned Baroness, Lady Butler-Sloss, thinks that the existing training is adequate but, along with the noble Baroness, Lady Helic, we believe that there should be changes to the training of the judiciary, rather than

“behaviour deliberately designed to damage the relationship of a child of the parent and the other parent”

being listed as part of the definition of domestic abuse in the Bill. For these reasons, we do not support the amendment.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I remind the House that I sit as a family magistrate in central London and regularly deal with these types of cases. I have to say that this has been a better debate than the one we had in Committee. The reason is that many of the speakers showed a greater appreciation of the complexity of these types of cases, which we hear in court. A number of speakers, including those who put their names to this amendment, stated that if the Minister were to make it crystal clear that the term “parental alienation” will be dealt with fully outside of the Bill, then they would think that a good solution to the issue in the amendment. We have also had a number of very eminent lawyers—the noble and learned Lords, Lord Mackay and Lord Morris, and my noble friend Lady Chakrabarti—clearly say their view is that the amendment is not necessary, as long as the issue itself is addressed elsewhere.

We have had a lot of contributions and I will not go through all the speeches. However, I want to pick up a couple of points noble Lords have made, in particular a contribution by the noble and right reverend Lord, Lord Harries of Pentregarth. He spoke about the distressing and polarising effects of the issue being debated in Committee; I think we have all received a huge amount of lobbying material since then. He also said that he had no doubt that parental alienation exists and that professional organisations such as Cafcass, through its child impact assessment, and the court system try to address the whole range of domestic abuse, including parental alienation.

I want to make one point, which has not been made by any other speaker, and stems from that made by the noble and learned Baroness, Lady Butler-Sloss. She summarised it, in a typically succinct way, by saying that the effects on the child are twofold: first, the witnessing, either directly or indirectly, of domestic abuse, which is clearly extremely bad for the child; and secondly, the malicious attempt by a parent to turn the child against the other parent. She has characterised that issue accurately, but I have been sitting as a family magistrate for about eight years now and have seen many cases where a parent has admitted, perhaps through a conviction, that their behaviour means they have committed such abuse. I have seen that many times but never seen a parent admit trying maliciously to alienate the child from the other parent. I have simply never seen a parent acknowledge that they have indulged in such a course of action. The court is of course in a very difficult position, so we move on to the possible use of experts, training for the judiciary and the life experience of magistrates and judges who are dealing with these cases.

I come back to where I opened: there has been a greater acknowledgement by the contributors to today’s debate of the difficulty in making these decisions. Of course, I am in favour of more training—magistrates, lawyers and judges are trained in any event, but more training would be welcome. I hope that the Minister will manage to convince the noble Baroness, Lady Meyer, that it is not necessary to press her amendment. I personally believe that the issues she has raised and the intensity of the speeches she has given can be properly met through regulations under the Bill.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, on this International Women’s Day, I pay tribute to the courage of and thank my noble friend Lady Meyer, and other noble Lords, for their continued engagement on this issue. As pointed out by the noble and right reverend Lord, Lord Harries of Pentregarth, parental alienation clearly proved to be one of the most polarising issues in Committee. He challenged us to focus on the areas of agreement and I will try to do that. It was apposite that the noble Lord, Lord Ponsonby, referred to the comments of the noble and right reverend Lord and said that we had a better debate today than we did in Committee. I agree. We are beginning to develop a shared understanding on where we are trying to get to on this, and to understand what points the amendment is driving at.

My noble friend Lady Meyer has lived experience of this very difficult, deeply distressing and personal issue, and 19 years of campaigning experience to boot in the area of alienating behaviours. I pay tribute to her; in no way do I seek to deny or to minimise the devastating impact that alienating behaviours can have on family life. But we must carefully consider the suggestion that legislation in the form of my noble friend’s amendment is the appropriate response here, and I hope that I can give her comfort on that. I will now outline the aspect of things that I think go to the heart of the Bill and the nub of the point that she is trying to make.

Our approach in Clause 1 is to define domestic abuse by reference to types of abusive behaviours, as pointed out by my noble and learned friend Lord Mackay of Clashfern and by the noble Lord, Lord Curry of Kirkharle—although he agrees with the amendment—and not by reference to the form in which those behaviours may be manifested. We are fearful of creating a hierarchy of behaviours by appearing to give more weight to one manifestation than another, and do not—as my noble and learned friend Lord Mackay said—wish to inadvertently narrow the Clause 1 definition by giving specific examples such as that proposed by my noble friend in her amendment to Clause 1(5), as the noble Baroness, Lady Chakrabarti, pointed out. The behaviours to which my noble friend Lady Altmann referred would be in scope; whether the examples she cites would be covered would clearly be a matter for the courts to decide.

As I indicated in Committee, I accept that there are circumstances where alienating behaviours indicate a wider pattern of emotional or psychological abuse. However, where this is the case the definition of domestic abuse in Clause 1—subsections (3)(e) and (5) are particularly relevant, as the noble Lord, Lord Paddick, the noble Baronesses, Lady Chakrabarti and Lady Brinton, and the noble and learned Lord, Lord Morris of Aberavon, said—already applies and, as such, does not need to be further expanded.

To answer the question about statutory guidance asked by my noble friend Lady Meyer, and almost all noble Lords who spoke in this debate, the draft statutory guidance covers alienating behaviours. I am very grateful to noble Lords who have already shared their views on the guidance and we welcome further feedback and suggestions for improvement. There will then be a further opportunity to comment on the guidance when we formally consult following Royal Assent.

One of the strengths of the Bill is that it recognises the impact of domestic abuse on children, considering them as victims in their own right. From the perspective of risk of harm to the child, the relevant legal framework is provided for in Section 1 of the Children Act 1989, together with the definition of harm in that Act. My noble friend Lady Meyer and the noble Earl, Lord Lytton, referenced the Cafcass definition of parental alienation. Although that definition supports our shared understanding of the impact of alienating behaviours on the child, it is an important point of clarification that the Cafcass definition is not one of domestic abuse—we need to be clear about that. Cafcass is clear that there are a number of reasons why a child might resist time with, or be hostile towards, one parent following separation or other breakdown of a parental relationship.

Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

171: After Clause 72, insert the following new Clause—
‘‘Repeal of provisions about defence for controlling or coercive behaviour offence
In section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), leave out subsections (8) to (10).”Member’s explanatory statement
This new Clause seeks to repeal the ‘carers’ defence’ for the offence of controlling or coercive behaviour in intimate or family relationships.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, it is a pleasure to follow the previous group. The noble Baroness, Lady Greengross, has had many decades of campaigning for older people. I know that she had a long-standing friendship with my father, both when he was a Member of this House and in his days in local authorities, and that it was of great benefit to him.

Amendment 171 looks at another group of people—those who suffer from some form of disability—who are also disproportionately affected by domestic abuse. The amendment would repeal what has been labelled by some as the “carer’s defence” under Section 76 of the 2015 Act. Domestic abuse of disabled people has not been discussed as part of the Bill so far, and it is not generally discussed.

When abuse against disabled people is discussed, it is usually in the context of safeguarding issues. The disabled people are labelled as vulnerable adults and the carer’s defence is that their behaviour is reasonable and justified, given the nature of their caring responsibilities. The defence in the carer’s defence is that there could be a wrongful conviction of a carer for coercive and controlling behaviour when the carer was acting in the disabled person’s best interests. They might say, “I did it for their own good”—an expression often used by abusers who are also carers, and the courts might let them off with that defence.

The statistics on the abuse of disabled people are frightening and grim, and I imagine that we will hear more of them from my co-signatory, the noble Baroness, Lady Grey-Thompson, but I will give a couple of statistics which have been brought to my attention.

Disabled adults are at least one and a half times more likely to be a victim of domestic abuse than non-disabled adults. Disabled women are up to three times more likely to experience domestic abuse from their family members. Some of these abusers will also be their carers. I believe it is highly likely that those figures are an underestimate, as disabled people often find reporting crime difficult, and DA survivors often find it more difficult to access the help that they need.

There is a proper place for a carer’s defence. Genuine carers must be able to protect themselves from malicious allegations, but I argue that other Acts do this better—namely, the Care Act 2014 and the Mental Capacity Act 2005. Both provide proper protection for genuine carers.

This Bill is about domestic abuse and how to tackle its many manifestations and protect victims. Too often, disabled victims are ignored. Through the Bill, the Government have an opportunity to show that they are listening to disabled victims, who can be fully acknowledged with this landmark legislation. With the carer’s defence being found in other legislation, my amendment would not dilute the central message of the Bill, which is that all forms of domestic abuse are unacceptable. Disabled victims, too, need to be fully reflected in the Bill. I beg to move.

[Baroness Grey-Thompson (CB) [V]]

My Lords, in speaking to this amendment, I draw your Lordships’ attention to my declaration of interests, and I am vice-chair of the Local Government Association.

I thank the noble Lord, Lord Ponsonby, for comprehensively covering the reason for tabling the amendment, and I am delighted that my name is added to it. It is a very difficult issue to raise. There are many, many kind carers out there, but we should recognise that some are not. I know that some people have difficulty with this being debated as part of a domestic abuse vehicle and question whether it is the right vehicle for raising the issues, but I argue that it is, because many cases of abuse occur in a domestic situation.

It is incredibly difficult for disabled people to raise these issues when not only personal care but control of transport and money and the ability to get out might be at stake. We know from various pieces of work that it is very difficult for disabled people to raise these issues. The Equality and Human Rights Commission, in its work from November 2020 entitled Survival, Recovery and Justice: Specialist Services for Survivors of Domestic Abuse, said that disabled women are already disproportionately impacted by domestic abuse. In its 2017 report, SafeLives says that they are

“twice as likely to experience domestic abuse as non-disabled women”

and

“four times more likely to report abuse from multiple perpetrators”.

The charity Stay Safe East, which supports disabled survivors of domestic abuse, considers that the defence has the potential to prolong the abuse of disabled victims, to prevent victims getting justice and to disadvantage disabled victims of coercive control. This is particularly concerning in a context where disabled survivors already experience abuse for longer before seeking help. According to the SafeLives work from 2017, called Disabled Survivors Too, on average disabled victims wait for 3.3 years before accessing support, compared with 2.3 years for non-disabled victims.

A statutory framework is already in place to involve professionals where a person might lack capacity and require medication or confinement—for example, the procedures under the Mental Capacity Act or the Mental Health Act—and there is protection from criminal liability for carers of people who lack capacity. Should a person not lack capacity, they have the right to refuse medication or other treatments or restraints. Nobody should be subject to coercive or controlling behaviour by a spouse or carer, and the law should not provide lesser protection just because somebody is disabled.

There is a high bar for the crime of coercive control. Behaviour must cause a victim serious alarm or distress and have a substantial adverse effect on their day-to-day activities. We should consider the best-interests defence and the risks of it, as it could enable potential abusers to justify that behaviour by claiming that they were acting in the disabled person’s best interests. It also risks feeding into the stereotypes of disabled people, which suggest that they lack autonomy.

We are living in an increasingly paternalistic and ableist world. I know from my personal experience of the pandemic, because I have not been out every day and carrying out my normal line of work, how much resilience disabled people need to deal with their day-to-day experiences, when they are not being believed or having their views accepted. This applies to simple things. Even before our first lockdown, when I was travelling on public transport people felt able to ask me whether I was able to make the right decision about whether to get on a bus or Tube in London, whether to wear my coat out or what I should do with my purse in a shop.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I start by commending the noble Baroness, Lady Burt, because she spotted something that nobody else noticed on Monday evening, which is that I spoke in response to this amendment, but the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Grey-Thompson, had not moved it at all. That might be why I sounded as if I had prejudged a bit. I will reiterate some points on this occasion, but I apologise for being a bit previous with my comments.

As the noble Lord, Lord Ponsonby, said, Amendment 171 addresses the so-called carers’ defence within the controlling or coercive behaviour offence. Subsections (8) to (10) of Section 76 of the Serious Crime Act 2015 allow for this limited “best interests” defence, where the accused can demonstrate that they were acting in the best interests of the victim. The defence is not available in situations where the victim fears that violence will be used against them. I must be clear on that. For this defence to apply, the accused would also need to demonstrate to the court that their behaviour was reasonable in all the circumstances.

The defence was designed to cover cases where the accused is genuinely acting in the best interests of the victim. The first example that comes to my mind is a situation where the accused is looking after an elderly partner or parent with Alzheimer’s disease and must ensure that that person does not leave the house for their own safety. In these circumstances, it is entirely possible that the accused’s behaviour, while it might be considered controlling in a different context, is reasonable given the nature of their caring responsibilities.

As we have heard today, proponents of this amendment fear that it may enable the abuse of disabled people. However, there is a real risk that, without such a defence—and bearing in mind the example that I have just given—a person may be wrongfully prosecuted for and convicted of controlling or coercive behaviour, when in fact they were acting in a person’s best interests.

Ultimately—and I am repeating my words from the other night—it is for courts and juries to decide merit on a case-by-case basis, whether or not the threshold for the defence has been met. It should also be noted that similar or equivalent offences in Scotland, such as Section 6 of the Domestic Abuse (Scotland) Act 2018, and the proposed new domestic abuse offence in Northern Ireland, in Clause 12 of the Domestic Abuse and Family Proceedings Bill, which has recently completed its passage through the Northern Ireland Assembly, also contain a similar defence.

I hope that, in the light of my explanation—for the second time—of the necessity of this defence, the noble Lord will be happy to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank all noble Lords who have spoken in this debate, which has been a short but important one.

The central point I took from the intervention from the noble Baroness, Lady Grey-Thompson, is that the Carers Trust wants better support and wants the support of carers to be a more suitable focus rather than this potential loophole for wrongly accusing carers of some form of abuse.

The noble Baroness, Lady Burt, was much more robust in her language than I have been. She called it a patronising defence and said that the courts should decide. Essentially, that is what the noble Baroness, Lady Williams, said; the courts can decide because the charges can be brought with other legislation, as she acknowledged in her intervention.

The noble Baroness, Lady McIntosh, argued that the neatness and ease of reference may be a deciding factor in keeping this defence in this legislation and that putting it in other Acts would create difficulty for practitioners. That is the point that I think both the noble Baronesses, Lady Burt and Lady Grey-Thompson, would not have agreed with, because this Bill is about domestic abuse; it is not about giving potential defences to abusers that are already covered in other legislation.

The noble Baroness, Lady Williams, opened her comments by saying that nobody noticed. I am sorry to disappoint her, but we did notice—but there was no easy way of informing the authorities that she had given an answer to these points on Monday evening. Nevertheless, this is a probing amendment and we will consider our position. I think that it shows that people with disabilities want to be fully represented in this landmark legislation. On that basis, I am happy to withdraw the amendment.

Amendment 171 withdrawn.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Benjamin, who introduced Amendment 177A in such an inspiring way and for whom I have the greatest admiration and the highest respect, has been a passionate campaigner her whole life on protecting and nurturing children. In her own inimitable style, she says, “Childhood lasts a lifetime”. I am very glad that she got that in, even if it was in the penultimate sentence of her speech. She is absolutely right. What happens in childhood impacts people for the rest of their lives, potentially with devasting consequences, and accessing pornography is one of those influences that can have an adverse impact on children.

In this Bill we are addressing domestic abuse, and many children grow up in households where domestic violence is a regular occurrence. I was at the same time impressed and saddened when I visited the only young offender institution in Scotland. The young people there were engaged in sessions with someone from a domestic abuse charity who taught them that the abusive home environment in which many of them had grown up is not normal and that it is not what a healthy, loving relationship looks like, despite it having been the lived experience of many of them. Living in an environment where you are surrounded by violence normalises violence as a way of life, and accessing harmful violent pornography is part of the landscape viewed by many young people.

As a police constable I was called to a disturbance. We were presented with a couple, a room that looked as though it had been ransacked, and a broken glass-top table. The woman had red marks around her neck. We found a ligature and a plastic bag with the impression of her face on it, like a mask. We arrested the man for attempted murder and took the victim to hospital. At court the next day, the accused’s lawyer claimed that it was consensual rough sex and the victim—I thought reluctantly—agreed, and the case was dismissed. To this day, those images haunt me, as does the nagging doubt about the extent to which the woman had really consented to what was done to her.

I am glad that this Bill finally, over 40 years later, is going to address this issue, but we have to ask ourselves where people get these ideas from. Some 57% of people in the BBC survey that my noble friend referred to said it was from pornography. Any means of preventing young people from accessing such harmful pornographic content should be implemented, so it seems quite extraordinary that the Government should work for a number of years with the British Board of Film Classification to develop a system of age verification for pornographic websites and pass legislation in the Digital Economy Act to enable such a system to be put into place—only to abandon it.

Age verification systems are not a panacea. There are numerous and easily accessible ways for a determined teenager to bypass them. I am not sure how many read Hansard, but I do not intend to publicise them. The means of enforcing age verification systems on the operators of pornographic websites is not without difficulty. Many are free to view and hosted outside the UK. Asking UK internet service providers to block websites that fail to comply with age verification rules would also block adults in the UK, who should be able to access legal pornography, if they so wish, from accessing them.

The measures to prevent young people from accessing pornography on some social media sites have improved, with users being prevented from posting pornography. This is effectively policed and enforced by website operators such as Facebook and Instagram. There are exceptions. The measures to prevent young people from accessing pornography on Twitter, for example, are somewhere between weak and non-existent. However, that does not mean we should not do all we can, despite the limitations, to encourage, cajole and use every legislative means possible to put pressure on these websites to introduce age verification for UK users and, in the case of social media, to ban pornographic content unless they can prevent children from accessing it.

We also have to work on the basis that a determined teenager is going to find a way around the system and that even curious younger children may try and succeed in accessing pornography. Comprehensive and compulsory personal, social, health and economic education—PSHE—including healthy relationship and age-appropriate sex education, is vital to combat what children might see and hear if they access online pornography, and what they might see and hear in their own homes.

It is particularly important that children of all ages are taught as early as is they learn what a loving, caring relationship between two people looks like, so that they see this as the norm, rather than anything that they might see online or experience when they are growing up. It is particularly important in this male-dominated, patriarchal society that children are taught that treating women and girls with dignity and respect and as equals with men is essential.

We are all impacted by our experiences and I have said some things in debates on this Bill as a survivor of domestic abuse to remind the Committee not to forget male victims and survivors who are or were in same-sex relationships. That is not intended to diminish the real issues that society must address in relation to the inequality between men and women in general and male violence against women and girls in particular. Some online pornography reinforces that inequality and glamorises male violence. We must do all we can to prevent the harmful impact this can have, particularly on children and young people. We support this amendment to require an investigation into any link between online pornography and domestic abuse.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have heard powerful speeches in this debate. I shall start my contribution with the things I would question in the amendment. I should make it clear that I support the amendment in principle, but I question whether simply making the Government commence Part 3 of the Digital Economy Act is the right solution. I question also whether the British Board of Film Classification is the right body to lead on this, whether the technology would work, and whether privacy concerns have been adequately answered.

As we have heard from other speakers, the worst material is generated outside the UK and we would have no legislative ability to control or curb it. The Government have consistently refused to take powers to block internet service providers from carrying material that harms children or glorifies domestic abuse. They have also not taken powers to prevent credit card issuers making payments for illegal content. So I will be interested in the Minister’s answer to the suggestion made by the noble Lord, Lord Alton, that an interim arrangement could be made to bring in Part 3 of the Digital Economy Act until more substantive legislation is put in place.

The speeches we have heard were extremely powerful, particularly from the noble Lord, Lord McColl, who spoke with real passion and knowledge on this issue. My noble friend Lady Massey is clearly playing a leading role in the Council of Europe in setting international standards because, of course, our problem in the UK is not unique and all our friends in Europe and indeed across the world are grappling with these issues. The noble Baroness, Lady Eaton, and the noble Lord, Lord Morrow, also spoke with real knowledge. I thought that the noble Lord, Lord Paddick, had it right when he said that education is the key to addressing this issue. That is a wider point and one that he has made in other groups, both today and on previous days in Committee, but it is a point that is worth repeating.

I was not here last Wednesday for the fourth Committee day because I was sitting as a magistrate. I was dealing with a sex case and I had reason to read two reports on a young offender which had been written by more than one specialist. The reports both commented on the use of porn by the offender. There is absolutely no doubt in my mind that the use of porn influences the way people behave, and that the influence is bigger if the users of porn are younger. We have really been led on this by the noble Baroness, Lady Benjamin, and I hope that the Minister will be able to respond as favourably as she can to that leadership.

Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 61, 65, 66, 67 and 70 in this group and support Amendment 63, in the name of the noble Lord, Lord Ponsonby, requiring a risk assessment, which I would have thought should be an automatic item on a check list.

Clause 22 deals with matters to be considered before giving a notice. We support a police officer being required, under the clause, to consider any representations about the giving of the notice—to use the words in the Bill—by the person to whom it is to be given. Amendment 61 is to establish that representations must be considered regarding the provisions of the notice. If that is not so, an officer could simply ignore representations about specific provisions, for instance—harking back to the previous debate—“But I work in the same building” as him or her.

Amendments 65, 66 and 67 are amendments to Clause 24, which deals with breach of a notice. Regarding Amendment 65, is it appropriate that, if it is believed that there is a breach of a notice and a person is arrested, he or she is automatically held in custody, albeit for a very short period—possibly overnight, sometimes over a weekend? I have not discussed this with my noble friend Lord Paddick, but is there a risk of the use of custody as a punishment in itself—“Let’s put him in a cell to cool down”, that sort of thing? Should this not, however, be at the discretion of the officer?

Clause 24(7) allows the court to impose requirements when remanding on bail. Amendment 66 probes whether a domestic abuse protection notice continues in any event, with its requirements, or are these transferred to become conditions of bail if the court so decides?

Amendment 67 addresses “interference” with witnesses. I guess that this term has a history in legislation, but the amendment probes whether it means or covers direct or indirect contact with witnesses, for instance via a third party or social media. The same point would apply, in the last of our amendments, to Clause 38. I beg to move.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I will speak to Amendment 63 which, as the noble Baroness, Lady Hamwee, said, would ensure that a risk assessment is carried out. That would consider any risk to the victim which was likely to occur due to the perpetrator being given notice that a DAPO is likely to be given to the perpetrator.

I presume that the amendments in this group are probing amendments—mine certainly is—going into the detail of how the DAPOs and notices are to be administered. It is right that these are only probing amendments because each case is different and, while there should be comprehensive guidelines on the way that the police operate these procedures, they need to be sufficiently flexible for police officers to make reasoned judgments. There is a very real point about risk assessments: it could be that the victim is put at greater risk through the perpetrator receiving a notice. Counter to that, it could also help the victim if an order is put on without her consent—but that is a matter for a separate amendment in a later group.

I support all the probing amendments in this group, and I look forward to the Minister’s response.

[Lord Paddick (LD) [V]]

My Lords, for reasons of brevity and clarity, I will refer to person to whom a domestic abuse protection notice is given as the “perpetrator”, rather than the “alleged perpetrator” or “defendant”, and the person the notice seeks to protect as the “victim”, rather than the “complainant”, the “alleged victim” or “plaintiff”. Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.

As my noble friend Lady Hamwee outlined, Amendment 61 proposes the common-sense change to ensure that the victim is consulted not only about whether a domestic abuse prevention notice should be given but about what restrictions it should contain. The person to be protected is likely to be in the best position to advise the senior police officer as to the circumstances in which she may be vulnerable.

Amendment 65 questions whether someone arrested for breach of a domestic abuse protection notice, which is discretionary, in that a constable “may” arrest the person, must be held in custody until they are brought before a court, which would be mandatory. My noble friend is right: we did not collude on what we were going to say on this, but we come to the same conclusion. Surely there may be circumstances where the arrest of the individual has a sufficiently salutary effect as to make further breach unlikely and, therefore, remand in custody unnecessary. I will return to that in a moment.

If the person breaches the domestic abuse prevention notice, if they are arrested and taken before a court, the court may impose conditions to ensure that the person does not interfere with witnesses or otherwise obstruct the course of justice. But Amendment 66 asks whether these conditions are in addition to, or replace, those set out in the DAPN. I am assuming that they are additional, in that the DAPN is designed to protect the victim, not just protect the course of justice. In that case, does the court need to ensure that the conditions it imposes are compatible with those of the DAPN, and does that need to be stated on the face of the Bill? As my noble friend explained, for completeness, our Amendments 67 and 70 suggest that the perpetrator should not contact witnesses, either directly or indirectly.

Amendment 63 is also in this group. I recall research in the United States some time ago, which found that the involvement of the police in cases of domestic abuse generally had a salutary effect on professional classes, who felt shame at their actions being made public, but an unwelcome effect on lower socio-economic groups, who were enraged that the police had become involved in their private business. I am not sure whether the class divide aspects are useful, but the noble Lord, Lord Ponsonby of Shulbrede, has a point, and this should be taken into account by the police. My noble friend and I did not collude, I promise. I would hope that most senior police officers would automatically take this into account, particularly as they need to seek the opinion of the victim as to whether a notice should be served—a conversation that should draw out such risk factors. I am not sure that it needs to be on the face of the Bill.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

71: Clause 32, page 20, line 21, leave out “just and convenient” and insert “practical and within five working days”
Member’s explanatory statement
This would ensure there is a maximum time (within 5 working days) in which a contested DAPO which was made without notice is brought back to court.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I will speak to Amendments 71, 72 and 73. I thank the noble Lord, Lord Anderson, for putting his name to Amendment 71; I thank both him and the noble and learned Lord, Lord Mackay of Clashfern, for putting their names to Amendments 72 and 73.

These amendments as a group look at time limits and prohibitive requirements. Amendment 71 would ensure a maximum timeframe—five working days—within which a contested DAPO made without notice was brought back to court. There may be cases where a particular programme has to be assessed but the police may not know whether it is readily available, and it may take a certain amount of time to get an assessment for a programme. The purpose of this amendment is to put a time limit on that rather than it dragging on for a longer period.

Amendments 72 and 73 address the same issue but from a different perspective: that is, if there is a positive requirement as part of a DAPO, either to go on a course or to go to drug rehabilitation, the person who is to be submitted to the DAPO should agree to go on that course. While I understand that putting negative requirements on alleged perpetrators is something one can do without their permission, positive requirements will have a far greater likelihood of success if, first, they have been assessed and, secondly, the person agrees to go on whatever course it may be. There could be a number of different elements to this. I have mentioned drug and alcohol and domestic abuse courses, but there are also mental health issues with a number of the alleged perpetrators. All this needs to be taken into account, and that is the purpose of this group of amendments. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I welcome the introduction of DAPOs but believe that, in certain respects, clearer rules are required to ensure that they are used in a practical and proportionate manner. It is in this constructive—I hope—spirit that I have put my name to the amendments in this group.

The potential scope of a DAPO is extraordinarily wide. Under Clause 33, it may include any prohibition or restriction considered necessary to protect a person from the risk of domestic abuse, expressly not limited to what are referred to as the “examples” of non-contact, residence and tagging provisions in subsections (4) to (6). I remind the Committee that even the types of measure that can be imposed on suspected terrorists under the Terrorism Prevention and Investigation Measures Act 2011—TPIMs—are exhaustively spelled out in the Schedule to that Act. They include some measures that one assumes would never be imposed in the context of domestic abuse, but the contrast in approach is striking none the less. With such a powerful and open-ended instrument as the DAPO, it is important that we get the safeguards right.

Of course, it will sometimes be necessary to impose the DAPO without notice. Amendment 71 would ensure that those cases did not fall between the cracks and were brought back to court as soon as practical, and in any event within five days. That matters for the reasons given just now by the noble Lord, Lord Ponsonby, and more broadly because DAPOs are highly personalised and highly intrusive. Without the presence of the person against whom the order is made, no one can be sure that the most effective and appropriate DAPO will have been arrived at first time around. Indeed, Clauses 31 and 34 acknowledge the principle that, if DAPOs are to be effective, they must be suitable and enforceable having regard to such matters as the work and educational commitments of their subjects, any other court orders or injunctions which may apply to them, and the interests of other persons including children.

As to Amendments 72 and 73, I comment only that in my days as a Crown Court recorder, it was axiomatic that one did not impose a positive requirement, such as a drug or alcohol rehabilitation order, or a mental health programme, in the absence of the intended subject of that requirement. These interventions are costly and, if they are to be effective, they require not just the presence but the consent and indeed the commitment of the subject. I have strayed there into Amendment 81, which we will come to shortly.

Self-evident as these matters may be to some, there is an advantage to putting them clearly in statute so that magistrates and their clerks are in no doubt as to the position. The amendments in this group are particularly compelling to me because they are supported by the Magistrates Association and by the noble Lord, Lord Ponsonby, in his capacity as a magistrate with current front-line experience. I hope that the Minister will look favourably on them.

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[Lord Wolfson of Tredegar (Con)]

My Lords, there will be correlations and differences between various orders in this context. I can certainly undertake to write to the noble Lord on this point, but I hope I can go one better: if, in addition to a letter, a conversation would be helpful, I am very happy to offer that as well.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I will start with the point that the noble Lord, Lord Paddick, has just made about the read-across between knife crime prevention orders and DAPOs. I would certainly be very interested in attending the meeting that the noble Lord, Lord Wolfson, has just offered because the earlier point that the noble Lord, Lord Paddick, made was strong: that it is reasonably likely that perpetrators might be subject to both of those orders, so there is merit in having a similar approach, whether it is a knife crime prevention order or a DAPO. I would be very happy to join the meeting that the noble Lord, Lord Wolfson, has offered.

I thank all noble Lords who have spoken on this group. I was interested in the comparison made by the noble Lord, Lord Anderson, between these orders and TPIMs. He said that these are much more widely drawn, which was an important point. The noble Lord, Lord Blunkett, sought to contrast treatment and punishment, which, I suppose, is a theme here—although we are not dealing with convicted criminals but prevention orders. The point I invariably make when I am sentencing in court or making an order like this is that, even if it is a punishment, it is for the benefit of the people who have positive requirements made of them in whatever that sentence might be. When I make that point, I invariably get a nod from the person I am sentencing, so people understand that point, in my experience.

I listened carefully to the explanation and summary given by the noble Lord, Lord Wolfson, but I think I have quite a strong pack of cards, if I can put it like that, and although I will withdraw my amendment I may consider coming back at a later stage.

Amendment 71 withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

80: Clause 34, page 21, line 21, at end insert “and probation or youth offending teams, as appropriate.”
Member’s explanatory statement
This would provide that evidence provided to courts includes evidence from probation or youth offending teams.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I shall speak to Amendments 80, 81 and 82. I thank the noble Lord, Lord Anderson of Ipswich and the noble and learned Lord, Lord Mackay, who have also put their names to them. Amendment 80 would ensure that evidence which is provided to the courts before imposing a DAPO includes evidence from probation or youth offending teams where appropriate. Amendment 81 would provide that drug, alcohol and mental health treatment should be imposed as a requirement only where the recipient has agreed to attend, as referred to in an earlier group. I believe that that would maximise the effectiveness of any such programmes.

Amendments 83 and 84 would prevent an indefinite DAPO being imposed and place a limit of two years on them, which could provide for extensions to be made on application. This would also, if they so wished, allow courts to put in place a review of hearings if appropriate. In the court system we have restraining orders and non-molestation orders which can be, and usually are, imposed for a limited period, but they can be imposed for an unlimited period. It is certainly my experience that practices vary across different courts. There may be reasons for that: for example, when sitting in a domestic abuse court, a more arduous restraining order might be put in place than in a court that does not specialise in domestic abuse. Either way, we are not talking about people who are convicted of offences—it may be somebody who is of good character.

To put a maximum of two years in place would be a safeguard, particularly since a further application can always be made and so that these orders do not just run on and on. I had an individual come to court with a restraining order on him that he wanted taken off. His problem was that he did not know the address of his former partner, so he had no way of contacting her to apply to get the restraining order removed, and we could do nothing to help him. Given that we are not dealing with convicted offenders, a two-year limit would be appropriate for the DAPO. I beg to move.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Hamwee, for explaining the contempt of court point in more detail and for setting out the question of the standard of proof. I will be happy to include a paragraph on that in my letter as well.

[Lord Ponsonby of Shulbrede (Lab) (V)]

My Lords, this has been a very wide-ranging debate with a lot of legal detail. I will respond to the fellow laymen who have taken part in the debate. In response to the noble Lord, Lord Cormack, I should say that I have found the noble Lord, Lord Wolfson, to be very helpful and I certainly have not found him to be dismissive in any way. In fact, before this debate he went out of his way to help me and other colleagues.

I turn to my Amendment 81, referred to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Randall. Although it is my amendment and it does say that there should be agreement to any drug, alcohol or mental health treatment, perhaps I may say a word against it. I believe that this should be a judicial decision. It is a difficult one and obviously it is better if the participants in the courses agree and sign up to them. Nevertheless, there are occasions where it is helpful to make this part of a court order. If there is some ambivalence, it can be made very clear that they should go on the courses. So, even though I moved the amendment, I believe that the decision on whether to make it compulsory should be a judicial one.

As I have said, this has been a wide-ranging debate and I too will read the response of the Minister and the contribution of the noble Lord, Lord Paddick, very carefully. I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

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[Lord Ponsonby of Shulbrede (Lab) (V)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Finlay. Her introduction covered all the points that were made in the various briefings sent to me. I am also conscious that the noble Baroness, Lady McIntosh, is a long-standing expert in this area who has been pursuing the issue for many years. I thought that I would make a different point from that which is set out in the briefings.

I sit as a family magistrate in London. I am also the chairman of the Greater London Family Panel, which means that I have a pastoral responsibility for 300 family magistrates. About six weeks to two months ago, I sent all my colleagues the email address of the NACCC because I thought all that information would be a useful resource for them to use in their work in court. I specifically did this recently, while we have been moving in and out of lockdowns, because one issue that has been coming up in court a lot is the reasons for contact breaking down. We were told many times that the contact centres were not open. The truth of the matter is that it is a mixed picture and some forms of contact have been facilitated by different centres. Using the NACCC website, we have been able to check with the relevant contact centres to see whether what we had been told by the participants in court proceedings was indeed true. In some cases it was not true; the parents had not been facilitating contact when it was available.

I have given a practical example of how useful the information provided by the NACCC can be. I understand that the purpose of this amendment is to regularise and put it on a similar footing to other children-based services. I also understand that there is a long history of trying to regularise the status, if you like, of the NACCC. I am happy to have added my name to this amendment and hope very much that the Minister will give it a favourable response, so that people can be confident that only appropriately regulated services will be available for parents.

[Baroness McIntosh of Pickering (Con) (V)]

My Lords, I am delighted to follow the noble Lord, Lord Ponsonby, and pay tribute to his wealth of experience as a family magistrate. I too am delighted to lend my support to the amendment and I congratulate the noble Baroness, Lady Finlay of Llandaff, on introducing it so eloquently. It follows on from a Private Member’s Bill which I sponsored soon after I was introduced into the House. It called for the equalisation of standards for child contact centres; that is, centres offering public and/or private provision.

I am sure my noble friend Lord Wolfson will recall, from his early days in private practice, some of the heartrending cases we have all had to deal with of trying to allow and permit family relationships to continue. That is why I pay tribute to the National Association of Child Contact Centres and declare my interest as a vice-president. I join the noble Lord, Lord Ponsonby, in paying fulsome tribute to the work it does. I am also an officer of the All-Party Parliamentary Group on Child Contact Centres and Services, where we try and bring these issues to the fore in both Houses of Parliament.

This amendment is particularly appropriate to this clause in Part 4 of the Bill, which looks at local authority support. Children are often caught up as innocent victims of domestic abuse but it is essential they maintain contact, in so far as is safe and possible, with both parents in any family situation. What is clear at the moment is that public and private provision in child contact is not equal; it is important to ensure safeguarding is recognised and extended to both. The child contact system, as I understand it, is the only child service that is not nationally accredited or regulated, and addressing this is the purpose of Amendment 91. I accept this clause is looking at the “Support provided by local authorities”, but it is in these difficult situations that a child may have suffered through no fault of their own from the abuse of a parent—most likely, the non-resident parent.

I hope my noble friend Lord Wolfson, other noble friends and the Government will look favourably on this amendment. It seeks to rectify a situation to ensure all child contact centres will work to the highest standards and that those children who are separated from one or other parent, in these particularly sensitive situations, will continue to have access and contact with both parents. It seems entirely appropriate that we consider Amendment 91 against the background of Part 4. In these circumstances, I am delighted to lend my support to Amendment 91 in the name of the noble Baroness, Lady Finlay, and others who have lent their support.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Jones of Moulsecoomb. It was not my intention to be specious. I was trying to be accurate and constructive. I have already said that I will engage with the noble Baroness, Lady Finlay, if she provides evidence that there is a systemic problem with the current arrangements that cannot be resolved by the existing mechanisms. That was a genuine offer. I am sure that the noble Baroness will take me up on it. I will be very happy if she does.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the Minister has invited comments about potential systemic problems. I draw his attention to one group of cases which he did not refer to: people who self-refer to contact centres. They are not sent there by social workers or by the courts, but are self-referring for their own reasons—trying to sort out the issues themselves. They could easily end up at unregulated contact centres, which may well be cheaper, so if the noble Lord is looking for systemic problems, I suggest that this may well be one.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby, for that point. As I said in my response to the main debate, even unaccredited centres are still subject to the various requirements that I set out, but I am very conscious of the noble Lord’s expertise in this area. In a previous answer, I committed to writing a long letter to him. I do not want to add to it now, but perhaps he and I can have discussions, with the noble Baroness, Lady Finlay, which include the point he raises. I hope that is helpful.

Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I have received two requests to speak after the Minister, from the noble Lords, Lord Ponsonby of Shulbrede and Lord Kennedy of Southwark.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, in fact the Minister answered my question in almost her final sentence. It was about the status of callouts when considering this data. Police callouts are available to family courts and to sentencing criminal courts in domestic abuse cases. My question was going to be about the availability of that information to DAPOs, but I think that the Minister answered it in the affirmative.

[Baroness Williams of Trafford (Con)]

I did indeed.

Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 25th January 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, this is a solid piece of legislation and I hope that the process on which we are embarking will make it better. I remind the Committee that I sit as a family magistrate in London, so I regularly deal with all types of family-related cases, including parental alienation.

The noble Baroness, Lady Meyer, gave a heartfelt speech; I found it very moving. She has clearly endured the most difficult of circumstances. The noble Baroness, Lady Altmann, gave closely, carefully and well-argued support of the amendments to which she put her name.

In family courts, as everyone has acknowledged, you quite often hear allegations of parental alienation, and a normal scenario is different from what we heard from the noble Baroness, Lady Meyer. A more normal scenario is that the parents are separated, the father has not seen the children for a while—too long—and he makes a private law application to see his children. The mother says there has been domestic abuse—or there have been allegations of domestic abuse—and the father makes a counter allegation, almost as a defence, saying that the mother is alienating the children against the father. That scenario is quite common. It is for the courts to try and sort it out, and the noble Baroness, Lady Fox, got it right when she said that both domestic abuse and parental alienation allegations can be either true or false. It is the job of the court process to sort that out.

I want to add two other observations. First, it is the duty of the court to get the best result for the child; we are not there to get a fair result for the parents. The question that we often ask ourselves is: “How do we get the voice of the child into the court?” One usual way of doing that is through Cafcass; there is an interview with a very experienced Cafcass officer who gives their view about what would be best for the child, and that view can be examined in the court. The way that Cafcass looks at these issues will be examined later in other amendments.

There is another way of doing it, which happens very rarely. I have not done it myself, but I have done it in public law cases, and that is where the child tells the court what they want. In the scenario where I was involved, a child was going to be taken into care by social services, and I have to say, it was extremely moving. The children whom I have done this for were well aware of the realities of the situation, and they were very aware that they were saying different things to the court—to me as the magistrate—than they had been saying to their parents. My experience is that children understand these situations; they can be toxic and extremely difficult, but nobody should underestimate children’s ability to understand the difficulty of their family situation.





I do not come down for or against these amendments, as such. It is a difficult situation. Other noble Lords made the point that there are many ways that parents can undermine and be unpleasant to each other that are not to the benefit of the children. One noble Baroness referred to the Bill as a potential Christmas tree of abusive relationships, and this does not help, because there are many varieties that one sees in court. Nevertheless, the central point I make to the Committee is that it is the court’s role to come up with the best solution for the child, not what is fair for the parents.

[Baroness Williams of Trafford (Con)]

My Lords, first, I pay tribute to my noble friend Lady Meyer, who is right to highlight the protection of children. I acknowledge, empathise and sympathise with her terrible experience of parental abduction, which, as she said, led to her being alienated from her children for years. We know that domestic abuse has devastating consequences, not only for adult victims but for their children, which is why the Bill rightly recognises children as victims in their own right. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this is very much part of the court proceeding, as has also just been articulately outlined by the noble Lord, Lord Ponsonby. Some of the protections that have been outlined in the Bill, such as preventing cross-examination in courts, mitigate this in some ways.

I also agree with the noble and learned Baroness, Lady Butler-Sloss, in questioning the judicial training that must support the outcome of such proceedings, whatever it is. We know that child arrangement cases involving domestic abuse or allegations of abuse often include allegations of alienating behaviours, where one parent seeks to undermine or frustrate the other parent’s relationship with their children, as the noble Lord, Lord Ponsonby, also outlined. These actions, as my noble friend highlights in her amendment, are often referred to as “parental alienation”.

My noble friend Lady Helic, supported by the noble Baroness, Lady Bennett of Manor Castle, pointed out how the term has so often been used to sidetrack from the issue of domestic abuse. She pointed out that the pro-contact culture of the courts quite often leads to the wrong decisions being made.

To answer my noble friend Lord Polak, there is no widely accepted definition, nor a commonly held framework, for parental alienation. Instead, views are wide-ranging: some focus on the parent’s behaviour, some focus on the child’s behaviour and others focus on the impact or outcome of the behaviour. For these and other reasons, I refer instead to “alienating behaviours”. That phrase is used in the guidance, as the noble Baronesses, Lady Brinton and Lady Bennett, point out. The guidance will be subject to consultation after Royal Assent. The beauty of the House of Lords is of course its scrutiny of Bills. To that end, we very much welcome views on how to deal with this issue.

Alienating behaviours can include a range of attitudes and actions. Some are subtle, such as drip-feeding negative views, while others are more obvious, such as deliberately flouting child arrangement orders. I am clear that these behaviours are wrong and problematic, but they are not limited to cases involving domestic abuse. They occur in the context of acrimonious separation and other high-conflict cases, as was pointed out by the noble Lord, Lord Ponsonby. I have sympathy with my noble friend’s wish to address these behaviours, but I submit that the definition in Clause 1 for the purposes of the Bill is not the right context in which to do so.

Alienating behaviours should be considered primarily in terms of the impact on the child. Most noble Lords referred to that and to the potential emotional and psychological harm to the child that can result, for example, from repeatedly hearing negative views about a parent or being prevented from spending time with a parent. From the perspective of risk of harm to the child, the relevant legal framework is provided for in Section 1 of the Children Act 1989, together with the Section 31(9) definition of harm in that Act.

I accept that alienating behaviours can, in some circumstances, be indicators or manifestations that point to a wider pattern of psychological or emotional abuse. To be absolutely clear, I do not accept that alienating behaviours should be defined as domestic abuse in their own right. However, in circumstances where such behaviours are indicative of a wider pattern of emotional or psychological abuse, we can be confident that the Clause 1 definition already applies and renders the proposed amendment unnecessary.

Our approach in Clause 1 is to define domestic abuse by reference to different types of abusive behaviours and not by reference to the form in which those behaviours may be expressed or manifested. If we were to include within the Clause 1 definition a list of possible indicators under each type of abuse, we would risk appearing to give more weight to one form of behaviour and therefore creating a hierarchy of behaviours. Should a particular indicator or manifestation of psychological or emotional abuse not be listed, it may be deemed to be less serious or, worse, not a form of abuse at all.

The arena in which we can most effectively address alienating behaviours as potential indicators of a recognised type of domestic abuse is the statutory guidance under Clause 73, which has been published in draft. I have gone through how that will be consulted on. It has been created and continues to be edited in consultation with the sector. As I said earlier, we welcome further suggestions on how the guidance can be further strengthened, including in the area of alienating behaviours. Once the Bill is enacted, the Home Secretary will formally consult the domestic abuse commissioner and other key stakeholders before the guidance is promulgated.

I note the points by my noble friends Lady Gardner of Parkes and Lady Chisholm that the unintended consequences might be to swing the pendulum of this good Bill the other way. My noble friend Lady Newlove warns of parental alienation creating a loophole in which to perpetrate abuse. I give the final word to the noble Baroness, Lady Burt, who warns that, if these amendments are accepted, victims might be painted as abusers.

I hope that, in the light of this explanation and our commitment to address alienating behaviours in the statutory guidance, my noble friend Lady Meyer can withdraw her amendment.

Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I welcome the Bill and the opportunity it gives to improve the position of victims of domestic abuse, both in the community and in the family court process.

I remind the House that I sit as a criminal and family magistrate in London, and I served on the pre-legislative Joint Committee for this Bill in 2019.

I wish to make one point, which I will be pursuing at later stages of the Bill. At Report in the other place, the Government introduced Clause 64 to Part 5 of the Bill. This provides new measures to support victims of domestic abuse during court proceedings. The clause provides the court with the power to appoint a publicly funded, qualified legal representative in the interest of the party who is prohibited from cross-examining in person, and that party is usually the father. The Bill gives specific instances where cross-examination should be prohibited—that is, where there are previous convictions or cautions for domestic abuse-related offences.

The Bill goes further than this in that it allows family courts the power to prevent a party to proceedings cross-examining another party or a witness where it would either diminish the quality of the evidence given or cause significant distress for the person being cross-examined. So there is a wide discretion in the Bill for the courts to decide that the conditions are met whereby domestic abuse victims do not have to be cross-examined by the alleged perpetrator. The proposed situation would be very similar to the current one in criminal courts, where there is already a power to appoint a lawyer for the purposes of a cross-examination if it is in the interests of justice.

Obviously, I welcome this move. It is a step in the right direction, but it does not go far enough. The structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings, the complainant and defendant will come together only once, at the trial itself, whereas in family proceedings there will be a number of hearings where both parties are in the court before the cross-examination process.

Under the Bill as currently worded, a lawyer may be appointed for a relatively small proportion of the overall legal process. This raises two principal problems: first, whether the advocate can do their job effectively if they are playing only a small part in the process; and secondly, and perhaps even more significantly, whether a litigant in person can navigate the rest of the court process. In my experience, litigants in person find it difficult to follow the instructions of the court and frequently fail to comply with all the elements of a court order. There are plenty of potential flashpoints in the whole process, not just at the cross-examination. Surely it would be better to appoint a lawyer for a larger part of the legal process, if not the whole process. I realise that this is a question of resources but, at the very least, there needs to be active monitoring to see how enhanced legal support will smooth the legal process and result in better outcomes for the children. The outcomes need, of course, to be fair and to protect victims of domestic abuse, but the primary objective of a family court is to reach the best result for the children.

I will support my noble friend Lord Rosser in other matters that he will raise, but I broadly support the wider aspirations of the Bill and I support other noble Lords who will be speaking on this as well.

Counter-Terrorism and Sentencing Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, congratulate the two maiden speakers. The noble Lord, Lord Vaizey, spoke about the importance of arts and sport in prisons, and I know from my experience that that is indeed an important aspect of the rehabilitation process. The right reverend Prelate the Bishop of Manchester spoke about the experience of Manchester through the bombing and his expectations of the Bill with a particularly perceptive analysis, and I look forward to his contributions through its later stages.

The measures in the Bill build on recent emergency legislation. They are based on the Government’s conclusion that there are some terrorism offences where the maximum sentence available is too low for the gravity of the offence committed. Since 2000, the Government have enacted 11 different pieces of legislation, with a ratcheting up of the sentences and controls available to the courts. The Bill provides changes in the sentencing, release and monitoring of terrorism offenders.

We on the Opposition Benches will not be opposing this legislation, but the elephant in the room, which has been discussed although it is not part of the Bill, is the effectiveness of the de-radicalisation programmes and the Prevent programme: they are not working sufficiently.

The point was made by a number of speakers on this Bill that just adding extra time for the offenders to spend in custody will not solve any problems unless there are better-tailored programmes. It was made by my noble and learned friend Lord Falconer, the noble Lord, Lord Sheikh, and my noble friend Lord Hunt of Kings Heath, who went on to make the important point that there needs to be full resourcing of deradicalisation programmes, as they are very resource heavy.

I have been contacted by two trade unions, the Prison Officers’ Association and the National Association of Probation Officers. Their members are on the front line and have to deal with the consequences of legislation. The POA makes a number of points—first, that this legislation will inevitably lead to an increase in the cohort of prisoners detained under the Terrorism Act; it is currently about 230 prisoners. Consideration will therefore need to be given to the headroom available in the long-term high-security estate, with the ability to separate Islamist and far-right terrorist offenders. What plans do the Government have to meet this expanded population?

The second question the POA has raised is the same point made by Peter Dawson, director of the Prison Reform Trust and a former prison governor, that denying prisoners hope will cause their good behaviour to deteriorate. This will potentially lead to an entrenchment of a sense of grievance, which can be dangerous for both prisoners and staff. This point has been made by many speakers in today’s debate. It also re-emphasises the point that it is mistaken to remove the Parole Board from considering certain types of terrorist offences. This too may enhance a sense of grievance with certain prisoners.

NAPO has raised points on how the proposed changes will affect its members, the probation officers. In particular it mentions MAPPA, the Multi Agency Public Protection Arrangements, which are briefly mentioned in the Bill. The Bill does not mention the agencies to be included within MAPPA, but clearly it would include enforcement agencies such as the police and the Prison and Probation Service. I and NAPO believe it very important that other agencies—such as mental health agencies, social services and NHS England—are included in this as well. The point is that all these agencies should be named and have a statutory obligation to work collectively. This is a point the noble Lord, Lord Paddick, made and one we have seen in many other aspects of work in the Courts Service, not only in the context of this Bill.

The probation officers further referenced Clause 5 of the Bill, under which non-terrorist offences with a maximum sentence of more than two years can be found to have a terrorist connection and their perpetrators therefore sentenced under the Counter-Terrorism Act. The Bill does not define what a terrorist connection is—presumably this is for the court to decide—but I argue that, without some guidance or statutory definition, this could lead to a widening of the net and inconsistency in sentencing between cases.

On TPIMs, my right honourable friend David Lammy at Second Reading in the other place gave a succinct history lesson on the changes from control orders in 2005. We have had a similar history lesson today from a number of distinguished noble Lords. The central point made by my right honourable friend is that in a sense we are going full circle. The noble Lord, Lord Carlile, supports the lowering of the standard of proof, and Jon Hall, the reviewer, has raised concerns about the removal of the two-year limit on TPIMs so that they could effectively be indefinite. This is something we wish to examine closely as the Bill progresses in this House.

A further point is that a balance needs to be struck. We are dealing with people who are not guilty of any offence but suspected of terrorist activity. The balance is between liberty and security, and the wider community—particularly the community from which the suspect comes—needs to see that what the Government are doing is proportionate and that people are not wrongly convicted.

I am not a lawyer, and maybe I do not give proper weight to the importance of particular definitions of proof, but for me the central point is that the safeguards need to be in place to protect innocent people while protecting the public from potential acts of terrorism. The public need to understand that this is the primary purpose of this legislation.

I am very aware that many speakers in today’s debate have been active in and following this type of terrorism legislation for many years, but in recent days I have spoken to many young people who are also following these debates. We need to remake the arguments for all the elements in this Bill. We need to convince young people that the legislation is proportionate and necessary and strikes the right balance between liberty and security.

In opening, my noble and learned friend Lord Falconer said that the detail of this Bill matters a lot. I agree. It is the role of this House to look at the detail and steer this Bill to a suitable conclusion.

Policing and Crime Bill

Lord Ponsonby of Shulbrede Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Wigley (PC)]

My Lords, Amendment 228C stands in my name and those of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe of Idlicote. I apologise, as I have before, that I have had to dip in and out of the debates on this Bill, for reasons I think noble Lords will understand.

This amendment concerns the victims and witnesses of serious crime and its purpose is to prevent the disclosure of a victim’s identity to the accused when there has been a serious sexual assault and the accused is a stranger. The need for this amendment is best illustrated if I briefly recall a disturbing incident. About 30 months ago, a person, whom I shall call “M”, was followed by a stranger off a bus and subsequently attacked. There was an attempted rape and threats to kill her if she did not stop screaming. Fortunately, two off-duty police officers heard the screams and arrested the attacker. The noble Baroness, Lady Brinton, will recall that M gave harrowing evidence to a seminar that she chaired last month. M told Peers that, later at the police station, she was horrified to learn that her full name had been given to the assailant. He did plead guilty and was handed down a seven-year sentence but, understandably, M is now terrified that, on release, her assailant will find her and attack again. She contacted Voice4Victims, who worked out that he will be released on parole in July next year. M has changed her name, moved home and deleted her name from the electoral register, but she still fears that, by using the internet and social media, he will trace her.

She is not alone: other women have reported similar experiences. One woman reported dropping a case of sexual assault after learning that the attacker had been given her name. Another reported, “I am still scared every day that the guy who did this will be released and he has all my details”. That was also a case of attempted rape. She said that it would have been much safer for her if she just had not reported the attack. M has contacted the police and the Met have responded, saying:

“There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead it is an operational decision taken by the officer in the case on a case-by-case basis”.

This came from the office of Commander Christine Jones. M has written to the police heads in all 32 London boroughs. What emerged is that there is no uniform policy at police stations. Most confirmed that, yes, they did disclose. Some said that they did not and that it was a matter for the court. Most were unsure. This situation is not satisfactory and is putting vulnerable female victims at risk. It is not a matter of the right of the accused knowing the accuser. As they are strangers, the use of initials or a single letter would be enough. At court, special measures can and are applied for, but by then it may be too late.

The amendment makes it clear beyond doubt that disclosure puts victims at risk—anonymity does not. The clause, which was drafted for me by Voice4Victims, stipulates that disclosure is prevented if it is reasonable to assume that disclosure would put the victim at further risk of harm. In determining the concept of “reasonable”, the police would take into account previous convictions, mental health issues and, indeed, access to IT. This should mean that in practice names are never given to perpetrators.

I hope that the Minister will recognise the serious circumstances which have led me to table this amendment. I hope that the Government will accept it today, but if for any reason there are technical difficulties with it, I would ask that they bring their own amendment at a later stage, so that this serious matter is properly addressed and victims are not caused additional and unnecessary distress, and potentially serious consequences, because of the current uncertainty as to the requirements of the law. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I rise to support the noble Lord, Lord Wigley. I was sent the same briefing as him, so he has largely said the same as I was going to say. I just remind the Committee that I sit as a magistrate in central London and I deal, not with issues of this seriousness, but certainly with issues of harassment and others of that nature. There is one other factor that I want to add, on what I understand the legal position to be, which I took from the CPS website. If the police want to apply for anonymity for a victim and believe that they have proper grounds to do that, they can apply to a magistrates’ court but, indeed, I believe police officers can give that anonymity if they believe that there is a proper case for it. They have to reapply for anonymity when a trial happens, either at the magistrates’ court or at the Crown Court.

As the noble Lord, Lord Wigley, said so clearly, many of the police who were contacted about this issue simply did not know what the law was and they gave wrong advice to the young woman who was asking for advice. This is very worrying and is very likely to discourage other young women from coming forward. That is really the importance of this amendment.

[Baroness Howe of Idlicote (CB)]

My Lords, it certainly seems extraordinary that there is no policy for legislation determining whether to disclose the identity of a victim of serious sexual crime to the alleged stranger perpetrator. It seems to me that, while nothing is gained by disclosure in the police station, it could be very damaging to the victim. It is relatively easy, in today’s society, for anybody with access to the internet to trace and find the whereabouts of any person, just by having their name.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, I want to add a few words of support for this amendment. Four years ago I was fully in support of the creation of the offence of stalking, which involves putting a person in fear of violence, serious alarm or distress. Although the maximum sentence is five years, there have been a number of disturbing and unduly lenient court sentences for perpetrators who had been stalking their victims for a decade or more.

I recently met Claire Waxman who has been referred to and who had been hounded by a relentless stalker for 13 years. Her case highlighted the struggle that stalking victims face in the criminal justice system. It was one of the key cases given as evidence in the stalking law reform and it took over a decade for her perpetrator to receive a substantial custodial sentence. In those years, Claire said, “I felt completely failed by the justice system for allowing my long-term stalker to receive suspended sentences or very short jail sentences. These sentences served little purpose as he continued his criminal behaviour each time. I strongly believe had we been able to refer this case to the Attorney-General for the Court of Appeal, he may have received the right sentence earlier on, saving me from years of unnecessary harm and distress”. I very much hope that the Government will see a way to support this amendment fully.

[Lord Ponsonby of Shulbrede]

My Lords, I also support this amendment, to which I have put my name.

As I mentioned in an earlier debate, I sit as a magistrate in central London for crime, youth and family matters. I have been a magistrate for just over 10 years and have seen a big change in the nature of crime which we deal with in London. While there is a decreasing overall amount of crime brought to courts in London, there is a rising proportion of crime related to domestic abuse. We all receive specialist training on that matter—we have specialist courts and are very careful about the way we deal with those matters in court. It is an ever increasing proportion of our workload, so I have given out many restraining orders and have also dealt with many breaches of restraining orders. When one gives a warning to somebody who has been given a restraining order, one can never really be too stark in explaining to the offender just how serious it is. Many times you get the impression that they do not appreciate the seriousness of their activities.

Even when a defendant has been acquitted and found not guilty, you can still put in place a restraining order if you believe it is suitable, and you still have to give a suitable warning for that restraining order being put in place. The amendment deals only with people who have been convicted, but restraining orders can be put in place when people are acquitted as well.

The purpose of this amendment is as a backstop to provide the ability to have higher sentences where the courts have put in place unduly lenient sentences. The maximum is five years, but very often there needs to be a facility and an ability to increase sentences if they are felt to be unduly lenient.

[Baroness Brinton]

My Lords, one of the major concerns is that stalking is not used as a charge often enough. It is still too easy to charge with the offence of harassment, rather than stalking. We really need to make sure that the criminal justice system recognises and understands stalking—that was the law reform in 2012 that we worked hard to achieve. However, it is also important to recognise that some cases of stalking are consistently appalling and are also coercive behaviour.

The noble Lord, Lord Wigley, referred to the case of Emily Maitlis’s stalker who had previous convictions, including breaches of restraining orders in 2008, 2010, 2013, 2014 and earlier this year. I am sorry to say that that is not uncommon behaviour with stalkers and there needs to be the facility for the courts to apply for more serious custodial sentences where orders are consistently breached—not least the way that the stalking and coercive behaviour continues. One of the problems we have heard time and again from victims of domestic violence, stalking and coercive behaviour is the way other courts are used—the civil courts or family courts that do not recognise restraining orders that have been held elsewhere. We heard of information, which had not been passed to the family courts, of one former stalker who had been trying to get in front of his ex-partner through the family courts. It is very necessary to have this limited use but essential tool available for the judiciary.

--- Later in debate ---

[Lord Wigley]

My Lords, I will speak also to Amendments 231 and 231A in this group; all are also in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Howe. The amendments address issues related to digital crime review, surveillance and monitoring offences, and digital crime training and education. I am grateful to Harry Fletcher of the Digital-Trust for his assistance in drafting these amendments. First, they consolidate the numerous statutes that have been enacted over the last 30 years, a period that covers the huge expansion of illegal digital activity. Secondly, they aim to update the law to address the most recent online behaviour. Thirdly, they attempt to ensure that police officers are properly trained in respect of digital crime.

The growth in online crime has been truly immense. Two years ago the head of the College of Policing said on Radio 4 that half of all crime reported to front-line officers had a digital element. By now, it represents a majority of crime. More than 30 separate Acts of Parliament cover various aspects of this category of crime, from the Offences Against the Person Act 1861 to the Data Retention and Investigatory Powers Act 2014. Inevitably, such a plethora of law lacks clarity and is confusing for the police in undertaking their responsibilities.

The Computer Misuse Act 1990 was originally intended to deal with hacking, unauthorised access, stealing data and circulating viruses. Yet between 1990 and 2006 there was on average just one conviction per month. Parliamentary Answers show that between 2007 and 2013 there was a slight improvement—the number of guilty outcomes increased to 1.5 each month across England and Wales. My amendments would place a duty on the Secretary of State to review and consolidate the existing legislation. In doing so, the Minister would of course consult the police and other relevant bodies.

Many online activities may not be covered by current statutes, however. The amendments clarify the situation. For example, use of a digital device to repeatedly locate, listen to or watch a person without legitimate purpose becomes a specified offence. Similarly, installing spyware without the user’s agreement would be an offence, as would taking multiple images of a person, unless it is in the public interest.

In a very timely report, published on 3 November, Her Majesty’s Inspectorate of Constabulary warned that some forces risk being overwhelmed by the volume of digital evidence being collected. It said that there was a significant shortfall in digital skills in the police and unacceptable delays in fulfilling basic tasks such as getting data off mobile phones. It also noted that some forces were not capable of dealing with the amount of digital evidence being gathered, especially in cases such as harassment, sexting and serious domestic abuse. This is a worrying state of affairs and supports the urgent need for comprehensive digital training for all police officers.

I now turn to the extent and type of digital crime. According to the Digital-Trust, digital abuse is rising steeply as a result of five identifiable factors. First, there is the increased use of technology at work and for social interaction and entertainment. Secondly, ever-increasing technological complexity results in increased risks. Thirdly, technology has become too intricate for victims to recognise the threats and know how to respond. Fourthly, surveillance technology has been consumerised and is available to abusers. Finally, the volume and speed of change makes it difficult for individuals, organisations and, indeed, the criminal justice system to react in a timely fashion.

Many types of behaviour are seen in digital abuse, including, first, unwanted communications by phone, text, emails, electronic messaging and social media; secondly, intimidation, including the posting of threats of physical violence and humiliating victims by posting explicit photographs; thirdly, grooming, using online information to groom a victim financially or sexually; and fourthly, surveillance, illegally accessing accounts or using computer technology to monitor movements, conversations and contacts. The phenomenal growth of online crime threatens to overwhelm those who may be expected to move against the perpetrators. There is a pressing need to step up action, and the authorities need the law to facilitate and support the initiatives which are now urgently needed. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I rise to support the noble Lord, Lord Wigley, who has made almost all the points I was going to make. I am very conscious that there has been a large and ongoing investment by government to address the changing nature of digital crime. Metropolitan Police officers now routinely wear body cameras, we have large investments in data collection and the presentation of data in courts, and the CPS is grappling with the changing nature of crime. This is a massive amount of investment, and a massive amount of data has to be handled to go through the court process properly.

I want to make a point that is slightly different from the one made by the noble Lord, Lord Wigley. In my experience, digital is also changing the nature of crime in the domestic context. I have seen films of police officers going into houses where there is a domestic dispute. The situation is very stark and is seen immediately. I suggest that digital makes it much more likely that there is an early guilty plea in such cases. The whole context of crime is changing—not just digital crime but the way more traditional crimes are perceived and the likely conviction rates of those crimes. I support the amendment.

Modern Slavery Bill

Lord Ponsonby of Shulbrede Excerpts

Monday 1st December 2014 Lords Chamber

[Lord Deben (Con)]

My Lords, I want to underline what the noble and learned Baroness has just said for a particular reason. The Government have been keen on saying that, in accepting the European arrest warrant, they want to make clear that they will not allow it to be used for offences committed in other countries which are not offences here. In those circumstances it is most important that we get the offences here right in parallel with what is an offence in another country. It is that point which I think the noble and learned Baroness has put her finger on and it is that which we have to get right.

I question the Government’s view on the restriction of the European arrest warrant. However, if they want to do that, they have to make sure that we do not find ourselves in a position where we have ill defined a particular offence so that it does not operate in the way we would like it to do in any complementary legislation in other countries. I hope that my noble friend will consider this suggestion very carefully, probably not at this moment, but between now and the next stage of the Bill, as it is worth trying to get this matter right.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will comment on a slightly wider point and back up my noble friend on the definitions of trafficking and exploitation. She spoke about the benefits of having stronger definitions of trafficking and exploitation and referred to the comment of the noble and learned Lord, Lord Mackay, that stronger definitions could lead to the prevention of trafficking and exploitation. I will add that a benefit of having clear and strong definitions is in the identification of trafficking. Here I am talking specifically about identification when one is in court.

As noble Lords may know, I sit as a magistrate in both adult and youth courts. I have sat in youth courts on quite a few occasions where a young person has been brought in for either pickpocketing or shoplifting and a man is sat at the back of the court who we are told is the young person’s uncle. We have received training on what to do when our suspicions are raised with regard to the status of the person sitting at the back of the court, who is there supposedly in the interests of the youth appearing before it.

I know that the YOTs, the probation service and the police have also received training on this matter. It is important that we have clear identification and that the courts can act quickly when they think this issue is being raised, because when one is actually going through the court process, one does not have very long to identify potential victims of either trafficking or exploitation. Therefore, it is important that this definition is as clear as possible and is well known by the various agencies that deal with young people—and not so young people—who may have been trafficked.

Serious Crime Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, to a considerable extent I agree with the noble Baroness, Lady Walmsley, but want to go rather further. I thank the Government for, and indeed welcome, Clause 62 as far as it goes. I should like to give particular thanks to the previous Minister of Justice in the other place, Damian Green MP, who has always been open to listening to Action for Children, for which I am largely speaking; I am also speaking for the NSPCC. He has been extremely helpful in giving us an opportunity to put our points of view to him. It is largely due to his diligence that the clause is in the Bill, so I thank him very much.

Clause 62, as far as it goes, is good but does not go far enough. The purpose of my Amendment 40BZB—supported particularly by Action for Children, and warmly supported by the NSPCC—is to update and bring into the 21st century Section 1 of the Children and Young Persons Act 1933. I have to tell noble Lords that 1933 was the year in which I was born, and it really is about time that we had 21st-century legislation. I am a relic of that period but the law should not be. I am supported in this amendment by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, whom I thank very much.

The purpose is to identify in criminal terms serious neglect and emotional abuse. “Neglect” is in the 1933 Act but does not include the effect of neglect on children and all sorts of emotional abuse that children suffer. Neglect is the most widespread and potentially most serious of all forms of abuse because it is, in itself, largely neglected. It is not seen. There are appalling stories where the police have identified a problem and discovered that they could not take any action by, for instance, threatening the family with some sort of criminal proceedings because the abuse and neglect that they see does not include the emotional abuse of things such as frozen awareness. Some noble Lords may know what I mean by that—for example, a child aged two sitting in a corner, not moving because of the way in which they have been treated. The police, who may come into a family, see and understand this but have to go away and tell the social workers, who may or may not take family proceedings in the magistrates’ court but are not obliged to do so. The police cannot warn the family that if they do not mend their ways they may become the subject of criminal proceedings.

The purpose of this updated legislation is not to put families in the criminal court but to try to push them, by a combination of threat and cajoling, into behaviour that will save the children who are in their care. My amendment, therefore, puts in modern wording such as,

“physically or emotionally ill-treats, physically or emotionally neglects”,

and removes altogether the words “unnecessary suffering”. I totally agree with the noble Baroness, Lady Walmsley, that “unnecessary” should not be there, but “suffering” is not the word we use nowadays. In the Children Acts and other adoption and child-related legislation we talk about “serious harm”, “substantial harm” or some such phrase. One should get rid of “unnecessary suffering” and get this legislation to join the rest of legislation on children by using “serious harm”. As regards the criminal side of this matter, we then need to explain what “serious harm” means. Proposed new subsection (6) in my amendment sets that out.

It is with some hesitation that I do not entirely agree with the noble Baroness on proposed new subsection (6)(b). I have to say that having battled with the Minister in the other place over inserting “recklessly” instead of “wilfully”, and being told that there was a firm view against doing that, Action for Children, the NSPCC and I, together with some MPs from the Commons, believed that we should explain what “wilfully” means. That is why we have put in,

“that a person with responsibility for a child foresaw that an act or omission regarding that child would be likely to result in harm, but nonetheless unreasonably took that risk”.

That allows the word “wilful” to remain, since the Government seem to want it, but also explains it so that everyone—particularly the police, and indeed people who ill treat their children—understand exactly what it is about.

I very much hope that the Government will now listen to what is being said in this House, although they failed to do so in the other place. I very much urge that this should be looked at again.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I rise to speak to Amendment 40BZC, which is in my name. I, too, welcome this clause. My amendment, which is promoted by the Children’s Society, finds a different way to address the same issues we have already debated in this group. As the noble Baroness, Lady Walmsley, said in her introduction, there are currently a number of inconsistencies in the law. My amendment finds a particular way to try to address them.

The amendment changes the Children and Young Persons Act 1933 to increase the age of a child victim of cruelty and/or neglect from under 16 to under 18. I argue that it is a simpler approach than some of the other amendments in the group. It would bring the criminal law into line with the rest of child protection legislation and would send a signal that 16 to 18 year- olds should be protected in the same way as children who are younger than 16.

The latest statistics, with which I was supplied by the Children’s Society, show that, in 2013, 14,290 children aged over 16 were children in need because of either abuse or neglect. A further 1,110 children aged over 16 were recognised as children at risk of significant harm and placed on a child protection plan. Of those, some 290 children had emotional abuse listed as the main category of their abuse.

As some members of the Committee will know, I sit in family court, youth court and adult court as a magistrate. I can clearly say that the most disturbing of those three jurisdictions is family court. You deal with some extremely vulnerable people—and some extremely vulnerable young people. It would be no surprise to anyone who works in either the youth or family jurisdiction that 16 and 17 year-olds are among the most vulnerable groups we deal with. I believe that they should be given the same protections as those aged under 16.

[The Lord Bishop of Durham]

I rise to support the amendment tabled by the noble Lord, Lord Ponsonby, on behalf of myself and my colleague, the right reverend Prelate the Bishop of Truro, who chairs the Children’s Society. The Serious Crime Bill rightly seeks to update the law on neglect of children. We welcome the Bill and the Government’s commitment to seeking to improve the response to victims of emotional neglect. The current law is outdated and inadequate. We also support the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss.

The UK is one of the only countries in the world that fails to recognise emotional neglect as the crime it is. It is to the Government’s credit that they seek to address that through the Bill. However, I believe that the Bill should go further and increase the age a child can be defined as a victim of cruelty and neglect from under 16 to under 18, which the noble Lord, Lord Ponsonby, seeks to do through his amendment. By changing the law in this way we can, for the first time, offer protection to all children from cruelty and neglect.

I, too, am grateful to the Children’s Society for its briefing, and I shall offer a story that it gives of Jessica. Jessica was known to social services because of the neglect and abuse she experienced in her family. When she was 16 the relationship between her and her family deteriorated and she was forced to move out of her family home. In the next year and a half she experienced unsuccessful placements in a hostel and bed and breakfast accommodation. Experiences of neglect at home made it difficult for her to form meaningful relationships. During that time, starting with her first unsuccessful placement in a hostel, Jessica became a victim of sexual exploitation, started using drugs and developed mental health problems. Stories such as Jessica’s mean that we need to ensure that this measure applies to all children under 18.

This definition is the one enshrined in the United Nations Convention on the Rights of the Child. It is in the Children Act 1989, which governs what safeguarding responses children should receive if there are concerns about their well-being. The PACE codes of conduct for the police were amended last year so that all under-18s are treated as children. From a safeguarding point of view, children should be viewed as being under 18. Sixteen and 17 year-olds can be very vulnerable. The statistics mentioned by the noble Lord, Lord Ponsonby, showed that. Yet they do not always get access to the services that younger children can receive. Professionals often see 16 and 17 year-old children as more resilient than younger children. They are often seen as more able to avoid abuse, or more grown-up and therefore more able to cope. It does not help that the criminal law aiming to deal with the perpetrators of child neglect does not cover 16 and 17 year-olds. This sends all the wrong signals that they are not as vulnerable as younger children.

The Government’s other reforms increasingly recognise that 16 and 17 year-olds are children. For example, they are not normally treated as adults under the benefits system. The position has recently been reinforced through the rules of the new universal credit system—a basic condition of entitlement for which is that the claimant is at least 18. That was debated in this House when the Welfare Reform Act 2012 went through Parliament. I would like to hear from the Minister why children aged 16 or over cannot be considered at risk of neglect and why the new law on emotional neglect should not apply to them.