Independent Office for Police Conduct
Lord Rosser Excerpts(3 years, 1 month ago)
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Lord Wolfson of Tredegar (Con)
My Lords, in her letter to the Home Secretary dated 15 February 2021, the commissioner set out that the MPS will follow the College of Policing media approved professional practice, which I set out to the House a few moments ago. Whether a breach of that is a disciplinary matter must be a matter for the police and for the IOPC.
Lord Rosser (Lab) [V]
This Question is about victims of false allegations and the role of the IOPC in investigating what happened and why. We also need to do better for all those victims who bring forward legitimate allegations yet are failed. Some 99% of rapes reported to the police in England and Wales result in no legal proceedings whatever. What more can the police and the IOPC do to play their part in helping to ensure that the rate of prosecutions for rape increases?
Lord Wolfson of Tredegar (Con)
The noble Lord raises a critical point. Both my department and the CPS are focused on ensuring that we improve the number of rape allegations which come to court, where there is sufficient evidence to do so, and that the conviction rate improves as well. That is a huge amount of work and outside the ambit of a particular answer, but he will know that the Government are particularly focused on that area.
Domestic Abuse Bill
Lord Rosser ExcerptsWednesday 10th March 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-III Third marshalled list for Report - (10 Mar 2021)
Lord Russell of Liverpool (CB)
My Lords, I shall be extremely brief, not least because of the happy coincidence that the noble Lords, Lord Hunt and Lord Polak, have largely said what I was going to say. I thank them. I can now go and have a late lunch.
Like the noble Lord, Lord Polak, I was impressed by the Barnardo’s press release last Thursday, with all the different voices speaking in unison. My own experience of dealing with voluntary organisations over many years is that hell hath no fury like different voluntary organisations in pursuit of similar goals and, in particular, similar pools of funding. Peace seems rather dangerously to have broken out in this case. I hope it will continue.
I thank the Government for listening. It was a bit of a no-brainer with a Bill in which 25% of the accommodation-based services for domestic abuse victims were dealt with but 75% were not. That was an open goal waiting to be filled. I am grateful that the Government have acknowledged this and acted on it.
Like the noble Lord, Lord Hunt, I took note of the National Audit Office investigation and report into the state of local authority funding. I have observed a variety of individuals in this House—some of whom I have worked in co-operation with—who, for the best of reasons, ceaselessly plead with the Government to put more and more statutory duties on local authorities in a whole variety of different areas. In a sense, this is dangerous because, in a situation where local authorities are under the strains and stresses that they are, piling even more statutory duties or guidance on them runs the risk of mission failure and initiative fatigue. I am very conscious of this. It requires a joined-up approach from the different parts of Her Majesty’s Government.
The Home Office is doing its bit. The Ministry of Justice is going to do what may not come easily to it and talk more openly with the communities department —and vice versa. It was not terribly helpful that the Secretary of State, while acknowledging the councils’ problems, could not resist the political dig of accusing them of poor management. This is a bit rich coming from a national Administration who have spent the amount of money they have on initiatives such as test and trace, or who have presided over the highest number of deaths per million in the world during the current pandemic. Before one starts throwing political missiles at one’s opponents, it does one a lot of good to look in the mirror and have a degree of humility. None of us gets it right all the time.
When the domestic abuse commissioner comes back with her recommendations, I would plead with the various parts of national government and the local authorities to talk to one another, agree, buy into whatever is recommended, and put in place properly thought-through, long-term plans to deliver on this strategy and to fund it properly.
Lord Rosser (Lab) [V]
My Lords, government Amendment 17 requires the domestic abuse commissioner to prepare and publish a report on
“the need for domestic abuse services in England, and … the provision of such services.”
The report must be published no later than 12 months after this new clause comes into force.
Other government amendments require local authorities to keep under review the impact of the duty to provide accommodation-based services on their provision of other domestic abuse services in the community.
Amendment 30, in the name of my noble friend Lord Hunt of Kings Heath, makes it clear that the public authority may not prioritise accommodation-based support services for persons with a protected characteristic over other support services for the same person, except in so far as those persons have a greater need for accommodation-based services than for other support services.
Amendment 31 would give the Secretary of State power through regulations to extend the duty in Part 4 to include community services, instead of just accommodation-based services. I agree with the points made and the concerns raised by my noble friend Lord Hunt of Kings Heath in his powerful contribution.
Amendments 85 and 86 in my name are the community service amendments from the noble Lord, Lord Polak, re-tabled. We tabled them pending sight of the Government’s specific commitments and amendments. I will not move them. Like others in the House and outside, we welcome the Government’s amendments and commitment to consult on community-based services as part of the consultation on the victims law. I pay tribute to the noble Lord, Lord Polak, and to other noble Lords, as well as to all the organisations which have worked on this issue. I also pay tribute to the shadow Minister in the Commons, Jess Phillips, who pursued the proper provision for community-based services with some vigour and determination during the Bill’s passage through the other House.
We now need to see the Government’s words and commitments translated into real progress and meaningful action. The key to achieving this is for services, victims and perpetrators to be looked at holistically; to see what needs to be done in the round to prevent abuse, and to support victims who experience it. This also means providing services for children who are victims, for older victims and for perpetrators, as well as ensuring that there are specialist services for black and ethnic minority victims. Healthcare services are also vital.
Lord Marks of Henley-on-Thames (LD)
My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.
The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure that
“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”.
That presumption is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.
But the presumption is rebuttable, hence the words
“unless the contrary is shown”.
In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.
However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.
I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.
Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.
Lord Rosser (Lab) [V]
My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.
In his response in Committee, the Minister said:
“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”
He went on to say that
“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”
which
“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”
He argued that it would
“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]
However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had
“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
The report also states:
“The panel is clear, however, that the presumption should not remain in its present form.”
There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.
The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.
In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.
In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.
Baroness Burt of Solihull (LD)
I am grateful to have the opportunity to speak. I was delighted to see the Minister’s name on Amendment 45 and the consequential Amendments 88, 89 and 96. That is three times that I have been delighted today so I do not quite know what is going on. I welcome the extension of “personally connected” in the context of coercive control to family members or people who have been in an intimate relationship, whether living together or not.
The noble Baroness, Lady Lister, talked about how important training for police and professionals is in the implementation phase. As several noble Lords have said, a lot of individuals who are being coercively controlled do not know or appreciate that fact. It is a bit like the story of the frog in the beaker where the water gets heated more and more, very gently, and the frog does not realise that it is trapped until it is too late. It really makes a difference if other people can recognise what is going on, perhaps even before the victim themselves.
Post-separation abuse is a terrible thing. Having thought that you had escaped the abuse but then realising that you are being dragged back and dragged down financially and emotionally takes a toll. We have heard a number of examples of just how awful that is, so I cannot say just how happy I am.
We have been pushing the boundaries somewhat regarding the definition of “personally connected” in several contexts. I will talk about disabled people in a second but, with regard to family members or people who have been in an intimate relationship, whether or not they are living together, I am glad that the Minister has listened. I am sure that is right, and the Bill will be stronger for it.
Amendments 46 and 47 extend the definition to the relationship between a disabled person and their carer. We had this discussion on Monday, so I will not repeat the arguments that were used then, but I was disappointed by the Minister’s response. The House showed its concerns and feelings, and I hope that the Minister takes them into account in her remarks, but also takes the opportunity to have another think before Third Reading and the Bill goes back to the House of Commons.
We strongly need disabled people to be heard. We heard strong arguments for this on Monday and tonight, not least from the noble Baroness, Lady Grey-Thompson. I hope that the Minister listens to them. I very much welcome Amendment 45.
Lord Rosser (Lab) [V]
Amendment 45 ensures that the existing offence of coercive or controlling behaviour applies to abuse that happens post-separation by extending the offence to cover those who no longer live together. It aligns the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 with Clause 2 of the Bill, and the result is that the offence of controlling or coercive behaviour will apply to members of the same family or people who have been in an intimate relationship, whether or not they live together.
Amendments 46 and 47 amend Amendment 45 to include the relationship between a disabled person and their carer in the definition of “personally connected” in the Serious Crime Act 2015 to reflect the changes made to the Bill when the earlier amendments of the noble Baroness, Lady Campbell of Surbiton, were agreed on Monday. I congratulate my noble friend Lady Lister of Burtersett for the determination that she has shown in pursuing Amendment 45 and the strength of the case that she has marshalled in support. This is a key amendment for us and, most importantly, a key change for survivors living with abuse after separation. I hope that, after today, they feel that their voices have been heard. We also appreciate the Government’s willingness to support the amendment and the role that the Minister has played. We trust that the House now does likewise.
I also pay tribute to the work of the noble Baroness, Lady Campbell of Surbiton. We strongly support Amendments 46 and 47 in her name, but understand why she now feels that she cannot divide the House, in the light of the Government’s apparent stance on those amendments and the impact that could have on Amendment 45 if they were carried.
The House has already shown its support for the inclusion of carers in the definition of “personally connected”, through the vote on Monday in support of earlier amendments from the noble Baroness, Lady Campbell of Surbiton. We regard Amendments 46 and 47 as consequential parts of the package. As I have already stated, part of what Amendment 45, in the name of my noble friend Lady Lister of Burtersett, achieves is to align the definition of “personally connected” in the Bill with the Serious Crime Act 2015. On Monday, this House added carers to the definition of “personally connected” in the Bill. That is why we believe that the Government should recognise the outcome of the vote on Monday and accept Amendments 46 and 47 as effectively consequential, as the noble Baroness, Lady Campbell of Surbiton, asked. They should give a clear assurance that they accept them, as government support for Amendment 45 means that they will make sure that that amendment, in the name of my noble friend Lady Lister of Burtersett, is still enshrined in the Bill when it becomes an Act.
I hope that the Government think hard about their response to these amendments, particularly to Amendments 46 and 47. If they do not feel that they can give a positive response tonight, along the lines asked for by the noble Baroness, Lady Campbell of Surbiton, perhaps they could reflect further and come back on Third Reading.
Domestic Abuse Bill
Lord Rosser ExcerptsMonday 8th February 2021
(3 years, 2 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-VI(Rev) Revised sixth marshalled list for Committee - (8 Feb 2021)
Lord Rosser
“Recourse to public funds for domestic abuse survivors
(1) The Immigration Acts are amended as follows.(2) In section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) after subsection (10) insert— “(11) This section does not apply to a person who is a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021.”(3) In paragraph 2(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 after sub-paragraph (b) insert—“(ba) to a person who is a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021, or”.(4) In section 21 of the Immigration Act 2014 (persons disqualified by immigration status or with limited right to rent) at the end of subsection (3) insert “or if P is a victim of domestic abuse”.(5) In section 3 of the Immigration Act 1971 (general provisions for regulation and control) after subsection (1) insert—“(1A) The Secretary of State may not make or maintain a condition under subsection (1)(c)(ii) on leave granted to a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021; and it is not a breach of the immigration laws or rules for such a victim to have recourse to public funds.”(6) For the purposes of this section, evidence that a person is a victim of domestic abuse may consist of one or more of the following—(a) a relevant conviction, police caution or protection notice;(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, domestic abuse protection order, forced marriage protection order or other protective injunction;(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic abuse;(d) evidence that a victim has been referred to a multi-agency risk assessment conference;(e) a finding of fact in the family courts of domestic abuse;(f) a medical report from a doctor at a UK hospital confirming injuries or a condition consistent with being a victim of domestic abuse;(g) a letter from a General Medical Council registered general practitioner confirming that he or she is satisfied on the basis of an examination that a person had injuries or a condition consistent with those of a victim of domestic abuse;(h) an undertaking given to a court by the alleged perpetrator of domestic abuse that he or she will not approach the applicant who is the victim of the abuse;(i) a letter from a social services department confirming its involvement in providing services to a person in respect of allegations of domestic abuse;(j) a letter of support or a report from a domestic abuse support organisation; or(k) other evidence of domestic abuse, including from a counsellor, midwife, school, witness or the victim.(7) For the purposes of this section—“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2021; “victim” includes the dependent child of a person who is a victim of domestic abuse.(8) Within 12 months of this Act being passed, the Secretary of State must commission a review into the operation of the provisions in this section.(9) The Secretary of State must lay before Parliament a report setting out the findings of the review.”Member’s explanatory statement
This new Clause seeks to ensure that certain provisions under the Immigration Acts – including exclusion from public funds, certain types of support and assistance and the right to rent – do not apply to survivors of domestic abuse. There will be a review into the operation of this provision.
Lord Rosser (Lab) [V]
My Lords, this group of amendments is on the key issue of protections for migrant victims of domestic abuse who have no recourse to public funds, an issue which has been raised by Members across all sides in both Houses. I will speak in particular to Amendment 148 and thank the noble Baronesses, Lady Hamwee and Lady Bennett of Manor Castle, and the noble and learned Baroness, Lady Butler-Sloss, for adding their names to it.
Amendment 148 provides for a new clause in the Bill which seeks to ensure that certain provisions under the Immigration Acts, including exclusion from public funds and certain types of support and exclusion from right to rent, do not apply to survivors of domestic abuse. The amendment also provides for a review into the operation of this change to be commissioned by the Secretary of State.
There are currently no provisions in the Bill for migrant women facing domestic abuse who have no recourse to public funds. This is despite their abusers being able to use the immigration status of a victim and their consequential inability to have any access to public funds as a means of control. It can be almost impossible for migrant women to escape from their abusers if they have no money to gain access, for example, to a refuge or other accommodation. They are often fearful too of any perceived or actual threat of action by their abusers, or their own actions, that would bring them to the attention of the immigration authorities and possible subsequent immigration enforcement and separation from their children.
The situation is not helped by the fact that it is the same department—the Home Office—that deals with immigration issues, including deportation, and support for victims of domestic abuse, which gives rise to our concern that a victim should always be treated as a person in need of support and not first and foremost as an immigration case.
The Commons Home Affairs Committee stated:
“Insecure immigration status must not bar victims of abuse from protection and access to justice”
and the Joint Committee on the draft Domestic Abuse Bill said:
“We recommend that Government explores ways to extend the temporary concessions available … to support migrant survivors of abuse.”
The Sun also, I believe, gave its support to protecting migrant women in this Bill when it said:
“Domestic abusers don’t discriminate, so why should the law discriminate against their victims?”
No recourse to public funds, NRPF, is a legal restriction that bars people on certain visas from claiming most benefits, tax credits or housing assistance paid for by the state. This would apply, for example, in respect of someone on a student visa. It also applies when migrant women, including their children, become a victim of domestic violence, when the restriction hinders their ability to access life-saving refuge support and other necessary welfare provisions.
Amendment 148 would remove the statutory exclusion that prevents migrant survivors accessing the support and assistance they need and would ensure that no survivor, whatever their immigration status, was treated as being in breach of immigration laws or Immigration Rules by accessing that support or assistance. Without recourse to public funds, migrant victims of domestic abuse are not eligible to welfare benefits needed to cover the cost of a stay in a refuge service. Very few refuge services do not face a funding crisis after 10 years of cuts, and they are unable to cover the cost of a woman’s stay without that funding.
Research by Women’s Aid found that only 5.8% I think it was of refuge vacancies in England in 2018-19 could accept a woman with no recourse to public funds. Three out of every five referrals to a refuge were refused because of a lack of availability and 64% of all referrals to a refuge were declined. That rises to 80% for black and minority-ethnic women. The chances of a migrant woman being able to access a refuge are slim, bordering on impossible.
The experiences of survivors with no recourse to public funds, unable to access a refuge, are grim. Only 8.2% of the women with no recourse to public funds, and supported by the No Woman Turned Away project in 2017, were able to access a refuge—about one in 12. Many had to sleep rough, sofa-surf or even return to the perpetrator while they waited for help. To escape abuse, an individual and their children need to have somewhere to go that above all is safe, providing a bed and food, and to have the resources to be able to get there and stay there. We should not be turning away victims of domestic violence from refuges because of what it does or does not say on their passport, and we should not leave survivors with the only option of sleeping on the streets, with any children, if they are desperate to leave an abusive relationship.
Migrant survivors are often too scared to report domestic abuse as they could then be investigated and even detained. They cannot access safe accommodation and their abusers use their immigration status as a tool of coercive control over them. Women without access to public funds can find it hard to support themselves and their children independently from the perpetrator. It is often the case that the perpetrator is in control of the incomes and the bank accounts.
Women without secure immigration status are prevented from renting accommodation, which also means that refuges can find it difficult to take them. A refuge will always want to provide support, but if a person cannot move forwards into rented accommodation, refuges are left knowing that the move-on options are very limited.
According to the estimates of Southall Black Sisters, we are talking about a group of individuals numbering in the low thousands a year. We are not talking about a large sum of money, but for each of these women the impact on their lives would be enormous.
At the most vulnerable point in their lives, these migrant women need to be believed and to be told that they can be helped. When the abuser tells them that they cannot leave, they have no access to public funds, there is no one to help them and they will be on the streets, they need to know that he is wrong. The trouble is, at the moment he is right. Migrant women are not migrants first and foremost; they are mothers, neighbours, and colleagues in workplaces—for example, care workers and NHS workers. Surely, the solution to the problems many migrant women who suffer domestic abuse face is to give them access to housing benefit, ensure that they can access welfare support and allow them to rent accommodation.
Baroness Williams of Trafford (Con)
The right reverend Prelate is right to raise the point about sustainability, long-term solutions and what happens after the pilot scheme has taken place. It is precisely because we want to identify where the gaps lie and where long-term funding might be needed that we have done this pilot scheme. With that, as I have said throughout the course of this debate, it is our intention to review the matter when that pilot scheme has finished. But the point about funding is one that is well made, because we can have all the legislation in the world and if the funding is not in place there is no point.
Lord Rosser (Lab) [V]
I start by thanking the Minister for her very full and comprehensive reply to this debate. I also thank all noble Lords who have contributed to the debate, in which there has been a high degree of unanimity as far as the nature of the contributions is concerned and the objectives that we all want to achieve.
The Government have basically set out why they do not believe that the amendments we have been discussing meet the Bill as far as they are concerned. They have laid some stress on their point that a one-year pilot scheme is about to commence to better assess the level of need for this group of victims. It is, as the Minister has said, to run through until March 2022. Clearly, on that basis, as far as the Government are concerned, not a lot is going to happen to address the problems that have been identified in the near future.
The right reverend Prelate the Bishop of Gloucester pointed out in her very effective contribution that the amount offered to run the pilot project would not meet the needs of all vulnerable migrant women who need crisis support. She also pointed out that the data the pilot scheme may collect is already available. Indeed, it has been published and submitted. I do not think that the Government, in their response, exactly made it clear what information they do not feel they have already, that has not been provided in the data that has been published and submitted. The right reverend Prelate the Bishop of Gloucester also pointed out that the pilot scheme did not guarantee change following its conclusion.
This Bill is surely the opportunity to provide legislative protection to all victims and survivors of domestic abuse, including migrant women who are among the most vulnerable. I had thought that was a government objective. I have no doubt the Minister would say that it is—or at least I hope that is what the Government would say. It does seem that it will be a little way ahead in the future before anything will get resolved. We have a serious issue that needs addressing now and not, maybe, at some unspecified date in the future.
I do not think we have heard, in the Government’s response, how the Government intend to address the immediate problem that exists already. I hope it might be possible, between now and Report, for there to be further discussions on this issue—which will involve a number of people, judging by the number of contributions to the debate and all the people who have added their names to the amendments that we have been discussing. But I share the view of the right reverend Prelate the Bishop of Gloucester that it would be helpful if there could be further discussions about the issues have been raised before Report. I suspect, at the moment, that the issues we have been talking about now for one and three-quarter hours will be brought before the House again on Report, unless discussions provide a solution to the issues we have been talking about. I hope that proves to be the case and that the Minister will ensure those discussions take place. In the meantime, though, I withdraw Amendment 148.
Lord Rosser (Lab) [V]
I will just pick up on a point that was made by my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Burt of Solihull. It concerns what was said during the debate on this or a similar amendment in the Commons, when the Government used an argument to deflect the amendment to the effect that we should await the outcome of the review of coercive control legislation due to be completed by “early autumn”. Last autumn was being referred to. It now appears that we might receive some further information—I hope, the outcome of the review—before Report. No doubt the Minister will confirm that or otherwise when she responds.
The point I want to make is that this is far from the first amendment on a key domestic abuse issue that the Government have told us at some stage that they cannot accept because they are awaiting the outcome of a review, pilot scheme or mapping exercise. That suggests that they know that there are real problems that need addressing but have not determined how in time for the Bill. The Bill has already been a long time on its still-unfinished journey to becoming an Act. I am not sure that this is a satisfactory situation. So often we are told that an amendment is unacceptable because there is a review, pilot scheme or mapping exercise outstanding.
My name is attached to Amendment 149 which, as expected, was moved so comprehensively and persuasively by my noble friend Lady Lister of Burtersett. It adds a new clause, which would ensure that those who were previously personally connected are protected from any coercive and controlling behaviour, including economic abuse, that occurs post separation. As we have heard, economic abuse makes the victim dependent on the perpetrator and limits their choices and ability to move. One in five women in the UK reports having experienced economic abuse from a current or former intimate partner, and 95% of domestic abuse victims report that they have suffered economic abuse. It is widespread.
Through economic exploitation, the perpetrator looks to benefit from the victim’s economic resources and, in so doing, sabotage their economic independence. The perpetrator may also build up debt in the victim’s name through coercion or fraud, or even steal or damage the victim’s property, which then has to be replaced. Building up debt in the victim’s name is common and leaves the victim struggling to live with it thereafter. When this happens, the impact on the victim’s economic well-being is hugely destabilising and limits their choices post separation. Economic safety underpins physical safety, and building an independent life can, for many victims of economic abuse, feel impossible. I will not continue further. I had some more points to make, but I know that time is pressing and I am sure that they have already been made.
I conclude by saying that we support Amendment 149, which addresses the deficiency that I referred to earlier: that the post-separation situation is not covered and that currently, victims of economic abuse post-separation are unable to seek justice. We also support the objectives of Amendment 157, which was introduced by my noble friend Lord Hunt of Kings Heath.
Baroness Williams of Trafford (Con)
My Lords, I am most grateful to the noble Baroness, Lady Lister, and the noble Lord, Lord Hunt, for setting out the case for their amendments, which seek to extend the offence of controlling or coercive behaviour in an intimate or family relationship. I am also grateful to the noble Lord, Lord Ponsonby, for tabling his amendment, which seeks to repeal the so-called carer’s defence. I join others in paying tribute to the noble Baroness, Lady Greengross, and all the work that she has done in this area. I am grateful, too, to my noble friend Lady Verma, for pointing out the very particular problems faced by some BAME ladies. My noble friend Lady Sanderson illustrated so well how society, including notable broadcasters, has, over time, got to grips with an understanding of coercive control and the terrible harm it causes.
I will address Amendments 149 and 157 before turning to Amendment 171. Amendment 149 seeks to remove the current requirement in the offence of living together in the case of former partners as well as family members. Amendment 157 seeks to remove the current requirement in the offence of living together in the case of relatives who are perpetrating abuse but who do not live with their victim.
Controlling or coercive behaviours are an insidious form of domestic abuse that have long-term debilitating effects on victims and survivors. Such behaviours, intended to harm, punish and frighten, can be perpetrated within intimate and family abusive relationships. The offence of controlling or coercive behaviour applies, as it stands, to those who are personally connected. That means that it applies to intimate partners regardless of whether they live together, ex-partners who live together, or family members who live together. The offence does not currently apply to ex-partners or family members who do not live together. The rationale behind this is that there are other criminal offences—stalking and harassment—that may be used to prosecute controlling or coercive behaviours post separation, or in cases where family members do not live together. Indeed, the offence of controlling or coercive behaviour was specifically introduced to close a gap in the law with regard to abuse by intimate partners or family members in the same household.
Turning to surviving economic abuse, the noble Baroness, Lady Lister, along with other noble Lords and domestic abuse organisations, rightly highlight that controlling or coercive behaviour often begins, continues or intensifies when the victim and perpetrator no longer live together. They further argue that the stalking and harassment offences are not specifically designed to prosecute this sort of behaviour. Supporters of this amendment also make the point that controlling or coercive behaviour occurs between family members who do not live together, an example being adult children who inflict economic abuse on their elderly parents. Furthermore, as my noble friend Lord Goschen pointed out, the new statutory definition of domestic abuse includes ex-partners among those defined as personally connected and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming to the definition in Part 1 of the Bill.
There are convincing arguments on either side of this debate, and the case for change is not clear-cut. The offence of controlling or coercive behaviour has been in force for just over five years. Consequently, there is only limited evidence on which to build a case for amending the legislation. Given its relative newness, there is also work to be done to further embed the offence throughout the criminal justice system.
Additionally, though not specifically designed to cover controlling or coercive behaviours, the stalking and harassment offence is broad enough that it may apply to post-separation abuse. This includes forms of economic abuse so rightly highlighted by Surviving Economic Abuse. It is also worth noting that the stalking and harassment offence has a maximum sentence of 10 years, whereas for controlling or coercive behaviour it is five years.
The Government are committed to ensuring that any changes to legislation are made on a sound evidential basis. To support this, in 2018 we committed to conducting a review into the controlling or coercive behaviour offence. Though the Home Office has made good progress with the review, it has been unavoidably delayed by the Covid-19 pandemic, which has necessitated refocusing our efforts to support victims throughout this difficult time. We will be publishing the review findings ahead of Report. As the case for change here is not clear-cut, we will continue to consider the evidence for and against change, including the review into the offence, ahead of Report. In coming to a final view, we will reflect very carefully on this debate.
Amendment 171 seeks to repeal what has been labelled by some as the “carer’s defence”, under Section 76(8) to 76(10) of the 2015 Act. This allows for a limited defence where the accused believes that they were acting in the best interests of the victim. The defence is limited as it is not available in cases where the victim fears that violence will be used against them. In addition to believing that he or she was acting in the best interests of the victim, the accused would also need to demonstrate to the court that while their behaviour might have appeared controlling, it was reasonable in all the circumstances of the case. The defence is intended to cover cases where the accused is genuinely acting in the best interests of the victim: for example, if the accused has a caring responsibility for a disabled partner and for medical reasons must compel their partner to take medication or stay at home against their will, for their own protection or well-being. Again, it is important to note that this defence is not available in cases where the victim feared that violence would be used against them.
Supporters of this amendment have put forward three main arguments: first, that it is necessary to protect vulnerable victims who have disabilities or mental health issues from coercion or control; secondly, that the defence has the potential to prolong the abuse of disabled victims and prevent them from accessing equal justice; and, thirdly, that alternative legislation, such as the Mental Capacity Act, may be used by the accused to argue that they were acting in the best interests of the victim. This would render the defence unnecessary. However, the Government consider this defence entirely necessary. There will be specific circumstances in which it is possible that the accused’s behaviour, while it might be considered controlling in a different context, is justified and reasonable given the nature of their caring responsibilities. There is a real risk that, without such a defence, a person may be wrongfully convicted of controlling or coercive behaviour when in fact they were indeed acting in a person’s best interests.
As is the case with all legal defences, it is for the courts and juries to decide merit on a case by case basis, and whether the threshold for the defence has been met or not. There are similar or equivalent defences in Scotland, in Section 6 of the Domestic Abuse (Scotland) Act 2018, and in 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.
In conclusion, while I cannot support Amendment 171, I undertake to consider further Amendments 149 and 157. On that basis, I ask the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I shall speak briefly on this, as I think that the amendment in the name of the noble Baroness, Lady Burt, is one of those that would help to close a little gap in the whole issue. When people think about domestic abuse, they often think about physical abuse, and perhaps about emotional and mental abuse, but tackling economic abuse is just as important if we are to stamp out domestic abuse.
I have signed this amendment, as it is important that the child maintenance system is not misused as a tool of abuse. Domestic abusers must not be allowed to continue their domestic abuse by withholding or reducing their financial support for children. This amendment, like so many of those tabled to this Bill, is a reminder of how multifaceted domestic abuse is, and how abusers will exploit any opportunity they possibly can. We must deny them those opportunities and punish them for what they do.
Lord Rosser (Lab) [V]
Amendment 158 in the name of the noble Baroness, Lady Burt of Solihull, would require the Secretary of State to issue guidance to the Child Maintenance Service to tackle the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments. As the noble Baroness, Lady Burt, said, we have just had a debate on the issue of economic abuse post separation, and one of the examples given of such abuse was through the perpetrator failing to pay child maintenance.
Child maintenance is an essential source of income for many single parents in enabling them to meet their children’s basic needs, including food and clothing, and is of particular importance to victims and survivors of economic abuse, who often rely on such payments for economic stability after leaving a perpetrator. Perpetrators of economic abuse are only too aware of this, however, and withholding or unreliably paying child maintenance can be a way in which they continue to control victims and survivors, including post separation. This issue does seem to highlight the importance of agencies such as the Child Maintenance Service that provide front-line services carrying out training to recognise and respond to economic abuse, as a means of domestic abuse, as part of how they operate.
Economic abuse perpetrated through child maintenance is not new, of course; it has been used by perpetrators for some time. However, the coronavirus seems to have exacerbated the situation through providing perpetrators with increased opportunities to interfere with child maintenance payments. During the present pandemic, it has been reported that the Department for Work and Pensions has redeployed a number of Child Maintenance Service staff in order to deal with the spike in universal credit claims. It has been said that this included staff tasked with enforcing or following up child maintenance.
The media have additionally reported that the Child Maintenance Service was accepting verbal evidence from paying parents seeking to stop or reduce payments in relation to their income decreasing during the pandemic, when this would usually require evidencing through documents such as payslips. In their response, could the Government indicate whether there is validity in these reports and what guidance has been issued by the Government to the Child Maintenance Service on tackling the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments—not only prior to but during the pandemic?
We support the noble Baroness, Lady Burt of Solihull, in raising this issue and await the Government’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the noble Baroness, Lady Burt of Solihull, for outlining her amendment. I certainly agree with her and all the noble Lords who have spoken that guidance for front-line staff on tackling economic abuse through the withholding or reduction of child maintenance payments is extremely important. I assure her and, I hope, the noble Lord, Lord Rosser, that the Child Maintenance Service takes the issue of domestic abuse extremely seriously and is committed to ensuring that victims of abuse get the help and support that they need to use it safely.
The service has recently substantially strengthened its procedures to support people who are experiencing domestic abuse: in particular, a new programme of domestic abuse training is currently being delivered to all Child Maintenance Service caseworkers. However, before that, the service had already implemented training in this area, designed with input from Women’s Aid. That included: recognising that domestic abuse can take various forms, including physical, psychological, emotional and financial abuse; appropriate signposting to domestic abuse support groups; and advice on contacting the police and, if people did not feel able to do so, asking whether they were content for the Child Maintenance Service to call the police on their behalf. The service has also introduced a complex needs toolkit for its caseworkers which includes clear steps to follow in order to support people who are experiencing abuse. It is regularly reviewed and strengthened on the basis of feedback. The Child Maintenance Service will continue to evaluate the effectiveness of its guidance and training in this area.
Beyond that guidance and training, there are a number of ways in which the Child Maintenance Service responds to cases involving domestic abuse. It might be helpful to outline some of them. They include waiving the application fee for victims of domestic abuse; providing appropriate advice and support to help victims use the service safely and to ensure that there is no unwanted contact between separated parents; acting as an intermediary to facilitate the exchange of bank details and ensuring that no personal information is shared; providing advice on how to set up bank accounts with a centralised sort code, which does not allow victims of abuse to be traced; and providing advice and directing people to a number of specialist domestic abuse support organisations as well as providing advice and information on how they can stay safe.
The Child Maintenance Service also has a range of strong enforcement powers, which can be used against people who consistently refuse to meet their obligations to provide financial support to their children. First, it can make deductions directly from earnings and seize funds directly from a paying parent’s bank account, either as a lump sum or regular payments. We have extended this power to cover joint and certain business accounts, thereby removing the opportunity for paying parents to put their money out of reach. Secondly, it has the capacity to seize goods or force the sale of a non-paying parent’s property. Thirdly, it can seek to have those who wilfully refuse to recognise their obligations either committed to prison or disqualified from driving. Finally, we have also introduced the ability to disqualify non-compliant parents from holding or obtaining a UK passport, which we believe acts as a strong deterrent.
We are therefore confident that the Child Maintenance Service already has sufficient enforcement powers and that it has further strengthened its procedures for supporting people who have suffered domestic abuse. I assure the noble Baroness and all noble Lords who have spoken in this brief but important debate that we will continue to monitor the effectiveness of these enforcement powers and the support that they give. With that assurance, I hope that the noble Baroness will be content to withdraw her amendment.
Lord Rosser (Lab) [V]
This amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb, would add a new clause to the Bill to provide lifetime press anonymity for survivors of domestic abuse. It reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992, as the noble Lord, Lord Paddick, said. It prevents identifiable details being published online or in print and creates a new offence for breaching this anonymity.
This issue has risen up the agenda because stories are published in which victims and survivors of domestic abuse, as well as family members and children, are named. When these stories then make their way on to websites, victims have no anonymity but the people who choose to make comments do have anonymity.
Apart from the protection for survivors of sexual assault enshrined in the 1992 Act, I believe the Serious Crime Act 2015 grants anonymity to and protection for victims of female genital mutilation, and the Modern Slavery Act 2015 grants anonymity to victims of any human trafficking offence. If I am right, that is three examples of anonymity given to three categories of victims. If the Government are not enthusiastic about this amendment—which the noble Baroness, Lady Jones of Moulsecoomb, said is a probing amendment—no doubt they will explain in their reply why they consider that survivors of domestic abuse do not require the same protection as survivors of sexual assault, victims of female genital mutilation and victims of any human trafficking offence.
Lord Wolfson of Tredegar (Con)
My Lords, I hope I can be relatively brief in my reply—not because the point is not important, nor indeed out of a lack of respect for any of the contributions we have just heard, but because there is a single and critical point, fundamental to the administration of justice, which lies at the heart of this debate.
As the noble Baroness, Lady Jones, explained, this probing amendment is designed to protect the identity of complainants in domestic abuse cases by the automatic application of reporting restrictions from the point when the allegation is made. Although the noble Lord, Lord Paddick, referred us to Article 6(1) of the European Convention on Human Rights, I dare say that the principle of open justice goes back much further than that. We are all familiar with the adage that justice must not only be done, it must be seen to be done. That statement, with which we are all familiar, I am sure, recognises that automatic reporting restrictions of this kind are an exceptional interference with open justice. Therefore, we make those reporting restrictions available only when there is a real need to do so.
The most familiar precedent is in relation to complainants who allege that a sexual offence has been committed against them. In those circumstances, there is a clear justification for preventing the reporting of the complainant’s identity, because there is an overriding need for anonymity to be guaranteed from the outset so that victims of a type of offence that still carries considerable stigma are emboldened to come forward and tell the police. As the noble Lord, Lord Rosser, says, there are a couple of other such other examples in the law, but each of those is an exception to the general rule. We must be very careful, I would suggest, to limit those exceptions to cases where it is demonstrably required. Therefore, while I listened with care to the speech by the noble Lord, Lord Paddick, and his personal and, if I may say, moving testimony, we do not consider that, as a matter of generality, domestic abuse cases in which no sexual offence has been committed fall into the same category such that they require automatic protection in the same way.
However, as a number of noble Lords identified, that does not mean that victims of domestic abuse should be denied anonymity where they both request and need it. The courts have discretionary powers to impose, on application, reporting restrictions prohibiting the naming of a witness, where the court is satisfied that being identified would diminish the quality of that witness’s evidence. I suggest that there is sufficient discretion before the courts to meet cases where reporting restrictions are required. To go further would be an unjustifiable interference with the extremely important principle of open justice.
I hope, therefore, given that this is a probing amendment —and while of course I am always willing to discuss anything with the noble Baroness, Lady Jones—that she will feel able to withdraw her amendment at this stage.
Domestic Abuse Bill
Lord Rosser ExcerptsWednesday 3rd February 2021
(3 years, 2 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Lord Rosser (Lab) [V]
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Rosser
Member’s explanatory statement
This is to probe that in the family court, where a perpetrator’s conviction is spent, other protections will be in place to protect a victim of abuse from being cross-examined by the perpetrator.
Lord Rosser (Lab) (V)
My Lords, I am speaking in place of my noble friend Lord Ponsonby of Shulbrede on this and a small number of groups to follow. My noble friend sends his apologies to the Committee; he is unable to be here because he is sitting in court today as a magistrate.
Amendment 114 is probing in nature. Proposed new Section 31R in Clause 63 provides for protections against cross-examination in person where one of the parties has a caution or conviction for a specified domestic abuse-related offence against the other. Subsection (3) provides that the protection does not apply where the conviction or caution has been spent. This amendment would remove subsection (3). It is intended to clarify that where a domestic abuse conviction or caution has been spent, other protections against cross- examination in person will apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. We are all aware of the traumatic and long-lasting impacts that domestic abuse can have and the continuing risk of abuse that victims can face from a perpetrator. Where a conviction becomes spent and the protections under this new section lapse, there should surely be a risk assessment before cross-examination in person can be permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It would helpful if the Government could give clarity and assurances on this point in their response.
The Victims’ Commissioner for London has also raised with us the issue of restraining orders, which are often given for a fairly short period. It would be helpful if the Minister could give assurances that the expiration of a restraining order would not impact on the ability of a victim to access necessary protections from that perpetrator in a family proceeding. I look forward to the Minister’s reply and to his explanation of the various government amendments in the group. I beg to move.
Lord Rosser (Lab) [V]
I thank the Minister for his considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their contributions, particularly the noble Baroness, Lady Newlove, for adding her name to Amendment 114.
I said at the beginning that this is a probing amendment intended to gain clarity and assurances that where a domestic abuse conviction or caution has been spent, other protections against cross-examination in person would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall reflect further on what he said in response to this probing amendment. In the meantime, I beg leave to withdraw the amendment.
Lord Rosser
“31VA Direction to prohibit direct or indirect engagement: evidence of domestic abuse(1) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party, the court may give a direction prohibiting the latter party from directly or indirectly engaging with the victim during proceedings, if the court deems any such engagement is causing significant distress to the victim.(2) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(3) Regulations under subsection (2) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.(4) A direction under this section may be made by the court— (a) on an application made by a party to the proceedings, or(b) of its own motion.(5) In determining whether the significant distress condition is met in the case of a party, the court must have regard to, among other things—(a) any views expressed by the victim;(b) any views expressed by the other party;(c) any behaviour by the party in relation to the victim in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;(d) any behaviour by the party at any stage of the proceedings, both generally and in relation to the victim;(e) any behaviour by the victim at any stage of the proceedings, both generally and in relation to the party;(f) any relationship (of whatever nature) between the victim and the party.(6) If the court decides that there are no alternative measures to prevent engagement which causes distress, the court must—(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party during the court proceedings, and(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.(7) Subsection (8) applies if, by the end of the period specified under subsection (6)(b), either—(a) the party has notified the court that no qualified legal representative is to act for the party during the court proceedings, or(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party during the court proceedings.(8) The court must consider whether it is necessary in the interests of justice for the party to be represented by a qualified legal representative appointed by the court to represent the interests of the party.(9) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to represent the party.(10) If the court appoints a qualified legal representative to represent one party, and the other party to proceedings is not represented, the court must consider whether it is necessary in the interests of justice for the other party also to be represented by a qualified legal representative to ensure a fair process.(11) If the court decides that it is necessary to appoint representation under subsection (10), the court must choose and appoint a qualified legal representative to represent the other party.”Member’s explanatory statement
These changes would give courts the discretion to prevent a perpetrator directly or indirectly engaging with a victim during family court proceedings, where such engagement is causing distress, and to appoint a legal representative to represent the perpetrator in court, if that is necessary to prevent distress to the victim.
Lord Rosser (Lab) [V]
My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.
These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.
As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.
Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.
In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.
The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.
Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.
Lord Mackay of Clashfern (Con) [V]
My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.
I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.
That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.
Lord Rosser (Lab) [V]
I again thank the Minister for his considered response, particularly his comments at the end, which clarified in my mind the basis of the Government’s lack of enthusiasm for the amendment. As the Minister has clarified, the Government do not believe that the terms of the amendment are needed because the issues raised are covered by other measures in the Bill or existing provisions. It is not a case of certain parts of the amendment not being particularly well worded or the wording leaving certain issues unresolved.
I thank all noble Lords who have spoken in this debate for their contributions. I particularly thank the noble and learned Lord, Lord Mackay of Clashfern, for adding his name to the amendment. Clearly, we will want to reflect further on what the Minister has said, particularly the reasons for not accepting the amendment—namely, that the issues raised are covered by other measures in the Bill and by existing provisions. We will want to reflect on that and then determine whether to bring this matter back at a later stage. I beg leave to withdraw the amendment.
Lord Rosser
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence, or(b) involved in ongoing criminal proceedings for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.”” Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Lord Rosser (Lab) [V]
Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.
The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
Lord Rosser (Lab) [V]
I am not quite sure what right of reply I have, since my name is not shown on the speakers’ list as being able to speak at the end of this debate. I do not want to test the patience of the House, so I had probably better keep my comments brief.
It was the expert panel set up by the Ministry of Justice which came to the conclusion that the presumption in favour of contact
“further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
I would add that my amendment does not prevent a court coming to the conclusion that, nevertheless, where there is domestic abuse, there should still be involvement with both parents. It is just that it would not start off with a presumption that it should be the case.
I will leave my comments there. I thank the Minister for his full response, and thank all noble Lords who took part in the debate. Bearing in mind that I am not actually shown as having a right to speak at the end, I had better conclude my comments by begging leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord was entitled to speak. He was just left off the list inadvertently.
Baroness Bertin (Con)
My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.
Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.
I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.
The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served
“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”
As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.
The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to be encouraged.
By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.
In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.
This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.
Lord Rosser (Lab) (V)
My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.
Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.
The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.