Victims and Prisoners Bill

Baroness Brinton Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

Limiting these provisions to rape victims may mean that these amendments can only be a start, but they are a start in the right place, and they may point the way towards the change we all seek.

[Baroness Brinton (LD)]

I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.

I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.

A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.

Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?

I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.

From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.

[Earl Howe (Con)]

My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.

I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.

To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.

The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.

My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.

When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.

Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.

Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.

Amendment 106 seeks to revise current data protection legislation, so that victims of malicious complaints involving third parties can prevent the processing, and subsequently request the deletion, of personal data gathered during a safeguarding investigation where the complaint was not upheld.

It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.

Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.

I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.

I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.

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[Earl Howe (Con)]

The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.

[Baroness Brinton (LD)]

May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.

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[Baroness Brinton (LD)]

My Lords, it is a pleasure to sign all the amendments from the noble Baroness, Lady Chakrabarti, in this group. I will not go through the detail of them, but I want to make a couple of comments about Jade’s law and parental alienation to set in context why all the amendments are necessary. They certainly try to remedy the poor behaviour of ex-partners especially, but not only those, who are offenders through the criminal courts system. As we have heard through the passage of the Bill, we are talking about the most manipulative and vindictive people, who will continue to do everything they can to persecute their ex-partner or, I am afraid, sometimes their current partner.

The noble Baroness, Lady Chakrabarti, referred to the report from the Ministry of Justice’s harm panel published in 2020. It found evidence that through the family court system abusers were exercising

“continued control through repeat litigation and the threat of repeat litigation”.

Its recommendations outline comprehensive changes to the system to stop this happening using a whole series of mechanisms.

Among other things, the panel recommended that the basic design principles for private law children’s proceedings should be set out in the way it described and which I will not go into. Much more importantly, it seems to be safety focused and trauma aware. The problem with the offenders we are talking about is that those children are already traumatised.

Although the report was principally about children, it talks about parents in private law cases as well. One problem faced in family courts is the increasing number of litigants in person. It is not even a counsel representing one of the parents; it is the estranged partner, who may have a criminal record for their behaviour, cross-examining their ex and other witnesses. That is just not appropriate. I know the law has changed on that, but that is the context in which the report was written.

The Minister referred in a previous group to the importance of training, and indeed we have had amendments on that. Recommendation 11.11 by the harm panel echoed amendments that your Lordships’ House has seen in recent years, on training in the family justice system to cover a

“cultural change programme to introduce and embed reforms”.

It then goes through a whole string of items which I will not mention, but it specifically mentions the problems of parental alienation.

Prior to that report, it was very difficult to get the family courts even to accept that there was such a thing as parental alienation—the noble Lord, Lord Ponsonby, has nodded at me. The Domestic Abuse Act 2021 certainly made some improvements, but unfortunately the reason for these amendments is that there are too many holes in the current system that mean that victims going through private family law proceedings can be inappropriately assessed by experts, with some inappropriately concluding that victims’ allegations, including those made by children, are evidence that the victim parent is “alienating” the other.

The victim parent often cannot get the family court to consider the previous criminal behaviour of their former partner or even a caution—I suppose that technically counts as criminal. The point is that—and we have debated this a lot in your Lordships’ House—the family court rightly prides itself on being a stand-alone court system, but in this instance the behaviour that was found through the criminal system is now replicated in the family court system; it is not everywhere but it happens. Family courts need to recognise that and take it into account.

There is recognition now of what is called the “parental alienation trap” in academic research both here and in America. Basically, it means that victims are accused of alienation. Not only does that compound the trauma from the abuse but that trauma is then used as evidence that the mother or child—and it usually is a mother—is disordered and therefore an alienator. That is a trap that you cannot get out of in a court, because whatever you do is wrong.

A further problem is that some parents who are calling their former partners disordered can now get specialist advisers who believe in parental alienation. One bit of evidence from the Victims’ Commissioner for London was a quote from a victim of the family courts:

“The therapist recommended a 90 day plan for my son to spend time with his Dad with no contact with me. She wrote in her report that there was a need to ‘sever the bond between mother and child’. The ‘experts’ then had free rein granted by the judge to force me and my son through privately paid therapy every week at £150 per hour. The therapists and social worker told me if I didn’t, they wouldn’t give me my son back. They wanted to take him away at the end of 90 days and give full custody to my ex but my ex refused as he said ‘I had learnt my lesson and he had a life and didn’t want my son all the time’. I was one of the lucky ones. I had to fight this case for over 2.5 years and it cost me a total of just under £900,000”.


People who have access to resources are using their money to manipulate the family court system even more.

It is also extraordinary that it is possible for those on bail or awaiting trial for domestic or child sexual abuse offences to have unsupervised contact with their children. Amendment 111 would prevent this. For similar reasons, victims of domestic abuse need protecting from disclosure of their personal and private medical records, as we discussed in the previous group. I will not repeat the arguments, but they are as strong here, particularly where the litigant in person will see those details in all their glory.

While we welcome the Government’s amendment to Clause 16 in the Commons to take account of Jade’s law, it does not go far enough to protect children, particularly children who have been abused by a parent—unbelievably, they retain the right to parental responsibility above the safeguarding of a child. Amendments 84 to 100 on Jade’s law also cover the issue that happened with Jane Clough, who was murdered by her ex-partner. I had the privilege through the stalking law inquiry in 2011-12 to meet Jane’s parents, John and Penny Clough. Ever since their daughter’s murder, they have campaigned tirelessly for legislation to protect victims and their children from their violent and murdering partners and ex-partners.

It is really important that these lacunae in the family court system are closed. We need to make sure that children, whom the family courts stand there to protect, are the absolute priority and that every bit of evidence from the criminal court system or other systems, through repeated litigation through the family courts, is taken into account.

[Baroness Newlove (Con)]

My Lords, I support all these amendments. As Victims’ Commissioner, I have been in contact with many victims who have experienced criminal offending and are going through the family courts. I have raised concerns about how, as I hear from victims of domestic abuse in particular, the family courts can be a highly traumatising environment. Anecdotally, from someone who has worked in family law, I hear that you have only to go into the family courts to see how private they are. You cannot even walk freely. The barristers take over and you go before the judges. It is very clinical at an emotional time.

I was pleased when this was acknowledged by the Government, which resulted in the harms panel report, as has been discussed. I was also pleased that the Government legislated through the Domestic Abuse Act, in which I was heavily involved, to prevent perpetrators of domestic abuse cross-examining their victim in family court proceedings. However, we still have issues within the family courts for victims of abuse. As has been said, parental alienation has been increasingly argued in the family courts and even on social media when you speak out about it. It is interesting that we are talking about it in this Chamber to protect those victims. I am aware of cases where it has been used by an abuser to discredit their victim in child custody hearings. I was also shocked to discover that so-called experts in these cases are not always qualified or regulated to provide such opinions, and yet weight is frequently given to the evidence in court.

As we have just heard from the noble Baroness, Lady Chakrabarti, abusers will often try to paint the abused parent as unfit in other ways, sometimes relying on medical records which detail evidence of the mental effects of trauma that they have caused. In fact, I would like to see that put down to coercive control by the abuser, rather than the victim having problems. We have to back up these claims for mental instability. It cannot be right that an abuser can go into a family court and use it as a tool of abuse. Therefore, I am wholly supportive of the measures to reduce the opportunity for an abuser to make false claims about their victim, and which seek to ensure that only qualified experts give evidence which is considered by the family courts making these difficult decisions.

I urge the Government to support Amendments 110 and 117. Although it is relatively rare, thankfully, we know that children die at the hands of an abusive parent during unsupervised contact, where abuse is a factor in the marriage breakdown. Research conducted by Women’s Aid considered the deaths of 19 children in such circumstances in a 10-year period—even one such death is too many and no children should be at risk in this way.

I urge the Government to support Amendment 111, which seeks to prohibit unsupervised contact for a parent awaiting trial, or on bail for domestic abuse, sexual violence or child abuse-related offences. The Government first proposed legislating to create Jade’s law after campaigning by the family of Jade Ward, who was killed by her former partner. This law seeks to, in effect, remove the parental rights of someone who kills their child’s other parent—a move I welcome. However, it does raise concerns about what it means for women who kill an abusive partner. Are we really saying that they should automatically lose their parental rights, as well as being imprisoned? I am in favour of measures which seek to mitigate the effect of Jade’s law in such circumstances being included in legislation. I therefore ask the Government to support Amendment 89.

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[Baroness Fox of Buckley (Non-Afl)]

Yes, I said the other day in speaking to my amendments, I hope everyone accepts, that more women are the victims of domestic violence, but it is also the case that it can work both ways. I would like each allegation to be carefully examined by the courts; that is all. It needs to be that way, because we should have the aspiration that both parents should work to restructure the family in a healthy manner after separation, even after the massive disruption of domestic abuse. In the spirit of saying that I want people who commit certain crimes to become rehabilitated and to become responsible citizens, I do not want something that is so blanket as Amendment 82.

[Baroness Brinton (LD)]

The argument that the noble Baroness is expanding on now would be a case where a couple had separated and there may have been some domestic abuse or domestic violence. She is saying that they should both have the opportunity to try and get together and work things out together for the sake of the children. I do not believe there is anybody in your Lordships’ House who would disagree with that sentiment, but that is not what this amendment is trying to do. It is saying that, when the charge of parental alienation is used, it is almost demonstrating—simply by using the terminology and everything that goes with it—that the battle by one party still continues against the victim. Therein lies the problem. The noble Baroness’s latter principle is absolutely fine, but that is not the way that the people who bring forward claims of parental alienation behave in the court system.

[Baroness Fox of Buckley (Non-Afl)]

My only final point is to say that the term “parental alienation” has become problematic on both sides. It seems to me that one side can use the term “parental alienation” in the way that has been described—I have made the point that the term is used in the amendment—and another side can basically say that anyone who uses the term “parental alienation” does not understand the problems of victims of domestic violence, which is usually the accusation, as is that they are on the side of men’s rights campaigners. I am not saying any of that. I want some clarification on one amendment only of this very big group, because it is unhelpful to put it in the law.