Disabled People: Medical Records

Debate between Baroness Burt of Solihull and Lord Keen of Elie

Tuesday 7th February 2017 Lords Chamber

[Baroness Burt of Solihull]

To ask Her Majesty’s Government what assessment they have made of the use of medical records of disabled parents in child custody cases.

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

My Lords, the welfare of the child is paramount in court decisions about a child’s upbringing. As well as any other matters, the court can take into account the medical record of a parent with disabilities if it considers such evidence relevant to the case. Judges must act in accordance with the principles of the European Convention on Human Rights, including those relevant to preventing discrimination on the grounds of disability.

--- Later in debate ---

[Baroness Burt of Solihull (LD)]

My Lords, I am sure that noble Members will all agree that the welfare of the child must be paramount, but many disabled parents feel that they are unfairly discriminated against in child custody cases. Some fear visiting the doctor in case the use of their medical records in court might contribute to their being designated unfit parents. The Equality Act is silent on this matter, so will the Minister consider adding a clause to the Act to clarify the situation and to reassure disabled parents that they will be fairly treated in the family courts?

[Lord Keen of Elie]

I am obliged to the noble Baroness for her observation, however I fear that some confusion has entered the debate around the issue of discrimination. The Equality Act 2010 deals with the issue of discrimination on the part of individuals. Judicial decision-makers are exempt from the provisions of the Act on very reasonable grounds; however, any judicial decision-maker is bound, in any event, by the provisions of Articles 6, 8 and 14 of the European Convention on Human Rights, and is therefore bound never to discriminate against any party on grounds of disability.

Family Court

Debate between Baroness Burt of Solihull and Lord Keen of Elie

Monday 9th January 2017 Lords Chamber

[Lord Keen of Elie]

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

[Baroness Burt of Solihull (LD)]

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

[Lord Keen of Elie]

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