Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I support Amendments 33 and 34. I have been asked by the noble Lord, Lord Low of Dalston, to present his apologies as he is unable to be here to take part in this debate. I will also speak to other specific amendments that are in my name.

Of course I recognise the need to save money, but equally we must remember the importance of the paramountcy of the welfare of the child in family cases, as set out in Section 1(1) of the Children Act 1989, which is still good law. My amendments are all practical and based on practical and personal experience of how family cases work. In this part of the Bill there is a real danger that the welfare of the child may be downgraded and even overlooked if these amendments and subsequent amendments that affect children are ignored by the Government.

Amendments 33 and 34 show how children are affected by civil and family law proceedings, either indirectly or directly, and recognise that children have separate interests to their parents—it hardly needs to be said that they are obviously far less well equipped to represent themselves and their interests. There is a serious gap that will, from time to time, need to be plugged.

Amendments 33 and 34 refer to one group in particular: children who are involved in immigration proceedings. There are five possible situations that may affect children on immigration issues: they may be facing separation from their parents because of a decision to remove a parent where the child has British citizenship; they may be facing separation because of a decision to remove the child from the United Kingdom although the parents may be here; children who are refugees or whose parents are refugees may be unable to join or be joined by their parents; or they may be unaccompanied asylum seeker children applying for an extension of discretionary leave to remain. I shall deal with victims of trafficking who are also covered by immigration issues under Amendment 61A.

I will move on to Amendments 39, 40 and 41, to speak about child abduction both internationally and in England—or in the United Kingdom. I am sure that the Minister will know that children who are abducted from one part of the United Kingdom to another country outside the United Kingdom will almost always come under the international Hague convention, because some 90 countries support it. However, internal child abduction also arises on a regular basis and is an equally important risk in parental disputes. To my dismay, there appears to be no provision to support the children and the parent who has lost the child through child abduction. Ninety-one per cent of the members of Resolution, the family law solicitors, say that abduction is a real risk in the cases which they and their clients are dealing with.

I shall cite a case which was referred to earlier this evening by the noble Baroness, Lady O’Loan—she dealt with Belfast and Barnstaple, while I have Cornwall and Cumbria, but it is all exactly the same story. If a child is taken from Basildon to Belfast—which is in fact under a different legal system, but within the United Kingdom—or indeed from Cornwall to Cumbria, where it is the same legal system, there is a very real danger that that child may never see the left-behind parent again, and the left-behind parent will not have the chance to look after and take an interest in that child.

It is absolutely crucial that the left-behind parent gets to the court quickly, to get the relevant orders to know where the child and the parent—usually the mother—are living, and to get orders for the child to be returned to its home. It is necessary to make immediate and urgent applications to a judge. However, there is no provision for this, although there is provision, as there has to be, under the Hague convention. Amendment 41 deals with the various orders that are required to be made for the left-behind parent to get to the court. I hope that this is inadvertent on the part of the Government. I hope that they have simply overlooked this particular specialist form of family law, where the child is seriously at risk in most cases if she or he does not have a chance to retain a relationship with the father.

Amendment 42 is rather specialised; it refers to cases where a vulnerable adult—often a woman who has been badly treated by her partner—goes to court for a protection order, and has to face the man who she says has been abusing her, and who will be cross-examining her. It is an extremely unsatisfactory situation, and for the woman—or occasionally the man—who is the victim to have to be cross-examined by the alleged perpetrator, is a form of extra abuse.

I move to Amendment 51, which is, if I may respectfully say to the Minister, particularly important. It deals with the issue of mediation. I am totally in support of mediation. It is the most sensible arrangement you can possibly have as far as it goes. However, the Master of the Rolls, the noble and learned Lord, Lord Neuberger, gave an interesting lecture some time ago in which he criticised the Government for treating mediation as the panacea for all ills, pointing out that it only went so far. Indeed, it does only go so far. I am totally supportive of the good intentions of the Government on mediation. However, Resolution—I come to it again—assess that 41 per cent of its cases are incapable of mediation. There are occasions when the mediator throws up his or hands in horror and says, “I cannot possibly mediate in this case”. It is perfectly obvious that forced mediation is no mediation at all.

Perhaps I may respectfully say that the Government have failed to take on board that there is a group of parents who for a variety of reasons—including drink, drugs, mental health issues or, if I can use the phrase, sheer bloody-mindedness—will not agree to anything. Over the years I tried those cases again and again. The only way that we ever got the chance of a settlement or a proper, sensible outcome, as the noble and learned Baroness, Lady Scotland, will also say, was by two lawyers banging the heads of the parents together. For some of those intractable cases, they got a result. Collaborative law is another way of getting such a result.

I will not go through Amendment 51 at this hour, but I would ask the Minister to look at each paragraph of the amendment for the circumstances in which it would be the mediator and not the parties who would say, “This case is not fit for mediation. It needs to go to court and it needs lawyers”. I make no apology for reminding the Minister that the welfare of the child is paramount. In these cases, it is the child who suffers.

I am sure that the Minister is aware of the Norgrove report on family law. In that report emphasis was placed on that very narrow line between public and private law where risk to the child overlapped the two. How on earth will the judge deal with the really serious risk factors where two parents are unfit to make sensible decisions about what should happen to their child; where social workers cannot be brought into the case if they do not agree and judges do not have the power to make social workers start care proceedings; and where guardians are not all that easy to find? CAFCASS is doing an excellent job these days but it is at the limit of its ability to cope. If judges feel that the lawyers are not there to try to settle the case and deal with the worries and needs of the children, he will have to bring in a guardian, which will cause an enormous delay and the child will suffer.

I should like the Minister to take on board the fact that parents are creating the problems. They are not solving the problems, and they are not able to solve them without a combination of the judge, the lawyers and, often, the guardian. In the absence of lawyers, I do not know how this group of private law cases will manage.

As to Amendment 51, there are also situations where one parent—very often the mother, often for no good reason—refuses to have contact with the other parent and absolutely refuses to turn up to mediation. The mediation would not get off the ground and the case would have to go to court. The child is being deprived of a parent and, without lawyers, the judge would have great difficulties. That is quite apart from the point made by the noble Lord, Lord Howarth, on the clogging-up of the courts. I know from my experience that a case involving two litigants absolutely intending to fight would not take less than a week. Absolutely rightly, the Government are keen to speed up public law cases. They are very keen to get adoptions dealt with quickly. Private law cases will clog the courts to the exclusion of public law and adoption cases.

Finally, Amendment 52 deals with the potential cross-examination of the child by a parent. Where the child is making allegations about the way in which the parent has behaved and there is no legal aid, the parent against whom the allegations are made may find himself cross-examining his own child, which is another form of abuse of the child. It would be extremely serious if that took place. I ask the Minister to reflect on these situations—which are not intended to open the floodgates, but intended to deal with specific problems that are very real and cannot just be ridden over as if they do not matter.

--- Later in debate ---

[Lord McNally]

That is always the problem. If you say that one thing is more difficult it is implied that the others are easier. No, I was not implying that. I take the noble and learned Baroness’s point. One of the more difficult areas is where there is a break-up of a family and a loss of contact. I shall read what has been said and take it back.

[Baroness Butler-Sloss]

Perhaps I may add to what the noble and learned Baroness, Lady Scotland, has said. I have listened with interest to what the Minister is saying to us, but he suggested that the police would intervene even without going to court. Will he check as to whether the police are prepared to act in the absence of a court order? My experience, which is now six years out of date, was that the police were not prepared to act unless there was a court order. It would be very helpful if the Minister could find out about that very practical and basic point because it adds a great deal of force to what the noble and learned Baroness, Lady Scotland, has said.

[Lord McNally]

I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.

Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.

Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.

The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.

However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.

Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.

The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.

That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.