Domestic Abuse Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I should declare that I chair the Commission on Alcohol Harm. I added my name to Amendment 31 in the name of the noble Lord, Lord Hunt of Kings Heath, and the noble Baronesses, Lady Goudie and Lady Hollins. It is very welcome that the Bill will, for the first time, give local authorities a formal role in the provision of domestic abuse support. The voluntary sector has done a heroic job in protecting survivors, victims and their families, but this vital task should not be left to the voluntary sector alone.

The words of the Minister were welcome, reflecting her deep and sincere commitment to tackling domestic abuse. The government amendments recognise the need to ensure that regulation will meet need and are certainly to be supported. If I heard correctly, some of the additional finance will apply only to England. How will parallel community services be financially supported in Wales? Without that additional funding also coming to Wales, there will be a serious risk that women fleeing abuse will also have to flee Wales to get the support they need.

We must not ignore those outside refuges, some of whom are turned away due to their alcohol and substance-use needs, which makes them ineligible for support from their local authority. However, they still need support. The amendment of the noble Lord, Lord Hunt of Kings Heath, is needed in addition to the Government’s amendments. It would ensure that the necessary support is available and would support the whole scoping exercise without any discrimination. I really urge the Government to support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the new statutory duty on local authorities to provide safe accommodation-based services for victims of domestic abuse and their children is widely welcomed, but I am still sympathetic to the ongoing fears that this might mean local authorities simply redistributing funding away from community services in order to meet that statutory need. I welcome these thoughtful amendments and the discussion that focuses on protecting specialist community service provision. While I am still not sure whether this issue should be dealt with through legislation, it is very important that it has come up. I am minded to consider seriously Amendments 30 and 31 in particular.

However, there is one category of specialist services that I am worried the Bill has inadvertently not focused on: women’s domestic abuse services, whether community or accommodation-based, which are under threat. Ironically, council funding does not help. The Bill’s increase in funding and the new legal duty on councils will not resolve this issue. There seems to be some muddled thinking about how councils should deliver specialist services more broadly. I would appreciate it if the Minister would take that into account in this set of amendments or in guidance notes.

I declare a minor interest, in that I am a long-standing columnist for the MJ – for the uninitiated, the Municipal Journal. It has been eye-opening watching councils in recent years trying to negotiate equalities legislation in the context of new political trends such as gender-neutral policies. The Equality Act 2010 clearly protects single-sex exemptions that allow women to have legitimate access to women-only services and spaces: gyms, hospitals, changing rooms and, of course, crucial services such as Rape Crisis, women’s refuges and women’s advice services. The newly launched organisation Sex Matters notes that rules and explanations are now confused and controversies around gender identity mean that organisations can be reluctant to communicate their women-only services clearly, and, when they do, councils can use this against them. This needs to be clarified as we go forward; otherwise, all the good will will be undermined.

One example of the unintended consequence of fudging championing women’s refuges is how councils are interpreting equalities impact assessments. In the drive for more inclusive, non-gendered service provision that caters for the needs of all protected characteristics, women’s refuges are in danger of losing funding for not being inclusive enough.

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That was reassuring, but it is better to have it on record in the Official Report. Therefore, I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

First, I thank the noble Baroness, Lady Hamwee, for such clarity in raising some of my concerns. My enthusiasm for the Domestic Abuse Bill is somewhat muted by the worrying trend from the Government more broadly to use civil protection notices and orders to expand the coercive powers of the state, criminalising a greater range of behaviours without the bother of reaching the burden of proof of criminal law.

To be honest, I was surprised that those who usually speak up on civil liberties in this place seemed rather quiet on this, which is why I was glad to see this amendment. I know that the issue of domestic abuse is emotive and sensitive, and that we all want to do what we can to oppose it, but due process is important too, so I warmly welcome this amendment and thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for raising it.

It is a crucial amendment, because it aims to ensure that a criminal standard of proof is applied to a breach of a domestic abuse order. That is just not clear as the legislation is written. It seems an important protection for justice and the rule of law. The danger of any hybridisation of civil and criminal instruments is that criminal penalties can be given out without satisfying the criminal burden of proof, which means that someone can effectively be found guilty of a crime and labelled as a proven abuser without a legal test or representation. That feels far too subjective in the Bill, as it stands.

Of course, I understand that breaches of orders must have consequences. They are not just a piece of paper; they are not just there for show. The amendment seeks to clarify how the judgment of a “reasonable excuse” for a breach in the legislation, or that it was “beyond reasonable doubt”, is arrived at. It must be the role of the courts, but it is just not clear.

Dispensing with the criminal burden of proof can have some unintended consequences that are not in the interests of the victim either. Some campaigners fear that the police may choose to use breaches of an order as an easier alternative to proving charges for more serious criminal offences, such as assault or criminal damage. A lower threshold may imply that something has been done by the authorities—as it were, ticking a box—but perhaps more should be done. If the police go about choosing an easier tick-box solution, without the nuisance of gathering evidence that can be tested, that is a bad outcome, so we must ensure that order breaches are not used as an alternative to pursing criminal charges where appropriate.

It is also nerve-racking that some breaches of an order may be relatively minor and very far from criminally threatening to anyone, least of all the person the order is protecting. Some fear that alleged victims may be deterred from reporting breaches if that automatically criminalises their partner or their ex-partner, who might perhaps be the parent of their children.

The worry is that those who the Bill seeks to protect are being sidelined in the process and potentially disempowered. Their agency is potentially undermined by decisions taken by the police or third parties who can use breaches of an order to criminalise alleged perpetrators, regardless of what the victim wants or of however minor the breach. If that were to happen, the main loser would ultimately be due process. I therefore support this amendment wholeheartedly and look forward to the Minister clarifying this or reassuring us that this is not a way of avoiding a criminal burden of proof.

[Lord Paddick (LD) [V]]

My Lords, I want to go one step back and start with domestic abuse prevention notices. These can be given by a relatively junior police officer, despite what the legislation describes as a “senior police officer”—I was a police inspector at the age of 23—on the basis that he has reasonable grounds to believe that P has been abusive towards another person aged 16 or over to whom P is personally connected and reasonably believes that the notice is necessary to protect the person from abuse by P. If P breaches the notice, P can be arrested and must be held in custody before they can be brought before the court. That is a lot of power invested in a relatively junior and potentially inexperienced police officer, with serious consequences for P. A practical alternative might be to seek the authority of a magistrate, in a similar way that the police might seek a search warrant, which can be done at short notice, on a 24/7 basis. Did the Government consider such an alternative?

As my noble friend Lady Hamwee said, domestic abuse prevention orders can be made by a court on application, and must be applied for if P is already subject to a domestic abuse protection notice. The orders are made on the basis that the court is satisfied on the balance of probabilities, the civil standard of proof, that P has been abusive towards a person aged 16 or over to whom P is personally connected and the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

The order can be made in the absence of P, and it can impose a range of prohibitions and requirements. If P fails, without reasonable excuse, to comply with the order, he commits a criminal offence and can be imprisoned for up to five years. Normally an accused person is convicted of a criminal offence only if the offence is proved beyond reasonable doubt, and while I accept that a breach of the order might be so proved, the basis upon which the order is given is on the balance of probabilities.

When this House debated knife crime prevention orders, we discussed whether the breach of what is effectively a civil order, granted on the balance of probabilities, should result in a criminal offence, rather than a fine or a term of imprisonment for contempt of court without a criminal conviction being recorded against the perpetrator. In that case, the Government claimed that it was the police who said that a criminal sanction was necessary, rather than a civil penalty, in order for perpetrators to take them seriously. What is the Government’s reason this time?

As we discussed then, Parliament changed a similar regime introduced under the Crime and Disorder Act 1998 and the Anti-social Behaviour Act 2003, whereby breach of the civil order resulted in the criminalisation of many young people with no previous convictions for breach of an anti-social behaviour order or ASBO. Parliament replaced ASBOs with anti-social behaviour injunctions and community protection notices—a purely civil process—by means of the Anti-social Behaviour, Crime and Policing Act 2014.

On the basis of hearsay, potentially a malicious allegation, someone could be given a domestic abuse protection order, breach of which may result in a criminal conviction and a term of imprisonment. Can the Minister please explain why it is necessary for a criminal record to be created when there is a breach of the civil domestic abuse prevention order when it is not necessary in relation to anti-social behaviour injunctions and community protection notices?

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had to bring this amendment back on Report, because I did not think that the Minister accepted the issues in Committee. They are important: domestic abusers are being granted unsupervised contact with children as a result of an ingrained pro-contact culture. The Ministry of Justice’s own harm review concluded that “the dominance of contact” is seen

“as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings.”

Rather than seeing contact as a means to an end and weighing it up against all the harm and damage that an abusive parent has caused, it is seen as the end in itself, almost no matter what the cost. That is deeply harmful.

The debate on parental alienation on Monday showed just how embedded some of these ideas have become. Wanting to exclude an abusive parent can itself be labelled as abusive. Abusive men, in particular, falsely claim that abuse is mutual and reciprocal, and try to label the victim as a fellow perpetrator. As the Minister said on a previous group, an abuser will pursue their victim through the family courts to try to force contact with their child, not because they care, but because it is an extension of their coercive and controlling behaviour and their fury that their victim has managed to escape them. So, the abuse continues through the courts and then into unsupervised contact. More than a dozen children have been murdered by their fathers during unsupervised contact. Can the Minister please tell me what the Government are going to do to stop it?

[Baroness Fox of Buckley (Non-Afl)]

In my short time in this House, I have been hugely impressed by the fairness, clarity and reasonableness of the noble Baroness, Lady Jones of Moulsecoomb—that might be bad for her reputation—even when we have not agreed. However, in this instance, I am sad to say that I cannot find anything reasonable in this amendment, but it raises some broader issues about the Bill that worry me, so I will make those points.

This amendment effectively argues for denying the right to be a parent to anyone accused of the offence of abuse. In listing those who will be denied unsupervised access to their own children, we have those “awaiting trial”, “on bail” or

“involved in ongoing criminal proceedings”,

all of which—as anyone who knows anything about the criminal justice system knows—can involve months or years of one’s life. That would mean that innocent people, accused, are already treated as guilty.

Of course, we all want to protect children from any risk and, as the noble Baroness has illustrated, those horrifying stories of children being hurt or even killed, sometimes as revenge, are at the forefront of our minds, but I have two points. The amendment refers to ensuring the

“physical safety and emotional wellbeing of a child”.

Those are two distinct threats. The latter, at least, is difficult to pin down. I argue that being deprived of time with one’s parent, free from a court-approved third party, could also be the cause of considerable emotional distress for any child. It could be a recipe for the parental alienation that she mentioned.

Secondly, even the prospect or fear of a threat to physical safety cannot distort our sense of justice or lead to disproportionate or punitive measures in a risk-averse “what if?” scenario. It could too easily lead to the state unjustly alienating children from a parent who is accused but not found guilty. Surely, evidence and facts are key to establishing the level of threat. I note that the amendment would deny unsupervised contact

“pending a fact finding hearing”,

which makes a mockery of establishing facts and tears up any commitment to factual evidence as an important part of judging whether an accused parent can be trusted to care for or parent their children without third-party supervision.

I am even worried that this amendment argues that unsupervised contact would not be allowed for anyone with a “criminal conviction” for abuse. Granted, in this instance the evidence has been weighed and facts established, but consider the implications of this. This amendment would mean that someone found guilty of abuse perhaps when as young as 18 could find themselves, at the age of 38—by now, we hope, a reformed character in a different set of circumstances, maybe no longer drinking, on drugs or mentally ill, as we have heard today, or just shame-faced about their younger self’s abusive behaviour—still denied unsupervised access to their children. To be honest, that seems ungenerous, even barbaric and vengeful. It suggests that we are branding people found guilty as perpetrators with the letter “A” for abuser, for ever.

We also heard earlier that one can gain a criminal conviction for abuse by breaching a domestic abuse order. That breach might be for a relatively minor offence. I worry that aspects of this amendment encourage a lack of perspective and a disavowal from making judgments of different threats. The Government continue to stress that they do not want a hierarchy of abuse or harm—we have just heard the Minister discuss that—but this can lead to a muddle when it comes to parental contact. I want to discourage a lazy, one-size-fits-all approach. When considering risks to children, there is a distinction between, for example, the perpetrator of regular, systematic violence or coercive control and the particular emotional or psychological abuse that one partner might inflict on another in a toxic relationship. The latter may be worse than horrible if you are at the receiving end of it, but it may never be aimed at or even witnessed by children.

To conclude, I urge the Government to maintain the presumption of parental contact. It should be curtailed or removed only with great care. That does not mean putting children at risk, but it means holding justice dear.

[Baroness Butler-Sloss (CB) [V]]

My Lords, I entirely agree with the noble Baroness, Lady Fox. I recognise the good intentions of the amendment, but I am concerned that it is too rigid. As I know from my judicial experience, not all situations are black and white. As I said at some length on a previous occasion on Report, judges and magistrates will get specific training on the Domestic Abuse Act, but the effect of this amendment would deny them important judicial discretion.

I am particularly concerned about that because proposed subsection (2D) in the amendment says:

“Evidence of domestic abuse may be provided in one or more of the forms accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”


As the noble Baroness, Lady Fox, pointed out, that means that a decision is taken that generally a father, but sometimes a mother, would be forbidden unsupervised contact based on the information provided by one party and before the fact-finding decision had been made by the judge. Although I understand why the amendment has been put forward, I am not prepared to support it.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was rather surprised to discover that the Government have accepted this amendment. The disclosure of sexual photographs and films is egregious and abusive, but I am not convinced that primary legislation is the place to criminalise threats to disclose in this way. I seek clarification and reassurance from the Minister.

I am concerned about the elision between speech and action. Angry words exchanged in the height of relationship break-ups, for example, might now be taken as literal and on a par with action. Domestic abuse is not the same as domestic arguments. These arguments can be verbally vicious and intemperate on both sides. When intimate interpersonal relationships turn sour, there can be a huge amount of bitterness. Things are said and threats made in the heat of the moment. I do not understand why primary legislation should be used to criminalise these things.

Of course I understand that a threat, or a continued threat, to expose intimate images of the most personal nature can be abusive—it may not be, but it can be. However, if it is abusive, I do not understand why it is not covered by the ever-broadening definition of abuse in this Bill. If the threat was used as part of coercive control—for example, “I will publish these photos unless you do whatever”—would that not be captured by the coercive control provisions of the Bill?

The amendment notes that, for a person to be,

“charged with an offence...of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove … that the photograph or film referred to in the threat exists, or … if it does exist, that it is in fact a private sexual photograph or film.”

This feels like a dystopian, post-modern removal of actual abuse into the absurd world of virtual threats, relating to non-existent artefacts and images. I do not understand why this specific form of threat needs to be in the legislation.

I will give a couple of examples of similar threats, even though they are not of images, which were definitely intended to cause distress. One person I know years ago threatened her partner that she would reveal details of some of his more dodgy tax goings-on about which she, as his wife, knew. If she had done as she had promised, and posted them on Facebook, it would have been very embarrassing. It would undoubtedly have been an incredibly distressing breach of privacy. It was being used as leverage in an alimony and custody battle, but it was just a threat.

In another instance, a husband threatened that he would show his estranged wife’s mother and her friends private letters to her then lover, and expose her secret affair. Those threats were horrible, but should they be illegal? I am just worried that such grim threats can sadly be used but then never acted on and, as such, should surely have no place in the law courts. In both examples, the threats were never acted on. One couple separated amicably in the end. The other couple reconciled and are happy to this day.

I understand the modern world, online tech issues and the images we have been discussing. But I am worried about the threats point. Should threats be elided with action in this way, or will we potentially criminalise speech? This is a dangerous, slippery slope.

Finally, I am concerned that this could give a green light to more and more offences being considered in need of official intervention, investigation and prosecution. The police could potentially become overly preoccupied and drowned out with complaints of threats, rather than focusing on pursuing the properly egregious examples of abusive actions, such as publishing the said images.

[Baroness Hodgson of Abinger (Con) [V]]

My Lords, Amendment 48 is in my name and those of my noble friends Lady Morgan and Lord Wolfson, and the noble and learned Lord, Lord Judge. I will also speak to the other amendments in this group. I congratulate my noble friend Lady Morgan on moving Amendment 48 so ably.