Domestic Abuse Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[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.

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.

As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.

In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.

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[Baroness Newlove (Con) [V]]

My Lords, I support measures to improve the safety of family court proceedings for survivors of domestic abuse and their children so will use my time to speak to Amendments 132 and 135.

Amendment 135 would offer victims of domestic abuse transparency about their right to appeal in the family courts. It would not introduce a new right to appeal; rather, it would make victims aware of the existing rights that they can exercise. As someone who has navigated the justice system, I can attest to how overwhelming and disempowering it can be. Basic information about the most fundamental rights is often not communicated properly. In fact, it is never known until many years later. This is particularly worrying when there are time limits on accessing rights, as is the case with appeals in the family courts, where you have 21 days unless the judge has specified otherwise.

These issues are only deepened when you are without legal representation. Following legal aid reforms in 2013, most private-law children cases now involve at least one litigant in person. Research has shown how the challenges of self-representation are particularly pronounced in cases involving domestic abuse, a fact reflected in the Ministry of Justice’s harm panel report. Indeed, I have heard from many survivors of domestic abuse who have represented themselves in court and have felt that their abuse was dismissed or misunderstood and that the fact-finding procedures, such as practice direction 12J, were not followed. None of them was aware of their right to appeal.

The Court of Appeal has recently heard evidence from four linked cases and will consider the family court’s approach to domestic abuse. During these proceedings, the President of the Family Division, Sir Andrew McFarlane, noted his surprise that systemic issues have been identified with how the courts handle domestic abuse as so few cases are appealed. Many factors will inform a decision to appeal, including financial limitations and emotional strain. However, from the survivors of domestic abuse whom I have spoken to, it appears that one of the biggest factors is the lack of awareness that such an avenue is available to them. The President of the Family Division has been clear that the appeals process is the correct mechanism for examining the courts’ approach to domestic abuse. This amendment would help that to become a reality on the ground.

Amendment 132 would place a duty on courts to share information about proceedings involving the same victim. It is something that we know should happen, but unfortunately it often does not. Again, I point to the Ministry of Justice’s harm panel report and the recurring issue of the family courts not adequately managing risk. The report specifically acknowledged the courts’ failure to identify abuse through repeated court applications. The criminal courts can often offer crucial information that would give family judges a clearer picture of risk in a case—for example, where protective orders, such as restraining orders or non-molestation orders have been granted. The Suzy Lamplugh Trust recently estimated that 38% of its domestic abuse and stalking casework clients who are in the family courts have some form of protective order—a restraining order, non-molestation order or stalking protection order—against the perpetrator. Equipping judges with this information would support them to better identify abusive dynamics and provide some contextual evidence when suspected repeated and vexatious applications are being made.

The second half of the amendment is designed to address these repeat applications. While barring orders technically exist to allow intervention on such behaviour, the reality is that they are rarely used. The Ministry of Justice’s review heard evidence from a specialist organisation which was not aware of any barring orders being made in the child sexual abuse cases it had supported, even when there had been a conviction and the abusive parent had made multiple applications for child arrangement orders or variations. In the Government’s implementation plan, there was a commitment to urgently review the use of barring orders and to consider them for inclusion in this Bill, so I ask my noble friend for an update on this commitment.

[Baroness Hamwee (LD) [V]]

My Lords, I feel slightly embarrassed to be coming in ahead of the noble Baroness, Lady Helic, who has her name to one of these amendments. I look forward to hearing what she has to say.

I think—and I apologise if I have this wrong—that on Monday it was said from the Government Front Bench that refuge addresses were never disclosed. We need to allow for human error and human ingenuity. We have previously touched on how many victims have moved away from their home area in order that their whereabouts will not be discovered but, as we have also heard, abusers can be determined. So much of the issue is about power and control, so it is not difficult to see that an abuser might do everything to track down a victim. The noble Baroness, Lady Bertin, referred to the prevalence of stalking. Knowing that a victim has moved to a refuge must be a red rag to some bulls. The dangers are not only to the victim of that abuser but to other occupants of the refuge. I am aware of situations where others have been endangered, including the children of the occupants, as well of course as the children of the victim and of the abuser, themselves victims. What must a child think when they are uprooted by Mummy, told that they are going somewhere where Daddy cannot get at them, and then Daddy appears? The noble Baroness, Lady Bertin, also referred to the horror stories on which I have been briefed.

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This amendment is supported by the domestic abuse commissioner, who is in situ at the moment, the Victims’ Commissioner, women’s NGOs and, it goes without saying, the many organisations that have ever dealt with a case where a woman has killed after years of abuse. That is rare, yes, thank God, but we have to make sure that justice is available to those women too. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, I do not know whether the noble Baroness, Lady Kennedy, was intending not to speak to her next amendment, which is grouped with this one, but perhaps I will, though it will not be as good a speech as she would have made. This is another group of amendments that I would say seeks to apply up-to-date thinking to bring the law up to date. I am pleased to have been able to add my name to the noble Baroness’s amendments because I always want to be on the same side as she is; I think her middle name must be “Indefatigable”.

Parliamentarians learn from experts by experience. I think we have used that phrase already today. That does not mean being uncritical or bringing a hearts-and-flowers sentimental approach to things but being open to really listening to experiences. We are lucky to have in this House experts with another sort of experience—the lived experience of applying professional expertise in acting for clients—so they have a well-informed perspective. Clearly, the Minister who will be replying—he is not being given much time off today—to yet another group of amendments has been applying his own expertise as well as having his brief. It has been very refreshing to listen to him.

Section 76 of the Criminal Justice and Immigration Act 2008, which would be amended by Amendment 139 is—it says so in terms—intended to clarify the operation of the common law defences of self-defence and defence of property. Those two were very closely linked in the minds of the public in the reaction to reports of Englishman Tony Martin defending his castle. This brought about the householder defence but it is, in fact, just about self-defence, and so is this amendment, although one might substitute the notion of home as a haven rather than as a castle, as it was referred to in the Martin case. The amendment uses Section 76 to address whether the degree of force is reasonable in the circumstances but—or maybe “and”, as in the householder case—does not allow force which is “grossly disproportionate” in the circumstances as the person using the force believes them to be. This is why this is so much a matter of bringing the law into line with up-to-date thinking about domestic abuse, in particular coercive and controlling behaviour.

We have already debated, and will go on to debate in other amendments, the impact of such abuse on the whole person. It is a traumatic response that goes far deeper than a black eye “because I walked into a door, silly me”. I am not going to repeat the amendments and arguments that we have already heard today, because noble Lords will hear them in the context of the days of debate—we have had several days of debate—on this issue. My relative brevity on this amendment does not mean that I support it any less strongly.

I turn to Amendments 140 and 145. Amendment 145 is very long but is, if you like, consequential on Amendment 140. This is modelled on the statutory defence in the Modern Slavery Act, which recognises that a perpetrator may actually be a victim of modern slavery. In this amendment, the compulsion to commit offences is attributable to being a victim of domestic abuse and having no reasonable alternative. The provisions are adjusted for those under 18. Similarly, this amendment uses up-to-date thinking about what drives a woman—it is usually a woman—to offend. I cannot read my writing. I have written “significant”—I hope I am not leaving out a significant point.

The Modern Slavery Act defence was in the independent review of the Act, whose findings were accepted by the Government as striking the right balance between protecting victims and, in that case, preventing opportunistic misuse. There was careful consideration of the reported difficulties in disproving the defence to the criminal standard, but the review panel was satisfied that the jury system which applied was appropriate. The Government said they would keep this under review, as they should.

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[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

[Baroness Hamwee (LD) [V]]

My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?

The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.

Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.