Domestic Abuse Bill

Baroness Mallalieu Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, during the Committee discussions last week, the noble Lord, Lord Wolfson of Tredegar, commented on how helpful the debate on presumed parental consent was, and I agree. I felt that I was back on “Moral Maze”; I was moving around the issue and considering it from all sides. As the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, made concrete for us that day, lots of issues thrown up by this proposed legislation are complex and nuanced moral dilemmas. It shows what a difficult task we have here in applying public law in what is usually the terrain of private and intimate relationships.

In some ways, though, that discussion on presumed parental consent focused our minds on the domestic core at the heart of this legislation. My concern is that this amendment shifts our focus away from that domestic core—although the previous noble Baroness tried to suggest that we should now broaden our understanding of “domestic”. It shifts our focus, broadens it too widely and potentially dilutes it. Do not get me wrong; when, at the end of the last Committee day, the noble Lord, Lords Marks of Henley-on-Thames, and the noble and learned Lord, Lord Garnier, spoke passionately and movingly—and we have heard similar testimony since—on the devastating impact of those reaping the bitter winds of recovered memory syndrome, which has been a dogma, sadly, I was cheering them on. I have been following the bitter memory wars since the 1990s, and consequences such as the satanic ritual abuse panics and various other panics. When that was a fashionable theory among trauma therapists, sections of social work professionals and some feminist academics, I argued against it. Now that form of therapy has largely been discredited by modern memory science, and is widely ridiculed, as it has been in this discussion, as pseudoscientific quackery.

I share noble Lords’ frustrations that the practice continues unlicensed and unregulated. I have no doubt that unethically encouraging vulnerable people to interpret their present woes through the prism of abuse, and then unethically planting false memories, is coercive. But my worry is that this amendment stretches the definition of coercive control, in the context of domestic abuse, too far. There is a danger, to quote a noble Baroness from an earlier Committee day, that this legislation will be seen as a Christmas tree on which everyone can hang a different preoccupation or grievance. That makes the definition so elastic that it can be a catch-all, and unintentionally relativises our gaze from the specific and discrete brutality of domestic abuse. I am already worried that this Bill has defined abuse far too promiscuously, and that it might well backfire and not help those it is intended to.

It is not just our focus—our gaze as legislators—that it will shift. How will it affect the police and criminal justice system if we label too many incidents as domestic abuse? Part of the popular frustration with the status quo is that serious incidents, threats or credible risks are not taken seriously, sometimes with tragic consequences. People go to the police and they are sent away. Surely what we do not want is for the authorities and the police to be swamped with endless numbers of complainants citing this Bill and a loose basis of the definition of coercive control, starting to make complaints.

I am all for dealing with, and exposing, the charlatans who call themselves counsellors, who play on the therapeutic culture and wo are only too willing to use the issue of abuse to push their own agendas with the consequence of destroying families. Let them be dealt with. I hope the Minister will look at how to deal with psychotherapists exploiting those who turn to them for help, but this is not the legislation to pursue that. So I will not be supporting the amendment, even though I cheer on those who wish to expose the charlatans.

[Baroness Mallalieu (Lab) [V]]

My Lords, on Wednesday, both the noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, put the detailed legal arguments for this amendment, and I have added my name to it as well. I shall not try to repeat what they said, but instead will say something that has, perhaps, been said by all bar the last speaker in this debate, which is that I strongly support this amendment.

As a nation we have been very slow to recognise the way in which the human mind can be coerced and controlled by unscrupulous people without the use of violence. I am not sure that until “The Archers” featured Rob Titchener in its storyline about marital coercive control, and gripped the nation with it, many of us would have been able to describe or recognise it on our own doorsteps. We have been even slower as a nation to recognise and enact legislation to protect those who are its victims in another category, namely those whose vulnerability, whether it is emotional or psychological, renders them a target for the bogus counsellors, the amateur psychotherapists and the self-styled life coaches, usually bent on profit, who may appear to be well intentioned but still often inflict real harm and damage on their so-called patients and their families.

This is not a new phenomenon. Unhappy people often search for explanations and cures, and the unscrupulous offer false promises of help and future happiness. They frequently obtain substantial amounts of money from them and very often, using transference, seek to replace contact with parents and families, sometimes by implanting false memories, which in turn often sever domestic relationships for life. As a pupil barrister in 1970s, I remember cases involving the Scientologists. I know the noble and learned Lord, Lord Garnier, remembers cases involving the Moonies. Domestic alienation was a common feature then, 50 years ago, as it is today with some of the quasi-healers operating in this country right now with impunity.

I personally am aware of one family whose adult daughter fell into the hands of just such people in London. They were paid substantial sums of money by her. Their methods involved repeated “counselling” sessions lasting six or seven hours at a stretch during which, exhausted, she was persuaded to sever all contact with her parents and her family. It took some years for them even to find her, and eventually get her back. She was one of the lucky ones. These people are untrained, unqualified, unregulated and damaging to the vulnerable on whom they prey. Yet our present law currently provides no adequate protection from their activities.

Our understanding and recognition of mental illness is, thankfully, advancing rapidly today. Yet we are only beginning to understand more about how the power of words, whether they are spoken directly or via the internet, can convince an otherwise intelligent adult to become a jihadi or embrace a coronavirus conspiracy theory and, in so doing, often damage and even destroy their closest domestic relationships. On this form of abuse, we have looked the other way for far too long. We have given protection, as the noble and learned Lord, Lord Garnier, said, to other vulnerable categories by law—whether they are children, the mentally ill or the elderly—and it is now surely time to add those who are at the mercy of these bogus healers.

The Government argument is often, “Yes, but it’s not right in this Bill”—but I do not see a better Bill on the horizon to deal with this particular lacuna in the law. I totally understand that members of a Bill team that has produced an excellent Bill, as this team has, will always be reluctant to look at a new amendment that may, they fear, perhaps alter the architecture of the Bill on which they have worked so painstakingly. However, I do not see any other way, in the near future, of tackling something that I believe has not only been overlooked for far too long but I suspect is likely to grow, particularly in these times when so many young people are searching for an explanation of why their lives have changed so drastically from their expectations.

I hope that the Minister will agree to take this amendment away, have a look at it with his Bill team and, hopefully, come back with a solution. If he did so, I believe that he would have support across the whole House.

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

My Lords, this important amendment seeks to include controlling and coercive behaviour by a psychotherapist or counsellor in the Bill.

The noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, clearly laid out the reality of very unscrupulous practices. When working as they should, psychotherapists are generally trained to work over a long period of time with more complicated mental health issues, whereas counsellors are generally trained to work in the shorter term with life issues such as bereavement and relationships—although in practice there is huge overlap.

A problem arises for the person whose world is in tatters, who feels at sea and is desperate for some help. How do they have any idea whether the person they have been referred to or had suggested to them to see is a charismatic charlatan or an excellent counsellor who will help them to restabilise their life? In this process, they are even more vulnerable than prior to the consultation—a vulnerability that is exploited by the unscrupulous and by sects, as we have heard. They go to speak to a stranger, often paying for the privilege, and as they tell their story, they reveal their vulnerabilities and are often retraumatised by remembering the abuse as they relate events. This is psychological intimacy, and the person is certainly profoundly psychologically connected to their victim.

As we have heard, only the titles “clinical psychologist” and “counselling psychologist” are professionally restricted and must be registered with the Health and Care Professions Council. By contrast, the terms “therapist”, “psychotherapist” and “counsellor” are not protected; courses in these subjects are unregulated and vary very widely, which leaves unregistered and poorly trained people wide open to engaging in controlling and coercive behaviours.

Reputable employers providing counselling services, such as Women’s Aid, will expect an employee to have undertaken professional training. Often membership of a relevant professional body, such as the British Association for Counselling and Psychotherapy, the UK Council for Psychotherapy or the National Counselling Society, is required to ensure continuing professional development and ongoing supervision to enhance practice. All these bodies stipulate certain standards and ethical codes.

Proposed new subsections (1) and (2) set out what constitutes an offence and emphasise that controlling and coercive behaviour can be both physical and psychological. However, given the lack of regulation, I wonder whether this important amendment sets too high a bar, even for registered and well-trained professionals.

Proposed new subsection (4) raises a concern for me, but I am sure that it can be sorted out. It states that it is a defence to show that, when engaging in the behaviour in question, the psychotherapist or counsellor was acting in the person’s best interests. Here I declare my interest as chair of the National Mental Capacity Forum. As your Lordships know only too well, the term “best interests” is laid out in the Mental Capacity Act.

If a person has capacity to consent freely to whatever is proposed, there seems no rationale to make a best interests decision for them, and no form of controlling or coercive behaviour would be in their best interests. The person must have had the capacity to be able to consent to the counselling session. If the person lacks capacity to consent to a particular decision at a particular time, that decision should be deferred until they regain capacity for that decision. If restrictions of any sort have to be put in place in a person’s best interests because they cannot consent to the proposal, a formal best interests decision-making process, as laid out in statute, must be undertaken. A deprivation of liberty safeguard procedure or safeguarding may be required. I am worried that this defence, as written in the amendment, actually lessens the safeguards of a vulnerable person. I am sure that that is not what it aims to do.