Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Scotland of Asthal Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Shackleton of Belgravia]

I shall speak in support of the noble and learned Baroness, Lady Butler-Sloss, in particular on Amendment 41, which deals with child abduction. I saw the Minister wave his white hanky, which I hope is a sign of peace. If we are to look after what is in the paramount interest of a child, in most circumstances, that means contact with both parents. In the absence of legal aid, the parent who does not want to have contact effective—who wants to frustrate contact—will simply up sticks and go off with the child. If that happens, it is extremely important that measures are taken instantly to return the child because, if not, the child will become accustomed to living in the place to which it is abducted and it will be much more difficult to get it back. Absence of legal aid will encourage people to do that, which is of great concern.

[Baroness Scotland of Asthal]

My Lords, the Minister has had a powerful display of the House’s feeling on these matters. It is of note that not one person has spoken during Committee in support of the Government's position. Perhaps that is not surprising. When we consider issues that refer to children who have not been responsible for poor conduct but have found themselves in difficult and painful positions, the House has always spoken with one voice to protect the child and ensure that their rights are upheld. That is something that all sides of this House have always agreed and acted on in unison. I, for one, am not surprised that we have had powerful speeches from all Benches about the paramount interests of the child and the need to ensure that legal advice and support is available.

If the Government's proposals succeed, as the House knows, they will mean that more than 210,000 fewer private family cases will qualify for legal help; 45,000 fewer private family cases will qualify for legal representation; and 68,000 children will be affected by legal aid being removed for family contact and finance disputes. The noble and learned Baroness, Lady Butler-Sloss, spoke about the importance of family contact, as did the noble Baroness, Lady Shackleton.

The reason that there is unison on that issue is that any noble Lord who has participated in family cases knows the difficulty that such contact cases promote. Of the 68,000 children who will be deprived of legal aid, the majority fall within the poorest sector of society, because 95 per cent of those in receipt of civil and family legal help are in the bottom income quintile. That means that they are most in need of help, support and succour. The social implications are considerable. Fifty-seven per cent of the members of Resolution who were surveyed believe that parents risk losing contact with their children in at least half of its cases. That amounts to more than 4,000 children according to the lawyers surveyed alone.

The rise in the number of litigants in person for whom mediation is unsuitable and legal aid is unavailable will add more pressure to the court system, which is facing the closure of 40 per cent of courts. Ninety-nine per cent of those asked said that cases take longer when parties represent themselves, and the noble and learned Baroness, Lady Butler-Sloss, gave graphic examples of what will happen when a case takes a week. At the moment, more than 90 per cent of private family law cases are settled. The 10 per cent which go to law are the most intractable and most difficult.

Family law is slightly different from many other forms of litigation. Most family lawyers worth their salt see their job as damage limitation because, when a family breaks down, everyone loses and there are no winners. Therefore, if a case has to go to court, we are dealing with even greater failure. The court has grown accustomed to relying on lawyers who, in this area, are not rich fat cats. Over half of those surveyed who practise family law earn less than £35,000 and a fifth earn less than £25,000, which is less than the UK’s median annual salary. We are dealing with people who are trying to give succour to families.

The wide spectrum of law that has been spoken about—welfare law, family law and housing law—all interact. Stephen Cobb, chairman of the Family Law Bar Association, put it succinctly when he said that without access to justice—by which he meant effective access—for broken families, wider society would pay a very high price indeed. That is what we have heard echoing right around the Chamber from virtually every single speaker today.

The Family Justice Review has identified that in a significant number of cases serious child welfare and safeguarding concerns are raised when families appear in a private law court case, and those can trigger investigations by local authorities and result in public law proceedings. Statistics in the NSPCC’s report of November 2011, All Babies Count, show that around 20,000 children are living with a parent who has used class A drugs in the past year—we are talking about babies under a year old—around 100,000 live with a parent who is a problem drinker, and around 150,000 live with a parent who has a common mental health problem. One in every two cohabiting couples will have split by the time their children are five years old, and at least half of these children will face a parental breakdown. Not all couples will require a courtroom but, for those who do, many vulnerable adults will have no access to justice in private law and will be left with a choice of mediation or litigation in person—litigation which will add to, not detract from the difficulties that the family is likely to face.

For all the reasons that have been given powerfully by every single speaker, I seriously ask the noble Lord to think again. I respectfully suggest that the Government’s approach to this issue lacks foresight. It lacks full consideration of the consequences of the Bill for families for whom legal funding is not available, legal advice is not affordable and mediation is unlikely to be suitable. The cost of mediation is currently estimated by the Government to be between £6,000 and £10,000. If the Government’s own figures are right, the research indicates that it is likely to cost £48 million to undertake the mediation proposed. If half of those cases do not succeed in reaching a settlement, we will be left with dealing with them in the court in a way that is unlikely to be helpful if legal advice and support are not made available.

One of the benefits of having had such powerful speeches and it now being so late is that the noble Lord will have one relief: namely, that I do not intend to deal with each and every speech seriatim. I know that that at least is something which will make him smile, although I suppose that nothing else from this debate is likely to. I invite him to take away from this debate the strong expression made by every single speaker that what this Government are proposing is unjust, wrong, and should no longer continue. The noble Lord may think that he will get rejoicing not only in the ranks by further waving the white handkerchief. If that wave is to say he concedes, I can tell him that there will be much rejoicing in heaven.

--- Later in debate ---

The seek and locate orders, which are commonly employed in cases of removal of children within the jurisdiction without the other parent’s consent, are relatively straightforward to obtain and, of course, many domestic agencies, including the police, can be engaged in trying to retrieve the child without the need for proceedings in court. Furthermore, if domestic violence or child abuse is involved and becomes an additional risk factor, legal aid would then be available.

[Baroness Scotland of Asthal]

I understand that the Minister is trying to give a full response, but in his valiant reply he said that the international child abduction cases were difficult and complex and that domestic abduction cases were not. Will he think again on that issue, not least because the complexity of the issues relating to abduction is similar in both domestic and international cases? Quite often the parents are greatly distressed, very confused and in need of the quick, experienced lawyer who is able to navigate the system. Many lawyers find abduction cases difficult and international cases are not very dissimilar. Will the Minister take back to the department that the belief that domestic cases may be easier than international cases is not quite as it may think it is.

[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.