All 2 Baroness Tyler of Enfield contributions to the European Union (Withdrawal) Act 2018

Mon 5th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 4th sitting (Hansard): House of Lords
Mon 5th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 4th sitting (Hansard - continued): House of Lords

European Union (Withdrawal) Bill Debate

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Department: Scotland Office

European Union (Withdrawal) Bill

Baroness Tyler of Enfield Excerpts
Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018

(3 years, 10 months ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 - Government Bill Page Read Hansard Text
Would the Minister be prepared to see me along with a number of others, particularly the Family Law Bar Association, the international family law association and Resolution, the organisation for solicitors in family law, so that we could go through with him how we ought to take the Bill forward? Currently, the way civil law is being looked at just for replicating it is utterly inadequate. It would be profoundly unjust to British people to let it stay like that.
Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I support Amendment 29 and will speak briefly to Amendment 336, to which my name is attached. I remind the House of my declared interest as chair of the Children and Family Court Advisory and Support Service. I wish to dwell on that experience in my remarks today, by thinking in this debate about the impact on the child and whether or not they feel that their voice is heard.

It is for this reason that I feel it is vital that the Government take all possible steps to achieve an outcome which retains full reciprocal arrangements between the UK and member states in the field of family law. It is so vital that families needing to go to court must know that whatever court they end up in, and in whatever country, its decision will be respected by other courts. We have heard a lot from distinguished lawyers about the current reciprocal arrangements, which have been built up and evolved over decades. They have provided real benefits to families across the UK. These harmonised rules across the EU for establishing jurisdictions to hear cases, to recognise and enforce each other’s orders, and to co-operate across borders have made a real difference to families caught up in these difficult situations.

Replicating provisions in our own domestic law without full reciprocity would leave our citizens in a position of real vulnerability and confusion. It would lead to very unfair outcomes for British citizens, a point which has already been made. As the noble Baroness, Lady Sherlock, said so persuasively, the EU instruments which affect UK family law deal primarily with procedural, not substantive, family law. Sovereignty is not the issue here and I really hope that in this debate, as we look at what happens to family law in the context of Brexit, we will not get caught up on the high altar of sovereignty. This is about what happens to very vulnerable and distressed children and families.

I turn briefly to Amendment 336, to which my name is attached. The reason I wanted to attach my name is that the first regulation cited in this amendment—I will not go into the technical detail—is one that we at CAFCASS use a lot in both private and public law, since the fundamental principle is to ensure the reciprocal recognition of court orders between the EU states. It saves re-litigating and protects children who move between states, whether they are living there temporarily or permanently. It also requires states to co-operate with each other in providing information in public and private law, and to assist in placing children in public law cases in other member states; this is practical but really critical. The absolutely key point is that these arrangements help to alleviate the inevitable distress and disruption for the children and families involved.

Our key role at CAFCASS is to ensure that the voice of the child is heard in family courts, whether in public law, which is usually where local authorities are making an application for a child to be removed from a parent and taken into care, or in private law, which is usually where parents are separating with such high levels of conflict that the court is involved in deciding child arrangements such as residence and contact. At the moment, my strong sense is that the critical voice of the child is absent from discussions about what happens to family law post Brexit. This will be much to the detriment of children and young people involved in family proceedings, who are often extremely vulnerable and going through a very difficult period in their lives. This can lead in turn to real emotional distress and trauma, and have an adverse effect on mental health and well-being.

Many of these children will have had what is called in the research “adverse childhood experiences” first-hand, including abuse, domestic violence and bereavement. That is why what we do to our family law as we look at the Bill is so important. We need to make sure that it is as child-friendly as possible, rather than something that is done to children and over which they feel they have no control.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen (Lab)
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My Lords, I rise to support my noble friend Lady Sherlock in this group of amendments. I appreciate the wisdom of noble Lords who have spoken.

I will add a few comments, mainly on children’s rights and child protection, which have been spoken about by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Tyler. I should declare an interest as the chair of the sub-committee on children in the Council of Europe. The EU does not have legal power to change domestic family law, but in procedural rules it ensures that family-related decisions made in the UK can be recognised and enforced in other countries in the EU. Most children live in families, and therefore family law will often have an impact on children. The current rules ensure a level of certainty for families, and therefore children, who move about the countries of the EU. The rules prevent parents avoiding their obligations by moving around. This is because EU law has uniform rules across member states for family law proceedings, including those involving children. EU law ensures that public law decisions to protect children can be enforced in countries of which the child is a non-national. Such law emphasises the best interests of children, as enshrined in the UN Convention on the Rights of the Child—which I am sure will come up over and over again in the discussion on children—where the welfare of the child is deemed paramount and a child who has the capacity must be given the opportunity to be heard, including in family disputes. The EU maintenance regulation provides for child maintenance to be automatically applicable in any other member state to which either of the parents and/or the child move.

My noble friend and others mentioned the Hague conventions. Other options to ensure family welfare, such as creating bilateral agreements, would take more time to implement and children and families would suffer. The six-week deadline for the resolution of child abduction cases should be retained. Membership of the EU judicial network to facilitate information sharing between courts dealing with family issues should continue. One example of the protection of children is related to the EU directive of the European Council establishing minimum standards for legislative and practical measures to support victims of crime. This includes the specific needs of children and the need to pay attention to services and support in, for example, gender-based or domestic violence. The directive includes special reference to the need to ensure that children’s best interests are the primary consideration and to ensure a child-friendly approach.

I am impressed by and grateful for the report by the EU Committee chaired by my noble friend Lady Kennedy of The Shaws, Brexit: Justice for Families, Individuals and Businesses. It addresses the 1996 Hague convention in respect of parental responsibility and measures for the protection of children. The maintenance regulation is designed to ensure that rules on jurisdiction and the enforcement of decisions relating to maintenance obligations are continued and provides that obligations should be determined in accordance with the Hague protocol. The report comments on the Brussels IIa regulation in relation to divorce, legal separation and the annulment of marriage. It carries specific rules on child abduction and access rights. I will not go into this in detail but will just say that witnesses to the inquiry on which the report is based commented favourably on Brussels IIa. Sir Mathew Thorpe stated that it is a,

“laudable ambition to achieve better justice for European citizens where issues cross the border of member states”,

and viewed the regulation as “broadly successful”. David Williams QC stated that Brussels IIa had spread into every area of our domestic law.

European Union (Withdrawal) Bill Debate

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Department: Scotland Office

European Union (Withdrawal) Bill

Baroness Tyler of Enfield Excerpts
Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018

(3 years, 10 months ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 - Government Bill Page Read Hansard Text
Baroness Meacher Portrait Baroness Meacher (CB)
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My Lords, I rise to speak to speak to Amendments 68, 97 and 158, all of which would ensure that following our departure from the EU, children’s rights will continue to be given due regard. The Government have claimed that the Bill will ensure continuity—in fact, a number of noble Lords think that is correct—and that there will be no legislative cliff-edge if or when we leave the EU.

However, whether by accident or by design, there is a gaping children’s rights hole in the Bill. These amendments would not introduce any new policy or extend provision; rather, they require only that where EU legislation has been developed in line with the principles of the UNCRC, new UK law or amendments to retained EU law will also pay due regard to the UNCRC. The Government have argued in previous debates that children’s rights are fully protected in UK law. I will clarify that this is not actually so and I want to pay tribute to the Children’s Society and a number of academics who have enabled me to do this. The Government argue that, for example, the Human Rights Act 1998 incorporates the ECHR into UK law and does the job of protecting children’s rights. However, that ignores the fact that the ECHR is confined principally to civil and political rights, while remaining relatively silent on a range of social and economic rights that form the substance of EU law. There are further problems in relation to the process of bringing a claim for an alleged breach of ECHR rights.

The Children Act 1989 provides important protections for children in both public and private proceedings, but it does not regulate the full range of children’s rights that are covered by EU law such as consumer protection, health and safety, and non-discrimination; other speakers have mentioned one or two of these. It also does not cover the cross- border recognition and enforcement of family orders which are currently regulated by Brussels I and II. Furthermore, the Children Act 1989 is often interpreted narrowly, to the detriment of the fuller range of rights set out in the UNCRC. A crucial example, as the noble Baroness, Lady Massey, said, is the right of a child to be heard following abduction before a return order is made. The crucial question is, does the child wish to be returned? It is pretty desperate if they do not, and they will not be able to make their wishes known, as I understand it, even if they are of an age and maturity to make that appropriate. The Children Act 2004 places obligations on local authorities but does not extend those to immigration authorities or commercial or private entities to whom public authorities have contracted out aspects of their children’s services. These days, of course, much of that work is contracted out.

The Equality Act 2010 provides a number of protections for children and young people. However, it does not cover many of the issues that are a real worry for children, post Brexit. For example, it does not promote the need for public agencies to act in the best interests of the child as a top priority in the way the UNCRC does, which the EU implements. The Immigration Act 2016 proposes to withdraw leaving care support from unaccompanied young people at age 18, as has been mentioned, if they do not have leave to remain or are not asylum seekers. A lot of these kids probably do not have the knowledge and information they need to be in a position to claim those rights. There is therefore a human rights issue here, for which there is no provision in UK law. The Modern Slavery Act 2015 provides good protection for young people. However, the removal of Section 32 of the EU charter following Brexit will weaken protection against child labour. It will leave weak obligations on business in this area. Also, the EU trafficking directive includes requirements to have regard to the children’s best interests and to consider the long-term outcomes for children. These are absent from the Modern Slavery Act, wonderful though that Act is.

At an EU level, the rights of the child are currently guaranteed by Article 24 of the charter and are one of the fundamental rights mentioned explicitly in the commission’s strategy. They are thus included in the regular fundamental rights check, which the commission applies to relevant draft EU legislation. These safeguards will not apply to new UK laws or amendments to retained EU law. If, or when, we leave the European Union, we will thus need to correct the statute book and legislate for the future in areas of previous EU competency, such as matters relating to justice, specific areas of social policy, consumer protection and research and development. Across the UK, the range of issues where children could be exposed also covers data protection, paediatric medicine clinical trials, food labelling, television advertising, the rights of migrant children to access education and healthcare and, importantly, cross-border family law, as others have mentioned.

In conclusion, I do not believe that these gaps in UK law are the Government’s intention, but an oversight that can and should be corrected between Committee and Report. Does the Minister agree that if this Bill is about providing “certainty and continuity” for people—as the noble Baroness, Lady Evans of Bowes Park, said at Second Reading—it is only right that the Government provide certainty and continuity for children also? I would be grateful for an assurance from the Minister that he will take these matters back to the department for consideration before Report. Also, it would be helpful if children’s rights could be included on an agenda for a briefing session on the Bill with Ministers in the next few weeks.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I rise to lend my support to this group of amendments on children’s rights and to briefly say one or two words on Amendments 37 and 69, to which my name is attached. Like the noble Baroness, Lady Massey, I want to talk about this group because my fundamental feeling is that the voices of children and young people are simply not being heard in the Brexit process. Frankly, that is ironic when we consider that they are the population group who will be most affected by this—and for the longest time.

The Government’s plan not to retain the European Charter of Fundamental Rights through the EU withdrawal Bill is a real concern to me, particularly in relation to children. As we have heard, the charter enhances rights for children that already exist in the European Convention on Human Rights, such as the right to education. It also includes key rights enshrined in the UN Convention on the Rights of the Child, such as the rights to care and protection, to express views freely in accordance with their age and maturity—the principle of best interests being a primary consideration—and the right to know both parents. I know that others have said this, but I make the point that these are not small, trifling matters or marginal extras; they are fundamental things we should be very concerned about.

The charter contains certain provisions of great importance to children and young people that are not protected in domestic law at constitutional level. Children’s rights enshrined in the charter have been translated into practice through EU legislation, policy and case law. This includes legislation on child-friendly justice systems, and the charter has strongly influenced the development of EU regulations relating to cross-border family law. We heard an awful lot about this earlier in our debate on family law and I certainly do not intend to repeat that because we heard it in great detail. I simply make one point, which was my key point in that debate. It is crucial that children, including children born to families where one parent is from the UK and the other is from an EU member state, feel that their voice is heard in this process and that their wishes and feelings can be expressed, so that they feel that a fair decision is being made about what happens to them regarding these crucial decisions in their lives, particularly if they are to be returned to a parent in another country.

Finally, the noble Earl, Lord Listowel, is not in his place to talk in more detail about Amendment 69, to which I added my name because I felt it very important that a government body or right in statute exist somewhere to ensure that children’s physical and psychological needs are being met and considered, particularly when they are a victim of any form of neglect, exploitation or abuse. As many in the Chamber will know, no group of children has suffered more neglect, exploitation and abuse than children in care. That is why this amendment, which I know was tabled as a probing amendment, is so important.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock (Lab)
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My Lords, I have one brief question that I would like the Minister to answer. Most of the debate has been about children, apart from the contribution of the noble Baroness, Lady Greengross. I will talk about the elderly. I need to declare an interest—although we would all need to declare that interest. I am chair of Age Scotland. Like the noble Earl, Lord Dundee, as he mentioned, my noble friend Lady Massey who moved the amendment, the noble Lord, Lord Russell, who will speak, and the noble Lord, Lord Balfe, who is in his place, I am a member of the Parliamentary Assembly of the Council of Europe. How will Council of Europe recommendations be incorporated into United Kingdom law if we leave the European Union? I ask this because an excellent report has been approved by the Parliamentary Assembly of the Council of Europe entitled Human Rights of Older Persons, and their Comprehensive Care.