Domestic Abuse Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I warmly commend the sterling efforts of the noble Baroness, Lady Newlove, to see the introduction of new offences of non-fatal strangulation or suffocation. The noble Baroness generously mentioned a number of organisations and people who have helped her but she deserves huge credit for the way in which she has championed this action, which I am delighted to see in today’s amendments.

The noble Baroness’s speech was very powerful. The statistics that she shared with us about the relationship between strangulation and sex were shocking but, as she said, it goes much further beyond that as well. Indeed, she has explained at previous stages of the Bill that non-fatal strangulation and suffocation have the unique characteristic of being extremely harmful physically and psychologically but often with no external physical signs. Because of the lack of observable injuries and the lack of understanding of the seriousness of the offence, strangulation when charged is generally pursued as a summary offence of common assault in the magistrates’ court. Undercharging limits sentencing options, and a summary offence also deprives the victim and the defendant of the greater resources and attention devoted to a Crown Court prosecution. Without the establishment of a separate offence, those unique characteristics mean that more victims would suffer and be killed in future.

The amendment tabled by the noble Baroness, Lady Newlove, creates a new criminal offence of strangulation or suffocation. The offence will apply where a person intentionally strangles another person, but it will also cover a range of behaviours, including suffocation and other acts that affect the person’s ability to breathe and which amount to battery. Alongside the new offence must go training and strong guidance to police forces and other statutory agencies about how it is to be implemented, but today is a very significant step forward. I am grateful to the Government for responding to the noble Baroness, Lady Newlove, and I warmly welcome the amendments.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I too welcome the amendments. I welcome the new offence of non-fatal strangulation and suffocation. I echo the noble Lord, Lord Hunt of Kings Heath, in saying that this is a very significant achievement for the noble Baroness, Lady Newlove. As she generously said in opening the debate, many have helped to bring this new offence to the statute book, but she has been the driver throughout. This has not been for herself; her motivation has been to relieve the suffering of victims.

We on these Benches have given the noble Baroness our wholehearted support throughout. It was always an extraordinary anomaly that non-fatal strangulation was not a specific offence. As discussed in Committee, cases of strangulation were generally charged, and therefore sentenced, as assault occasioning actual bodily harm at most—for the reason, which she explained, that they often left little or no mark. The result was that strangulation and suffocation were undercharged and underpunished, and indeed often not punished at all. That was all despite the appalling truth that strangulation was so much the marker of more generalised domestic abuse, and despite the tragic fact that so often it turned out be a predictor of future killing.

I am very grateful to Ministers for engaging with so many of those concerned with the promotion of these amendments. The noble Lord, Lord Anderson of Ipswich, and I had the opportunity to discuss the legal aspects of the new proposed offence with Ministers, and the Government quickly saw the strength of the argument for a specific offence. It is a credit to Ministers that, after initial hesitation, they decided to include the new offence in the Bill and resisted the temptation to put it off to a future date. Because of the strong connection with domestic abuse, it is an offence that sits clearly within the Bill, but it was the right decision to work on this with the speed that we have. That decision must have saved many victims from further serious harm and has almost certainly saved lives.

It is right that the new offence is of general application, not just limited to domestic abuse. It would not have been appropriate to confine it to cases within the statutory definition of “domestic abuse” contained in the Bill, despite the overwhelming majority of cases falling within that category. That is because all cases of strangulation or suffocation are required to be treated as specific offences, for the reasons that I mentioned earlier.

I am grateful for the advice of Professor David Ormerod, the former criminal law commissioner at the Law Commission, for his help with the drafting. He changed my view on the consent issue; I had originally been of the view that consent should be no defence, but it is right that there is a defence of consent—to cover, for example, cases of sporting contests that lead to injury—provided that serious harm was unintended. That proviso is elegantly drafted in the amendments before us. I know the Government are also grateful for the generosity with which he gave his advice, and for the advice of the Law Commission.

In my view, the broad definition of “serious harm” in proposed new subsection (6) to include actual bodily harm is right. It will be less difficult to prove, in cases of both physical and psychiatric injury, than if the only harm that met the required criteria were those for grievous bodily harm or wounding offences under Sections 18 and 20 of the Offences against the Person Act. It is also right that the new offence has extraterritorial application under the new Section 75B, and we welcome that.

I commend the Government on behalf of these Benches for their comprehensive and well-modulated response to this new offence, and to the amendments by the noble Baroness, Lady Newlove. I congratulate her once again. It is a victory for her but also for the many victims of this horrible crime. It is to be hoped that this provision will ensure that many others are spared both strangulation offences and the possible escalation to fatal violence thereafter.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I apologise for the short intermission while we changed places. The government amendments in this group relate to special measures and the ban on cross-examination in person as they operate in civil proceedings. The Government have taken careful note of the debate in Committee on Clauses 62 and 64, particularly the argument that there should be equivalent protections for the victims of domestic abuse in the civil courts as in family courts. I am personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for our discussions about these issues. As I explained in Committee, while we want to ensure that there is parity between each of the jurisdictions, we also need to build in allowances for the differences. That is why the provisions in respect of cross-examination and special measures in civil proceedings differ from those in family proceedings.

I shall speak first to Amendment 32 in respect of Clause 62. It is worth noting that the original provision in the Bill was based on recommendations made by the Civil Justice Council in its report published last year entitled Vulnerable Witnesses and Parties within Civil Proceedings. However, having reflected on the representations we have received and the cogent arguments put forward in Committee by the noble Lord, Lord Marks, Amendment 32 would extend eligibility for special measures to those at risk of domestic abuse in addition to the existing provisions which provide eligibility for special measures for the victims of specified offences. We see the force of the argument to include this measure so that there will be an equivalent level of protection for domestic abuse victims across the jurisdictions. The Civil Procedure Rules will lay out how this is to work in practice, but the instruction in the Bill is a clear indication that those victims who have not reported their perpetrator to the police will have an opportunity to let the court know where they are at risk of domestic abuse.

As the existing clause provides, judges will still need to consider whether the quality of a person’s evidence or the person’s participation in proceedings is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more special measures directions. However, we believe that including provision for those at risk of domestic abuse will mean that these victims will be covered and given the ability to avail themselves of special measures.

I shall say a further word on that, which I mentioned in Committee as well. By their nature, civil cases have the potential to cover a much broader range of circumstances where there is no prior connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse, an action against an employer where abuse is alleged, or in a boundary dispute. This amendment is therefore an appropriate step. The breadth of cases in the civil courts means that it may not be appropriate in all cases to grant special measures, although our amendment makes it likely that they will be granted where there is a genuine need.

I turn now to Amendments 33 to 40 to Clause 64. These introduce an automatic ban on cross-examination in person by a litigant in person if the party to proceedings has been convicted or cautioned in relation to a specified offence against a party to the proceedings or where there is a protective injunction between the parties. The witness may also introduce additional evidence to prove that they are a victim of domestic abuse, and this too can give rise to an automatic ban. The evidence would be based on legal aid evidentiary standards and may include a letter from a GP or an employer. This is provided for in family courts through Clause 63. These amendments would therefore move the position in civil courts substantially closer to the provision in family courts on a ban on cross-examination. However, as with the point I made in regard to Clause 62, we have to be mindful of the differences between the two jurisdictions.

The clause, in so far as it relates to banning the cross-examination of vulnerable parties or witnesses, again stems from the report by the Civil Justice Council. The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. The council did caution, however, that the ban or prohibition should not be automatic and absolute, bearing in mind the broad range of cases that come before the civil courts.

As I have said previously in our debates on the Bill, we have concerns in relation to the civil jurisdiction that there should be an automatic ban on cross-examination where the position is only that someone is charged with an offence against an individual; that is, where the facts of the case have yet to be proven. In the circumstances where someone is charged with an offence, we believe that it should be left to the discretion of the court to determine whether a ban is appropriate on the facts of a particular case. That is because, as I have said, civil and family jurisdictions are different in type of case they deal with, the civil jurisdiction having a much wider range.

I believe that these amendments will give better protection to victims of domestic abuse and bring closer parity between the civil and family jurisdictions. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I explained in Committee the reasons for my amendments, which were directed at ensuring that special measures and the prohibition of direct cross-examination should be applied in civil cases on the same or a very similar basis as they are to be in family cases. Our debates highlighted the difficulties, fear and trauma for parties and witnesses in giving evidence and taking part in proceedings where they were victims or at risk of being victims of domestic abuse at the hands of other parties or witnesses. We spoke of the effect of reliving the trauma of abuse in subsequent court proceedings and the fear of the consequences of giving or challenging evidence given by or in the presence of perpetrators.

I argued that in many civil proceedings the risks and effects were the same. I mentioned disputes over property and goods, landlord and tenant disputes, employment disputes, inheritance disputes and business disputes—particularly when partners break up and the separation of their joint business interests gives rise to litigation. It is a truism for litigation lawyers that the disputes giving rise to the most bitterness and unpleasantness are precisely those where the litigants have a close personal connection. However, of course I take the Minister’s point that the range of disputes in civil cases is very much broader than it is in family cases.

The Government have listened to those concerns. I am particularly grateful to the Minister for the time that he and officials in his department made available to consider these issues and for the very useful discussions we had, which have led us to the position that special measures are now to be extended to persons who are or who are at risk of being a victim of domestic abuse, where the original unamended clause required that the person had to be the victim of a specified offence for which the perpetrator would have had to have been convicted, cautioned or charged.

I am delighted that the Government have agreed, no doubt because so many cases of domestic abuse never reach that stage—largely because so much abuse goes unreported or is never the subject of criminal investigation—that victims and those at risk of being victims should be protected in civil proceedings, as they are to be in family proceedings.

Although the amendments on direct cross-examination are complex, as the Minister has explained, they effectively offer broadly equivalent protection to victims of abuse in civil proceedings to that offered in family proceedings, which was the aim of my amendments. In addition to the discretionary protection which the court is to be able to give as a result of new Section 85F of the Courts Act 2003, to be introduced by Clause 64, there is now to be a clear bar on direct cross-examination in cases where the victim is a victim of an offence or protected by an injunction or where there is evidence of domestic abuse against the victim by a party or witness. The nature of the evidence to be required to trigger the mandatory bar will be specified in regulations. It is to be hoped that no undue formality will be required, but I am confident that will be the case.

These amendments achieve what I set out to achieve: to protect witnesses and parties in civil proceedings who have been subject to domestic abuse. I am therefore very pleased to have been able to add my name to the amendments and say—it is not the first time it has been said today—that this process has shown the House at its best. It has been a model of co-operation between some of us on the Opposition Benches and the Government of the day.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for pursuing this issue. It is not something I had focused on. The concessions he has got from the Government are welcome. There will be a ban on cross-examination in family courts and a broadly equivalent set of rules in the civil courts, although, as far as I understand it, there will still be some judicial discretion on these matters because of the wider nature of the types of cases heard in the civil courts. As the noble Lord just said, while the nature of the cases may be wider, the risks may be the same, particularly if the parties are personally connected in any way. I welcome these government amendments and congratulate the noble Lord on pursuing this matter.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 41 and 104 relate to Section 91(14) of the Children Act 1989. Last year we committed to exploring whether an amendment to the Bill was needed to clarify that Section. As noble Lords will be aware, it deals with barring orders, as they are often called, which allow courts to bar individuals from making further applications without permission of the court. Importantly, therefore, the order does not prevent access to the court; it prevents making an application without first obtaining the permission of the court to do so.

In Committee, the noble Lord, Lord Rosser, and my noble friend Lady Newlove asked for an update on the progress of the work. On responding to an amendment on barring orders put forward by the noble Lord, Lord Ponsonby of Shulbrede, I said that I would consider the issue of Section 91(14) carefully ahead of this next stage. I can assure noble Lords that I have done precisely that.

The sad fact is that perpetrators sometimes use the family court as a way to continue their abuse, often bringing their victims back to court repeatedly, which can in itself be a traumatising process. It is an abuse of the victims and also, therefore, an inappropriate use of the court process.

As it is currently formulated, Section 91(14) of the Children Act 1989 does not include any detail as to the circumstances in which such barring orders should be used. Courts have therefore elaborated the principles for when such barring orders may, and should, be made. Last year we heard compelling evidence from the expert panel in its report Assessing Risk of Harm to Children and Parents in Private Law Children Cases that, while they can be an effective measure, Section 91(14) barring orders are not being used sufficiently to prevent perpetrators continuing their abuse through the use of court applications under the Children Act 1989.

Before I go further, I want to pay respectful tribute to the noble and learned Baroness, Lady Butler-Sloss, who delivered the seminal re P judgment in this area of law back in 1999. For over two decades the guidelines included in that leading judgment have been regarded as the main reference point for judges when they are making the often difficult decision on the use of Section 91(14). It is fair to acknowledge that it is clear from those guidelines that specific cases and types of harm, including harm from domestic abuse, are not excluded from consideration for a barring order. None the less, now is the right time for us to act on the evidence presented by the harm panel about how Section 91(14) is being understood and applied, particularly in domestic abuse circumstances.

As is evident from the many debates we have had on the Bill, we now know far more about the prevalence of domestic abuse and the different forms that it can take than we did in 1999. It is therefore right that as the Bill approaches the end of its parliamentary journey, we use the opportunity to clarify the ambit and application of Section 91(14) to ensure that we are providing greater protection to victims, survivors and their children.

The Government are clear that barring orders are available to protect parents and children where further proceedings would risk causing them harm, and particularly where proceedings could be a form of continuing domestic abuse. To that end, Amendment 41 introduces a new provision into the Children Act 1989: new Section 91A. The new section clarifies that the circumstances in which a court may make a barring order include where the court is satisfied that a further application made by the named person would put the child or another individual—for example, the parent victim—at risk of harm. It is a non-exhaustive example; the discretion is preserved, but an additional statutory indication is provided. As I have mentioned, this amendment responds to recommendations made by the harm panel.

The aim of Amendment 41 is therefore to make it clearer to courts and practitioners that Section 91(14) barring orders are indeed available where a further application would pose a risk of harm to a child or a parent victim, and in particular where that application could constitute further domestic abuse. In that context, I should highlight to noble Lords that while this amendment does not expressly mention domestic abuse, it refers to the concept of “harm” that is already found in the Children Act 1989. This is because the definition in Section 31(9) of the Children Act is already very broad. It already includes coercive control and other forms of domestic abuse, along with many other forms of harm.

We touched on that point in the government response to the Joint Committee’s recommendation to amend the definition of harm. As we said there, we believe that singling out a specific form of harm in any part of the 1989 Act could have unintended negative consequences and risk appearing to give greater weight to one form of harm than another. We do not want to create a hierarchy of harm. We have therefore opted for the wider concept of harm, consistent with the approach in the Children Act.

We have also responded to the harm panel’s report in a further way. The new Section 91A makes it clear that in determining whether to grant permission to make an application to a person who is subject to a barring order under Section 91(14), the court must consider whether there has been a material change of circumstances since the barring order was made. Our intention is to require that courts consider carefully whether the circumstances that gave rise to the barring order have materially changed, such that permission to apply should be granted. The amendment does not draw a red line such that permission can be granted only if there has been a material change of circumstances, but we believe that the inclusion of this provision, which requires the court to consider this question, will offer further protection to domestic abuse victims.

The amendment also makes it clear that courts can make these orders on their own initiative—of their own motion, as it used to be said—for example, without an application being made by the victim for an order to be made. This, too, is a response to the harm panel’s recommendations. We want to put beyond doubt that there need not be an application for a barring order in order for the court to consider making one. Of course, the court will still need to give due consideration to the making of such an order, but the amendment clarifies that the court can make an order on its own initiative.

The Government are therefore confident that the amendment will mean that barring orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm. It will also make sure that permission to apply will be granted only where the court has considered whether there has been a material change of circumstances since the order was made, and also clarify that courts can make these orders on their own initiative. For those reasons, I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we support this government amendment and the amendment of the Title of the Bill that goes with it. As the Minister has explained, Section 91 of the Children Act permits the court to make a barring order—that is, an order forbidding someone, usually an applicant who has failed to persuade a court to make an order in his or her favour, from making an application for an order of a particular kind; this is usually but not always a repeat application—with respect to a child, importantly, without the leave of the court.

An order under this section still permits a further application for an order to be made if the court decides to permit it, which the court may in its discretion decide to do. This amendment, as the Minister has explained, extends the discretion to make a barring order if a further application would put the child concerned, or another individual, at risk of harm. That is the real purpose and merit of this amendment: it is for the protection from repeated litigation of those who might be victims of domestic abuse, when that repeated litigation often amounts to a particularly unpleasant form of harassment by legal proceedings.

The jurisdiction is similar to the court’s jurisdiction to make civil restraint orders and civil proceedings orders against vexatious and unmeritorious repeat litigants in civil cases. Under this government amendment, a person subject to a barring order may of course seek permission to apply further to the court. That application for permission will be considered, but the court considering whether permission should be given to make a fresh application must consider whether there has been a change of circumstances since the making of the original order. That, I suggest, seems entirely sensible. The amendment therefore strikes a careful and judicious balance between protecting potential applicants and providing a safeguard against people being harassed by unmeritorious repeat litigation.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the Minister for introducing these amendments, which we support. As he explained, they put in additional strengthening factors for barring orders; of course, there are barring orders in place in the family courts in any event. The purpose, as he explained, is to make it crystal clear, and to set out clearly, what the court must consider where there is any risk for the children or the other parties through repeated litigation. However, there is discretion for the court, if there is a material change in circumstances, to decide to accept and hear the case. So I accept the amendment as presented.

--- Later in debate ---

I have been overwhelmed with emails and messages from women who have experienced hopelessness with our legal system. No doubt we can deluge this Chamber with countless cases—I am sure that many noble Lords have been contacted and reached out to. All involve years of long-lasting and damaging court cases where children are forced into contact deemed unsafe. Mothers have experienced pressure to prove that their fear was real but that has been denied, so inflicting further injury to the mother and children. One survivor, speaking on behalf of many named survivors, said to me, “I am crying out for help and hope”. This amendment is one small aspect of our response to safeguard them and their children. I speak to give their voices in the Chamber today.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.

The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure that

“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”.

That presumption is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.

But the presumption is rebuttable, hence the words

“unless the contrary is shown”.

In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.

However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.

I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.

Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.

[Lord Rosser (Lab) [V]]

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”


He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”

which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”


There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

--- Later in debate ---

[Baroness Uddin (Non-Afl) [V]]

My Lords, I support this amendment, eloquently and powerfully detailed by the noble Baronesses, Lady Bertin and Lady Hamwee. I agree that confidentiality must be inherent in safe- guarding women survivors, many of whom may have endured prolonged periods of violence prior to reaching the safety of a refuge.

I have worked with refuges and inside a refuge. I know how hard it is to ensure the safety of not just one individual but of a number of women and their families. There may be instances where refuge addresses are revealed by residents being followed by a perpetrator, or, in fact, survivors may reveal the address if they return to perpetrators for the countless, complex reason debated on many occasions in this Chamber. Regardless, our statutory institutions, including the courts, must uphold the essential principle of safeguarding, not just for the sake of one survivor but for all those who reside in refuges and for the staff responsible for protecting all survivors in such refuges.

It is critical that we acknowledge this, and I look forward to the Minister being persuaded, much more eloquently than I could ever do, by the noble Baroness, Lady Bertin. I thank the noble Baroness for moving this amendment and I wholeheartedly support her.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I supported this amendment in principle in Committee. I expressed one or two drafting reservations, one of which was about the point that not all refuges may have office addresses, but that has been amply answered by the noble Baroness, Lady Bertin. This amendment is extremely difficult to resist with any sense of logic or safeguarding at all. The noble Baroness, Lady Bertin, has argued the case for it and I shall be extremely brief.

The point is that everybody has stressed the importance and value of confidentiality for refuge addresses. That flows from the very nature of a refuge: it is where women go—it is generally women—to avoid the consequences and a repetition of domestic abuse. Breach of that confidence leads to perpetrators discovering where their victims have gone. Discovering the whereabouts of their victims offers them a chance of harassing those victims further—of committing further abuse—so revealing a refuge address destroys the very concept that it is a refuge. It raises the risk of changing a refuge into a target. That is what this amendment is designed to avoid and I support it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Baroness, Lady Bertin, powerfully moved this amendment and went into the detail of the problems that arise when refuge addresses are revealed. I fail to understand why judges, in her words, are turning a blind eye to the requirement to keep the secrecy of a refuge; I fail to imagine why that might be the case. Nevertheless, either mistakes happen or some judges—very few—have an alternative view. What I understand from the noble Baroness, Lady Bertin, is that she wants the Minister to put on record that guidance will be updated and to make it absolutely clear that this should not happen again. I do not know whether she is going to move her amendment or what will happen, but I would have thought that, at the very least, the Minister should be able to do that and say that guidance will be updated.

The noble Baronesses, Lady Hamwee and Lady Uddin, both have experience of working in refuges and they know the importance of keeping these addresses secret. I hope we will hear from the Minister something that sufficiently reassures his noble friend Lady Bertin that this issue can be properly addressed once and for all.

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

52: After Clause 68, insert the following new Clause—
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services
(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B. (2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B’s usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that—(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we had an extensive debate on our amendment in this form in Committee. We have brought it back on Report because we are determined to make progress on criminalising the fraudulent behaviour of the charlatan psychotherapists and counsellors this amendment is directed at. I believe we have made some progress since Committee and I am grateful to the noble Lord, Lord Parkinson of Whitley Bay, and the noble Baroness, Lady Penn, from the Department of Health and Social Care for their time, attention and sympathetic response at the meeting they arranged for a number of us who support this amendment.

I certainly think the meeting increased government understanding of the truly shocking wrongs these charlatans perpetrate towards the young people they prey on, the prevalence of this behaviour and the perniciousness of its effects—with the lives of many young and vulnerable people ruined, often permanently. Our debate and the meeting also reminded the Government of a long history of attempts to secure legislation curbing this behaviour and of the strength of feeling and determination of those who strive for change on this issue —an issue which is certainly not going to go away.

As we discussed in Committee, these totally unqualified charlatans ply their trade by offering what they call counselling or psychotherapy services, mostly to young adults, to whom they often charge very substantial fees. They then build up in their patients or clients—in reality, their victims—a misplaced trust in them and engineer a false dependence by a process of transference. This exploitation is often assisted by the perpetrators implanting entirely false memories in their victims of imagined but illusory abuse during their childhood, usually by their parents.

The process is aimed at alienating these young people from their parents and other family members—often permanently—inflicting profound and long-lasting psychological damage upon them. The noble Baroness, Lady Finlay, with all her extensive experience, tellingly described this unscrupulous exploitation of vulnerability, which is what this amendment aims to stop.

My understanding is that the Government maintain their position that the new offence we advocate should not be part of the Bill because, they say, there is a concern to confine the Bill to the domestic context, and these so-called counsellors and psychotherapists provide their services outside their victims’ homes. I disagree with that position for two reasons. The first is that this abuse is in fact domestic abuse, because its perpetrators, although not operating from within their victims’ family homes, are usurping the position of their victims’ parents and family members. As the noble Baroness, Lady Finn, put it in Committee,

“the self-styled development coach preys on their vulnerable clients and tears them away from their families, to the extent that they break off all contact and become estranged. There are countless such cases. The goal of such therapy is coercion and control, to debilitate and disable—abuse, if ever there was.”—[Official Report, 8/2/21; col. 23.]

Secondly, I do not believe we should be too precious about the ambit of a particular piece of legislation, including this Bill. The Domestic Abuse Bill before us amends other legislation in a large number of its provisions. Our amendment would add a new clause modelled on Section 76 of the Serious Crime Act 2015. Other amendments have been made to that Act in this Bill, notably the non-fatal strangulation offence incorporated in the Bill this afternoon, which inserts a clause of general application after Section 75—a clause which is not restricted to domestic abuse.

I suggest that if new legislation is necessary and within scope of the Bill—as the Public Bill Office decided our amendment was when it accepted it—we should legislate. The way to legislate on this issue is by adapting Section 76 of the Serious Crime Act, as we advocate.

It is high time for legislation. In Committee, the noble and learned Lord, Lord Garnier, explained the history of his involvement with seeking legislation on this issue when he was Solicitor-General. He raised the question of why, if they can legislate to outlaw this behaviour in France, Belgium and Luxembourg, we cannot legislate here. We have received no answer to that question.

The noble Lord, Lord Hunt of Kings Heath, also made the point that we have been trying fruitlessly to make progress for more than 20 years. The noble Baroness, Lady Mallalieu, pointed out that this type of alienation is nothing new; domestic alienation has been happening for 50 years, with the quasi-healers operating with immunity. So have the other forms of domestic abuse we are tackling in this Bill—but we are now trying to tackle them. The Bill involves an enlightened process on which we are embarked, but we should take care that in seeking enlightened progress, we do not make it exclusive.

Both before and since the debate in Committee, I have received a number of letters—some long, all well argued, clearly emotional and universally tragic—from parents and other family members who have, through no fault of their own, lost the relationships they once enjoyed with children and relatives, leaving them heartbroken and bereft, on the basis of falsehoods peddled by exploitative quacks. My noble friend Lady Jolly pointed out the degree to which this so-called therapy is entirely unregulated, and she powerfully demonstrated how relevant that was.

At our meeting, the noble Baroness, Lady Penn, raised the possibility of regulating psychotherapists by statutory instrument, and that is something we would be keen to follow up. However, it will certainly continue to be insufficient, as it has been to date, to rely on voluntary registration with the Professional Standards Authority, as mentioned by the noble Lord, Lord Parkinson of Whitley Bay, in Committee.

Strong and effective regulation will help and should be introduced, as proposed by my noble friend Lord Alderdice in his Private Member’s Bill as long ago as 2001. However, the thrust of our amendment is to criminalise this predatory abuse, and we need legislation to do that on the statute book. The Government seem to sympathise with that aim and the direction of our amendment, their unhappiness being at the prospect of including it in this Bill. But the one thing I have not heard from the Government is any suggestion that a coercive control offence modelled on Section 76, as this amendment is, is not a suitable way to achieve our aim. We therefore encourage the Government, even at this late stage, to accept this amendment or commit to legislation in this area.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and all other noble Lords who have supported this amendment, for again setting out the case for it. The amendment seeks to create an offence of controlling or coercive behaviour for psychotherapists and counsellors providing services to clients.

Amendment 52 seeks, in effect, to replicate the coercive or controlling behaviour offence under Section 76 of the Serious Crime Act 2015. This offence was created to close a gap in legislation regarding patterns of coercive or controlling behaviour in a domestic abuse context; that is, during a relationship between intimate partners, former partners or family members. As such, the offence applies only to those who are “personally connected” as defined within Section 76 of the 2015 Act. The amendment would extend the offence beyond those who are personally connected as defined by that Act so that it applied to psychotherapists and counsellors.

In Committee, and again today, the noble Lord, Lord Marks, and others have strongly made the point that unregulated and fraudulent psychotherapists are able to take advantage of their clients’ vulnerability by supplanting parents and families in the affections and minds of their clients, with the purpose of turning them against their friends and families through a process called transference. The noble Lord has suggested that this abuse should be caught by the controlling or coercive behaviour offence because therapists are abusing their position of trust and the dependence of their clients.

As my noble and learned friend Lord Garnier noted, we have had a number of debates on this issue and on the importance—in the Government’s submission—of preserving the meaning of “personally connected” in relation to domestic abuse, both in this Bill and, by extension, for the purposes of the Section 76 offence. The Government recognise that noble Lords have raised an important issue and have made some spirited and cogent arguments in favour of doing something now. However, we still feel it is important to acknowledge that domestic abuse, including controlling or coercive behaviour, is a unique type of abuse underpinned by an emotional and affectionate bond between the victim and the perpetrator, as well as a complex power dynamic. The paid-for or commercial nature of the psychotherapist-client relationship represents a fundamentally different power dynamic from that of domestic abuse. In answer to the noble Lord, Lord Marks, my noble and learned friend Lord Garnier and others, that is why we do not believe that it is appropriate to replicate the Section 76 offence in other contexts such as this. I am grateful to the noble Lord, Lord Kennedy of Southwark, for recognising that this might not be the right Bill in which to do it.

As I mentioned in Committee, this is a matter for consideration by the Department of Health and Social Care. I am pleased that a number of noble Lords who have spoken in Committee and again tonight had the opportunity to discuss it in more detail with my noble friend Lady Penn, on behalf of that department, and with me. I am glad they found the discussion productive, as we did. I am grateful to those noble Lords for their time and engagement with us and with officials from both the Home Office and the Department of Health and Social Care.

As noble Lords noted, there is at present a system of accredited voluntary registration by the Professional Standards Authority for Health and Social Care. The authority has a process for quality-assuring voluntary registers of health and care professionals in the UK who are not subject to statutory regulation. It currently accredits 10 voluntary registers relating to counselling and psychotherapy, providing assurance to the public in relation to around 50,000 talking therapy professionals. These registers should be used by service users to choose a practitioner to meet their needs and to be assured that they are safe, trustworthy and competent to practise. To gain accreditation from the authority, organisations must meet 11 standards for accredited registers. I set those out in Committee so will not do that again now, but any registrant who is removed from an accredited register for conduct reasons cannot join another accredited register.

I recognise that these registers are voluntary, as a number of noble Lords have pointed out, but they provide assurance that practitioners who are on the registers are safe, trustworthy and competent. The noble Baroness, Lady Mallalieu, is right that more can be done in this area, and the Department of Health and Social Care is working with the Professional Standards Authority to improve awareness of the accredited registers programme and to encourage service users and providers—people such as GPs, as she says—to seek out the services of practitioners on an accredited register rather than unregistered individuals.

The Government are committed to a proportionate system of safeguards for the professionals who work in the health and care system, and from time to time we bring new professions into regulation. It is important that decisions to regulate a profession are evidence-based and consider the risks posed by the profession in the round, not just the risks posed by unscrupulous practitioners. The Professional Standards Authority has developed its “right-touch assurance” tool with the aim of providing advice on how best to regulate different groups in health and care. Where the Government are satisfied that the conditions for regulation of a profession are met, that can be taken forward through secondary legislation using powers in the Health Act 1999, a point that, as noble Lords mentioned today, we have explored in our helpful discussions since Committee.

The Department of Health and Social Care is currently conducting a programme of work to reform the professional regulation framework for healthcare professionals. That will provide an opportunity to consider whether the professions protected in law are the right ones and to ensure that the level of regulatory oversight is proportionate to the risks to the public.

I am conscious, as the noble Lord, Lord Alderdice, set out in his contribution, that this is an issue that has been around for a very long time—since 1971, in some form—and he has been working on it for many years. I hope that reassurance and the points that have been raised, both in these debates and in our meeting since Committee, will be fed into that work. Perhaps this will provide further reassurance: as a couple of noble Lords have alluded to, one person who spoke in Committee but is not speaking today is my noble friend Lady Finn. If nothing else, I hope noble Lords will note that they have another person on the government side who is fully sighted on these issues.

The noble Lords who have spoken in favour of the amendment have once again underlined this important issue, but I hope they will accept why we believe this is not the appropriate Bill in which to pursue the regulation of psychotherapists and counsellors. I have no doubt that they will take the further opportunity to debate this issue soon in the context of Department of Health-led legislation and, moreover, as I have indicated, the issue of regulation can be considered afresh in the context of the forthcoming review of the regulation of healthcare professionals.

The noble Lord, Lord Kennedy of Southwark, spoke of a pathway. It may not have as many paving stones as noble Lords might wish but I hope that they can discern one, and that on that basis the noble Lord, Lord Marks, will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is late in the evening and I shall be brief. We have heard a detailed argument from the noble and learned Lord, Lord Garnier, and my noble friend Lord Alderdice as to why this amendment fits so clearly within the ambit of the Bill. From my noble friend Lord Alderdice we also heard how close is the link between therapy and domestic abuse, and from all around the House we have heard how overdue this measure is and that it is not a recent problem that we are seeking to address.

It is also significant that this amendment attracts support from doctors and lawyers and Members of your Lordships’ House who are neither. The noble Baroness, Lady Finlay, said how common and how wrong it is that bogus therapists can take advantage of their clients, causing them real harm. The noble Lord, Lord Fairfax, was one of many Peers who know families who have been victims of this abuse, and he also powerfully argued for an end to inaction on the part of government. My noble friend Lady Jolly was another, who described graphically the behaviour of these charlatans as unethical and without shame. The noble Lord, Lord Kennedy, described our case on the amendment as a powerful case for change and called for action. So let us, please, not miss yet another opportunity, as the noble Baroness, Lady Mallalieu, put it. As the noble Baroness said, compulsory registration must sit alongside criminal sanctions, in just the way as the noble and learned Lord, Lord Garnier, pointed out. An offence of coercive control modelled on the Serious Crime Act may not be the only way to achieve it, but it is a good one.

Whatever form an amendment of the criminal law takes, the House and the Government know clearly what it is that we are trying to achieve. They really ought now to be implementing change, rather than closing the road to change. The Government need to get over the temptation to insist on drawing the distinction between what the noble Lord, Lord Parkinson, described as the emotional and affectionate bond that characterises domestic abuse and the type of abuse that these charlatans and quacks perpetrate on their victims. It will be interesting to see whether the Government can move away from insisting on that distinction. I described it earlier as a precious distinction, but it is purist at best.

“Not this Bill, not now” is no answer to the suffering of victims. We need the Government to be prepared to say, “Yes, this Bill and now”. At the very least, if they cannot say that, “The very next Bill, and soon”. We will take such opportunities as we can to bring about change. I accept that there will be opportunities to come, as the noble Lord, Lord Parkinson of Whitley Bay, indicated, and they may well be in health-driven legislation. On that basis, I beg leave to withdraw this amendment tonight, but we will be back seeking change in due course.

Amendment 52 withdrawn.