Domestic Abuse Bill

Lord Rooker Excerpts

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

Whereas I was very happy to support it—I will be interested to hear other speakers, notably the noble and learned Baroness, Lady Butler-Sloss, who I know has extensive experience, and my noble friend the Minister—perhaps we can look at nuance, as the noble Baroness, Lady Meacher, said; some way of amending or making sure that, in the instructions to the courts, the presumption that they can disapply is recognised a bit more formally.

[Lord Rooker (Lab) [V]]

My Lords, my quick message to Hansard is that they can tear up the note I sent earlier. In fact, the noble Lord, Lord Randall of Uxbridge, has just made the speech I decided to make having listened to the debate. I do not propose to repeat what he said, save for the fact that the general thrust of his conclusion as a lay person is the same one I have come to. I read the briefings, considered the issue and listened to my noble friend Lord Rosser; I was then surprised when listening to the noble Baroness, Lady Gardner. As the debate went on, I started to have second thoughts. This is the benefit of Committee—that is what it is for. The idea can be taken away and reworked.

I will raise one point from one of the briefings, from Support Not Separation and Women Against Rape, which quoted the harm review. They said they found a pattern of bias in the court professionals which gave weight to the views of the child who wanted contact but dismissed the views of the child who did not. That is extremely worrying.

However, having come to the same conclusion as the noble Lord, Lord Randall, I will leave it there.

[Baroness Butler-Sloss (CB) [V]]

My Lords, I view this amendment, which is in two parts, with some concern. To a very large extent, I share the views of the noble Lord, Lord Marks of Henley-on-Thames, and those of the noble Lord, Lord Randall of Uxbridge.

When I was President of the Family Division—and throughout the 35 years I was a family judge—I heard a great many cases which had some element of domestic abuse. I do not like presumptions, if they can be avoided. I remember that, when the amended Section 1(2A) was introduced while I was a Member of this House, I was very dubious about it, because I do not like presumptions. The important point of the Children Act is Section 1, which says that

“the child’s welfare shall be the court’s paramount consideration.”

Any family judge or magistrate has to look at all the circumstances and decide whether it is appropriate, in those circumstances, for both parents to have a relationship with the child after their separation. In normal circumstances, one takes it for granted that both parents will have a relationship, but there will be cases in which there should not be one.

I am not quite so concerned about the first part of Amendment 130, because it says that subsection (2A) shall not apply in situations which have affected the child. Even so, it should be a matter where the welfare of the child is paramount and the judge exercises his or her discretion, having come to a conclusion based on all the facts.

I am particularly opposed to the second part of Amendment 130: the restrictions on Section 9. This is, first, because it does not require domestic abuse to have affected the child. Other points have been made on this by the noble Lord, Lord Marks, with which I entirely agree, but I can see circumstances where a child was for one reason or another—possibly at boarding school or away on holiday—not present when there was domestic abuse between the parents, and the child had no knowledge of it. In those circumstances, it would not be inappropriate for the child to have unsupervised contact with a parent who had done absolutely nothing wrong to the child but who may have been involved in a single or unusual circumstance which could be classified as domestic abuse of the other parent.

This draconian proposal that Section 9 be restricted is inappropriate, although I entirely understand and share the concerns about the parents—mothers as well as fathers—who have been given unsupervised contact where there are issues of domestic abuse which are true, where the children are then killed. That is extremely sad; there should be adequate training of all judges and/or magistrates trying family cases. It may be more important to get the Ministry of Justice to discuss with the Judicial College and the President of the Family Division whether the training of judges and magistrates in issues of domestic abuse, to which I shall refer on the next group, should be improved. I will later refer to a useful case in the Court of Appeal which has been discussing this.

I am completely opposed to the second part of Amendment 130. I am sympathetic to what lies behind it, but I believe there should be a broader consideration of whether, where the welfare of the children must be paramount, there should be any presumptions of any sort—but certainly not in the way this has been drafted.

--- Later in debate ---

[Baroness Helic (Con) [V]]

My Lords, I intend to focus mainly on Amendment 133, which is in my name. Like the other amendments in this group, which I support, it is trying to make sure that the courts protect survivors of domestic abuse from further harm. I thank the noble Lord, Lord Ponsonby, for his support on this amendment and for his leadership on the others, and I take this opportunity to thank the noble Baroness, Lady Hamwee, the noble Lord, Lord Rosser, and my noble friends Lady Newlove and Lady Bertin for their contributions. I have learned a lot from them.

I approach this debate humbly. I am not a legal expert and I have not had what is called “a lived experience”. My intervention is informed by many cases I have come across, in particular the case of a close friend whose experience at the hands of a judge and experts lacking domestic violence training has been traumatic, painful and unjust. I also want to put on the record the work of the London Victims’ Commissioner’s office and Women's Aid, from whom I have learned an enormous amount.

The Ministry of Justice review into the risk of harm in family court cases involving domestic violence, which concluded in June last year, found serious systemic issues. Despite good intentions, domestic abuse allegations are being overlooked, misunderstood and dismissed. Survivors and their children are being put at risk as a result, something which I have heard about directly from survivors. To quote one survivor who spoke to Women’s Aid and Queen Mary University of London:

“All professional witnesses supported me but despite overwhelming evidence, the judge said that I didn’t fit the profile of domestic violence victims as I wasn’t scared enough. Also I was too educated and knowledgeable to allow DV to happen to me.”


This runs against everything we know about domestic abuse and the damage it does.

I am afraid that underpinning this is a lack of judicial understanding. This is not a criticism of individual judges; they face tremendous challenges, given the complexity of domestic abuse cases and the way that society’s awareness and understanding of domestic abuse has improved in recent years. But, unfortunately, the family courts’ approach to domestic abuse remains much the same as 20 years ago, and the system is stacked against the survivor because of both the pro-contact culture of the courts and the intersecting structural disadvantages women experiencing domestic abuse face within then.

If we want to change the practice and culture of the courts so that they truly put the best interests of the child at heart, they need to work at the cutting edge of our understanding of domestic abuse and its harms, not years behind, and, for that, specialist training is absolutely crucial.

We have already heard several times in Committee about the need for better training. The noble and learned Baroness, Lady Butler-Sloss, discussed judicial training, while Amendment 53 looked at the issue from another angle. Among those calling for improvements from outside are Women’s Aid and the London Victims’ Commissioner. The Government have also recognised the importance of training. The Ministry of Justice review panel recommended

“training for all participants in the family justice system”,

and I was heartened to hear my noble friend Lady Williams agree that judicial training needs to be revisited. I hope that she and my noble friend Lord Wolfson will be receptive to this amendment.

Domestic abuse affects all aspects of a family court case. It shapes how participants present at court, the evidence they give and how they give it, and it is a critical factor in determining the interests at stake and how safe child contact is arranged. However, as is recognised in the Bill, domestic abuse has a wide range of impacts and requires a wide-ranging, intersectional understanding. Mandatory training, delivered by domestic abuse specialists, will ensure that judges at all levels are much better equipped to understand the effects of domestic abuse and how to respond to it. As such, it will support and make possible the implementation of all aspects of the Bill. I note also that similar training is required for sexual violence, although that remains outside the scope of the Bill.

By stipulating that the training should be developed in consultation with the domestic abuse commissioner, we can ensure that it truly teaches current best practice and is aligned with national and specialist efforts to tackle abuse. As our understanding of domestic abuse improves, the courts will not, and should not, be left behind.

My focus so far has been on judicial training, but perhaps the real importance of the amendment is that it goes further than that, extending not just to members of the judiciary but to any Cafcass employees, social workers or appointed experts advising the court. That is why this amendment is so necessary. The Judicial College could offer better training for judges without it, but that is not enough.

Expert witnesses rightly play an important role in advising and guiding the family courts, but of course they do not have a thorough understanding of every field or every issue. Many expert witnesses, whose opinions might be crucial in shaping a court’s decision, are not experts in domestic abuse at all. They are not well placed to advise on whether domestic abuse is taking place or on what its impact might be.

Training which gives a full picture of domestic abuse—the context, the impact and how to respond—is therefore necessary in order that experts in our courts have a full picture of the situations they advise on. It will make them more aware of the risks and more attuned to the harm that could be inflicted. It will help implement the recommendations identified by the Ministry of Justice review, which called for training for all participants, including a cultural change programme and a multidisciplinary approach across all agencies and professionals. The result will be better processes for survivors and, crucially, better outcomes for children.

One survivor who contacted me recently described how Cafcass does not see her as a victim of domestic abuse because there are no broken bones or scars and because she seems like a strong and capable woman. But, as we all know, and as the Bill recognises, domestic abuse takes many more forms than just the worst manifestations of violence. It is no good changing our legislation to reflect that if we do not change practice as well. That requires training, and that is why we need this amendment.

[Lord Rooker (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Helic. I will speak to Amendments 131, 132, 133, and 136. I shall not go back to my time in the Commons, when I dealt with some cases in a personal way.

I have had the benefit of a briefing from someone who has sat as a court independent domestic violence adviser and has what I will call direct, hands-on street experience and remains involved in the wider processes. She has worked in the voluntary sector and in law enforcement, so her experience comes from both sides.