Lord Rosser
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Domestic Abuse Bill
Lord Rosser ExcerptsWednesday 3rd February 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Lord Rosser (Lab) [V]
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Rosser
Member’s explanatory statement
This is to probe that in the family court, where a perpetrator’s conviction is spent, other protections will be in place to protect a victim of abuse from being cross-examined by the perpetrator.
Lord Rosser (Lab) (V)
My Lords, I am speaking in place of my noble friend Lord Ponsonby of Shulbrede on this and a small number of groups to follow. My noble friend sends his apologies to the Committee; he is unable to be here because he is sitting in court today as a magistrate.
Amendment 114 is probing in nature. Proposed new Section 31R in Clause 63 provides for protections against cross-examination in person where one of the parties has a caution or conviction for a specified domestic abuse-related offence against the other. Subsection (3) provides that the protection does not apply where the conviction or caution has been spent. This amendment would remove subsection (3). It is intended to clarify that where a domestic abuse conviction or caution has been spent, other protections against cross- examination in person will apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. We are all aware of the traumatic and long-lasting impacts that domestic abuse can have and the continuing risk of abuse that victims can face from a perpetrator. Where a conviction becomes spent and the protections under this new section lapse, there should surely be a risk assessment before cross-examination in person can be permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It would helpful if the Government could give clarity and assurances on this point in their response.
The Victims’ Commissioner for London has also raised with us the issue of restraining orders, which are often given for a fairly short period. It would be helpful if the Minister could give assurances that the expiration of a restraining order would not impact on the ability of a victim to access necessary protections from that perpetrator in a family proceeding. I look forward to the Minister’s reply and to his explanation of the various government amendments in the group. I beg to move.
Lord Rosser (Lab) [V]
I thank the Minister for his considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their contributions, particularly the noble Baroness, Lady Newlove, for adding her name to Amendment 114.
I said at the beginning that this is a probing amendment intended to gain clarity and assurances that where a domestic abuse conviction or caution has been spent, other protections against cross-examination in person would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall reflect further on what he said in response to this probing amendment. In the meantime, I beg leave to withdraw the amendment.
Lord Rosser
“31VA Direction to prohibit direct or indirect engagement: evidence of domestic abuse(1) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party, the court may give a direction prohibiting the latter party from directly or indirectly engaging with the victim during proceedings, if the court deems any such engagement is causing significant distress to the victim.(2) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(3) Regulations under subsection (2) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.(4) A direction under this section may be made by the court— (a) on an application made by a party to the proceedings, or(b) of its own motion.(5) In determining whether the significant distress condition is met in the case of a party, the court must have regard to, among other things—(a) any views expressed by the victim;(b) any views expressed by the other party;(c) any behaviour by the party in relation to the victim in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;(d) any behaviour by the party at any stage of the proceedings, both generally and in relation to the victim;(e) any behaviour by the victim at any stage of the proceedings, both generally and in relation to the party;(f) any relationship (of whatever nature) between the victim and the party.(6) If the court decides that there are no alternative measures to prevent engagement which causes distress, the court must—(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party during the court proceedings, and(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.(7) Subsection (8) applies if, by the end of the period specified under subsection (6)(b), either—(a) the party has notified the court that no qualified legal representative is to act for the party during the court proceedings, or(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party during the court proceedings.(8) The court must consider whether it is necessary in the interests of justice for the party to be represented by a qualified legal representative appointed by the court to represent the interests of the party.(9) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to represent the party.(10) If the court appoints a qualified legal representative to represent one party, and the other party to proceedings is not represented, the court must consider whether it is necessary in the interests of justice for the other party also to be represented by a qualified legal representative to ensure a fair process.(11) If the court decides that it is necessary to appoint representation under subsection (10), the court must choose and appoint a qualified legal representative to represent the other party.”Member’s explanatory statement
These changes would give courts the discretion to prevent a perpetrator directly or indirectly engaging with a victim during family court proceedings, where such engagement is causing distress, and to appoint a legal representative to represent the perpetrator in court, if that is necessary to prevent distress to the victim.
Lord Rosser (Lab) [V]
My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.
These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.
As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.
Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.
In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.
The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.
Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.
Lord Mackay of Clashfern (Con) [V]
My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.
I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.
That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.
Lord Rosser (Lab) [V]
I again thank the Minister for his considered response, particularly his comments at the end, which clarified in my mind the basis of the Government’s lack of enthusiasm for the amendment. As the Minister has clarified, the Government do not believe that the terms of the amendment are needed because the issues raised are covered by other measures in the Bill or existing provisions. It is not a case of certain parts of the amendment not being particularly well worded or the wording leaving certain issues unresolved.
I thank all noble Lords who have spoken in this debate for their contributions. I particularly thank the noble and learned Lord, Lord Mackay of Clashfern, for adding his name to the amendment. Clearly, we will want to reflect further on what the Minister has said, particularly the reasons for not accepting the amendment—namely, that the issues raised are covered by other measures in the Bill and by existing provisions. We will want to reflect on that and then determine whether to bring this matter back at a later stage. I beg leave to withdraw the amendment.
Lord Rosser
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence, or(b) involved in ongoing criminal proceedings for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.”” Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Lord Rosser (Lab) [V]
Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.
The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
Lord Rosser (Lab) [V]
I am not quite sure what right of reply I have, since my name is not shown on the speakers’ list as being able to speak at the end of this debate. I do not want to test the patience of the House, so I had probably better keep my comments brief.
It was the expert panel set up by the Ministry of Justice which came to the conclusion that the presumption in favour of contact
“further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
I would add that my amendment does not prevent a court coming to the conclusion that, nevertheless, where there is domestic abuse, there should still be involvement with both parents. It is just that it would not start off with a presumption that it should be the case.
I will leave my comments there. I thank the Minister for his full response, and thank all noble Lords who took part in the debate. Bearing in mind that I am not actually shown as having a right to speak at the end, I had better conclude my comments by begging leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
The noble Lord was entitled to speak. He was just left off the list inadvertently.
Baroness Bertin (Con)
My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.
Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.
I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.
The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served
“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”
As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.
The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to be encouraged.
By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.
In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.
This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.
Lord Rosser (Lab) (V)
My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.
Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.
The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.