Committee (4th Day)
Relevant documents: 7th Report from the Delegated Powers and Regulatory Reform Committee and 1st Report from the Constitution Committee. Welsh Legislative Consent sought.
Amendment 78
Moved by
78: After Clause 15, insert the following new Clause—
“Free independent legal advocates for rape victims(1) The Secretary of State must develop proposals for a scheme to give victims of rape access to free, independent legal advocates available in every police force area in England and Wales.(2) For the purposes of this section “independent legal advocate for rape victims” means a person who is a qualified solicitor, with experience working with vulnerable people, who provides appropriate legal advice and representation to individuals who are victims of criminal conduct which constitutes rape.”
Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, as well as moving Amendment 78, I shall also speak to Amendment 79 in my name, with the support of the noble Baroness, Lady Hamwee. I will speak to the other amendments in this group, and I am particularly pleased to be able to support the amendments in the name of the noble Baronesses, Lady Bertin and Lady Morgan. Both are on important issues, which we will discuss this afternoon.

The amendments in my name seek to ensure that there is a scheme to give victims of rape access to free independent legal advocates—available in every police force area in England and Wales—and that the Secretary of State must develop proposals for a scheme to give these victims access to free, independent legal advice. The idea of independent legal advice and representation for victims in these circumstances is not a new one. In 2005, the then Government announced their attention to introduce legally aided representations for victims in homicide, rape and domestic violence cases—though it was not brought in. In March 2014, the Minister of Justice in the current Government again raised the idea of independent legal representation in a review of the treatment of victims in sexual offences cases, but, again, did not implement the policy. Now it is time to make this a reality.

Independent legal advice and representation can provide an important mechanism and layer of accountability, which results in improved police and CPS policies and procedures. Independent legal advice has already been successfully piloted in Northumbria, and exists in many other jurisdictions, including most European countries, Australia, California and Ireland. Evidence clearly indicates that this legal advice and representation can operate well, alongside the rights of defendants to a fair trial. This proposal does not propose changes to the role of victims and survivors in the criminal justice process, or the rights of audience that currently exist—nor does it change the adversarial system that we have in the UK.

In 2017, the sexual violence complainants advocate scheme was piloted in Northumbria by the then PCC, Dame Vera Baird, to engage local solicitors to provide legal advice and support to local adult rape complainants. The support primarily related to complainants’ Article 8 rights to privacy, advising on digital download requests and demands for material in the hands of third parties—such as school reports, medical records and therapy notes.

The pilot scheme took 83 referrals from September 2018 until December 2019, and was evaluated. Case file analysis showed poor practice around victims’ privacy rights—some police officers believed that there was no need to seek consent from the victims. The SCVAs challenged data requests in fewer than 47% of the cases. The evaluation showed that the scheme was overwhelmingly positive. It increased complainants’ confidence in, and understanding of, the justice system—which is likely to reduce attrition. There was consensus that the project changed organisational cultures—significantly decreasing police and CPS requests for indiscriminate evidence. Police and the CPS felt the investigations were more efficient, relevant and proportionate. A judge commended the pilot as encouraging earlier consideration of disclosures and issues—making cases more efficient and proportionate. All the pilot’s participants agreed with the principle of legal support being made available for sexual offence complainants.

The CPS’s victim’s right to review, which allows a challenge to a decision not to prosecute has been broadened by the High Court to offer an opportunity for a victim to make representations. A victim who wants to use this new voice will need publicly funded, independent, legal representation, so that there can be an equality of arms with the reviewing lawyer from the CPS.

In Amendment 115, tabled by the noble Baroness, Lady Bertin, the

“court’s permission must be obtained for access to, service or disclosure of”

the victim’s counselling record—which is why it is linked, in a way, to the amendments I have previously spoken to.

“The court must direct that access should not be granted, or evidence should not be served or disclosed, if the court finds that this would disclose a protected confidence”.

In the Government’s own end-to-end rape review, and in debates around the digital extraction clauses in the Police, Crime, Sentencing and Courts Act, it has been understood that it has become almost routine for victims of rape to be subjected to credibility trawls. This is when victims are asked, sometimes without proper regard to the law, to relinquish their private and personal information for scrutiny by the police and the prosecution.

I am sure the noble Baroness will tell us about the issues this raises in more detail, but in summary: victims and survivors who have reported sexual violence to the criminal justice system are often put in an impossible position, forcing them to choose between seeking justice and accessing therapeutic support. Neither existing legislation nor guidance in this area has effectively addressed the problem of widespread inappropriate requests for this material. The law must change to introduce new higher thresholds for disclosure that is unique to counselling and therapy records to be applied through judicial scrutiny.

Sexual violence and abuse are deeply traumatic. They can cause mental health problems and affect personal relationships and the ability to work. Counselling and therapy provide a means of working through trauma to help survivors to gain control of their lives, so the idea that survivors are being forced to choose between prosecuting their attacker and taking therapy is completely abhorrent.
It also raises the issue of coerced consent, which the Government’s new Clause 22 in the Bill addresses. Until recently, the disclosure of therapy records was reliant on consent from the survivor. As the Information Commissioner has outlined, the Data Protection Act requires that, for true consent, a person must be free to decline without suffering detriment. I am sure other Members of the Committee will have even more details to disclose about that.
I return to Amendment 106, in the name of the noble Baroness, Lady Morgan. I thank my honourable friend Stella Creasy MP—and I am pleased to see my honourable friend here today—for her thorough briefing on this difficult matter. It concerns the right to delete malicious complaints. I know the noble Baroness, Lady Morgan, and, I suspect, the noble Lord, Lord Russell, will have something to say about this matter.
If someone makes a malicious complaint about someone to the police, perhaps as part of a campaign of stalking and harassment, the police can act to remove that from the record. However, if the malicious reporting is to other organisations—social services or perhaps an employer—there is not the same safeguard, with potentially lasting consequences for victims and sometimes for their children and family. There is a powerful case for trying to rid people of the long-term effects of false allegations made maliciously to either a public or a private body. I can see that tackling this mischief may be a complicated area of law, but it is clearly wrong that someone’s reputation can continue to be blighted and the harassment that was already taking place can continue.
I hope the Minister will be able to provide us with some satisfaction. Again, I know that other noble Lords, and one noble Baroness in particular, will have more to say about this, because the briefing that we have all had is very thorough.
I turn to Amendments 101, 102, 103 and 103A. Amendments 101 and 102 seek to mirror the wording of the clauses dealing with victim information requests with that of the clauses dealing with digital data requests in the Police, Crime, Sentencing and Courts Act 2022. This would therefore provide consistency and parity between the frameworks for digital data requests and victim information requests, and grant victims who are subject to these requests the same digital safeguards.
Amendments 103 and 103A, to which my noble friend Lord Ponsonby has added his name, would make the Children’s Commissioner a statutory consultee for the codes of practice for victim information requests, to ensure that a child’s distinct needs and experiences are reflected, which is surely a necessary matter. I beg to move.
Baroness Bertin Portrait Baroness Bertin (Con)
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My Lords, on behalf of my noble friend Lady Morgan, who is sorry not to be here today, I shall speak to Amendments 101, 102 and 173, and I shall speak to my own Amendment 115. I give praise and thanks to the noble Baroness, Lady Thornton, for outlining a lot of the issues in these amendments.

First, I shall talk about Amendments 101, 102 and 173, which, I might add, have the name of the noble Baroness, Lady Kidron, attached to them too. Amendment 102 and the associated necessary Amendments 101 and 173 seek to ensure that victims of crime—but particularly victims of sexual violence, for that is where the issue most frequently arises—are protected from excessive and unreasonable demands for their personal data. As the noble Baroness, Lady Thornton, has pointed out, that is the reason why attrition rates are as they are.

Third-party material is material about the victim held by third parties. It can include medical, educational and social services records, as well as records of therapy and counselling, which I will come to in more detail later. It has become commonplace for victims to be subjected to scrutiny of their personal lives, and thus their credibility, by way of a trawl through their personal data, and nowhere more so than in rape investigations. This issue has been well examined in both the media and at a policy level. These trawls act as a deterrent to reporting, and can cause a victim who has reported to then withdraw. There are fears about deeply personal information ending up in the hands of the defendant or being aired in court, where friends and family of the victim may hear it. In addition, requesting this information in such a non-discriminatory way can dramatically elongate already considerable investigation times.

I applaud the Government for introducing legislation in the Police, Crime, Sentencing and Courts Act, which set out a regime to be used by police when requesting digital data, such as that held on mobile phones. Within this Bill, the Government have tabled clauses which purport to do the same for third-party material, but these clauses differ considerably from those in the PCSC Act. As it stands, there will be two quite different regimes for the police to apply when considering obtaining digital material and third-party material, which, in practice, they frequently do in tandem. This is potentially confusing for the police, but, more importantly, for the victims of crime.

Amendment 102 is quite simple, in that it seeks to apply exactly the same robust regime to third-party material as the Government, having listened thoroughly to campaigners, already laid down in legislation for digital material. I hope Ministers will see the need to follow suit in respect of third-party material. This amendment is backed by my noble friend Lady Newlove, the Victims’ Commissioner, so I will allow her to speak to it.

I will speak to my Amendment 115. I am very grateful for the support of the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby. Rape and sexual abuse, as we know in this Committee, are deeply traumatic crimes, the impact of which can be wide-ranging and life changing. Sexual violence and abuse are often a root cause of mental health problems, eating disorders and self-harm, and, tragically, suicide. It is common for the impact of sexual violence and abuse to affect family and personal relationships, a victim’s ability to work, and long-term educational attainment. For many victims and survivors, counselling and therapy are a vital means of working through trauma, supporting them to find routes to regain control of their life. It is therefore imperative that those who choose to do so can seek support without fear that their counselling records will be used to humiliate them in court or, more often, to stop their case progressing in the first place.

The reality is that counselling records contain feelings and not facts. Typically, rape survivors will have feelings of shame and self-blame, and often complex feelings towards the perpetrator. Counsellors and therapists will support survivors to work through these painful feelings and make notes of things that will support their recollection for the next session. They are not collecting evidence for criminal investigations.

Routine access to this material by criminal justice agencies has severe consequences for victims’ mental health and well-being. Some try to stay with the process, while receiving no or limited emotional support, while others drop out altogether because of the intrusion into their private lives. According to recent figures, the proportion of adult rape investigations which ended due to victim attrition was 62%. I think we can all agree that that is far too high. Despite widespread recognition of this problem and the good work carried out by the Government to limit the vast amounts of personal data taken from rape victims, this remains a very big problem.

The Home Office’s own research found that, in case file reviews of rape cases, almost one-third contained a police request for counselling and therapy notes. Where a reason was given for the request, 32% were simply related to establishing a perceived victim reliability or credibility, and did not pertain to the facts of the case.

Rape and sexual abuse are treated with exceptionalism in the criminal investigation process. In no other crime does the victim have their counselling and therapeutic records trawled through and scrutinised with a view to finding any content that may disregard their character. I acknowledge 100% the good work that the Government have taken forward and progressed through Operation Soteria. Stronger legal protections are needed to limit far-reaching requests for these notes which very often contain the most sensitive personal data.

Other jurisdictions have demonstrated that it is possible to do this, while allowing for vital fair trial rights to be duly safeguarded. The state of New South Wales in Australia is a good example. It has an adversarial legal system—very similar to ours—but its notes are afforded far greater protection. This is achieved by ensuring that counselling records are disclosed only when they contain material of substantial probative value and by transferring the decision as to whether this meets the test to a judge. In 20 years, no appeals have been overturned on the basis of counselling and therapy notes.

I propose a similar model because it would strengthen and support the important work led by this Government. It would reinforce the transformative effects undertaken by police and prosecutors through Operation Soteria. It would also save precious police and prosecutor time and resources. They would need to access this material only when they were able to ascertain that there was substantial probative value in it, and not waste time simply trawling through irrelevant records.

We should not miss this opportunity. If the situation does not change, tens of thousands of survivors will have their rights undermined, face further intrusion and be deterred from both therapy and from engaging with criminal investigations. I will leave my noble friend Lady Finn to speak to Amendment 106. I whole- heartedly support Amendment 78. I sincerely hope that the Government will take it on board.

Baroness Finn Portrait Baroness Finn (Con)
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My Lords, I rise to speak to Amendment 106 in the name of and on behalf of the noble Baroness, Lady Morgan of Cotes. She is sorry not to be here today because of family commitments. This amendment was first debated in the other place. It was proposed by the honourable Stella Creasy based on her own experience as a victim of harassment. This experience is not unique to her. I am grateful—as I know she is too—for the support for this amendment of the noble Lord, Lord Russell of Liverpool, as well as the noble Baronesses, Lady Thornton and Lady Brinton.

In short, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record. Malicious reporting to other organisations—whether social services or an employer as part of a campaign of stalking and harassment—does not carry the same safeguard. As a result, data is retained on individuals who have been targeted maliciously, be it through workplace harassment, stalking or something else. Many victims find that, even if the person targeting them has been convicted, their harassment continues because such records remain. Current data protection rules mean that such records cannot always be deleted. The retention of this data has lasting consequences for all individuals involved.

This proposed new clause seeks to enable the deletion of data where a clear threshold is met to show that the report was the result of malice and that retaining it would continue the harassment. As the testimony of victims has shown, it is not necessary to be an MP to be subject to malicious reporting as part of a deliberate campaign of stalking and harassment. Such reporting, designed to have a serious long-term impact on victims and their families, can occur against anyone doing any kind of public work, in the context of domestic abuse or as anonymous, vexatious harassment.

Public bodies can refuse to delete the data on the grounds that they feel it necessary to retain that data for compliance with a separate legal obligation or for performing a task in the public interest. To overturn this, a person has to demonstrate that the public body’s retention of the malicious data is not necessary for either of these purposes, thereby putting the burden of proof on to the data subject and potentially requiring lengthy court action.

For most people, this is not possible or desirable, leaving them with no legal recourse. This amendment would update the UK general data protection regulation and address these inconsistencies, mirroring the concept of exceptional circumstances under which any deletion would take place. The proposed new clause would give all data controllers guidance on how to manage situations where there are competing obligations—for example, in safeguarding or identifying repeated attacks on an individual via third-party reporting. Unlike the current right to object, this would create an absolute right to request deletion and therefore overrule exemptions that currently apply. This would ensure that public bodies such as local authorities are able to comply with these requests for deletion without risking failing to meet their legal duties. At present, these authorities are very clear that due to existing data protection rules they cannot take this step.

For this duty to be robust and not undermine important concerns about retention of records for safeguarding purposes, there needs to be a clear threshold that is met to show that to retain the data would be to continue the harassment. By limiting this explicitly to proven victims of crimes, when the data is linked to that crime, we could ensure it does not become open to abuse—but it should extend to private companies such as employers to ensure that cases such as inappropriate employment references generated as part of discriminatory processes are not retained.
Could Ministers give serious consideration to updating the law in this regard? This Government have a strong track record on taking action against harassment, stalking and other harms against women and girls. I would like to understand why the Government do not see the need to update the law to take account of this very real situation. The retention of data in such circumstances is illiberal, oppressive and contrary to the mores of a democratic society. Therefore, I would like my noble friend the Minister not just to respond but to acknowledge that this is a serious issue that needs redress. I very much hope that, after this stage of the Bill, my noble friend the Minister will meet me, my noble friend Lady Morgan and Stella Creasy to discuss it further.
Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, I support Amendment 115 and would certainly have put my name to it had there been any space. I was shocked when I discovered this initially, and remain shocked, that victims are advised to postpone counselling and therapy, which goes against everything that I understand about the importance of counselling and therapy. It is another instance of victims being regarded as a sort of unwarranted hindrance to a prosecution. They are bystanders —somehow they are being too awkward, almost by their existence.

I very much support the amendment. However, I wonder whether the arguments do not extend to some extreme offences other than sexual offences—violence, modern slavery and so on. Since we will not be voting at this stage and, on an amendment like this it would be unusual for the Minister to say, “I agree”, and then sit down, if this amendment comes back at a later stage, perhaps thought could be given to extending it. It could be about not just victims of offences—I am not making the distinction between sexual and other offences—but about victims of acts which, if proved, would be offences. That may be a bit technical at this point.

I also support Amendment 106. There is something very perverse about the data subject being so hampered in the deletion of her or his own data, as if our personality and humanity were somehow lesser than our data presence.

My name is to the first two amendments in the name of the noble Baroness, Lady Thornton, which are about independent legal advocates and legal advice. We had a long debate on Monday about the skills that are needed by advocates, and Amendment 78 seems to bring those skills together. An advocate needs a range of skills, which should include legal qualification. I do not know whether it needs to be that of a solicitor— I am a solicitor; a legal executive with experience in this could do it equally well—but it is about the combination of the legal skills and other skills that are needed to work in support of victims. I do not suggest that solicitors would not have those.

Lord Hampton Portrait Lord Hampton (CB)
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My Lords, I will speak briefly to my Amendments 103 and 103A, which the noble Baroness, Lady Thornton, has already talked about. I am grateful for the support of the noble Lords, Lord Ponsonby of Shulbrede and Lord Russell of Liverpool.

These amendments would simply add the Children’s Commissioner as a statutory consultee for the codes of practice alongside the Information Commissioner, the Commissioner for Victims and Witnesses and the domestic abuse commissioner. The Minister might well say that this is covered by the phrase

“such other persons as the Secretary of State considers appropriate”.

The noble and learned Lord, Lord Bellamy, pointed out proudly earlier in our debates that children are mentioned in the Bill three times; this is an opportunity to add them two more times, making five in all. By simply adding the Children’s Commissioner to the list of names in the Bill, the Government can, with no effort or watering down, show the importance of children as victims. I look forward to the Minister’s answer.

Baroness Newlove Portrait Baroness Newlove (Con)
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My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.

The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.

“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:

“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.

This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:

“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise—it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about—my past and I didn’t know why”.

In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.

Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.

I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.

I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.

Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:

“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.

That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.

I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.

Malicious reporting to other organisations—including social services or an employer—as part of a campaign of stalking or harassment does not carry the same safeguard, even if the perpetrator of this malicious reporting is subsequently convicted of harassment. As we have heard, under current data protection rules these malicious records cannot be deleted and this has consequences for those falsely maligned. This needs to change and Amendment 106 sets out to enable the deletion of data where a clear threshold is met to show that a report was the result of malice and its retention would continue the harassment. It cannot be a surprise to any of us that victims of this behaviour report a serious long-term impact on them and their families.
Structures around data retention are currently guided by police concerns—with good reason. Following the horrific murders in Soham in 1998, Humberside police were heavily criticised for destroying vital information surrounding previous allegations made against Ian Huntley. I understand that the UK GDPR provides considerable flexibility to public bodies to allow them to retain malicious records. Those who are the subject of malicious allegations can request that the data is deleted; however, public bodies can refuse.
Unfairly, it falls to the victim to demonstrate that the public body’s retention of the malicious data is not necessary. Once again, this puts the burden of proof on the victim. In the worst-case scenario, it could involve the victim having to take lengthy and expensive court action. For most people, this is not possible or even affordable, leaving them trapped in the knowledge that these records remain on file.
Data protection experts argue that it is this very flexibility and the inconsistency in addressing vexatious complaints that causes the problem. By updating the UK General Data Protection Regulation, we can address these inconsistencies, mirroring the concept of “exceptional circumstances” under which any deletion would take place. This amendment offers data controllers guidance on how to manage situations where there are competing obligations, for example safeguarding or in identifying repeated attacks on an individual via third-party reporting. Importantly, it creates an absolute right to request deletion and therefore overrules exemptions which currently apply. This allows public bodies to comply with these requests for deletion without risking failing to meet their legal duties.
I know that some will counter this by saying there is a danger that this right to request deletion could become a chink in the armour of our child safeguarding arrangements. None of us wants to see another Soham, but clearly a high threshold needs to be met before records can be lawfully destroyed. I believe that this amendment, as drafted, does this. By limiting this explicitly to proven victims of crimes, where the data is linked to that crime, I believe we can ensure it does not become open to abuse.
Data regulations put in place to safeguard our children must not be allowed to become a weapon in the hands of abusive partners, stalkers or those who seek to harass people in public life. The time has come for us to act.
Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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My Lords, I support effectively all the amendments in this group, but your Lordships will be relieved to hear that I am not going to speak to all of them. I will speak briefly to Amendments 101 and 102, introduced very ably by the noble Baroness, Lady Bertin. The essential point behind these amendments is to try to align this Bill with the clauses in the Police, Crime, Sentencing and Courts Act that lay down the rules for digital disclosure.

I thought it might be helpful to try to find out what was happening with these new rules and whether they were actually working, so the Victims’ Commissioner’s office put in a request to try and find out. In true and typical form, the Government have not done any evaluation of before and after the Act came into effect specifically in this area.

However, a part of the Project Soteria programme is enacting this new code and some academics are looking at it, so we asked them for their feedback on whether the new code was working in terms of access to private data. They said they had

“seen a move towards better proportionality which they attribute to the Act. They have also seen less threats that investigations will end if the victim does not want to hand over their phone. There is also greater consideration given to alternative means of obtaining digital evidence such as screen shots”,

rather than taking everything off a phone. In conclusion —and this gives kudos to the Government—they said that

“the intentions of parliamentarians to change culture via the legislation do seem to be bearing fruit”,

which is very good news. So, since the evidence shows that it is working, it is not difficult to suggest that what was enacted through that Act should be mirrored exactly in this.

I move to Amendment 106, so ably spoken to by the noble Baroness, Lady Finn. This is personal for me. I have known Stella Creasy since before she acquired a family, during the troubles and strife of the years that went by before she was blessed with two children. To have an individual who has never met you decide to use an anonymous profile to make complaints about you on the basis that he does not like some of her views, specifically on misogyny and the behaviour of some men, and say that on that basis you are an unfit mother, is simply staggering. It is also staggering that the police decided to take this seriously; they finally admitted that that was wrong and, in doing so, said that the officer had been spoken to and that it was a time for reflection and some learning. My own view is that he should have been given a complete and utter bollocking and should probably have been asked to leave the service, or at least put on probation. That is wholly unacceptable.

So it is wrong that this can happen in the first place. When it happens, if the police decide to take the complaint seriously, having not investigated it, and pass it on to social services, social services are in a sense obliged to put on your record that an investigation is taking place on the basis of the complaint, regardless of whether it has any merit. Despite the fact that Stella’s persecutor was found to be malicious and sentenced, it remains on the record. Waltham Forest says that it can and will do nothing about getting rid of it. Perversely, it says that it will keep it on the record because she is a safeguarding risk to her children, as people in future might try to cause her harm through them. I fail to understand that logic. I do not know what the barriers to entry are to gain employment in Waltham Forest, but I suggest they might be elevated somewhat if that is the degree of logic applied in a situation such as this.

So I implore the Government to look at this seriously. As the noble Baroness, Lady Finn, said, they should sit down and talk with interested parties to understand how this happened and try to work out how to prevent it in future, or how to develop very clear guidance to enable authorities to which complaints might be made to go through a decision tree, to analyse the veracity and probity of such allegations, thinking very carefully about the implications of actions they might take without having fully thought them through.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB)
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My Lords, I will make three brief observations. First, I warmly commend Amendment 115. The law needs to balance very carefully the rights of the defendant and those of the victim. This is an admirable compromise, restricted to professional people, and I hope that it is a good example of the way that Parliament can move the law along to accord with present times.

Secondly, in relation to Amendment 102, consistency is critical. One must remember that the police will have to operate this, and it will be hard work for them as the law is made more and more complicated. Having slight differences between systems makes their life impossible. We need only to look at experience with search warrants and the terrible mess that was made of those to realise why it is essential to have consistency.

The third point relates to Amendment 78. There has been a lot of controversy as to whether victims of rape should have an advocate in court to represent them. As I understand the amendment, it goes nowhere near that; it is merely for advice. It seems to me that an awful lot of the difficulties that occur in rape cases could be solved by the victim having someone who is independent of the prosecution to talk to, because the prosecution cannot go to the extent of the help the victim needs. I am sure that, in the end, this would increase significantly confidence in the criminal justice system. The problem is cost; maybe the Government, with appropriate legislation, should try it in a series of pilots to see how it is best run, rather than rolling out nationwide.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.

The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.

These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.

My noble friend Lady Hamwee spoke of the treatment of victims as bystanders, and she was right to do so. That was, and has until recently, far too often been the approach. Though we have come a long way since then, it is nowhere near far enough. In no type of crime has the lack of progress been so severe, so obvious and so harmful as in rape. We are all well aware of the depressingly low rates of reporting for rape, the very low conviction rates, and the testament of literally thousands of victims who have been tormented by the trauma of reliving the offences against them in undergoing the criminal trial process.
Then there has been what the noble Baroness, Lady Thornton, accurately described as credibility trawls, which are intrusive and demanding. The noble Baroness, Lady Bertin, also spoke persuasively of such credibility trawls and the attrition rates that result, in part, from them. The noble Baroness, Lady Newlove, described an ultimatum to victims of sexual violence: the choice between justice and the right to a private life. All these injustices—for that is what they are—demonstrate our failure to achieve fair or even halfway acceptable treatment and outcomes for rape victims.
The Bill has as its central purpose the improvement of the way we treat victims of crime. The victims’ code is about guaranteeing rights for those victims, but the rights we spell out in the code, to which we are attempting by the Bill to give some force in statute, cannot be guaranteed if individual victims do not have the right to the advice to understand them, and the right to the voice to demand and enforce them. In no area of crime is this more important than in the case of rape.
Amendments 78 and 79 seek simply to give victims that advice and that voice. Free, independent legal advice and representation for victims are essential means by which the Bill may achieve the culture change we seek. It is for that principal reason that I urge the Government to accept these amendments, or something very much like them. So many have spoken of putting the protection and interests of victims at the heart of the criminal justice system. Perhaps this is a reminder that the adversarial system does not alone produce a system that is fair.
Limiting these provisions to rape victims may mean that these amendments can only be a start, but they are a start in the right place, and they may point the way towards the change we all seek.
Baroness Brinton Portrait Baroness Brinton (LD)
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I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.

I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.

A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.

Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?

I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.

From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.

Earl Howe Portrait Earl Howe (Con)
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My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.

I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.

To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.

The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.

My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.

When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.

Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.

Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.

Amendment 106 seeks to revise current data protection legislation, so that victims of malicious complaints involving third parties can prevent the processing, and subsequently request the deletion, of personal data gathered during a safeguarding investigation where the complaint was not upheld.

It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.

Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.

I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.

I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.

Baroness Thornton Portrait Baroness Thornton (Lab)
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Can the noble Earl clarify that he is saying that it is up to the victim to take the action?

Earl Howe Portrait Earl Howe (Con)
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The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.

Baroness Brinton Portrait Baroness Brinton (LD)
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May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.

Earl Howe Portrait Earl Howe (Con)
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I will be very happy to do that because I fully recognise the seriousness of the issue, and in particular the appalling events that Stella Creasy had to endure.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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The noble Earl has laid out, in his usual exemplary way, the way that the system is meant to work and the way it is designed. I suggest that the acid test would be to go to the officials concerned in Waltham Forest and ask them to describe, without leading the witness, exactly how they see what the noble Earl has just described—how they understand it—and how they therefore see what they can and should do. I suspect the results would be some distance away from what the noble Earl has just described, and therein lies the problem. It is fine to have a system, a process and a code that are meant to work, but if they are not working, which they clearly were not in this case, to put the onus on the individual victim to try to rectify that does not seem like justice, and neither does it seem sensible or proportionate.

Earl Howe Portrait Earl Howe
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I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.

I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.

I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.

We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.

Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.

In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.

Earl Howe Portrait Earl Howe (Con)
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I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.

Baroness Newlove Portrait Baroness Newlove (Con)
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My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.

I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.

For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.

I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.

Baroness Bertin Portrait Baroness Bertin (Con)
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My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.

I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.

My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.

Earl Howe Portrait Earl Howe (Con)
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My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.

Baroness Bertin Portrait Baroness Bertin (Con)
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I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.

Earl Howe Portrait Earl Howe (Con)
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I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.

We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.

Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.

The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.

Baroness Newlove Portrait Baroness Newlove (Con)
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My Lords, I am grateful for that response to the noble Baroness, Lady Finlay. I did a report on registered intermediaries. Again, I mean no disrespect to the Minister, because this is a very passionate area that we are speaking about, but we have a shortage of registered intermediaries, and they are the ones who train the police to get the best evidence.

I am concerned about people with autism or special needs, and even victims who have nothing apart from their trauma. My concern is that there is a shortage of registered intermediaries, and the reason is that they were not getting paid to do the job. I ask the Minister to write to me to see where we are on that position. While he has given a copy-and-paste response, in a sense, it does not help to fix the problem for people with special needs.

I have met a couple of victims of rape who were disabled. They thought they were raped because they were disabled, but it has never left me that when they went through the court trial they found that those people were on the web and looking at disabled people. It was not because that victim was disabled. So I am concerned. The Minister does not have to answer now, but I ask him to write to me about where we are on registered intermediaries after that report six or seven years ago.

Earl Howe Portrait Earl Howe (Con)
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I would be happy to write to my noble friend.

Amendment 173 seeks to extend Clause 24 to the whole of the UK. At the moment these measures apply to England and Wales, on the basis that policing is a devolved matter. This aligns with the territorial extent of the majority of measures within the Bill. We have also taken the decision to limit the scope to England and Wales as, following engagement with the devolved Governments, it is clear that there is no appetite at present for these provisions to extend further.

Baroness Thornton Portrait Baroness Thornton (Lab)
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I assume the noble Earl is asking me to withdraw my amendment.

I thank all noble Lords who have taken part in this debate. The noble Earl will be able to report with some veracity to his noble friend, who we hope will be back with us next week, that there is a complete degree of unity across the Committee about the need for action on all these amendments.

I thank the noble Earl for the fact that there has been some movement; I think that at least two meetings will flow from this group of amendments. I thank the noble Baroness, Lady Finn, in place of the noble Baroness, Lady Morgan, for her introduction and the suggestion that we should meet to discuss Amendment 106 and take that discussion forward together.

On Amendment 106, we have talked about my honourable friend Stella Creasy, who I have known since she was about 16 or 17 years old, but the briefing we got told us of many other examples of people who had been harassed. As one anonymous case said:

“Out of the blue Z received a call from their local police sharing details of a complaint made about the treatment of her children. The anonymously submitted complaint made a series of false claims accusing Z of neglect and abuse ranging from failing to feed or clothe their children correctly or take them to the dentist and GP. Social services were able to confirm that Z’s children attended school, the dentist and were registered with their local GP. Despite a lengthy investigation Z is no further in understanding who made this complaint, and their children’s record remains”.

She feels wretched about that fact. Of course, that carries forward to what happens to those children. Every time that mother has to fill in a form or a job application in public services of some sort, the fact that the report exists on the record is material.

Many noble Lords hold positions. I am a non-executive director of the Whittington Hospital and have had to go through the usual CRB checks to hold that position. If this was me, I would have to have declared that. That is what happened to Stella Creasy and all these other women who have been harassed and about whom vexatious complaints have been made. It is not just that this is unfair and a continuation of harassment; it has a material effect on those people and their children. We need to find a remedy for this issue.

I turn to the other amendments. I thank the noble Baroness, Lady Bertin, for her introduction and for the way in which she talked to her amendments. The noble Baroness, Lady Newlove, made her usual powerful and informed contribution. The words of the noble and learned Lord, Lord Thomas, were very wise. The noble Baroness, Lady Finlay, champions some of the most vulnerable people in our society. The noble Lord, Lord Marks, was perfectly correct in saying that the effects of Amendments 78 and 79 in my name would be only beneficial, not just for the victims of rape but for all the authorities and for their conduct in dealing with these victims.

The question is: can we wait another couple of years for the Law Commission to report and for the Government to consider it and take it forward? I was interested in what the noble Baroness, Lady Bertin, had to say. This issue may not fall within the scope of what the Law Commission is considering. We all need to know that, so that the discussions we might have with the Minister can be resolved in a spirit of information. I praise the noble Earl who has had to stand in for dealing with all these issues in his normal informed and courteous manner.

Finally, Amendment 115 on not delaying therapy is vital. As my noble friend Lady Chakrabarti said, the idea that you have to choose between therapy and justice is so abhorrent that we cannot wait another couple of years to be able to sort that out.

I thank the noble Earl. I look forward to the meetings and conversations we will have between now and Report, when I suspect we will return to many of these issues. I withdraw my amendment.

Amendment 78 withdrawn.
Amendments 79 to 81 not moved.
Amendment 82
Moved by
82: After Clause 15, insert the following new Clause—
“Parental alienation in criminal domestic abuse casesIn section 1 of the Children Act 1989, after subsection (7) insert—“(8) Anyone involved in the case who is also a victim (of criminal conduct) within section 1 of the Victims and Prisoners Act 2024 (meaning of “victim”) cannot be considered by the family court as a potential perpetrator of parental alienation.””Member’s explanatory statement
This clause would seek to ensure that victims under this Bill could not be disadvantaged by considerations of parental alienation in the family court.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I have recovered my calm and my optimism that we may get some more positive noises from the Government in the next group.

This large group could easily have been degrouped because it covers two fairly distinct areas. This is a very long Bill with a lot of amendments, so maybe keeping this as one group was an attempt to assist the business managers. I hope that the Committee will bear with me in separating the two principal issues covered by this long list of amendments.

Amendments 84 to 100 are about what is called Jade’s law. There are other concerns about the family court and the way in which its process has been and is being used abusively against victims within the definition in the current Bill. Amendments 82, 110, 111 and 117 refer to this.

I turn first to Jade’s law. The Committee will remember that last October the Government amended this Bill in the other place to include new Clause 16. This is what is being called Jade’s law. The intention is to ensure that a parent who kills a partner or an ex-partner with whom they have children will automatically have their parental responsibility suspended upon sentencing. The purpose is not to burden family members already in a state of some trauma with having to apply subsequently to the family court of their own volition to ask for the parental rights of the killer to be removed. Parental rights could be suspended as part of the sentencing process to take away that additional procedural burden. It is often bereaved grandparents and close family members who are in that devastating situation.

Jade’s law is named for Jade Ward, who was murdered by her former partner in 2021, with her four children sleeping in another room. Jade’s family campaigned for a change in the law after Jade’s murderer was able to continue to take part in decisions relating to the children. There are other case studies too.

This suite of amendments is supported by the Victims’ Commissioner for London and, I believe, by our own noble Baroness, Lady Newlove, the Victims’ Commissioner. I will not burden the Committee with the many case studies in the briefings from the victims’ commissioners and from a number of victims and women’s groups. Members of the Committee will be able to read them at their leisure, I hope, before Report.
The steps that the Government have already taken by providing Clause 16 are welcome, but we do not think that they go far enough. These amendments would add a barring order to prevent the offender making repeated applications to the family court. Under the current Clause 16, an offender can still make these repeated applications to vary the prohibited steps orders. That is family law jargon, which is not my specialty—forgive me.
The amendments would also specify that this provision would not apply when a parent kills the other partner after experiencing domestic abuse themselves. That is an added complication to this already very complicated scenario. It is usually women who are victims of prolonged domestic abuse who kill. Clearly, it would often not be in the interests of the children, or anyone else, for them to be subject to this kind of suspension of their parental responsibility.
Further, we seek to extend the Government’s approach to offenders who are convicted of sexually abusing a child within the family. Currently, children and families in these circumstances endure significant financial and psychological burdens in having to take up family court proceedings after a criminal conviction for sexual abuse of a child in a family. That seems very odd in the 21st century. Bearing in mind that the burdens of proof are, rightly, greater in a criminal court, it would seem odd that someone who has been successfully convicted of sexual abuse of a child in a family would not automatically have parental responsibility suspended, and that people have to run off, with the time that involves, and given the psychological and financial burden involved, and go separately to the family court, having not been able to go there straight away.
Amendment 84 contains the provision that adds the barring order to the current prohibited steps order. This would mean that a judge in a family court would have to review any application before proceedings in the family court could be initiated by the offender. That would take the pressure off the bereaved and grieving family members. If the circumstances have not changed for the offender, the application would not be considered further, and the family would not have to be embroiled in the proceedings. The amendment should not apply in cases where the offender was a victim of domestic abuse. It is envisaged as working alongside a strengthened exemption for domestic abuse victims, contained in Amendment 89.
The current exemption includes manslaughter but not murder. The renowned Centre for Women’s Justice research, Women Who Kill, collected data on 92 cases between 2008 and 2018 where a woman had killed her partner. In 77% of these cases, the centre found that there was evidence to suggest that the woman had experienced violence or abuse from the deceased. Of the 92 cases studied, 43% resulted none the less in a murder conviction rather than a manslaughter conviction, and 46% led to a manslaughter conviction. Only 7% led to an acquittal, which suggests to the Centre for Women’s Justice that there is still a real problem with the quality of legal advice—and, frankly, the quality of justice—that women who kill their partners after a period of domestic abuse are getting. That is a real concern. Regardless of the particular outcome, we think that, if the woman concerned is a victim for the purposes of this Bill, she should be exempt from the automatic suspension of parental rights. That makes sense.
Amendments 85 and 96 have effectively already been dealt with through the addition of sexual abuse against a child in the family to the offences already covered by Jade’s law.
I do not want to go too far in pre-empting the response that I might get in a little while from the noble Earl, save to say that it would be odd indeed if—as in the other place, when a similar amendment was put forward by my right honourable friend Harriet Harman—I were told that I needed to consider the Article 8 rights of the abuser. With respect to the Government, we think that Article 8 is a qualified right, and there are also the significant rights of the child. We think that the balance would be adequately respected through our amendments. I will put it no more strongly than that; I will save greater strength for later, if necessary.
I turn to the second suite of amendments, which cover a slightly distinct topic. We are not talking now about the bridge between criminal proceedings and family proceedings; we are now firmly in the family court, talking about the way in which family court proceedings can be used by abusers as a form of abuse in itself. The Government’s own 2020 harm panel report found significant evidence of this kind of abuse. We must bear in mind the very brave, calm and articulate —as always—comments on the previous group from the noble Baroness, Lady Brinton, about her own experience, and what has been said about Stella Creasy and so on. We know that abusers will use all sorts of legal complaints and legal processes as a form of abuse in itself. It is something that we really have to be very careful about.
The Government rightly took steps in the Domestic Abuse Act 2021 to prevent domestic abuse victims being cross-examined in person by perpetrators. That was a long time after that prohibition was provided for rape victims. We think—when I say “we”, I am so grateful for the advice of the victims’ commissioners and various experts in the field in the NGOs—that there are still a number of ways in which the system can be, and is being, manipulated for the perpetration of abuse.
One problem is where abuse may have been proven in the criminal courts and accepted, and the abuse victim is then accused by the perpetrator of alienating the children. This is a very concerning area. I accept that sometimes, when there is marital breakdown, it is sad but inevitable that parents will weaponise relationships with the children and try to turn the children against the other parent. That is not, in my humble opinion, a syndrome or a medical condition; it is just something that angry people do sometimes on marital breakdown. However, this is being medicalised in some sort of quackish way and turned into a syndrome that then requires experts to come along and give evidence about whether the syndrome is in existence in that case, when really it is about how the children feel about their parents and what the parents may or may not be doing. They are matters of fact that one would not have thought require expensive and sometimes less than appropriately regulated and less than good faith so-called practitioners to deal with. These are really facts of life, facts of a situation, and judges ought to be able to deal with them. We certainly do not need them to be over-medicalised or such an accusation to be used against someone who is already a victim of domestic abuse. That is what Amendment 82 is about.
Amendment 117 again echoes the previous group. It would provide protection for victims of domestic abuse so that their private medical records were not disclosed to their domestic abuse perpetrators in the family court. There are further amendments in this group that have long been called for by London’s Victims’ Commissioner following extensive engagement with abuse survivors who have been through endless, repeated trauma in the family court. Amendment 110 would prohibit experts from undertaking the psychological assessments that I referred to earlier unless they were properly regulated, and we say regulated by the Health and Care Professions Council. At the moment, there are unregulated people making quasi-medical assessments about parental alienation.
Amendment 111 would prevent those currently on bail or awaiting trial for domestic or child sexual abuse offences having unsupervised contact with children. We think that that is a very reasonable request from the victims’ commissioners for improvement to what is supposed to be victims’ protection legislation.
I think that I have already dealt with Amendment 82 on parental alienation syndrome. There are many reports, including the domestic abuse commissioner’s report of 2023 and reports from international bodies—I could go on, but I do not want to detain the Committee—that raise real concerns about the way in which this so-called syndrome is used by abusers against the abused, and we rest on those.
Again, I have already mentioned the medical records referred to in Amendment 117. Noble Lords will have read the wealth of case studies in the briefings, including those from Rights of Women, Women’s Aid and the victims’ commissioners: if not, there will be an opportunity to read them before Report. On that basis, and with, I should have said at the beginning, the formidable cross-party support of the noble Baronesses, Lady Brinton and Lady Helic—the latter of whom is not able to be in her place right now—I beg to move.
Baroness Brinton Portrait Baroness Brinton (LD)
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My Lords, it is a pleasure to sign all the amendments from the noble Baroness, Lady Chakrabarti, in this group. I will not go through the detail of them, but I want to make a couple of comments about Jade’s law and parental alienation to set in context why all the amendments are necessary. They certainly try to remedy the poor behaviour of ex-partners especially, but not only those, who are offenders through the criminal courts system. As we have heard through the passage of the Bill, we are talking about the most manipulative and vindictive people, who will continue to do everything they can to persecute their ex-partner or, I am afraid, sometimes their current partner.

The noble Baroness, Lady Chakrabarti, referred to the report from the Ministry of Justice’s harm panel published in 2020. It found evidence that through the family court system abusers were exercising

“continued control through repeat litigation and the threat of repeat litigation”.

Its recommendations outline comprehensive changes to the system to stop this happening using a whole series of mechanisms.

Among other things, the panel recommended that the basic design principles for private law children’s proceedings should be set out in the way it described and which I will not go into. Much more importantly, it seems to be safety focused and trauma aware. The problem with the offenders we are talking about is that those children are already traumatised.

Although the report was principally about children, it talks about parents in private law cases as well. One problem faced in family courts is the increasing number of litigants in person. It is not even a counsel representing one of the parents; it is the estranged partner, who may have a criminal record for their behaviour, cross-examining their ex and other witnesses. That is just not appropriate. I know the law has changed on that, but that is the context in which the report was written.

The Minister referred in a previous group to the importance of training, and indeed we have had amendments on that. Recommendation 11.11 by the harm panel echoed amendments that your Lordships’ House has seen in recent years, on training in the family justice system to cover a

“cultural change programme to introduce and embed reforms”.

It then goes through a whole string of items which I will not mention, but it specifically mentions the problems of parental alienation.

Prior to that report, it was very difficult to get the family courts even to accept that there was such a thing as parental alienation—the noble Lord, Lord Ponsonby, has nodded at me. The Domestic Abuse Act 2021 certainly made some improvements, but unfortunately the reason for these amendments is that there are too many holes in the current system that mean that victims going through private family law proceedings can be inappropriately assessed by experts, with some inappropriately concluding that victims’ allegations, including those made by children, are evidence that the victim parent is “alienating” the other.

The victim parent often cannot get the family court to consider the previous criminal behaviour of their former partner or even a caution—I suppose that technically counts as criminal. The point is that—and we have debated this a lot in your Lordships’ House—the family court rightly prides itself on being a stand-alone court system, but in this instance the behaviour that was found through the criminal system is now replicated in the family court system; it is not everywhere but it happens. Family courts need to recognise that and take it into account.

There is recognition now of what is called the “parental alienation trap” in academic research both here and in America. Basically, it means that victims are accused of alienation. Not only does that compound the trauma from the abuse but that trauma is then used as evidence that the mother or child—and it usually is a mother—is disordered and therefore an alienator. That is a trap that you cannot get out of in a court, because whatever you do is wrong.

A further problem is that some parents who are calling their former partners disordered can now get specialist advisers who believe in parental alienation. One bit of evidence from the Victims’ Commissioner for London was a quote from a victim of the family courts:

“The therapist recommended a 90 day plan for my son to spend time with his Dad with no contact with me. She wrote in her report that there was a need to ‘sever the bond between mother and child’. The ‘experts’ then had free rein granted by the judge to force me and my son through privately paid therapy every week at £150 per hour. The therapists and social worker told me if I didn’t, they wouldn’t give me my son back. They wanted to take him away at the end of 90 days and give full custody to my ex but my ex refused as he said ‘I had learnt my lesson and he had a life and didn’t want my son all the time’. I was one of the lucky ones. I had to fight this case for over 2.5 years and it cost me a total of just under £900,000”.

People who have access to resources are using their money to manipulate the family court system even more.

It is also extraordinary that it is possible for those on bail or awaiting trial for domestic or child sexual abuse offences to have unsupervised contact with their children. Amendment 111 would prevent this. For similar reasons, victims of domestic abuse need protecting from disclosure of their personal and private medical records, as we discussed in the previous group. I will not repeat the arguments, but they are as strong here, particularly where the litigant in person will see those details in all their glory.

While we welcome the Government’s amendment to Clause 16 in the Commons to take account of Jade’s law, it does not go far enough to protect children, particularly children who have been abused by a parent—unbelievably, they retain the right to parental responsibility above the safeguarding of a child. Amendments 84 to 100 on Jade’s law also cover the issue that happened with Jane Clough, who was murdered by her ex-partner. I had the privilege through the stalking law inquiry in 2011-12 to meet Jane’s parents, John and Penny Clough. Ever since their daughter’s murder, they have campaigned tirelessly for legislation to protect victims and their children from their violent and murdering partners and ex-partners.

It is really important that these lacunae in the family court system are closed. We need to make sure that children, whom the family courts stand there to protect, are the absolute priority and that every bit of evidence from the criminal court system or other systems, through repeated litigation through the family courts, is taken into account.

Baroness Newlove Portrait Baroness Newlove (Con)
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My Lords, I support all these amendments. As Victims’ Commissioner, I have been in contact with many victims who have experienced criminal offending and are going through the family courts. I have raised concerns about how, as I hear from victims of domestic abuse in particular, the family courts can be a highly traumatising environment. Anecdotally, from someone who has worked in family law, I hear that you have only to go into the family courts to see how private they are. You cannot even walk freely. The barristers take over and you go before the judges. It is very clinical at an emotional time.

I was pleased when this was acknowledged by the Government, which resulted in the harms panel report, as has been discussed. I was also pleased that the Government legislated through the Domestic Abuse Act, in which I was heavily involved, to prevent perpetrators of domestic abuse cross-examining their victim in family court proceedings. However, we still have issues within the family courts for victims of abuse. As has been said, parental alienation has been increasingly argued in the family courts and even on social media when you speak out about it. It is interesting that we are talking about it in this Chamber to protect those victims. I am aware of cases where it has been used by an abuser to discredit their victim in child custody hearings. I was also shocked to discover that so-called experts in these cases are not always qualified or regulated to provide such opinions, and yet weight is frequently given to the evidence in court.

As we have just heard from the noble Baroness, Lady Chakrabarti, abusers will often try to paint the abused parent as unfit in other ways, sometimes relying on medical records which detail evidence of the mental effects of trauma that they have caused. In fact, I would like to see that put down to coercive control by the abuser, rather than the victim having problems. We have to back up these claims for mental instability. It cannot be right that an abuser can go into a family court and use it as a tool of abuse. Therefore, I am wholly supportive of the measures to reduce the opportunity for an abuser to make false claims about their victim, and which seek to ensure that only qualified experts give evidence which is considered by the family courts making these difficult decisions.

I urge the Government to support Amendments 110 and 117. Although it is relatively rare, thankfully, we know that children die at the hands of an abusive parent during unsupervised contact, where abuse is a factor in the marriage breakdown. Research conducted by Women’s Aid considered the deaths of 19 children in such circumstances in a 10-year period—even one such death is too many and no children should be at risk in this way.

I urge the Government to support Amendment 111, which seeks to prohibit unsupervised contact for a parent awaiting trial, or on bail for domestic abuse, sexual violence or child abuse-related offences. The Government first proposed legislating to create Jade’s law after campaigning by the family of Jade Ward, who was killed by her former partner. This law seeks to, in effect, remove the parental rights of someone who kills their child’s other parent—a move I welcome. However, it does raise concerns about what it means for women who kill an abusive partner. Are we really saying that they should automatically lose their parental rights, as well as being imprisoned? I am in favour of measures which seek to mitigate the effect of Jade’s law in such circumstances being included in legislation. I therefore ask the Government to support Amendment 89.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My Lords, I rise with some trepidation, but also with an open mind because I want some clarity on one or two of the amendments. In general, the group of amendments we are discussing seem eminently sensible in terms of safe- guarding, but I seek some clarification. Perhaps the noble Baroness, Lady Chakrabarti, can give me some help, because her explanation was very well made, detailed and useful, and explained the two different groups.

My concern is specifically with Amendment 82, which says, in effect, that anyone who is a victim of criminal conduct within Section 1

“cannot be considered by the family court as a potential perpetrator of parental alienation”.

It seems an extraordinary thing to put into law. To say that somebody can never be considered by the family court to be a potential perpetrator of anything would seem to go against the spirit of open inquiry; for example, the possibility that even if one is a victim, one might well indulge in something unsavoury.

In the previous group, we heard a huge amount about the damage that can be caused by false allegations. We must always consider the possibility that false allegations are used to alienate one parent against another; this has become known as “parental alienation”. I am rather sympathetic to the concern raised by the noble Baroness, Lady Chakrabarti, about medicalisation —I particularly do not like quack medicalisation—and I am glad to hear that many noble Lords are worried about the fact that so many people who call themselves experts are not necessarily experts, which is something I have been arguing for quite some time across a range of issues, so all that is good.

None the less, Amendment 82 uses the term “parental alienation”, and I want to know how this amendment will help, because if anyone is using, for example, falsifications that are aimed at removing one parent from a child’s life, even if that parent was previously guilty of a crime, we have to be careful, do we not?

We know that creating false narratives by telling a child distorted information about a parent is not going to be in the best interests of the parent. I might even understand why somebody who is a victim of domestic abuse in any context will feel incredibly bitter and hostile to the parent, but we have to let the court decide, rather than putting this into the law.
When I was reading the briefings related to this group of amendments, I was struck by how often the term “pro-contact culture” was used. I am, generally speaking, pro contact culture, because I want to be in a situation—which has been well laid out in the other amendments—where the presumption is that the best interest of the child is to have contact with both parents. I do not necessarily think this is gendered, although I appreciate that obviously, more women—
Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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Yes, I said the other day in speaking to my amendments, I hope everyone accepts, that more women are the victims of domestic violence, but it is also the case that it can work both ways. I would like each allegation to be carefully examined by the courts; that is all. It needs to be that way, because we should have the aspiration that both parents should work to restructure the family in a healthy manner after separation, even after the massive disruption of domestic abuse. In the spirit of saying that I want people who commit certain crimes to become rehabilitated and to become responsible citizens, I do not want something that is so blanket as Amendment 82.

Baroness Brinton Portrait Baroness Brinton (LD)
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The argument that the noble Baroness is expanding on now would be a case where a couple had separated and there may have been some domestic abuse or domestic violence. She is saying that they should both have the opportunity to try and get together and work things out together for the sake of the children. I do not believe there is anybody in your Lordships’ House who would disagree with that sentiment, but that is not what this amendment is trying to do. It is saying that, when the charge of parental alienation is used, it is almost demonstrating—simply by using the terminology and everything that goes with it—that the battle by one party still continues against the victim. Therein lies the problem. The noble Baroness’s latter principle is absolutely fine, but that is not the way that the people who bring forward claims of parental alienation behave in the court system.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My only final point is to say that the term “parental alienation” has become problematic on both sides. It seems to me that one side can use the term “parental alienation” in the way that has been described—I have made the point that the term is used in the amendment—and another side can basically say that anyone who uses the term “parental alienation” does not understand the problems of victims of domestic violence, which is usually the accusation, as is that they are on the side of men’s rights campaigners. I am not saying any of that. I want some clarification on one amendment only of this very big group, because it is unhelpful to put it in the law.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I will briefly respond to the noble Baroness. I thank the noble Baroness, Lady Fox, for her constructive engagement and for everything she has said. I will respond on that specific amendment. I understand where she is coming from.

Perhaps I did not put it very well, but what I was trying to articulate before is that I fully accept, as a fact of life, that marital breakdown will, sadly, sometimes —maybe even often—create a rancour that can be passed on to the children. The children can be caught in the middle, and they may feel that they are pulled in two directions, or perhaps in one direction more than the other; it does not matter. That is a fact of life. It is a matter of evidence and fact that is not, in my view, a matter for medical experts, but a matter for the judge to deal with and cope with—I think the noble Baroness is slightly sympathetic to that point.

In many cases, it will be about encouraging the parties, whatever their pain, to reflect on their actions in the interests of the child. However, it does not require the kinds of sums of money and the sorts of diagnoses that the noble Baroness, Lady Brinton, was talking about. It has to be said again that we are often talking about some very wealthy men; it need not be, but it is usually men. These are some very wealthy individuals who pay some very expensive, slightly dodgy—and if the noble Lord, Lord Russell, can use the “B” word, I can use “dodgy”—experts, whose expertise I would query, but whose greed I would not.

I can always reflect on drafting; that is what Committee is about. Here, when we talk about being

“considered … as a potential perpetrator of parental alienation”—

as opposed to simply saying bad things to their kids about the other party—we are talking about this syndrome. That is what I was trying to reflect. As for the fact that they should not be diagnosed or considered for diagnosis for 90 days for this syndrome, frankly, if they are a victim of abuse, it is almost inevitable that they are going to have some rancour or anger towards the other partner, unless they are a saint. Judges are well capable of considering that and working out what to do on the facts.

It is really about attempting to separate facts from expert evidence. These are hard facts that judges can deal with, with other court reports. This so-called “alienation expertise”, that some of us believe has become a bit of a racket, is being weaponised against victims. If there is something in the clarity of the drafting that can be improved, that is the great benefit of Committee, but I am trying to respond with the intention behind my amendment. I am very grateful for the opportunity to do that, raised by the noble Baroness, Lady Fox.

Lord Meston Portrait Lord Meston (CB)
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My Lords, having started to grow old in the family courts, I feel that I ought to address some of these amendments, some of which I would like to support and some of which I would like to qualify.

I begin by clearing up one particular point, which was possibly a slip by the noble Baroness, Lady Brinton. There is no question now of unrepresented litigants being allowed to cross-examine mothers, particularly in contested cases involving domestic abuse allegations. It simply is not tolerated. No judge would tolerate it and we all know how to deal with it when it arises.

Turning to the individual amendments, as quickly as I can, and dealing first with Amendment 82 relating to parental alienation, I am worried by the proposal to restrict the family court’s approach to cases involving allegations of so-called parental alienation by what would amount to a statutory exclusion of evidence. There are two main grounds for concern that I suggest. First, the amendment would restrict the scope of what the court might want or need to consider. Secondly, and ironically, it might tend to elevate the significance of the concept of parental alienation. Allegations of alienation, whether justified or not, have become part of the weaponry of high-conflict parental disputes. The concept of parental alienation is controversial, and, indeed, as the noble Baroness, Lady Chakrabarti, said, the idea that there is a syndrome is largely discredited. That in itself may be one reason why it should not find its way, in any way, into a statute.

I was not going to refer to what was recently said by the President of the Family Division, but in view of what I have heard, I will say that in an important recent decision, in 2023, the President of the Family Division said:

“Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court's focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied”.

It is often said that the family court has to take a holistic view of the child’s welfare. It has to look not only at what happened in the past but at what might be possible in the future. Cases of this type have a particular complexity. The signs of parental alienation are, frankly, not difficult to identify. In my experience, Cafcass is well equipped to do that. The causes are more difficult to understand. Cases in which one parent tries to turn the child against the other parent, consciously or unconsciously seeking to punish the other parent, present differing degrees of alienation and varying motivations.

These cases are not easy to resolve. They require an understanding of the family dynamics, and an assessment of the impact of what has happened and of the harm to the child concerned. The evidential picture is not always clear-cut. Indeed, there are some cases in which there may quite well have been some level of domestic abuse by one parent, but the alleged parental alienation is wholly unrelated to it; or the persistent hostility revealed is quite out of proportion to the type of abuse that has been experienced. The Children Act and the practice direction governing cases in which abuse has been established fundamentally require the court’s assessment of harm, or risk of harm, from all sources. Those are the vital considerations.

Amendment 82 would insert the label “parental alienation” into primary legislation. It could artificially restrict—and, indeed, distort—the proper analysis of parental behaviour and attitudes in their context, and could restrict the careful handling that such cases sometimes require. I doubt that would be helpful. Indeed, it could well be unhelpful.

I turn now to Amendment 84 and others that wish to introduce the use of Section 91(14) orders. For the uninitiated, Section 91(14) orders restrict further applications to the court without leave of the court. It is a valuable power. Although Section 91(14) orders are not strictly speaking barring orders, as sometimes described, they provide a necessary protective filter to ensure that inappropriate applications will not be allowed to proceed.

In reality, a Section 91(14) order may or may not be necessary in any individual case of this type—that is to say, a case involving the application of Jade’s law. However, in these extreme cases, if there is any possibility of an inappropriate application by the convicted offender, such an order would be justified. Indeed, under current guidance there does not always have to be a risk of repeated applications, but rather the risk of any application without merit.

In the situation covered by the Bill, when, unfortunately, one parent has killed the other and the victim’s family or foster carers have stepped in to care for the child or children, they should be shielded from the prospect and distress of further court proceedings. However, in that context, and slightly tangentially, I will just qualify one observation made by the noble Baroness, Lady Chakrabarti, when she referred to parental rights. One of the great improvements brought about by the Children Act 1989 was to remove the concept of parental rights. What is being restricted here is the exercise of parental responsibility.

My only reservation about the Section 91(14) amendments relates to the question of who should be responsible for making such orders and when they should be made. From experience, I emphasise that the orders require careful, case-specific drafting. It is therefore always necessary, when making such an order, to specify its duration, which is not dealt with by Section 91 itself. That may require consideration of the age and circumstances of the child and, in these situations, the position of the surviving adults. I rather assume that those proposing these amendments would wish the order usually to run until the youngest child reaches 18 years of age, but I suggest that should be made clear, either in the statute or in the order.

However, I add that these are not orders of which most Crown Courts will have had any experience. At the sentencing stage in the Crown Court, there might not be the material on which to craft an appropriate order. Accordingly, while I do not in any way wish to oppose the principle of the amendments relating to the use of Section 91(14), I suggest that under the existing scheme of the Bill it would be better to leave any mandatory imposition of a Section 91 order to the required review hearing in the family court, for which the Bill provides in new Section 10B.

At the time of the sentencing hearing in the Crown Court, there really will not be an immediate need for a Section 91(14) order. It is highly unlikely that between the sentencing hearing in the Crown Court and the review hearing in the family court, the offender would attempt to make any, or any inappropriate, application to the court. I therefore suggest that it would be quite safe, and more sensible, to introduce the duty to impose Section 91(14) orders at the slightly later stage of the review by the family court, when there should be a better picture of the whole family circumstances. Subject to those comments, I would support those amendments.
I turn more briefly to Amendment 89, which seeks to disapply Jade’s law if the offender was the victim of domestic abuse. I question the practicality of this amendment, at least in its present form. How will it be reliably established that the offender was the victim of domestic abuse? The fact that there was evidence to suggest that there was domestic abuse in the past may not be sufficient. That leads me to question what type or degree of domestic abuse would be required. The noble Baroness, Lady Chakrabarti, referred to prolonged domestic abuse but, as drafted, one wonders, for example, whether it would be sufficient for there to have been a relatively minor incident years before the killing at the centre of these provisions. How would it apply in cases of murder as well as manslaughter?
So far as cases of manslaughter are concerned, is the situation not sufficiently—and, arguably, better—covered by new Section 10A(5)(b) already in the Bill? I fear that there must be some risk of the amendments in this form creating satellite litigation, which is really best avoided in such unhappy situations. However, again, if this amendment or something like it is thought to have some merit, I suggest that it is another matter that would be better dealt with by the family court, rather than as part of the sentencing exercise carried out by the Crown Court.
At the risk of taking too much time, I will touch briefly on the question of experts, and psychologists in particular. Family justice cases now involve a range of professionals with expertise. Unfortunately, there has been a declining number of suitably qualified experts willing to involve themselves in family justice cases. The rules, and other guidance, generally ensure that these cases have experts who are able to show that they have the required relevant expertise. The particular problem relating to the status of psychologists, and who should or should not be instructed, was covered in great detail last year by the decision of the President of the Family Division in a case called Re C. That decision gave clarity and guidance, and should really be required reading for practitioners.
While I well understand the argument in support of this amendment, it would be helpful to know the views of the relevant professional regulatory bodies concerning psychologists. I also question whether the specific control of assessments in family cases, which the amendment seeks, should be confined to assessments of victims. So often, it is the perpetrators or alleged perpetrators who require effective psychological assessment to provide analysis of risk and to enable properly informed decisions. In many cases, one is asked to approve what are called “global psychological assessments”, which are certainly of value. That could raise the standards of assessment to the benefit of all concerned.
At the risk of boring everybody completely, I will speak briefly in support of Amendment 111, in that it prohibits unsupervised direct contact in specific circumstances. My only reservation relates to situations in which there has been or may have been some police investigation but bail conditions have not yet been set. It is sometimes hard to ascertain whether in fact a police investigation is still ongoing—and, believe it or not, the parties concerned do not themselves know. Although I support this amendment, I add that it has to be recognised that suitably supervised contact is not always possible to arrange. An appropriate friend or relative may not be identifiable or available to provide reliable supervision. Professionally supervised contact at a centre may involve delay or expense, and be unaffordable. Delays in the criminal process may also mean that the restrictions envisaged by this amendment could continue for a considerable time. However, despite those difficulties, with which practitioners are all too familiar, I consider that to be a worthwhile amendment.
Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, as we have heard, Amendment 82, the first in this group, is designed to prevent a parental alienation argument, usually relating to contact but sometimes to residence as well, being used by perpetrators of domestic violence or child sexual abuse to harass their victims through repeated applications to the family court.

The Government need no reminding of the background, because it was the Government who commissioned the panel on the risk of harm in 2020, to which my noble friend Lady Brinton referred. That was responsible for a significant change of thinking in this area. The assumption that ensuring that children should always continue contact with both parents unless the circumstances were exceptional had dominated courts’ thinking for many years and was given some statutory force, though not in absolute terms, by Section 1(2A) of the Children Act 1989. However, the panel found that there was a pervasive culture of disbelieving victims of domestic abuse, compounded by a pattern of abusive ex-partners abusing the courts’ processes by applications to the court, and effectively of the courts ordering contact, in particular in favour of abusive parents, against the wishes of the victim—the other parent.

Allegations of parental alienation—I accept that the term became something of a term of art, perhaps unjustifiably—are frequently made by abusive parents, and they still are, generally seeking contact but also residence. My noble friend Lady Brinton has given a detailed account of why the parental alienation issue has represented a significant failure of the family courts in recent years. The process involves the abusive parent claiming that the resident parent is opposing contact in an effort to alienate the child from the non-resident parent; essentially, it is the bad-mouthing allegation taken to extremes, in a way that is wholly unjustifiable. I will not repeat the persuasive account of the issue that my noble friend Lady Brinton has given. However, in these cases with which we are concerned, the victim’s allegations are generally true. We need to remember that the children may be put at risk by unwanted contact with their parent’s abuser.

Summarising the position in 2020, the Minister, the noble and learned Lord, Lord Bellamy, wrote in the ministerial foreword to the panel’s report:

“The Panel found that too often, adversarial court proceedings retraumatised victims. Allegations of domestic abuse were too readily disbelieved or dismissed, alongside poor risk assessments and siloed working. The report also identified a view amongst many respondents that courts often placed an undue emphasis on ensuring children had contact with both parents”.

In its recommendations, the panel recommended a series of principles, which included:

“The court and those working within the system will be alert to those seeking to use … processes in an abusive or controlling way. Such behaviour will be actively identified and stopped”.

However, the issue persists.

Amendment 82 is directed at preventing victims being treated as responsible for parental alienation if they oppose applications made by perpetrators of violence against them to the courts. The amendment, as framed, would prevent a victim of domestic violence being considered as responsible for parental alienation.

The Committee may accept that the amendment as it stands is too absolute. As the noble Baroness, Lady Fox of Buckley, pointed out, supported by the noble Lord, Lord Meston, the amendment as drawn purports to prevent a court reaching a conclusion of fact, which it ought to be entitled to reach in a case where the evidence supports that finding. Nevertheless, I suggest that, in the view of the evidence that the panel and many other experts have considered, the direction of travel of the amendment is right. The interventions of my noble friend Lady Brinton and the noble Baroness, Lady Chakrabarti, in response to the speech of the noble Baroness, Lady Fox of Buckley, made it clear what the point and intention of this amendment are. If it needs redrafting, that could be dealt with between now and Report. The aim is to prevent perpetrators of domestic abuse continuing that abuse by transferring it to the court, abusing the court process with unwarranted accusations against their victims of turning the abusive parent against the victim.

Amendment 111 would reflect in the Bill a principle implicit in the findings of the panel: that in domestic abuse cases the court should disapply the Section 1(2A) presumption that parental involvement of both parents is generally in the interests of a child or furthers a child’s welfare. Furthermore, by the amendment, unsupervised contact should not be ordered in a case where the parent concerned is a defendant or a potential defendant in a case of domestic abuse, child abuse or a sexual offence. The level of supervision specified involves the presence of an approved third party at all times during contact, to ensure the physical safety and emotional well-being of the child, but the court would be left to determine the precise nature and location of the supervised contact permitted. I suggest that that represents a relatively minimal level of safeguarding. I accept entirely the caution expressed by the noble Lord, Lord Meston, as to the difficulty sometimes of arranging supervised contact. However, that difficulty needs to be weighed against the danger of exposing children to unnecessary risk, and I suggest that the amendment provides a reasonable balance.

Amendment 110 would ensure that anyone carrying out psychological assessment of a person as a victim for family proceedings would be suitably qualified by being regulated by the Health and Care Professions Council. I accept again the point that the noble Lord, Lord Meston, made, that often the perpetrator needs psychological assessment as well. Whether the qualification for making psychological assessments should be as is suggested—that is, regulation by the Health and Care Professions Council—is a matter for discussion. However, suitable qualification is always important.

Amendment 117 would protect victims from orders to disclose medical records to proven or alleged perpetrators of domestic abuse against them, unless the circumstances were exceptional. We have been through much of the detail of that and the principles behind it in relation to group one, and I suggest that the amendment is important in just the same way as the amendment in group one.

These amendments sought by the London Victims’ Commissioner and others reflect the evidence that perpetrators of domestic violence are resorting to the use of intimidatory tactics and, as has been pointed out, often with the help of significant financial resources that are not available to the victims, including seeking psychological assessments and medical records of their victims in repeated family court proceedings taken against them. This fits with the pattern found by the 2020 panel, and with case studies and evidence produced in particular by the London Victims’ Commissioner, of perpetrators using counterallegations in court proceedings in oppressive and abusive ways. It would not be fair to blame the courts too harshly for what has been happening, but there have been indications of excessive gullibility by courts when faced with persistent and oppressive litigators. However, the evidence establishes that abusers have been abusing court proceedings, in effect harnessing the unwitting assistance of the courts in an underhand and offensive attempt to bully their victims.
I turn to the suite of amendments to Clause 16, which has become known as Jade’s law. Amendments 84 to 100 are designed to prevent a co-parent who has been found guilty of killing the other parent, or, by the addition in Amendment 85, as described by the noble Baroness, Lady Chakrabarti, of a sexual offence against a child in the family, making repeated applications to the court for orders under the Children Act without leave of the court. The provision that applications could be made with the leave of the court is an important safeguard or exception to these amendments. The amendments would enlarge the category of offenders subject to Clause 16 to include a perpetrator of a sexual offence against a child in the family—that is provided for in Amendment 85, which I suggest must be right—and would make barring orders the norm in circumstances where a perpetrator within the ambit of Clause 16 would be prevented making repeated applications to court for orders in respect of a child without leave.
Amendment 89 takes the converse point and would exempt from the effect of Clause 16 a victim who sustained domestic abuse before killing a co-parent. These amendments seek greater use of barring orders under Section 91(14) of the Children Act, which prevents applications if the court so orders. The Committee has heard that those barring orders are designed to bar applications for orders under the Children Act without leave of the court. I remind the Committee of the evidence that the panel found that barring orders are infrequently used, and that the guidelines in the case of Re P in 1999 were that these orders be made only in exceptional cases. It seems that reversing the proposition that they should be for use only in exceptional cases may be a topic to which we ought to return on Report. I accept the general point that caution should be exercised in relation to the framing of barring orders, as suggested by the noble Lord, Lord Meston.
I do not suppose that the noble Lords who have tabled the amendments in this group would insist—and indeed they do not—that they are perfectly drafted and should be accepted as they stand in Committee. However, they indicate a path that is entirely consistent with the recent evidence and that found by the panel. They build on the achievements of the Domestic Abuse Act in a direction that is consistent with those findings and that legislation, and with the ministerial foreword to the panel report by the noble and learned Lord, Lord Bellamy.
Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I open by agreeing with the last point made by the noble Lord, Lord Marks, that the overall path of this group of amendments is consistent with the harm panel’s recommendations.

In debating the group, I can see that there may be drafting improvements to be done. I am particularly grateful to the noble Lord, Lord Meston, for the points he made regarding the drafting of particular amendments.

I remind noble Lords that I sit as a family magistrate in London, and have been one for about 10 years. About 80% of the work that we deal with in our practice is private law, and so very much the types of cases that we are considering in this group of amendments.

I am grateful to my noble friend Lady Chakrabarti for the way she divided this group into two—Jade’s law and then the amendments that focus on using the family court to perpetrate or perpetuate abuse, which is almost always abuse of the woman.

I will not go through the amendments individually, because they have been fairly widely debated, but I will make some particular points, the first of which is on Amendment 82, which the noble Baroness, Lady Fox, questioned and spoke to. The point she made was about the medicalisation of parental alienation, and I think she argued that the courts should decide.

Some noble Lords in the Committee will have taken part, about three years ago, in the Second Reading of the Domestic Abuse Bill, as it was then, when the noble Baroness, Lady Meyer, spoke passionately about parental alienation. She absolutely believes that parental alienation is real, and that she experienced it with her own sons. In my experience of when domestic abuse allegations are made, which is fairly frequent, it is not an unusual scenario where the woman is making accusations of domestic abuse against the man and the man is applying for a child arrangements order to restart contact with his children, and he is making allegations of parental alienation. When that happens at magistrates’ level, we kick it upstairs.

We know it is a complex area, where, as the noble Lord, Lord Meston, said, there has been recent advice from the president on this matter, and we know that, particularly when there are wealthy individuals involved, there will be any number of experts who are brought into the court to try to resolve cases. We see these allegations a lot at my level, and we try, if possible, to resolve them there, but if they are persisted with, we will put them up to district judge or circuit judge level.

I want to reiterate what the noble Lord, Lord Meston, said about the Crown Courts putting in place protection orders to prohibit repeated applications and that this should be a decision for the family court. It is something that is routinely done in the family court, when you see persistent applicants who are abusing the process, and I argue that it is usually evident when we see it and they are orders that are regularly put in place.

The other point that the noble Lord, Lord Meston, made, was on Amendment 89, which I support. He questioned the degree of drafting in the amendment. The point I would make is that while there may well be shortcomings in the drafting, the direction of travel is clear and consistent with the rest of the amendments in the group. That may well be something that this side of the House would want to persist with at later stages of the Bill, depending on how the Minister replies to this debate.

In summary, family courts present some of the most difficult cases that I deal with. You see more tears in a family court than in any other court structure. I had a meeting this morning with a group representing fathers. This is an unusual group: you do not see them that much, and not much lobbying material has been sent to me regarding this or the Bill as a whole. The group that came to see me this morning was called Dads Unlimited, and its particular interest is in male suicide and male self-harm. The point that it was making to me—I must admit that it had some pretty persuasive data—was that, when men are involved in the family court system and making applications to court, they hide their mental vulnerabilities. They do not go to see their GP, and they do not want to talk about it, because they believe that it will be used against them when they are making their applications to court to restart contact with their children.

This is a difficult issue, and I think everybody understands that. Nevertheless, these amendments are trying to codify and build in protections to reduce abuse within family courts as far as possible, and I support them.

Earl Howe Portrait Earl Howe (Con)
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My Lords, I begin by thanking the noble Baroness, Lady Chakrabarti, for tabling this group of amendments, which take us deep into the heart of the family court and its proceedings. The noble Baroness speaks compellingly and with great passion on these matters. I think she would agree with me that family court proceedings involve some of the most sensitive and difficult decisions that any court has to make, resulting as they do in often profound consequences for parents, children and whole families.

All the amendments in this group have noble aims. They seek to protect vulnerable children and victims of domestic abuse, and that is an agenda that I and the Government strongly support. I shall address each in turn, but I need to start by airing what I see as a difficulty running through these amendments: in one way or another, a number of them seek to curtail the family court’s discretion to take individual decisions on a case-specific basis on what is in the best interests of the children involved. With enormous respect to the noble Baroness, whose experience is much wider than mine, we need to be a bit careful here. The paramountcy principle, enshrined originally in the Children Act, provides the bedrock of all family court decisions. It is a principle that I firmly believe we must protect and uphold.

I start with Amendment 89. As the noble Baroness explained, it seeks to exempt from the provisions of Clause 16 victims of domestic abuse who then kill their abuser; this is Jade’s law, as she mentioned. None of us can have anything but the deepest sympathy for people who find themselves dealing with these extremely difficult and challenging situations. That is why my response on this amendment is that the Bill already allows for this protection. Clause 16 gives a clear route to protect victims of domestic abuse who have killed their abuser. It allows the Crown Court not to suspend parental responsibility in cases of voluntary manslaughter where it would not be in the interests of justice to do so. Our intention in including this exemption is that it could be used in situations where a victim of domestic abuse kills their abuser after a campaign of abuse. I hope the noble Baroness will find that assurance helpful.

Amendment 82 seeks to ensure that victims under Clause 1 cannot be considered perpetrators of parental alienation. I thought that we had some very interesting contributions on this topic. While the aim of the amendment is, as I have just said, to prevent victims of domestic abuse being deemed perpetrators of parental alienation in the family court, the main problem here is that the scope of Clause 1 is significantly wider than victims of domestic abuse. The other—perhaps somewhat technical but still quite important—point is around the amendment wording. The noble Lord, Lord Meston, referred to this. The Government do not recognise the concept of parental alienation. We did not reference it in the controlling and coercive behaviour statutory guidance that accompanied the Domestic Abuse Act. If we were to do so here, it would risk giving legitimacy to a concept that we have expressly rejected, on advice.
I was grateful to the noble Lord, Lord Meston, for quoting the case of Re C. I hope noble Lords will forgive me for repeating the words of the President of the Family Division, who noted:
“Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful”.
He went on to make it clear that this is ultimately a “question of fact” and that the courts should focus on identifying particular “alienating behaviours”. It is the role of the judge to make decisions based on the evidence and the applicable law and to apply this to the individual facts of each case.
In August 2023, the Family Justice Council published draft guidance on responding to allegations of alienating behaviour. We expect the final guidance to be published later in the year. It is positive that the family justice system is taking steps to address the issue of alienating behaviour, even if it remains work in progress. The aim of the amendment is a worthy one, but the upcoming guidance will provide a clear framework on how the family court deals with cases of this nature. I therefore hope that the noble Baroness will feel able to wait upon that guidance.
I turn next to the large group of amendments concerning Section 91(14) orders, often referred to as barring orders. I understand the noble Baroness’s motivation in tabling these amendments, which are aimed at ensuring that, where a prohibited steps order—a Section 8 order under the Children Act 1989—is made by the Crown Court, it is accompanied by a Section 91(14) order to prohibit further applications by the offender. The concern I have with this approach is that it risks creating a breach of rules of natural justice, as well as breaching Article 6 of the European Convention on Human Rights. Any offender who is subject to this kind of restriction to their parental responsibility must have an opportunity to be heard and to bring a challenge through the courts if that is what they want to do. I will qualify that in a second, but it is one of the reasons why we require in the legislation that the family court reviews the order made in the Crown Court and the local authority brings the application, to remove the burden on the victims.
It is important to emphasise that family court judges have the power to make Section 91(14) orders where they feel that further applications would put any individual involved at risk of harm. In the Domestic Abuse Act 2021, we made it absolutely clear that these orders are available and should be made in appropriate circumstances. Indeed, the Domestic Abuse Act clarified the appropriateness of Section 91(14) orders in preventing abusers using the family justice system as a continuing form of abuse.
What lies behind that is that, once the family court has reviewed the order and made a decision, we want the remaining family and child to be able to get on with their lives in as normal a family environment as possible, rather than being repeatedly dragged back to court by the imprisoned parent. Section 91(14) orders are available, to prevent a person from making further applications without the court’s permission—particularly where doing so may cause harm or distress to the children or other involved parties. The court has a discretion to determine when such an order would be appropriate, and we will seek to provide guidance to make clear that they should give strong consideration to it in these kinds of cases.
I hope it is of some reassurance to the noble Baroness that there are, nevertheless, good reasons for not making a Section 91(14) order alongside the prohibited steps order, but that there are well-used existing powers to put one in place when the circumstances are appropriate.
Lord Meston Portrait Lord Meston (CB)
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My Lords, I hesitate to interrupt, and I understand the drift of what the noble Earl is saying, but all I was suggesting was that, although I fully understand the desirability in many cases of having Section 91(14) orders—and suggest that in these extreme cases they should be the norm—it should not be done in the Crown Court but should be part of the mandatory requirements at the review hearing that will follow shortly afterwards in the family court. It should, at the very least, be something in the statute that the reviewing family court should be required to consider.

Earl Howe Portrait Earl Howe (Con)
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I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.

Earl Howe Portrait Earl Howe
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I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.

Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences

“against the child, or a child in the family”.

I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.

Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.

There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.

Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.

I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.

I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.

Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.

In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.

I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.

Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.

A fair trial demands that the court makes its decision on the basis of all available relevant evidence. There will be cases where it is necessary for the court to require a party to disclose medical records in order to decide an issue, including where a person involved in children proceedings has been a victim of criminal conduct by another participant. However, it is the judge who will decide what is necessary.
The court has the power in Rule 21.3 of the Family Procedure Rules 2010 to withhold inspection of a document, preventing another party seeing that document. The court is also able to offer protection to domestic abuse survivors via special measures, which help a party or witness to participate or give evidence in court proceedings. The family courts have the power to make participation directions to assist a person during proceedings. Again, the aim of the amendment is a worthy one. However, it is clear that any changes in this respect should occur through the relevant rules and practice directions, which I hope the noble Baroness will agree with on reflection.
After what has been a useful debate, albeit fairly lengthy, I hope the noble Baroness will be content to withdraw Amendment 82 and not move the others in the group.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am so grateful to the Committee for the time we have spent on this lengthy but, I hope everyone will agree, important group of amendments.

I will not thank everyone or summarise their contributions because that would not assist the Committee at this late hour, given the groups that need to follow today, but I reserve particular thanks for the noble Baroness, Lady Fox, the noble Lord, Lord Meston, and the Minister. In Committee we benefit the most from detailed scrutiny of Bills and amendments, and their comments, particularly about drafting issues and the need to refine some of the ideas and amendments, were very helpful; they will allow me and those I am working with to reflect and improve amendments in areas where it is thought they should still be pursued.

I was particularly grateful to the noble Lord, Lord Meston, with his lifetime of expertise in the family courts, for the generous humility that he brought to the debate, given that I am not at all an expert while he is a very distinguished expert in the field. On the issue of psychological assessments of suspects, defendants and offenders being just as important as those of victims, I completely agree—but one was limited, as one always is, by the scope of the Bill.

I listened with great care to the points on Amendment 82 from the Minister, the noble Lord, Lord Meston, and the noble Baroness, Lady Fox of Buckley. I think the Committee understands our concern, and there may be something we can do to address that concern without naming the syndrome that we know has been discredited. I am thinking about how people are treated rather than trying to interfere with any court’s finding of fact, so I was grateful for that. I am still concerned about unsupervised contact with children by the kind of offenders we are talking about. We will have to return to that, along with some of the other concerns here. I made the point that respecting the expertise of the family court is without question, but we have to protect victims in particularly dire circumstances from being dragged from one court to another if that can at all be avoided.

It is always a pleasure to face the Minister across the Chamber. He is drafted in like a Marvel superhero by the Government because he is one of their finest advocates. It is a particular delight to be charged with attempted breaches of Article 6 or any other article of the convention, and to be reminded of the importance of not ousting the jurisdiction of the courts. If only the noble Earl could have a word with the Home Office about those values, I would be incredibly grateful. With that, I thank the Committee again and beg leave to withdraw the amendment.

Amendment 82 withdrawn.
Amendment 83 not moved.
Clause 16: Restricting parental responsibility where one parent kills the other
Amendments 84 to 92 not moved.
Amendment 93 had been withdrawn from the Marshalled List.
Amendments 94 to 100 not moved.
Clause 16 agreed.
Clause 17 agreed.
Amendment 100A not moved.
Clauses 18 to 23 agreed.
Clause 24: Information relating to victims
Amendments 101 to 103A not moved.
Clause 24 agreed.
Clause 25 agreed.
Amendments 104 and 105 not moved.
Clause 26 agreed.
Amendments 106 and 107 not moved.
Clause 27 agreed.
Amendments 108 to 111 not moved.
House resumed. Committee to begin again not before 7.50 pm.