Domestic Abuse Bill Debate

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Department: Ministry of Justice

Domestic Abuse Bill

Baroness Finlay of Llandaff Excerpts
Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021

(3 years, 5 months ago)

Lords Chamber
Read Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-VI(Rev) Revised sixth marshalled list for Committee - (8 Feb 2021)
Baroness Mallalieu Portrait Baroness Mallalieu (Lab) [V]
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My Lords, on Wednesday, both the noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, put the detailed legal arguments for this amendment, and I have added my name to it as well. I shall not try to repeat what they said, but instead will say something that has, perhaps, been said by all bar the last speaker in this debate, which is that I strongly support this amendment.

As a nation we have been very slow to recognise the way in which the human mind can be coerced and controlled by unscrupulous people without the use of violence. I am not sure that until “The Archers” featured Rob Titchener in its storyline about marital coercive control, and gripped the nation with it, many of us would have been able to describe or recognise it on our own doorsteps. We have been even slower as a nation to recognise and enact legislation to protect those who are its victims in another category, namely those whose vulnerability, whether it is emotional or psychological, renders them a target for the bogus counsellors, the amateur psychotherapists and the self-styled life coaches, usually bent on profit, who may appear to be well intentioned but still often inflict real harm and damage on their so-called patients and their families.

This is not a new phenomenon. Unhappy people often search for explanations and cures, and the unscrupulous offer false promises of help and future happiness. They frequently obtain substantial amounts of money from them and very often, using transference, seek to replace contact with parents and families, sometimes by implanting false memories, which in turn often sever domestic relationships for life. As a pupil barrister in 1970s, I remember cases involving the Scientologists. I know the noble and learned Lord, Lord Garnier, remembers cases involving the Moonies. Domestic alienation was a common feature then, 50 years ago, as it is today with some of the quasi-healers operating in this country right now with impunity.

I personally am aware of one family whose adult daughter fell into the hands of just such people in London. They were paid substantial sums of money by her. Their methods involved repeated “counselling” sessions lasting six or seven hours at a stretch during which, exhausted, she was persuaded to sever all contact with her parents and her family. It took some years for them even to find her, and eventually get her back. She was one of the lucky ones. These people are untrained, unqualified, unregulated and damaging to the vulnerable on whom they prey. Yet our present law currently provides no adequate protection from their activities.

Our understanding and recognition of mental illness is, thankfully, advancing rapidly today. Yet we are only beginning to understand more about how the power of words, whether they are spoken directly or via the internet, can convince an otherwise intelligent adult to become a jihadi or embrace a coronavirus conspiracy theory and, in so doing, often damage and even destroy their closest domestic relationships. On this form of abuse, we have looked the other way for far too long. We have given protection, as the noble and learned Lord, Lord Garnier, said, to other vulnerable categories by law—whether they are children, the mentally ill or the elderly—and it is now surely time to add those who are at the mercy of these bogus healers.

The Government argument is often, “Yes, but it’s not right in this Bill”—but I do not see a better Bill on the horizon to deal with this particular lacuna in the law. I totally understand that members of a Bill team that has produced an excellent Bill, as this team has, will always be reluctant to look at a new amendment that may, they fear, perhaps alter the architecture of the Bill on which they have worked so painstakingly. However, I do not see any other way, in the near future, of tackling something that I believe has not only been overlooked for far too long but I suspect is likely to grow, particularly in these times when so many young people are searching for an explanation of why their lives have changed so drastically from their expectations.

I hope that the Minister will agree to take this amendment away, have a look at it with his Bill team and, hopefully, come back with a solution. If he did so, I believe that he would have support across the whole House.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB) [V]
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My Lords, this important amendment seeks to include controlling and coercive behaviour by a psychotherapist or counsellor in the Bill.

The noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, clearly laid out the reality of very unscrupulous practices. When working as they should, psychotherapists are generally trained to work over a long period of time with more complicated mental health issues, whereas counsellors are generally trained to work in the shorter term with life issues such as bereavement and relationships—although in practice there is huge overlap.

A problem arises for the person whose world is in tatters, who feels at sea and is desperate for some help. How do they have any idea whether the person they have been referred to or had suggested to them to see is a charismatic charlatan or an excellent counsellor who will help them to restabilise their life? In this process, they are even more vulnerable than prior to the consultation—a vulnerability that is exploited by the unscrupulous and by sects, as we have heard. They go to speak to a stranger, often paying for the privilege, and as they tell their story, they reveal their vulnerabilities and are often retraumatised by remembering the abuse as they relate events. This is psychological intimacy, and the person is certainly profoundly psychologically connected to their victim.

As we have heard, only the titles “clinical psychologist” and “counselling psychologist” are professionally restricted and must be registered with the Health and Care Professions Council. By contrast, the terms “therapist”, “psychotherapist” and “counsellor” are not protected; courses in these subjects are unregulated and vary very widely, which leaves unregistered and poorly trained people wide open to engaging in controlling and coercive behaviours.

Reputable employers providing counselling services, such as Women’s Aid, will expect an employee to have undertaken professional training. Often membership of a relevant professional body, such as the British Association for Counselling and Psychotherapy, the UK Council for Psychotherapy or the National Counselling Society, is required to ensure continuing professional development and ongoing supervision to enhance practice. All these bodies stipulate certain standards and ethical codes.

Proposed new subsections (1) and (2) set out what constitutes an offence and emphasise that controlling and coercive behaviour can be both physical and psychological. However, given the lack of regulation, I wonder whether this important amendment sets too high a bar, even for registered and well-trained professionals.

Proposed new subsection (4) raises a concern for me, but I am sure that it can be sorted out. It states that it is a defence to show that, when engaging in the behaviour in question, the psychotherapist or counsellor was acting in the person’s best interests. Here I declare my interest as chair of the National Mental Capacity Forum. As your Lordships know only too well, the term “best interests” is laid out in the Mental Capacity Act.

If a person has capacity to consent freely to whatever is proposed, there seems no rationale to make a best interests decision for them, and no form of controlling or coercive behaviour would be in their best interests. The person must have had the capacity to be able to consent to the counselling session. If the person lacks capacity to consent to a particular decision at a particular time, that decision should be deferred until they regain capacity for that decision. If restrictions of any sort have to be put in place in a person’s best interests because they cannot consent to the proposal, a formal best interests decision-making process, as laid out in statute, must be undertaken. A deprivation of liberty safeguard procedure or safeguarding may be required. I am worried that this defence, as written in the amendment, actually lessens the safeguards of a vulnerable person. I am sure that that is not what it aims to do.

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Lord Randall of Uxbridge Portrait Lord Randall of Uxbridge (Con) [V]
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My Lords, it is always a great pleasure to follow my noble friend Lord Young of Cookham, whose amendment I support. I will speak to my Amendment 147—I am grateful to the noble Lord, Lord Kennedy of Southwark, for adding his name to it. I also thank Women’s Aid for pointing out the problem that I aim to solve with this amendment.

Women and men experiencing domestic abuse face long-term and often lifelong risks from the perpetrator. Domestic abuse does not end when a relationship ends and research has consistently found that women are at significantly high risk when leaving the relationship. Often a woman can access safety only when she moves far away from the perpetrator. However, in recent years, Women’s Aid has seen a worrying trend in local authorities introducing “local connection” rules to tenders, with local refuges being capped on the number of non-local women whom they are able to accept. The very existence of refuges depends on these services’ ability to accept women from out of the area, as women will often need to flee from their local area to be safe. Data from Women’s Aid’s annual survey in 2017 shows that over two-thirds of women in a refuge on one day crossed local authority boundaries to access it. Women often cannot access a refuge in their local area due to the severe and ongoing risks faced from a perpetrator.

Women fleeing to a refuge rely on these services being able to accept them and their children from outside their local area, with no “local connection”. Government guidance makes it clear that locality caps and restrictions should not be written into tenders or contracts relating to domestic abuse and violence against women and girls. However, this guidance is not consistently applied across England, leading to something of a postcode lottery of access to refuges and a major risk to the safe operation of this national network of services.

Similarly, there are real concerns about the inconsistencies between local authorities across England in meeting their obligations to house those from another area fleeing domestic abuse. I agree with Women’s Aid and many other NGOs that the ban on “local connection” rules and residency requirements must extend to wider homelessness duties and housing allocations, to ensure that all survivors can access safe housing.

Homelessness teams refusing to support women who are escaping abuse because they are not from their local area must also be included. Nearly a fifth of women supported by Women’s Aid’s No Woman Turned Away project in 2016-17 were prevented from making a valid homeless application on the grounds of domestic abuse for reasons that included having no local connection to the area, with local housing teams deprioritising survivors who do not have a local connection within their housing allocation policy.

Guidance from the Ministry of Housing, Communities and Local Government currently encourages

“all local authorities to exempt from their residency requirements those who are living in a refuge or other form of safe temporary accommodation in their district having escaped domestic abuse in another local authority area.”

However, this is not a requirement and does not apply to women who have not escaped into a refuge or other form of temporary accommodation. Local authorities often use blanket residency tests in allocation schemes, without accounting for exceptional circumstances, such as for a woman fleeing domestic abuse.

The Government already require local authorities to make exemptions from local connection requirements or residency tests for certain groups, including for members of the Armed Forces and those seeking to move for work. My Amendment 147 would include a specific bar on local authorities from imposing local connection restrictions on survivors of domestic abuse when accessing refuges and, importantly, longer-term housing. This is needed to sit alongside the government department’s proposed statutory duty on local authorities to fund support in refuges and other forms of safe accommodation. This will ensure that all women and children fleeing domestic abuse can access safe accommodation where and when they need to.

Women’s Aid has given me a real example that highlights the urgency and importance of why this amendment is needed:

“A has experienced domestic abuse for the last 10 years from two partners as well as witnessing domestic abuse perpetrated by her father against her mother growing up. She has been diagnosed with depression, anxiety and PTSD. After fleeing her abusive partner with three children, she moved into a refuge in a London borough to be near her mother, who was her main source of support. She was only able to find a refuge in a different borough to her mother, and after six months she was required to leave that refuge. She presented to the borough her mother lives in, but she was informed she was not entitled to be housed there as she did not have a local connection. The local authority stated she had a local connection to the borough she had been living in for six months. This is despite her being a survivor of domestic abuse, having no option other than to live in the first borough where a refuge space was available at the time of fleeing and the fact that she felt at risk from the perpetrator’s extended networks there.

The borough her mother lived in then housed A and her three children, who were all under 14, in one room in mixed-sex temporary accommodation. This was extremely distressing for her. She describes feeling retraumatised from the experience of being forced to live alongside men she did not know. She also felt scared for her children, who did not feel safe in the mixed-sex hostel. The room was highly unsuitable as the entire family lived in it and were required to cook in it, which is of course unsafe for a toddler. Another child had ADHD, so A struggled to provide them with any quiet time and appropriate support. This experience also exacerbated her PTSD, depression and anxiety, and she reported feeling low and stressed regularly due to feeling unsafe in the accommodation. She is now having to live there indefinitely while the boroughs have been assigned an arbiter to decide who has a duty.”

I would also like this to apply to victims of modern-day slavery who can equally fall foul of this problem, as I, as a deputy chairman of the Human Trafficking Foundation, am only too aware. While I am aware that this Bill deals only with domestic abuse, I would ask my noble friend to look into this, whether people are the victims of domestic abuse or, indeed, of modern slavery. I ask that this should be done because housing has to be looked at seriously as a way of addressing the abuse that these victims suffer.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB) [V]
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My Lords, I wish to speak to Amendment 146A, to which I have added my name. We know about the strong link between domestic abuse and homelessness, with access to housing often presenting as a critical barrier to survivors fleeing abuse. For example, in Wales, between 2018 and 2019, nearly 2,500 households were provided with assistance by their local authorities following homelessness caused by the breakdown of a relationship with a partner. Almost half of those relationship breakdowns were violent. In May 2020, the Government listened to the expertise of organisations across the domestic abuse and homelessness sectors, and the views of women who had experienced domestic abuse. In response, the Government amended this Bill to extend automatic priority-need status for housing to survivors of domestic abuse in England, as was already the case in Wales. This welcome amendment will provide a vital lifeline for many survivors of domestic abuse.

In Wales in 2018-19, over 300 households were owed a duty to secure settled accommodation as they were in priority need after fleeing domestic violence or being threatened with violence. However, organisations across the domestic abuse and homeless sectors have raised concerns that the government amendments will not adequately guarantee clear access to housing for all survivors of domestic abuse. Critically, it will not enable other members of a household to apply for this assistance on the survivor’s behalf, as is the case in other areas of homelessness legislation. For example, when a woman is pregnant, a partner is allowed to make the application for them. This sounds like a small distinction, but front-line services that are supporting survivors every day know that it is not always safe for survivors of abuse to make an application for homelessness assistance themselves. Allowing other household members to be the lead applicant provides a vital safeguarding mechanism which could give a vulnerable survivor a route to safety when they need it most.

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Lord Ramsbotham Portrait Lord Ramsbotham (CB) [V]
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My Lords, in moving Amendment 155 and speaking to Amendment 156 standing in my name, I must declare two interests: first, I am chairman of the Criminal Justice and Acquired Brain Injury Interest Group; secondly, I am a vice-chairman of the All-Party Parliamentary Group for Acquired Brain Injury.

The chairman of the APPG, Chris Bryant MP, unsuccessfully tabled these two amendments in Committee in the other place. Since then, he and I have had a discussion with Victoria Atkins MP, Minister for Safeguarding, during which she assured us that the Government recognised the impact of acquired brain injury on victims of domestic abuse. Since then, she has forwarded a copy of the draft guidance to be issued to the police on domestic abuse protection notices and orders. Both are mentioned in Amendment 155, which includes referral to an independent domestic violence advocate, who can advise a victim on a range of issues, including healthcare. That has been forwarded to noble Lords by the noble Baroness, Lady Williams of Trafford.

These two amendments are linked in that both are to do with assessing whether a victim of domestic abuse is suffering from an acquired brain injury. I will speak first to Amendment 156, which covers prisoner victims of domestic abuse. It was the assessment of their needs conducted by the Disabilities Trust at HMP Drake Hall, a women’s prison in Staffordshire, that first alerted us to the added problems faced by victims suffering from an acquired brain injury.

The trust, which is a member of the interest group that I chair, had carried out an assessment of head injury at HMP Leeds, finding that over 40% of male prisoners were suffering from an acquired brain injury that affected their behaviour. The trust introduced a link worker scheme, in which someone who had worked with a prisoner while he was in prison supported him for six months when he was released into the community. The trust then carried out a similar assessment at HMYOI Wetherby, finding that a similar percentage of young offenders were suffering from an acquired brain injury.

Turning to women, the Ministry of Justice funded the trust to conduct a two-year specialist link worker scheme at Drake Hall. The trust found that 64% of the prisoners reported having suffered a brain injury, 98% of which were traumatic. Forty per cent of those suffering from a traumatic injury had a mental health diagnosis, and 62% of the women reported that they had received their injury during domestic abuse. For some, this was the first realisation that the injury was the cause of their behavioural symptoms.

In that connection, I have mentioned before in this House my disappointment that Theresa May, when Prime Minister, dropped the prisons part of David Cameron’s Prisons and Courts Bill. A number of us had hoped to use it to make statutory certain initial assessments on being received into prison, including an assessment of head injury. I hope that this Bill will provide the opportunity to make that good.

We have also corresponded with Alex Chalk MP at the Ministry of Justice regarding the follow-up to the Disabilities Trust report on Drake Hall. He confirmed that work was under way to improve the identification of individuals with an acquired brain injury and ensure that prison and probation staff were better informed and trained to understand and support the behavioural challenges of those with an acquired brain injury.

I shall move on, or rather backwards, to Amendment 155. In addition to the draft guidance for the police about domestic abuse protection notices and orders, I should draw attention to the inclusion of a time factor. Early assessment is of the essence in understanding the effects of an acquired brain injury no less for the victims than for those responsible for treating them. I beg to move.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB) [V]
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My Lords, the noble Lord, Lord Ramsbotham, has raised an important issue and outlined the size of the problem. Brain injury can arise from many different causes such as violent trauma, lack of oxygen to the brain or self-medication with alcohol and drugs. Sadly, brain injury is in large part irreversible, although sometimes the brain has the ability to relearn under intense rehabilitation, which is why rehabilitation services are so important.

One can see the motivation behind the amendment, but I fear that it may be difficult to have it in the Bill. In acute head injury, haemorrhage, usually a subdural haematoma, needs to be detected rapidly and the clot removed neurosurgically. If missed, the injury may become a chronic subdural as the clot acts like a wick, drawing fluid into it so that it slowly expands in the fixed box that the skull provides.

The other main category is that of repeated impact injury, sometimes associated with episodes of concussion as classically seen in boxers, which can lead to dementia. The part of the brain that is damaged determines the clinical signs exhibited. If the frontal lobes or some of the main nuclei of the brain are damaged, there can be profound personality and behavioural changes, while in others, speech and movement are affected. It can be very variable. Sadly, although supportive care can help a person to cope with deteriorating brain function and slow its effect, it is not reversible.

A possible difficulty with the amendment is that it requires a two-week timeframe for assessment, given that there are already waiting lists for MRI machine time for those with symptoms indicating brain pathology, such as cancers that need urgent treatment. Awareness of head injury is gained first and foremost from the patient history, followed by appropriate physical examination, after which further investigations may or may not be indicated. It is the history of the injury and the clinical signs that may indicate brain injury; the screening itself can establish only that the findings and type of injury described are, on the balance of probabilities, likely to be causally linked. This well-motivated amendment should raise awareness of head injury so that women are asked about the type of injury, including how it happened and when. A high index of suspicion of head injury is needed, but I fear that the amendment as worded would not be workable in practice.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull (LD)
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I support the amendments in the name of the noble Lord, Lord Ramsbotham, which he spoke to so convincingly. Amendment 155 deals with screening for traumatic brain injury for female domestic abuse victims who choose to have it within two weeks of a domestic abuse protection notice or order, or when the abuser has been charged. This should provide valuable evidence of abuse for the court and possibly a diagnosis that could help health authorities to treat the injuries that have arisen both physically and mentally. We heard from the noble Baroness, Lady Finlay, about the harm to victims that acquired brain injury can cause; they are complex and worrying.

Amendment 156 relates to female prisoners. As the noble Lord, Lord Ramsbotham, confirmed, many prisoners of the male variety have been knocked around and may well have brain injuries, although I would suggest that that does not happen very often as a result of domestic abuse.

As we have been told, the amendment is based on research by the Disabilities Trust which shows that nearly two-thirds of offenders at Drake Hall had had a brain injury, of whom 62% claimed that the injury was a result of domestic abuse. Of those diagnosed as having a brain injury, nearly all of them had suffered traumatic brain injury, potentially leading to very serious health consequences, as we have heard.

The amendment provides for all female prisoners to be screened within two weeks of starting their sentence. While they are inside, remedial treatment can be started, I hope, although I accept the very informed and concerning comments of the noble Baroness, Lady Finlay.