Baroness Walmsley
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Serious Crime Bill [HL]
Baroness Walmsley Excerpts(9 years, 10 months ago)
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Baroness Walmsley
“( ) for “that age” substitute “the age of 18”;( ) after “wilfully” insert “recklessly”;( ) omit “unnecessary”;”
Baroness Walmsley (LD)
My Lords, I wish to speak also to Clause 62 stand part.
Amendment 40BZA would introduce to this very good clause three additional small changes to the Children and Young Persons Act 1933. These are issues that have been raised with us by various children’s organisations, including Action for Children. The first part of the amendment seeks to probe the age to which a person may have responsibility for a young person. The Act currently applies to someone over the age of 16 who also has responsibility for someone “under that age”. The first part of this amendment therefore questions whether the responsibility should be for anyone under the age of 18, rather than 16, given that we have had numerous changes in the definition of children of late, and it varies from one bit of law to another.
The second element of the amendment would add the word “recklessly” after “wilfully”. This was contained in the Private Member’s Bill of my honourable friend Mark Williams MP in another place. Action for Children has suggested that we need to insert “recklessly” alongside “wilfully”. The introduction of “recklessly” would be in line with the interpretation of the 1981 Sheppard ruling, and with the interpretation of recklessness recently defined by the House of Lords in R v G. The term “recklessly” was identified in the Sheppard ruling as preferable to “wilfully”, which is considered difficult to interpret because it is unclear whether it applies to someone’s action or failure to act, or to their failure to foresee future consequences of their action or inaction. We suggest that “recklessly” is added to clarify this.
There can be a particular problem in cases of child neglect, which typically involve the failure to provide care, food, supervision, a safe environment and so on, so we need to cover foreseeing the future consequences of actions as well as the actions themselves. Adding “recklessly” also serves to protect parents and carers where there is any doubt that their action or inaction was due to mental incapacity or excusable ignorance of parenting skills. This is because, under the recklessness test, if there is any doubt that the behaviour of parents or carers was attributable to inherent incapacity to understand or change their behaviour, they will not be prosecuted. This would therefore protect them. “Recklessly” would also confirm the exclusion from liability of, for example, carers agreeing to high-risk medical treatment where there is no better medical option for a gravely ill child.
The final element of this amendment removes “unnecessary” from the requirement that the offence causes unnecessary suffering. The view of children’s organisations is that there is no unnecessary suffering that a person may cause, and that the term is antiquated and should be updated to a modern understanding. However, as my noble friend Lady Brinton has pointed out, certain suffering may be unavoidable; for example, where a child has suffered bereavement.
Perhaps the Minister will say whether the under-16 definition meets the modern understanding of what we mean by children. Would it not be better to cover all children to the age of 18? Why do the Government feel that “wilfully” alone is a better term to use than adding “recklessly”? Will they commit to looking again at this issue in the light of the enormous support that Mark Williams’s Private Member’s Bill had in another place? Will the Minister also say whether the term “unnecessary suffering” is clear enough in a modern context? Is there not a risk that this could prevent certain abuses from being prosecuted under the offence?
I shall also say a few words about the Question that the clause stand part of the Bill. We strongly support this clause, so tabling this Question is not about whether or not it should remain in the Bill, because it is a good clause. However, we have some questions about whether the new and welcome explicit reference to psychological harm will mean that other offences involving harm will now be read as referring only to physical harm. Specifically, offences related to domestic violence could potentially be undermined.
The intention of opposing the Question that the clause stand part of the Bill is therefore to ask the Minister to make a statement from the Dispatch Box that other offences will not be undermined by this welcome change; and to ask the Government to look again at whether it would be a positive step to amend other legislation to reflect psychological harm, in the same way as we are now affecting offences against children. Will the Minister confirm that this welcome change in Clause 62 will not have an adverse impact on including psychological harm within other offences, where it is not explicitly referred to—for example, domestic violence? I beg to move.
Lord Elystan-Morgan (CB)
My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.
I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.
I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.
I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.
Baroness Walmsley
I wonder if the noble Lord, Lord Elystan-Morgan, would be kind enough to address the House because I am having some difficulty in hearing what he is saying.
Lord Elystan-Morgan
Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.
In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.
Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.
I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.
That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.
This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.
The Earl of Listowel
I have a few words of praise for the Government. I thank the Minister for his response and for recognising the importance of what my noble friend Lady Meacher said about the need to intervene early to support families to get off alcohol and drugs. When it comes to the family courts, the Government have substantially supported the family drug and alcohol courts, which originated from district judge Nicholas Crichton in the Inner London Family Proceedings Court and ensure that such families have judicial continuity over a 12 year period and that there are good interventions to get the parents off drugs and alcohol so that they can keep their children and not have their children taken into care. It is very much to the Government’s credit that they funded and evaluated this work and now the president of the family court is looking to roll it out across the country. Many families will benefit because of the good work of the Government and this will avoid unnecessary cruelty to their children.
Baroness Walmsley
My Lords, we have had a very good debate. Quite clearly there is a great deal of consensus across the House. I echo what the noble Baroness, Lady Howarth, said. I hope that we can have further discussions about this between now and Report and that we come to some consensus as to what may or may not need clarifying. I thank the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Durham for agreeing with me that we need to level up the age at which we consider children to be vulnerable. They may be able to get married legally, but that does not mean that they are not vulnerable. There is also considerable consensus that the word “wilfully” needs clarifying and there have been various suggestions about how that should be done. The Government believe that we need Clause 62 even though the law already allows child abuse to be interpreted as psychological. In the same sort of way, although there may already be agreed definitions of “wilfully”, there may still be a need to clarify that in one way or another, based on the various amendments that we have had. I am sure we can come to some agreement about how that might be done. There has also been consensus about the need to remove the word “unnecessary” or perhaps the whole term “unnecessary suffering” and to change it in some other way.
I hope that the Minister will be able to accept that we need further discussions about this between now and Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Walmsley
“Mandatory reporting of abuse in relation to regulated activities
(1) Subject to subsection (4), providers of regulated activities involving children or vulnerable adults, and persons whose services are used by such providers being persons who stand in a position of personal trust towards such children or vulnerable adults, who have reasonable grounds for knowing or suspecting the commission of the abuse of children or vulnerable adults in their care whether such commission of abuse shall have taken place or be alleged to have or be suspected of having taken place in the setting of the regulated activity or elsewhere, have a duty to inform the Local Authority Designated Officer (LADO) or children’s services or such other single point of contact with the local authority as such authority may designate for the purpose of reporting it or any such matter, allegation or suspicion as soon as is practicable after it comes to their knowledge or attention.
(2) Failure to fulfil the duty set out in subsection (1) before the expiry of the period of 10 days of the matter or allegation or suspicion first coming to the knowledge or attention of the provider or of any person whose services are used by the provider as defined in subsection (1) is an offence.
(3) It shall be a defence to show that the LADO or children’s services or that such other single point of contact with the local authority as such authority may designate for the purpose of reporting was or were informed by any other party during the 10 days referred to in subsection (2) or had been so informed before then.
(4) A Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults may in exceptional cases by a letter or other instrument under his hand rescind or temporarily suspend the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults concerning whom it appears to him that the welfare, safety or the protection of such child or children or of such vulnerable adult or adults would be prejudiced or compromised by the fulfilment of the duty referred to in subsection (1) and may where it appears to him that the welfare, safety and protection of children is furthered thereby exempt any specified entity or organisation and the members thereof that works with children generally in furtherance of their welfare and safety and protection or any specified medical officer from compliance with the duty referred to in subsection (1) provided always that no allegation is made against such entity or organisation or member thereof or against such medical officer.
(5) It shall be a defence for any person to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has issued a letter or other instrument under his hand rescinding or temporarily suspending the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults and it shall be a defence for any person employed by or operating as an entity or organisation that works with children or for any medical officer to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has by such letter or instrument under his hand whether temporarily or permanently exempted it and its members or any medical officer from compliance with the duty referred to in subsection (1).
(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding three years or to a fine, or both.(7) In this section “regulated activity” has the same meaning as in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006.”
Baroness Walmsley
My Lords, this amendment is exactly the same as Amendment 40C; it has just been put in a different position. I am most grateful to the right reverend Prelate the Bishop of Durham for adding his name to it. Abuse of the most vulnerable people in our society is wicked and a great deal more widespread than most of us think. There are those who use power, strength and blackmail to subject those who cannot fight back to the most horrible abuse. It is done behind closed doors and certainly that is where a lot of it stays. However, there is hope because there are signs, if only we would look for them. We need not only to see them but to act upon them as well. We need to give the abused people opportunities to confide in a trusted adult, in the secure knowledge that that person will do something to make it stop. That is why we need a new duty to report abuse.
Of course, I know that legislation is not a silver bullet, but it can help and it has done so in other countries. In addition, I agree with those who say that we need more training, awareness raising and the protection of the law for those who expose the horror. Amendment 40BZEA covers not just children but vulnerable adults as well, although for simplicity my remarks will mainly refer to children. However, the vast majority of what I say also applies to elderly and disabled people, and those with serious mental disabilities too—all groups that have suffered far too much abuse in recent years by unscrupulous people.
We heard on the BBC only this morning about cases of abuse of people with mental disabilities where nobody said a word. My intention is not to criminalise people—though there must be penalties if this measure is to be effective—but to empower those who know that something is wrong and to protect them as well as the children. The current system is not working. The recent report about Jimmy Savile’s activities made that very clear. There needs to be an increase in the detection rate of child abuse in the UK, which is estimated to be only 5% of the actual amount, according to the Equality and Human Rights Commission’s report in 2010, How Fair is Britain?
I shall explain what my amendment does. Proposed new subsection (1) puts a duty on individuals standing in a position of personal trust towards children or vulnerable adults and who work in “regulated activity”, as defined in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006. The duty is to report abuse that is known about and where they have reasonable grounds for knowing or suspecting abuse. If the abuse is adult on child, or on a vulnerable adult, it should be reported to the local authority designated officer. If it is child on child—and there is a great deal of that—they should report it to the local children’s services. If the local authority has chosen to have a single point of contact, the report should be to there.
Proposed new subsections (2) and (3) say that the report must be made within 10 days of the knowledge or suspicion, unless the abuse has already been reported by someone else.
Proposed new subsection (4) allows the Secretary of State to exempt certain groups from this duty, in the interests of ensuring that children and vulnerable adults can feel comfortable disclosing the abuse—for example, to their doctor or a confidential helpline such as ChildLine. There will be a term of imprisonment or a fine for failure in this duty.
Proposed new subsection (7) refers to Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 for the list of institutions that are covered by the amendment. It includes all forms of teaching or training of children, care or supervision, treatment and therapy et cetera—and a similar group in relation to vulnerable adults. In other words, it relates mainly to the people who would normally need a CRB check in order to do their job; it does not include family members.
This is a measure whose time has come and I encourage the Government to grasp the moment. In a recent independent survey, 96% of the public thought that we already had such a law. Although the public would strongly support it, we do not have one at the moment. We have a whole range of regulations, professional duties et cetera—none of which have been effective in situations in which adults were worried about being the whistleblower, about reputational damage to their institution, or that they may have got the wrong end of the stick. This measure would protect and empower those people, and protect children.
It is not for teachers, nurses and care workers to decide whether there is a case to go to the police. It is not their job. It is the job of the experienced officer within the local authority—as opposed to triage, which the Minister has just mentioned—to investigate and then report to the police when they believe that there may be a case to answer, or to take some other action.
There are other parts of the world where there is a duty in law to report, such as Australia, every state of which has some version of this duty and some sort of penalty. It has been very effective in exposing that which was previously hidden. It has been shown that there is a high rate of substantiation of the allegations, contrary to what the Minister has just said. In the case of reports by teachers, 70% led to police action prior to the new law; and the percentage after the new law came in was 69%, which was very close. The percentage would have been higher if it had included situations in which the children needed help but the police were not involved. Only 2% of reports were found to be malicious. These figures came from Professor Ben Matthews, a highly regarded researcher on these issues; and I am happy to supply them to the Minister. I heard Ben Matthews say on the BBC a few months ago, around the time of the famous “Panorama” programme:
“Mandated reporting in some form is an essential part of an effective child protection system”.
Someone I know used to work as a child safeguarding officer in Australia and was familiar with the effective working of the measure. She also told me that that Australia has a programme in schools called, “No, Go, Tell”. It is pretty obvious what that means. When she came to work in this country, she was amazed that we do not have something similar here. That makes the case for good-quality PSHE in all schools in which children are taught what not to tolerate in terms of invasion of their personal space, and what to do to keep themselves safe.
What have others said about my proposal? Last week, as we heard, the NSPCC made a major and welcome shift in its policy on this matter, but it does not go far enough. It has proposed what I have called “safeguarding lite”. The idea is to have a duty on closed institutions such as boarding schools and children’s homes not to cover up known child abuse. By the way, it is not clear who within those institutions would have that duty. There are several things wrong with that. First, it ignores the majority of children. There are 8 million children in education in this country, and less than 1 million of them are in boarding schools and children’s homes.
Secondly, by covering only “known” child abuse, the onus is put on the head teacher or care home manager to decide whether abuse is known or not. That is not their job; it is the job of local authority designated officer, who has the training and experience to know whether to report to the police or take some other action. That is what those officers have been trained to do. Thirdly, the policy is confused. Think about this: a head teacher in a boarding school has a duty to report a case, but the following term, if he takes over a maintained primary school, his duty is only under some regulation, with no legal penalty for ignoring it.
Think about a girl who would have this protection in a boarding school, but if she goes to a church youth club in the holidays she has no protection. Think of a boy who has protection in a care home, but has none when he goes to the local sports club. This matter is the responsibility of all of us, but in particular it should be the duty of all those who work with children in a position of trust. It should go with the job, along with the duty to get a CRB check.
The Local Government Association has briefed us all and asked us to look at how the duty would operate in reality. I know there are those who are concerned that the system would be swamped with cases if my amendment became law. I say two things in answer to that. First, if that is the case it means that there is an enormous amount of child abuse out there going undetected and untreated. That causes mental health and relationship problems throughout the lives of those abused, and allows perpetrators to get away with it and abuse other children. It also costs the public purse a lot of money in the long term.
Secondly, the experience in Australia was that, yes, the number of concerns reported increased, but they were investigated and considered by the right people. There was a very high level of substantiation and only a tiny amount of malicious reporting, which I believe is a fair price to pay. Anyway, such cases are looked into by experienced people who recognise malice when they see it.
I expect that noble Lords will recall the case of baby Peter and the fact that there was an increase in the number of children taken into care after it became public. That has settled down to some extent now, but it means not that too many children are taken into care now, but that too few were before, possibly because of resources. We must ensure that the system has sufficient resources and is robust enough to weed out cases that do not warrant action. In any case, the vast majority of child abuse would not entail the child being taken into care if she was not already.
The Local Government Association talks about us all having a moral responsibility to report abuse. Of course we do, but we have had that for years and it has not worked. What we need is not the confused and complicated system proposed by the NSPCC, but a very simple amendment to the law. The people on whom the duty in my amendment would fall are already defined in law: there is already a definition of,
“reasonable grounds for knowing or suspecting”.
We need training in recognising the early signs of abuse and neglect for all those who work with children and vulnerable adults, and we need guidance on how to report it. We need everyone to make it their business to protect children and vulnerable adults as a public duty, but we need to strengthen the law to help those who know something to have the courage to do something. I beg to move.
The Lord Bishop of Durham
My Lords, I support the amendment. I begin by pointing out that, had I been in this House two years ago, I would not have supported it. It is my experience of listening to and hearing stories, not just from within the church sector but from many sectors, that has led me to be convinced that this is a move we need to make.
Currently, under the Safeguarding Vulnerable Groups Act 2006, a form of mandatory reporting already exists; that is to say, a duty to refer arises in certain situations connected with regulated activity. Admittedly, that is just for vetting purposes, but what the noble Baroness, Lady Walmsley, effectively proposes is an extension to this. It will mean that those who work with children or vulnerable adults in regulated activity and have reasonable grounds for suspecting or knowing that abuse of these vulnerable groups has taken place are under a duty to report this to the local authority. I wholeheartedly support this principle, and I welcome the suggested amendment. Indeed, every person who works with children or vulnerable adults, which includes teachers, doctors, nurses, youth workers and volunteers, has a responsibility for keeping them safe. No one individual could possibly have a complete picture of a vulnerable person’s situation. All professionals who come into contact with those vulnerable groups have,
“a role to play in identifying concerns, sharing information and taking prompt action together”.
That is from Working Together to Safeguard Children.
Baroness Howarth of Breckland
My Lords, I feel some trepidation in challenging some of the issues about mandatory reporting, although I think that we need to find different language. I do not think there is any difference between me and the noble Baroness, Lady Walmsley, and the right reverend Prelate in what we want to find at the end of the day. However, I want to caution them and the Government to ensure that they look at this in great depth—I know that they are doing so in other places—and that there are no unintended consequences from the action that is taken.
I do not have a prepared speech, but I would like to make three points. Of course, it is wrong for anyone in a position of authority or in a church or neighbourhood community to turn a blind eye to known abuse. If abuse is clearly there, then that must be reported. If we have to have a law that says that there are circumstances in which people abused their position and did not come forward, the Government should look at that.
In the work that I am doing, the helpline for the Lucy Faithfull Foundation, in the Stop it Now! programme, has hundreds of people telephoning who are not sure about what they are seeing. I have talked to social workers who have great professional expertise about their not being certain what they are seeing. It is quite clear that we need to continue the professional development of staff in local authorities who work with the police, and also the community programmes which I have mentioned earlier, where children’s services, parents and schools have all been involved in the local community in developing understanding of these issues and therefore are clearer about what action they may or may not take.
I do not have a speech because I spent the morning chairing a conference that included people from Australia and the chair of an international protection of children organisation, looking at eradicating child sexual abuse. There were a lot of experts there. The message that they asked me to bring was that we should not simply bring in this sort of reporting without looking carefully at it. The statistics across the world vary according to whom you listen to. I ask the Minister to talk to some of the people I know as well as to those whom the noble Baroness, Lady Walmsley, knows, because they have different views. Presumably, the Government have it within their powers to get the information pretty clearly from Governments in other parts of the world. I am not making any judgment about the outcome, except to say that people tell me that it has really interfered with good preventive work, because resources have been diverted into investigating hundreds of cases that turned out not to be prosecutable.
I understand why there is a wish, particularly in the church, to get this sort of prosecution. I say to the right reverend Prelate that I have probably talked to more victims than most in my 50 years, many of them children; I know the victims’ groups and I know the pain that they have experienced. But it is crucial that we base whatever we do in the future on what is happening now, and that we prevent children being abused in the present, and learn from those people in the future. They have a lot to offer but sometimes it can be clouded by pain, which I understand.
What we want to do, particularly in churches and similar organisations, is to develop a culture of openness. We know of a recent investigation into a particular area in the Church of England where misogyny was rife and women’s views—never mind children’s—were not tolerated. I am a member of the Church of England, so I say this in all good heart but that is one institution that really has to look at it itself—as I know it is doing because the right reverend Prelate is the chair of the committee looking at the issues within the church. There are other organisations that need to look at their culture because we are not going to change these issues by the law, although I think in some areas it will help. We need to get a cultural change in organisations and our nation.
The NSPCC has got itself in a bit of a twist, I think. Talking to some of the staff today, there is a very mixed view because they had always been against mandatory reporting—I think that is a very funny term. They run two helplines. They know the implications of blanket mandatory reporting. I have to say that I did not understand proposed new subsections (4) and (5) of the amendment. It just shows how complex this issue is because we are talking about people going for exemptions. I tend to think that you need an opt-in rather than opt-out situation here, and we need to be precise about those people who might come to be prosecuted if reporting is mandatory rather than having to exempt those people who are trying to be helpful.
I am usually briefer than this but your Lordships can see that I feel as passionately as most—
Baroness Walmsley
Perhaps I might provide some clarification. When giving the Secretary of State the opportunity to exempt certain groups, I very specifically had in mind exactly those groups that the noble Baroness is worried about. Childline and Stop it Now! need to be exempted because they will have disclosures made to them and we cannot expect them to go to every local authority-designated officer throughout the country. Children need to be able to disclose to them but when they encourage the child to disclose also to a trusted adult, as they often do, the child needs to know that that trusted adult will do something about it and report it to the right people. I hope that clarification helps.
Baroness Howarth of Breckland
I thank the noble Baroness but I think she knows that I know that pretty well. My point is that we need to be more precise the other way round and be clearer about those people who will be prosecuted rather than those who will be exempted. That is the way that I would rather see it because otherwise you are going to catch all sorts of groups. There are groups in the Catholic Church that listen. Without doubt, the helpline should be seeing a child through a referral. If they are going to have a referral, that helpline really should ensure—I know that the NSPCC does this with Childline—that at the end of the day someone takes action at that point.
The Lucy Faithfull helpline for Stop it Now! is more difficult because that is where men are coming forward about thoughts that they have had that they do not understand. I am very fearful that many of those men will not come forward if they think there is a likelihood that they are going to be reported even before they have committed an offence. Some people who have committed offences will come forward to us and we will help them to go to the next stage.
There could be a range of unintended consequences. However, I say what I said at the beginning, which is I think that we are all on the same page. What is important is that time is spent—not a lot of time; I know that the noble Baroness, Lady Walmsley, is impatient—ensuring that we have it right in detail and that we listen to all the parties who have got evidence, because there is a lot of evidence. There is also new evidence about what works and it is not always the old patterns of intervention that work. The Government might do well to listen to some of the people I listened to this morning.
Lord Taylor of Holbeach
My Lords, this has been a very high-value debate whose contributions inform the Government. I will try to make sure that all colleagues in government with an interest in this matter are sent a copy of our debate.
I cannot give the noble Lord, Lord Rosser, any details of the timescale. If, in the course of time, I have more information, I will try to tell him in good time, but at the moment I cannot. In a way, this debate needs to be taken in conjunction with the one we had on my noble friend Lady Brinton’s debate; it covers very similar territory but it goes just that little bit further. I am grateful to my noble friend Lady Walmsley for tabling this amendment to enable us to look at this particular aspect.
There is a significant difference between the amendments. Amendment 40BZEA would place a duty on those working in regulated sectors who are in a position of trust in relation to children or vulnerable people to report suspicions of abuse to the appropriate local authority within 10 days. Breach of that duty would be a criminal offence punishable by up to three years in prison. This would mean essentially that anyone who works with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
I hope that I can provide some reassurance to my noble friend Lady Walmsley and the right reverend Prelate the Bishop of Durham about the current process of referrals to social services. The noble Baroness, Lady Howarth, referred to this. It is important to recognise that existing statutory guidance is already crystal clear that professionals should refer immediately to social care when they are concerned about a child or vulnerable adult. Many thousands of referrals are made to children’s social care each year. In the year ending March 2013, there were 593,500 referrals—that is nearly 600,000. I am grateful to my noble friend Lady Walmsley for offering to provide me with figures that she has available, but I think that we need to bear that figure in mind and appreciate the scale of the situation that we are seeking to engage in.
The most important thing is that people understand how to spot abuse and neglect and the impact that it has on children and vulnerable adults. While we are continuing to review the evidence for the specific case of reporting in regulated settings, we are also continuing to take action to improve the knowledge and skills of professionals working with children and other vulnerable people.
As I indicated in my response to the previous group of amendments, the Government fully understand the public’s anxiety about the potential underreporting of abuse, particularly sexual abuse. I can wholeheartedly support my noble friend’s objective with this amendment; we all want to see improved safeguarding for all children and vulnerable adults. As I have said, we are actively considering the case for a mandatory reporting duty, but the issues are complex, as the noble Baroness, Lady Howarth of Breckland, pointed out. As the noble and learned Baroness, Lady Butler-Sloss, said, we need to consider what form such a duty might take, to whom it would apply and in what circumstances, and what the sanction for failure to comply should be. This amendment offers one approach, but we have just debated an alternative, more focused proposal, and the NSPCC has suggested a third model. Other organisations working to safeguard children and vulnerable adults will have ideas of their own as to how a mandatory reporting regime should be structured, as will other noble Lords. I have sought to encourage noble Lords to make sure that those conducting such investigations are aware of their views.
I can only again seek to reassure my noble friend and the right reverend Prelate the Bishop of Durham that we are actively examining the options and treating the matter with the urgency that it deserves. While I cannot undertake to bring forward government amendments on this issue on Report, I certainly expect that, by then, I will have more to say on where we have reached in our consideration of this important matter. Having put the issue firmly on the table as my noble friend has done, I hope that she will now be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank all those who have taken part in this debate. I thank the Minister for his reply and the right reverend Prelate for his support.
There has been some discussion about terminology. Noble Lords might have detected that I did not use the phrase “mandatory reporting” in my introduction because I know that it causes some people some difficulty. I have also avoided using the word “professionals” in my amendment. We may not want to call a school secretary or a dinner lady a professional, yet they would need to have a CRB check to work in a school and they are specified in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, which is in my amendment. When my noble friend asks to whom the duty should apply, my reply is that it is those people. So it is already in law.
I agree that the issues are complex and that we should approach the whole thing with a great deal of caution. I agree that there are different systems across the world and we need to find out which system suits this country best. I also agree that we need a culture change; I am pretty sure that I said so. We need training not just for the professionals but for the children so that they understand how to protect themselves. We probably need more resources as well because, as I said, there is an awful lot of undetected child abuse out there which has never been treated, and it never goes away. There is no such thing as historic child abuse; it is always current in the lives of the victims, who never lose it.
With that, I have done my very best to persuade all noble Lords. I will have to leave it at that for the moment, but I suspect that I may come back to it at the next stage of the Bill. We shall see. I shall watch with great interest what happens with the terms of reference of the new inquiry committee, the personnel and how they go about their job. In the mean time, I beg leave to withdraw the amendment.
Earl Attlee (Con)
My Lords, I am grateful for the expert way in which the noble Lord, Lord Rosser, introduced his amendment. I have no greater arguments than the ones he adduced. I strongly support him and urge the Minister to consider his suggestion very carefully. I have one final thought: what would the view of noble Lords be if we were talking not about FGM but MGM?
Baroness Walmsley
My Lords, it would not be in order for me to say anything about the amendment moved by the noble Baroness, Lady Meacher, as I was not in my place when it was moved. I support the noble Lord, Lord Rosser, in his attempt to get anonymity for the victims of FGM, and I hope the Government will consider it. Indeed, I think there may be a case for going a little further than that, because it could be that there are women within communities who know what is happening who might be more encouraged to come forward and say so if it were guaranteed that they would have anonymity. It is something that needs looking at.
Baroness Meacher
The noble Lord, Lord Rosser, introduced his amendment extremely effectively and has said all that needs to be said, but I would hate the Minister to think that there was no support for it. Therefore, I simply say that we need these charges to be investigated and pursued, and if victims are not given anonymity, it seems an impossible task. I hope that the Minister will be able to support the amendment proposed by the noble Lord, Lord Rosser, as well as my amendment.
Baroness Butler-Sloss
My Lords, we move to a different subject, that of child abduction. There are two separate amendments. The first one, Amendment 40CB, deals with an anomaly—that there are two separate Acts, which deal differently with children or young people. If the child is in care, and the care order goes beyond the age of 16, under Section 49 of the Children Act 1989 the offence of abduction runs to the age of 18. But under the Child Abduction Act 1984, which incorporates the Hague convention of 1980, the age goes to 16. There is therefore an anomaly. The point of the amendment is simply to have parity, and the parity should go up rather than go down.
The second amendment, Amendment 40CC, will take a little longer to explain. It deals with what is called a “child abduction warning order”. This was once called a “harbouring order”. It has been a very useful, but inadequate, tool of the police. In particular, where they have seen a teenager being groomed, they have gone to the man concerned, and they have explained to him that he must obey an order not to have anything to do with the girl. However, if he breaks that order, they have absolutely no powers at all. Consequently the police are very anxious that their useful order to try and interrupt a grooming process for young girls, in particular, should in fact have a statutory backing. The next stage is an arrest under either Section 49 of the Children Act 1989 or Section 2 of the Child Abduction Act 1984.
However, there is a gap between the police telling someone, “Lay off this girl, you’re grooming her and you mustn’t do it”, and the point at which the girl has either been detained or taken, when it is quite simply too late. What is therefore needed is the police power—which they use—but put on to a basis that they can then enforce. If the man concerned does not desist from his grooming of the girl, he can then be dealt with under a statutory order. One of the problems about the words in the two Acts of “detained” or “taken” is that quite often it is a psychological or emotional relationship between the girl, who is often much younger, and the man, which is not capable of being treated as coming within either of the two relevant sections. Therefore the warning order could do a lot of good, and it would be useful. I hope the Government will take this away and look at it. It is definitely what the police want, it would give a real bit of power to them and it would fill a serious gap in the possibility of young people being abducted, particularly by older men. I beg to move.
Baroness Walmsley
My Lords, I support both these amendments. I recently sat as a member of a Back-Bench inquiry into the legislation used to tackle sexual exploitation, which was supported very ably by Barnardo’s. We took oral evidence from a number of police forces. There was unanimous support for putting these child abduction notices on a statutory footing, which formed part of our recommendations. At present they form no more than an administrative procedure for the police—useful, I am told, for collecting evidence for the future, scaring perpetrators and letting them know that the police are watching them but, in and of themselves, pretty toothless.
Of course, there is existing legislation for child abduction offences. Sometimes, perpetrators who breach warning notices are prosecuted under this other legislation. But the current legislation is often not useful for cases of grooming, because it requires that the adult has taken or detained the child, implying physical control or restraint. We know that psychological and emotional manipulation are the main tools used by perpetrators to control and groom vulnerable children. The Crown Prosecution Service is therefore not always able to take prosecutions forward, due to the child seeming willingly to remain with the offender, when the offender makes no act physically to detain the child. Creating an offence of breaching a notice would address this issue and allow the police to intervene earlier, rather than having to wait for a more serious offence to occur when, of course, what we want is for them to be able to intervene early.
While the police find child abduction warning notices a valuable tool, their lack of a statutory basis leads to an unfortunate consequence. Police told the inquiry about occasions when they issued notices as a deterrent but were then unable to act once they were breached. If they are to have any power in these situations, all concerned need to know that the police will and can act when their instructions are clearly ignored. Instead, the current situation erodes victims’ confidence in the ability of the police to protect them— and they have told us that. Of course, perpetrators’ fear of consequences will diminish when they see police unable to act. So we need to put this on a statutory basis.
In relation to bringing the age into parity between children in and out of care, the point was made by the children who spoke to us that children’s vulnerability is not determined by their membership of a particular group or their legal status. There are many profoundly vulnerable children who are not in the care system and who need the protection of the law. We heard from some of those girls and boys. Indeed, there are many more victims of sexual exploitation who are not in care and have not been in care than there are within it. During the course of the inquiry, we met some children who have been through some appalling things who had never been in care. While it is too late for them, we need to make sure that other profoundly vulnerable young people who happen to be living with their parents have the same protection as those under the state’s care.
The Government have shown real engagement with the inquiry’s findings so far, and I am delighted that they have adopted one of the inquiry’s recommendations by tabling an amendment to the Criminal Justice and Courts Bill on the topic of grooming. It is clear that these amendments on abduction would be another strong step towards giving the police the tools that they need to prevent some truly vile behaviour.
Baroness Howarth of Breckland
My Lords, I was recently approached by a very senior ex-policeman with whom I had worked in the past, who was trying to help a number of children’s homes and hostels in the north of England. He found that there were men who came to the hostel and took older girls out, and the hostel was totally unable to do anything about it. They could simply go and fetch the girls back, but the girls were so emotionally engaged, as the noble and learned Baroness and the noble Baroness said, that they went out again. What the hostel desperately needed was the capacity to take stronger action against the men, and I believe that that is what would happen were we to accept the essence of these amendments.