Amendment 82

Victims and Prisoners Bill - Committee (4th Day) – in the House of Lords am 5:15 pm ar 7 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Baroness Chakrabarti:

Moved by Baroness Chakrabarti

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 statementThis clause would seek to ensure that victims under this Bill could not be disadvantaged by considerations of parental alienation in the family court.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur

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.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol 5:45, 7 Chwefror 2024

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.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

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.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

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—

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

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.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol

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.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

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.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur

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.

Photo of Lord Meston Lord Meston Crossbench

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.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 6:15, 7 Chwefror 2024

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.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 6:30, 7 Chwefror 2024

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.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Lord Meston Lord Meston Crossbench 6:45, 7 Chwefror 2024

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.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur

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.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

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.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur 7:00, 7 Chwefror 2024

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.