Baroness Chakrabarti:

Moved by Baroness Chakrabarti

80: Clause 16, page 13, line 14, at end insert “or a sexual offence against the child or a child in the family”Member’s explanatory statementThis amendment would remove the presumption of custody for children of offenders of child sexual abuse, requiring a Crown Court to make a prohibited steps order protecting the children of an offender on sentencing.

My Lords, we are now in the family court because in the real world and in a joined-up justice system, victims are being dealt with not just in the criminal justice system but in the family system.

I have Amendments 80, 83, 84, 91 and 92 in this group. I will try to deal with them as succinctly as possible given the hour and what noble Lords across the House have had to endure in the last 24 hours. I am dealing with three issues. The first relates to Clause 16, the so-called Jade’s law. I will speak to that in a moment. That is covered in Amendments 80, 84—which is consequential on Amendment 80—and 83, which is distinct, but I am led to believe that the usual channels have agreed that Amendments 80, 83 and 84 will be treated as a package. I will wait for someone opposite to jump up and tell me if I am wrong about that.

Amendment 91 deals with “cowboy experts”—I am trying to be as succinct as I can—that is, unregulated experts giving opinions and getting paid. These unregulated opinions and expertise lead to considerable injustice in the family court, including people having to spend a lot of money and people losing responsibility for or contact with their children. Amendment 92 would ensure that those suspected of or charged with domestic abuse, sexual violence and child abuse are not permitted unsupervised access to their children.

Jade’s law is Clause 16, on which the Government are to be commended. Amendments 80, 83 and 84 attempt to tighten up loopholes in Jade’s law, and they are supported by the family of Jade Ward. On account of the time, I will not recount the details of that case. Noble Lords will know that, in its current form as proposed by the Government, Clause 16 places a parent convicted of the murder or manslaughter of the other parent under a prohibited steps order. This is so that we do not have the murderer or manslaughterer effectively controlling the family from behind bars. The Government are to be commended on responding to the campaign and taking up that issue, but we think there is a loophole in that there are sex offenders—not just murderers and manslaughterers—who are attempting the same coercive control, by way of the family courts, from behind bars.

Amendments 80 and 83 would extend Jade’s law and are supported by the family of Jade Ward, whose campaign originally led to Clause 16. We would extend the provisions of Clause 16 to those convicted of a sex offence against a child in the family.

I am aware that, in response to an amendment to the Criminal Justice Bill in the other place from my right honourable friend Harriet Harman, the Government have announced that they want to do something and give a concession in our direction in relation to those who rape a child under 13. With huge respect to the Government, that is not enough, because there are very serious sex offences that are not rape and there are very vulnerable children who are just over 13. A child is a child—not least for the purposes of the UN Convention on the Rights of the Child, if one can still talk about such instruments in Parliament—until they are 18, and certainly there are very serious sex offences that are not rape. So we wish to go further in the ambit of Clause 16, which is Jade’s law.

We also have Amendment 83. This deals with the exception to Jade’s law, as rightly constructed by the Government in the principal amendment. Understandably, and very sensibly in my view, the Government have created, from subsection (5) onwards, an exception to the prohibition in relation to the murderer or the manslaughterer, normally but not always a woman, who is a victim of domestic abuse that led to the murder or manslaughter.

We seek to include domestic abuse, as defined in legislation. At the moment there is an exemption where the offender is convicted of manslaughter and it appears to the Crown Court that this would not be in the interests of justice. We say “the interests of justice” is too vague a concept and they have to be a victim of domestic abuse, as determined by the 2021 Act. “The interests of justice” is too vague a concept to ensure proper protection for all those we seek to protect.

I move on to unregulated cowboy shrinks—if I can put it like that for the purposes of speed. Amendment 91 seeks to ensure that only properly regulated experts are called on to give evidence in proceedings involving victims. This is supported by the Association of Clinical Psychologists, so I hope the Government might have something positive to say about it. Again, what we are worried about is the weaponisation of the family court, normally by one parent who has more wealth and power and is able to pay for experts, including unethical cowboy experts.

As I say, it could go either way in terms of the mother or the father, but in many cases the mother is accused of this concept of “parental alienation”. We all know that divorced people fall out and are sometimes indiscreet in front of the children, but to turn this into a fake syndrome called “parental alienation” and call in expensive cowboy shrinks to say that the upset mother should no longer have access to her children, or should go on some therapeutic treatment programme that will cost thousands of pounds before she can have access to her children, is a travesty of family justice and not something that we should allow. As I say, all we want is for experts, who are very important in the justice system, to be properly regulated, just as lawyers, doctors and other experts are.

Finally, Amendment 92, as I said, would ensure that contact with a parent who is currently under investigation, on bail or awaiting trial for domestic abuse, sexual violence or child abuse is supervised.

I could go on, but I do not want to, because it is important that other noble Lords get to speak and that we move swiftly to determining your Lordships’ views on these provisions.

My Lords, I have put my name to these four amendments. I feel quite strongly about Amendment 80 in particular, although I agree with the noble Baroness, Lady Chakrabarti, that they are in fact a package. I was, as I have said many times, a family judge and I tried a great many sexual abuse cases. I spoke earlier about the trauma of sexual abuse lasting right through adulthood. But I ask your Lordships: can you think of anything worse than a child being raped by a parent? It is the destruction of trust in a whole part of the family, where one member creates a situation in which the child is abused. I have to say that they can be abused in two orifices, not just one—and I have heard all too many cases of both.

Sexual abuse seems to be an issue that is almost as important as murder, because the parent is lost to that child for the rest of the child’s life, but the parent retains, under Section 2 of the Children Act 1989, parental responsibility for the whole of the child’s childhood up to 18—I think the noble and learned Lord, Lord Bellamy, would prefer us to refer to “those who are under the age of 18”.

It is such a serious matter that I commend the Government—I really congratulate them—on Clause 16. It is splendid, but it needs this one extra bit. The clause needs to recognise the intense seriousness and the unbelievable trauma for a child. I heard the case of one child, a little girl of the age of four, who was so sexualised by her father that she became a danger. It was not a case between parents, but a care case in which no foster parent who was a man could possibly care for the child. A single woman had to be found to care for that child and teach her to live a normal life. I remember that case always; it really shocked me.

Amendments 83 and 92 deal with the impact of domestic abuse. As the noble Baroness, Lady Chakrabarti, said, in a case where a mother, or occasionally a father, has been so traumatised by domestic abuse that he or she—mainly she—kills the other parent who has committed it, it would not necessarily be right to deny them parental responsibility.

In relation to Amendment 91, I declare an interest as an honorary fellow of the Royal College of Psychiatrists. I have had the experience of listening to experts say that one parent was unfit, and I am glad to say that I just did not believe them. However, some of them are quite persuasive and have the most extraordinary proposals. The noble Baroness, Lady Chakrabarti, has talked about parental alienation. There was a certain period in which that was rather popular, but it is dangerous. There are parents who alienate children from the other parent, but it is not a syndrome; it is a fact of life, and it is a very unattractive way in which one parent treats the other. It should not be given the status of some sort of medical condition. There is nothing medical about it; it is just abhorrent.

I also support Amendment 92, but what really matters for me is Amendment 80. We should add sexual abuse to the otherwise admirable Clause 16.

My Lords, I support these amendments. They are underpinned by a simple principle: the best interests of the child. They seek to prevent the subversion of the family court, so that it cannot be used by abusers to extend their influence and control over victims; and to ensure that, as far as possible, children are protected from abuse and trauma.

Whether directly or indirectly, children are victims of domestic abuse in a household. Tragically, they are sometimes victims of abuse at the hands of their own parents. In such circumstances, the normal assumption that their best interests are served through contact with their parent must be reconsidered. This is why we seek to extend Jade’s law so that not just offenders who are convicted of murdering a partner but those convicted of sexually abusing a child in the family will automatically have their parental responsibility suspended on sentencing, rather than placing the burden on the family to go through family court proceedings after the criminal conviction.

It is why we seek to prohibit unsupervised contact for a parent who has perpetrated domestic abuse, sexual violence or child abuse. Too often, “best interests” has been determined as almost synonymous with increased parental contact. In most cases, that may be true, but we need to make sure that the law works when it is not. Sadly, contact does not correlate to care. Unsupervised contact with someone accused of abuse is a serious risk to the well-being and safety of a child.

Other amendments in this group seek to limit the ability of domestic abusers to carry on their abuse by subverting our justice system and using court procedures to harass and control their victims. The proceedings of our courts must be fair, and we must not let them be used as a tool of abuse. To that end, we must also make sure that any expert advice is properly regulated. This was discussed in some detail during the passage of the Domestic Abuse Act. The sorry truth is that we continue to see allegations of so-called parental alienation used routinely by abusers and the so-called experts they produce in the courts to try and discredit children’s testimony and avoid the charges they face. Victims are even encouraged not to disclose domestic abuse as it will only see them cast as unco-operative. This is a deeply alarming situation which poses a real risk for victims and children.

The UN Human Rights Council report Custody, Violence Against Women and Violence Against Children recommends that states legislate to prohibit the use of parental alienation or related pseudo-concepts in family law cases, and the use of so-called experts in parental alienation and related pseudo-concepts. In an early 2023 case involving a regulated psychologist, the President of the Family Division held that it was at Parliament’s discretion whether a tighter regime should be imposed. We should exercise that discretion.

My sense from Committee was that the principles behind the various amendments in this group are widely supported across the House and the differences are largely down to practicalities. It is precisely because of the practicalities that these amendments are needed. Without them the psychological, practical and financial burdens placed on families trying to recover from abuse is very heavy. I shall give just one example. A mother in Cardiff had to spend £30,000 on court costs to remove parental rights from her ex-husband, who was a convicted child sex abuser, to protect her daughter. This is sadly not untypical. In another case I have been told about, a father was found to have used abusive behaviour towards his children and rape their mother. The mother’s court costs were £50,000. Eventually, the father was ordered to pay, but the very prospect of such high sums risks putting children’s safety at an unjust price.

Victims of domestic abuse must be able to have faith that any abuse endured will not be manipulated against them in court. These amendments are firmly in line with the Government’s ambitions for the Bill. I hope that my noble friend the Minister will accept them.

My Lords, I will speak in support of Amendments 80 and 84. These amendments would extend the provision of Jade’s law in the Bill, which relates to murder and manslaughter cases, and would deprive a convicted offender of parental responsibility. The amendments would extend the provisions to sexual offences against children in the family. A powerful case has been made for this extension. It was recently approved, as has been said, in another Bill before the Commons. The examples provided in the briefing material fully justify this amendment.

If I may be pedantic for a moment, I will point out that in the explanatory statement attached to Amendment 80 there is an incorrect reference to removal of “the presumption of custody”. There is no such presumption, and the concept of custody has not existed since the Children Act 1989, although it persists in soap operas, to the irritation of family lawyers.

This amendment would prohibit the exercise of parental responsibility by convicted offenders in cases of child sexual abuse. Allowing sexual offenders to continue to exercise parental responsibility would be wholly inappropriate. Amendments 80 and 84 are well suited to the structure of the Bill, which provides for an order to be made by the Crown Court and then automatically reviewed by the family court when there is perhaps a fuller picture of the family circumstances and a fuller picture of wider implications.

In many ways, cases of sexual offending are more difficult because, sadly, in cases of murder and manslaughter, both parents are not alive. When both parents are still alive, and when there is the possibility that the offender is not in custody—or not for very long —serious thought needs to be given, after the automatic order in the Crown Court, by the family court. That is why I suggest that these amendments are well suited to the structure of the Bill.

I have some reservations about Amendment 83, which I expressed in Committee. I find it more difficult. I understand the point of the amendment but question its scope. It would apply to cases of murder as well as manslaughter, and it would do so irrespective of the nature, extent and seriousness or otherwise of the abuse suffered. It would also apply irrespective of its lack of relevance to the offence for which the parent has been convicted. Abuse in these situations may be rather remote and unrelated to the offence, and, in cases of murder, it will not have affected the decision to convict. As the noble Baroness, Lady Chakrabarti, accepted, there is a discretion under new Section 10A(5), to be inserted by the Bill into the Children Act, in manslaughter cases at least, to allow some relief from the provisions of Jade’s law. I venture to suggest that that might well be sufficient and would allow for a case- specific decision in each case.

I support Amendment 91, which relates to expert evidence and particularly refers to the problems of psychological experts, highlighted in recent decisions of the Court of Appeal and the family court. I can tell the noble Baroness that it is cowgirls as well as cowboys who operate in this field. If I can be anecdotal for a moment, I particularly recall an advocate recommending fervently the instruction of a psychologist of whom nobody had heard and who turned out to be the advocate’s wife.

When the court decides that expert evidence is needed in difficult cases, the courts and the parties are entitled to expect professionals who are objective, authoritative and have relevant skills and qualifications, not those with their own agenda, unhelpful rigid views or preformed assumptions. We need experts to assist with the analysis of past events, but, more importantly, as the noble Baroness said, even if that is left to the court, the expert is needed to help with recommendations for suitable and available appropriate therapy to deal with the problems of the family revealed by the case. The purpose of experts at that stage can be to see whether there is any possibility of restoring family relationships, particularly in the so-called alienation cases.

It is frustrating, and it still happens, that you come across a recommendation for a form of treatment that is not available, either because it is too costly or because it is not available under the health service. That is less likely to happen if the expert who has been instructed is a mainstream practitioner grounded in the real world. I repeat what I said in Committee: it would, frankly, be better if this provision applied to all psychological experts used in such cases, not just those instructed to assess the victim but those instructed to assess the perpetrators and the children. Quite often, you get jointly instructed experts required to carry out what are called “global assessments” of all involved. Although I appreciate why this amendment focuses on the assessment of victims, it is to be hoped that, if it is introduced as part of the statutory framework, it will apply to raise standards across the board.

I support Amendment 92. Much of what it seeks to achieve is or ought to be covered by the relevant practice direction in the Family Procedure Rules. As I said in Committee, it is sometimes quite difficult to discover what the state of the investigation has been and what bail conditions apply. It is therefore quite difficult to align bail conditions with orders required by the family court. Nevertheless, I support the amendment because it will, in practice, assist the courts.

My Lords, I added my name to Amendments 80, 83, 91 and 92, and I support Amendment 84 as well, although I have not signed it. I will not repeat everyone else’s comments, but I support virtually all of them—though I might take issue with the noble Lord, Lord Meston, on a couple of minor details about why amendments have been laid.

I will make one point about Amendment 91 that nobody else has made. The very helpful briefing that we received from the Association of Clinical Psychologists and the Law Society Gazette this week set out the technical anomaly that exists with regulated psychologists. The position of the regulator, the Health and Care Professions Council, is that it wrote to the director of workforce at the Department of Health and Social Care to highlight risks presented by unregulated psychologists, including in relation to the provision of expert evidence. I say to the noble Lord, Lord Meston, that it was writing in a broader way than just for the courts.

In the landmark case of Re C, the President of the Family Division, Sir Andrew McFarlane, determined that the courts could not prohibit the appointment of an unregulated person who called themselves a psychologist as a psychological expert because there is no regulation of the term “psychologist”. The way round this would be to take this amendment, to make it absolutely clear. However, there are slightly broader issues that the Government now need to look at, not just from the courts but the wider health system, to make sure that those who are bound by the HCPC are the ones who are regulated to work in these areas—nobody else should be permitted to do so.

My Lords, although this has been a relatively short debate, it has been quite comprehensive. All noble Lords have spoken with brevity about these sensitive issues.

I will highlight two points. First, I pick up the point of the noble Lord, Lord Meston, about how any order made by the Crown Court should automatically be reviewed by the family court. That was a useful addition to the amendment, although I suspect my noble friend may be pressing the amendments as they are. Nevertheless, I thought it was an insightful point.

My other point about Amendment 91, on psychologists and people with professional expertise, is that the problems extend beyond experts. In family courts, I see McKenzie friends who clearly have their own agendas, and it is an issue with which one has to deal—but that is a tangent to the main points in these amendments. If my noble friend chooses to press her amendment, we will of course support her.

My Lords, we have before us various amendments that deal essentially with family justice. I will deal first with Amendment 91, which proposes that only experts regulated by the Health and Care Professions Council undertake certain psychological assessments. The Government entirely appreciate the aim of this amendment—something needs to be done. This problem probably extends to healthcare generally. In the Ministry of Justice, we have been in discussion with the Department of Health about the term “psychologist”, what it means, whether one should regulate it and so forth. The Government’s position is that only psychologists who are regulated should be undertaking psychological assessments in the family court.

The short point is that this is going to be better dealt with under the Family Procedure Rules than in primary legislation. In particular, in this Bill, for reasons of scope, you can deal with it only in relation to victims of criminal conduct. We need an across-the-board solution, worked out through the Family Procedure Rule Committee, to implement changes that would ensure that, where a psychologist undertakes any psychological assessment in private law children proceedings, they are suitably regulated and that that broader work encapsulates any other problems that arise in relation to unregulated experts. The position of the Lord Chancellor is that this matter should be undertaken now by the Family Procedure Rule Committee—which operates in very close collaboration with practitioners, judges and all those involved in the family law scene—to implement changes, rather than it being done through this primary legislation.

I fully understand the point that the Minister is making. Can he indicate whether this problem has now been referred to the relevant Family Procedure Rule Committee? If it has, I would hope that it would get urgent and speedy consideration. If it has not, when will it be?

There have been preliminary discussions with the committee but it has not formally started work. I cannot give the noble Lord a precise date, but I can say that there is a reserve power under Section 78A of the Courts Act 2003 which entitles the Lord Chancellor to require the Family Procedure Rule Committee to consider the point. In the Government’s submission, that is the way that this should be dealt with, rather than in this necessarily narrow Bill.

Will the Lord Chancellor do that?

It would be extremely regrettable if the Family Procedure Rule Committee were to refuse to embark on this exercise, particularly in the light of the comments made in the House today and in the other place. It is clearly something that should be done. That is as far as I can reasonably go at the Dispatch Box. That is essentially our position on Amendment 91: let us take it down the route of the Family Procedure Rule Committee.

Amendment 83 brings us to Jade’s law and Clause 16. This is where one parent murders the other. It is a very specific situation, because you have got only one parent left. In all other situations that we are discussing, you have two parents. Amendment 83 concerns where the parent who has committed the murder is a victim of domestic abuse. That is the purpose of this. The Government’s position—and I think the noble Lord, Lord Meston, came quite close to saying the same thing—is that this is effectively already dealt with in the existing Clause 16. It does not suspend parental responsibility for an offender convicted of voluntary manslaughter where it would not be in the interests of justice to do so.

We are talking here about a Sally Challen-type case, if I may use that expression. The “interest of justice” test is one with which Crown Court judges are familiar in the context of sentencing guidelines. Engaging the test is a matter for judicial discretion, but certainly in those cases where the victim has lashed out after years of abuse, they are very likely to fall within this exception, and that is why we have provided for voluntary manslaughter.

It does not seem to the Government that we need any more formal provision in the existing Clause 16 to take account of the situation where the murderer has suffered domestic abuse, because that is already implicit in the clause. If it were the case that, for some reason, Clause 16 was nonetheless to bite, it does, as has been pointed out, provide a pathway for review by the family court. The family court is not going to take away parental responsibility from a mother who has lashed out, if I may use that expression. The Government’s view is we do not need Amendment 83: it is already fairly well covered. I take these points quite shortly because I think it is important to keep this debate fairly short.

Amendment 92—and the situation where we have both parents still alive—seeks to remove the presumption of parental involvement where a child or a parent is a victim of domestic abuse as defined by the Bill. I caution against trying to amend family law in the context of this Bill. The presumption of parental involvement is central to family law: we already have protections under the Children Act 1989 and a forthcoming review is about to be published by the ministry. We have the Family Procedure Rules, and we have practice direction 12J, which deals with all the protections for children.

The important point is to strike the right balance between the benefits a child receives from the involvement of both parents and preventing harm to the child. Those are challenging things, but we should leave it to the individual circumstances of each case and work with the judiciary, with careful consideration and without, in this context, changing what is effectively the foundation of the Children Act 1989 in relation to the law on presumption of parental involvement. The Government would caution against going down that that route.

We had an important debate on this last night, in a Question from the noble Baroness, Lady Meyer, about the importance of the involvement of both parents in children’s lives and the work of the new pathfinder courts in dealing with these cases. Let us not divert all that good work by trying to review and amend family law in the context of this victims Bill. We are dealing only with victims in this case. That is the Government’s position on Amendment 92.

Amendment 80 seeks to extend the automatic expansion of Jade’s law to those who have been convicted of a sexual offence against the child, and that is linked to Amendment 84. Again, this is quite an important extension of the principle. As drawn, the amendment refers to “the child” and another child and “a sexual offence”, which could be a very wide concept as it includes lesser offences, as well as serious ones. The Government’s position is that, once you start to go down the road of Jade’s law, you have to be a bit careful about where the stopping point is to give the criminal court power to remove parental responsibility.

The Government’s position is that, in the case of child rape, as the noble and learned Baroness, Lady Butler- Sloss, said, the issue would be very clear. We propose to move an amendment in another statutory vehicle for the automatic suspension of parental responsibility in cases where an offender has been sentenced for the rape of a child, which will mirror the approach taken in Clause 16. There will be a review by the family court and so forth.

Beyond that, I caution this House against going further at this point. This is an important and novel change to the law around parental responsibility; we must go very carefully and understand the impact on the children and families of perpetrators. Adding a wide range of offences under which this mechanism would be triggered would put significant pressure on the family court and be quite difficult operationally. In the Government’s view, one should not go as far as the present amendment does. However, we are prepared to move an amendment in another Bill on the specific case of the rape of a child. The Government respectfully suggest that this is a sounder response than this very widely drawn amendment.

Government Amendments 81 and 82 clarify certain technical points about the operation of Clause 16, which I do not think I need explain in more detail.

My Lords, I hope noble Lords will forgive me for forgetting courtesy in my brevity. I failed to mention the various supporters, some of whom have identified themselves: my noble friend Lord Ponsonby of Shulbrede, the noble Baronesses, Lady Brinton and Lady Helic, and the noble and learned Baroness, Lady Butler-Sloss. As always, I am also grateful for their expertise—including correcting an error in the explanatory note—and the expertise of the noble Lord, Lord Meston.

I am grateful to the noble and learned Lord the Minister for understanding the problem with unregulated experts. He alluded to a potentially broader, and quite possibly effective, solution by way of procedure rules and, under pressure from the noble Lord, Lord Meston, said that it would be extraordinary if this did not happen. I will hold my fire until Report and have great hope—

Noble Lords:

This is Report.

Then I have no hope. But I will take comfort from the Minister’s comments, because that would be a better, rounder solution in relation to proceedings and it could be broader than just victims. I would prefer that outcome. I hope the Government as a whole will look at unregulated psychologists more generally, in relation not just to proceedings but the public more generally. I take comfort from that and am grateful for it.

On Amendment 83, the current provision for the Jade’s law exemption is vague. If we are trying to deal with domestic abuse, let us call it what it is—it is defined in statute.

On the presumption of parental involvement, the logic of the idea that convicted sex offenders should be presumptively allowed parental involvement escapes me. Jade’s law should be extended. The Minister is almost with me. He wants to act in another Bill, but the clock is ticking for this Parliament and we have a Bill right here on Report in which we could protect children from sex offences, including very serious sex offences that are just short of rape, for reasons which the noble and learned Baroness, Lady Butler-Sloss, put more graphically and with greater expertise. We should take this opportunity to act. I wish to test the opinion of the House on Amendment 80.

Ayes 144, Noes 154.

Amendment 80 disagreed.