Clause 24 — Power to issue a domestic violence protection notice

Crime and Security Bill – in the House of Commons at 8:00 pm on 8 March 2010.

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Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South 8:00, 8 March 2010

I beg to move amendment 1, page 72, line 21, at end insert-

'( ) the welfare of any person under the age of eighteen whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: amendment 21, in clause 25, page 73, line 25, after 'determined,', insert 'or for seven days if earlier'.

Amendment 22, in clause 27, page 74, line 21, leave out subsection (9).

Amendment 64, page 74, line 22, at end insert

'or for a period not exceeding 56 days whichever shall be the earlier'.

Amendment 2, in clause 28, page 74, line 34, after 'consider', insert-

'( ) the welfare of any person under the age of eighteen whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and'.

Amendment 54, page 75, line 7, after 'also', insert

', unless such a provision is incompatible with any legal obligations imposed on P by another court or other lawful authority,'.

Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South

Amendment 1 relates to the welfare of children in domestic violence situations. I am sure that the whole House shares most people's revulsion at domestic violence generally. It is perhaps one of the most appalling breaches of trust to be involved in a relationship with somebody that leads on to violence in a situation where one party-the victim-is often almost exclusively under the control of the perpetrator of such acts. That control is exercised in a whole host of ways, be it through the violence, financial control or emotional control.

My amendment deals with how children fit into domestic violence situations. Sadly, far too often, children are involved through being upstairs listening to the shouts, the screams and the smashing of furniture. Perhaps their treasured toys are being destroyed in these acts of violence. Sometimes, even more frighteningly, the children themselves are caught up in the violence and are downstairs in the room while it is going on. They may try to intervene to save their loved parent from being caught up in the violence. Sometimes the children are used as pawns when a threat is made against a child, either explicitly with the child present or as a way of controlling the victim in the domestic violence situation. Children will witness violence in the home when there are cuts and bruises, and perhaps broken furniture, when they go downstairs the next morning. Time and again, children are caught up in the terrible circumstances of domestic violence and become yet another innocent victim of this appalling crime.

Many children then grow up to lead healthy, good lives and are unaffected by the appalling things that have happened to them, but sadly, for far too many children, the scars stay with them for life. It may affect their own future relationships; it may affect their mental health in a host of ways or many other aspects of their lives. It may cause problems very early on in terms of their disrupting the classroom, through to adulthood and problems in later life.

I have great concern about how children are affected by domestic violence. Often, police officers are calling at the same addresses week in, week out, having being called by neighbours, by the victims, or by older children who phone for them to intervene in the situation. They see the damage that is caused to people's lives and to property, and, in the context of my concerns, the damage caused to children and their development.

I very much welcome the clauses that introduce protection notices, but I am seeking greater knowledge and recognition of the problems that children suffer in such situations. For that reason, my amendment is designed to ensure that their needs are taken into account by the officer attending the premises where the domestic violence is taking place, and subsequently by the courts. I would like a police officer to be able to turn up at a home with which they are probably very familiar, having been called there many times in the past, and issue the notice, not only because of the situation as regards the victim but because of its impact on the children. The amendment would allow them to intervene to protect not only the immediate victim but the children, and then subsequently, when the notice goes through to the court stage, the courts could take far more notice of the impact on those children than would otherwise be the case.

This issue has been well rehearsed; it was certainly discussed in Committee. Although that debate happened right at the end of one day's proceedings, it was an important discussion in which concerns were expressed by Members on both sides. I hope later either to put this matter to the House, hopefully for its agreement, or that the Minister will accept the amendments. I look forward to what I hope will be a short but important debate following my introduction of them, and to a situation in years ahead in which children will be protected to a far greater extent through these notices and orders as a direct result of the action that I hope is taken in the House this evening.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I congratulate Mr. Flello on following up a number of the points that we discussed in Committee on recognising the impact of domestic violence on children. We touched on the intergenerational effects of domestic violence and the considerable impact that living in a disruptive home environment, in which there is violence, drug taking and complete chaos and disorganisation, may have on a young person. It is important that that is recognised.

Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South

I just wish to clarify something in the hon. Gentleman's opening remarks, and I look forward to the rest of his comments. He talks about chaotic lifestyles and drug abuse, but we should recognise that even some supposedly normal households, perhaps with extremely important professionals living in them and with a semblance of peace and harmony, can have pretty horrendous domestic violence problems.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The hon. Gentleman makes his point well about the insidious impact that domestic violence has on those who suffer from it. It can occur among those from all sorts of livelihoods and backgrounds, and I would not wish to give the impression that it is located only among certain groups or people from certain backgrounds. It is not, and the measures that we are discussing-domestic violence protection notices and domestic violence protection orders-are important in recognising that the problem touches people from all sorts of backgrounds. It is worth talking about the impact that domestic violence has on children and the fact that is not ring-fenced simply to partners or spouses. Its impact on children should be considered carefully, and the concept of having more formal recognition of the problem is one that we would consider carefully. We need to consider the best policy direction to take on this important issue.

More generally on the issue of DVPNs and their interrelationship with DVPOs, in Committee we raised a number of points about their potential impact and the time that might be taken between the receipt of a notice and the case going to court. The Bill is structured in a way that anticipates that if someone is in receipt of a DVPN, they will go to court within 48 hours. On Second Reading, questions were raised as to the reality of whether a substantive hearing could take place within that time, and the likelihood, given the complexity that may be involved and the need to take evidence, that the period needed might be considerably longer.

In Committee, the Minister emphasised that the process would take place quickly and that there would be a sense of urgency. However, as the Bill is currently framed, it appears that the period between a notice being issued and the substantive court hearing could be longer than the period of the order itself, which is stated as being between 14 and 28 days. The orders are intended to buy some breathing space to allow a potential victim of domestic violence to consider other options.

We understand clearly the concept of such "go" orders and how they have been utilised to positive effect in other jurisdictions, but we believe that some sort of backstop is needed to maintain the focus on the need for urgency and for a substantive hearing to take place within a reasonable period. Unless that takes place, it seems that the process could be open-ended. That is why, in our amendments, we say that a DVPN should last for a period of up to seven days. That would ensure that there was a substantive hearing and that an order was either granted or dismissed because the relevant evidence had not been given.

As the Minister has made clear, there will be an automatic requirement that once a notice is issued, the case will have to proceed to a substantive court hearing to determine how it should be disposed of. I know that other Members may wish to take up that point in relation to other amendments. We believe that there is some merit in considering a backstop of seven days on the issuing of a notice, given the restrictions that are likely to apply, such as telling someone that they can no longer reside at a particular place that may be their home. We need to strike a fair balance between the relative interests and ensure that there is a focus on getting to court, disposing of the matter quickly and, if a substantive order is required, ensuring that it is granted. That is better than simply relying on having a notice for an extended period. We need to allow the matter to be determined by the court, rather than effectively being determined by the police officer who issues a notice in the first place.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 8:15, 8 March 2010

I should like to say a few words about domestic violence protection notices and speak to amendments 21 and 22. I begin by saying that this is a troubling night-I wonder whether other colleagues think so-in the sense that over the years, arguments have quite often been put forward by the Opposition or Government Back Benchers on Second Reading that require a Bill Committee to consider an issue carefully. The Committee meets, and perhaps a dozen, 20 or 30 amendments are tabled-all, I hope, well motivated, and sometimes with some merit.

Yet there has been a tendency for years now for Governments simply not to accept an argument or an amendment. Why? Are they fearful of doing so? Are they told by their civil servants that they cannot accept any amendments? How many hours of Committee time have been wasted over the past few years with arguments being put forward in the certain knowledge that the Government will not accept them, even if they are good arguments?

That troubles me, because there are men and women in this House who have actual experience of the world of the courts and justice-experience that, however clever some of these young civil servants are, they have never had. Indeed, some Ministers have not, although Ministers know a great deal. So many of the people who I think are pulling the strings behind Government Ministers are saying, "No Minister, you cannot accept this." "Why not? It seems reasonable." "Because we say so." But what is their real position? They have not got a clue about the real world outside.

That comes into play on the issue of domestic violence protection notices. As I said on Second Reading, the issuing of such a notice is a very serious matter, not least because it will give a policeman the power to throw a person out of their own home. I cannot remember such legislation coming before this House-it may have done, but I cannot remember it. It is extremely draconian. A policeman is a member of the public with a warrant to make an arrest, and in my judgment, "Don't give the police too many powers" is a very good motto.

We have to accept that the police will be given that draconian power under clause 24. Clause 25 states that a DVPN must state that an application for an order

"will be heard within 48 hours".

How on earth any policeman can say that the application for an order will be heard in 48 hours is absolutely beyond me. He can say no such thing! I am assuming that Saturdays, Sundays and bank holidays do not count, but does the Minister-or, much more importantly, any of his civil servants-realise how the courts work? One goes to a court to issue an application, and then gets a hearing date. The Minister is looking at his civil servants. They are desperately trying to write out notes to tell him what happens in practice, but I would be surprised if one of them knows.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

A very fine sight, if I may say so, particularly on the rugby field in the old days and the golf course nowadays- [ Laughter. ] I am way off the subject, for which I apologise.

If the applicant-the police officer-goes to a court on a Friday afternoon, who can guarantee that the application will be heard in the court on the Monday or Tuesday morning? The clerk of the court is not so bound by law. If the clerk is so bound by law, let someone tell me that. The clerk will in fact list the application at the first available opportunity, which might be two, three or four days. Even then, it might get only a 10-minute hearing date, because that is all the court is prepared to give. How does that tie up with a notice saying that the application will be heard in 48 hours?

Did the Committee really understand the difference-if there is one-between an interim and a final order? Did the Committee really understand what happens in practice if an application is before the court within, by a miracle, 48 hours? Does anybody understand that in practice-I do not expect any of the civil servants to have the slightest idea about this because they have probably never been in court-somebody stands up and the court says, "Is this a complicated matter?" at which point counsel for the husband or wife says, "Yes, it is, because I wish to fight this. We have to get evidence from the following 10 people and for our case to be heard. We wish to apply for legal aid. We have some work to do to check out the law"? The court is then duty bound in justice to adjourn the matter. What happens then? Does the domestic violence protection notice stay in force? Is the subject of the notice still thrown out of their house?

The barrister then asks the district judge, "How soon can you hear the application?" and the latter replies, "Three weeks on Tuesday. That's the first date we've got." Does anybody disbelieve me when I say that that is how the world works in practice? Is the order to continue delayed till three weeks on Tuesday? The district judge then asks the barrister, "How long do you want by way of an adjournment?" to which the barrister replies, "Oh. A fortnight should do, or perhaps three weeks, because I've got witnesses who are going to be away. In fact, can you list it for the month after next?" Where does that leave the court? Can the Minister tell me whether the domestic violence notice remains in force throughout? If it is in force, is that a great thing? Does the Minister intend a notice to remain in force for 36 or 48 days? It is all very well him looking at the civil servants to see whether that is his intention, but I do not know.

That is a great, troublesome area, which is why amendment 21, which would mean that the DVPN continues in effect until the application has been determined,

"or for seven days if earlier", is sensible. That is also why amendment 64 is sensible, so that clause 27 states:

"If the court adjourns the hearing, the" notice

"continues in effect until the application has been determined", or for 56 days, whichever is earlier. There need to be limits, and someone in this building needs to understand what actually happens in court. Otherwise, the measure will be largely unworkable.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I want to make only three points, two of which are essentially on drafting. However, I shall first address a few remarks to the points made by Mr. Flello, with whom I think I agree.

It is proper, when considering the issue of a notice, that the officer takes account of persons under the age of 18. Understandably, we have been contemplating, and concentrating on, the relationship between P and P's partner-that is the most usual state of affairs. However, of course, within a household, there can be more than one relationship. There might well be a relationship of violence between P and partner, but one cannot exclude the possibility of a relationship of violence between the partner and the person under 18. In those circumstances, P might be a protector or bulwark for the person under 18 against the partner. That is one point to keep in mind.

Another quite different but related point is that there might well be an important relationship of dependency between P and the person under 18, and I can imagine other relationships that are relevant to whether a notice should be issued. Therefore, for those reasons, and indeed for the reasons advanced by the hon. Member for Stoke-on-Trent, South, it is right that the interests of the person under the age of 18 should be taken into account as a relevant factor.

The other two points that I wish to make are essentially drafting points, as I said. For amendment 64, which is in my name, I depend very much on the arguments advanced by my hon. Friend Mr. Malins, and I have proposed an end date of 56 days on the running of the notice very largely for the reasons that he gave. He draws on his experience as a district judge, which will include repeated adjournments in magistrates courts. That coincides with my experience, although mine is not quite as contemporary as his.

My last drafting point would be addressed by amendment 54, which deals with a matter I raised in Committee. The court of course has a power to make non-residence requirements as part of the order, but one must contemplate that other legal orders may already be in place that could, for example, require P to reside at the matrimonial home. At least two examples rapidly occur to me. First, it may well be that as a condition of bail, somebody is required to live at the matrimonial home. Secondly and alternatively-this arises not under an order of the court, but nevertheless under the order of a lawful authority-a control order may well require P to live in a specified place, where he or she is residing with the partner.

It seems quite plain that the court that is in the business of making the order should take account of, and not contravene, other, earlier legal obligations. Clearly, one could say, "The matter should be adjourned until the other court or lawful authority has had the chance to amend," but I am not sure that that would be a satisfactory approach. Upon whom does the burden of testing the other court rest? It would also lead to a considerable delay. My bet is that the Bill should state that the non-residence requirement in the order should issue only if it is not inconsistent with some other obligation imposed by a court or legal authority. That is the thinking behind proposed amendment 54.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

I am grateful to hon. Members for their contributions to the debate. I especially appreciate the contribution from Mr. Malins, and I hope that I can reassure him. He said that very little comes out of the discussions on amendments in Committee. That may be his recollection of what life was like when the Conservatives were in power-I certainly spent five years as an Opposition Member without having a single amendment accepted on any Bill-but even this evening we have considered amendments that I have tabled to reflect suggestions made by James Brokenshire in Committee. Some 14 amendments this evening are based on discussion in Committee, and amendment 1 was also tabled in Committee by my hon. Friend Mr. Flello. We wanted to change the wording slightly, and I discussed that with my hon. Friend. He listened to what I said, and he has tabled an amendment that reflects his concerns in Committee and we will accept it this evening.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I may not get another opportunity to say to the Minister that in all my dealings with him over the years, I have always found him measured, kindly, helpful and constructive.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing) 8:30, 8 March 2010

In that case, I shall not kick the hon. Gentleman too hard this evening. That is only fair, as he may be in his final 12 or so weeks in this House-[Hon. Members: "Oh!"] Well, it is 12 weeks until 3 June and dissolution could happen at any time before then.

I can tell the hon. Gentleman, from my 12 years as a Minister in five different Departments, and including four years in No. 10 Downing street, that I know that Ministers have an impact on policy decisions. They listen to amendments and develop policy, and they also test policy that is suggested to them by civil servants. I hope that that will continue for a long time to come. He may feel that his points are not adequately reflected in my reply, but we do wish to make changes to domestic violence protection orders in response to the discussion in Committee.

I wish to pay tribute to my hon. Friend for tabling amendments 1 and 2, which reflect concerns expressed to members of the Committee by the NSPCC, which wanted to highlight the important issue of domestic violence protection orders and to consider how children can be impacted by domestic violence in the most serious and unfortunate ways. I want to ensure that these new measures help to protect children from any further harm at the hands of this terrible and very immediate form of violence.

In Committee, we had a helpful debate on this issue, and these amendments reflect those discussions. I was able to discuss the amendments with my hon. Friend so that I could accept them, and I am pleased that he has tabled them in the form before us tonight. The purpose of these amendments is to ensure that the welfare of children is taken into consideration before a DVPN or DVPO is made, and that this is included on the face of the Bill.

These amendments will require that, before making a DVPN or a DVPO, the police and the court must consider the welfare of any individual under the age of 18 whom the officer deems is relevant to the case. That is in addition to other considerations about the opinions of the victim, perpetrator, and any other associated persons. These amendments will not change the primary focus of the provisions, but will ensure that the children are taken into consideration in the granting of the DVPN or DVPO. The impact of domestic violence on children is relevant and should be a consideration.

I hope that I can assuage the concerns of the hon. Gentleman and Mr. Hogg by saying that, as with gang injunctions, domestic violence orders are intended as a pilot scheme to start with. We are looking at piloting them in two areas, if the Bill makes progress in the other place and Royal Assent is achieved. In Committee, I made it clear that DVPOs would not be rolled out across the whole country immediately, for the very reasons that the hon. Gentleman mentioned. We want to introduce an effective scheme, and there is a gap in provision that domestic violence protection orders and notices can fill.

However, I want to ensure, for the very reasons that the hon. Gentleman set out, that the court facilities are available, and that the police understand the process and have senior officers available to authorise approvals. We also want to ensure that the process makes a difference, that it is compliable-as we think it is-with the human rights of those excluded from their properties, and that it meets the need to protect individuals who are vulnerable to domestic violence. Therefore, whatever else I say today, I hope that the things that the hon. Gentleman has mentioned, as well as the concerns expressed by the right hon. and learned Gentleman, are reflected on as part of the pilot, so that if those circumstances arise, we can measure that and make changes accordingly.

The time limit of seven days contemplated by amendments 21 and 22 is simply too short for the consideration of every possible case. Amendment 64 sets the longer deadline of 56 days, but in my view that time limit is unnecessary and undesirable. Let me say to both the right hon. and learned Gentleman and the hon. Gentleman that the purpose of the order-the pilot will test it-is to be put in place as soon as possible after the police officer concerned gets approval from a senior officer for the case to be progressed accordingly.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

Does the Minister not think it somewhat strange that a notice that could contain largely the same provisions as an order subsequently conferred by the court could in effect be for longer than the order itself? As he will appreciate, there is a maximum period of around 28 days for the order granted by the court. Therefore, an administrative sanction given by a police officer could extend for considerably longer than something decided through a court process with judicial oversight, which seems somewhat strange, given the relative balance of who should be making such decisions. Is the Minister comfortable with that?

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

I am comfortable with it, because the objective of domestic violence protection orders is to be expedited as quickly as possible, and I hope that the pilot will test that. That is the purpose of the order. It is intended to be an immediate response where there is insufficient evidence to ensure an immediate prosecution, but where there are concerns about the safety of an individual or-after I accept amendment 1, in the name of my hon. Friend-young people who are also part of the family circle.

The purpose of the order is to be expedited extremely quickly. My view is that orders will be expedited quickly, and that will be the expectation. The pilot will test whether that is the understanding, but our expectation is that that will happen. We have said that we intend to issue guidance to the police under the Bill that will impress upon them the importance of acting expeditiously in gathering evidence for the DVPO application to be determined. Also, the courts will be alive to the risk of injustice if a DVPN is allowed to continue for too long, and will, I am sure, refuse requests from the police to adjourn applications if there is an unreasonable length of time. The purpose of the orders is to be speedy and to be expedited accordingly. I therefore hope that the hon. Gentleman will not press amendments 21 and 22, but if not, I shall unfortunately have to reject them.

Amendment 54, standing in the name of the right hon. and learned Gentleman, also covers a matter that we discussed in detail in Committee. I can understand that there might be circumstances where a parallel order of some sort might be in place, and this evening he used the example of control orders. However, as we discussed in Committee, it is highly likely that the police officer who authorises a domestic violence protection order will be aware of the history and of any other order to which the individual in question is subject. As we discussed extensively in Committee, the chances are that the police national computer will show up any other orders that are in place. The right hon. and learned Gentleman mentioned control orders. Currently there are 11 control orders in place, and there have been only around 43 to 45 in total. The chances of an individual being subject to a control order at the same time as being subject to a domestic violence protection order is therefore relatively remote, although I respect the way the right hon. and learned Gentleman has raised the issue.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am grateful for what the Minister has said, but I think that he is accepting that if a court or other lawful authority had previously imposed a requirement that an individual should reside at, say, the matrimonial home, it would be inappropriate to make an order that had a contrary effect.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

What I have said is, first, that the circumstances that I have described are likely to be a rare occurrence, and secondly, that the court will be fully aware of the circumstances and have those facts before it when making the order. Indeed, in the extremely unlikely situation that incompatible conditions were to be imposed by mistake, that would be taken into account by the police when enforcing the various conditions. I am not saying that such a situation would be impossible because, self-evidently, these things can happen.

If such a situation were to arise, however, it would be a mistake. Furthermore, all the information about the current obligations on an individual would be before the court, and my contention is that it would also be before the police before the domestic violence order was approved by the senior officer charged with approving it. I mentioned to the right hon. and learned Gentleman that, even if that were not the case, following our discussions in Committee-and following this debate tonight-no senior officer would approve an order unless they were certain that it was compatible with any other order that might be before the courts. I hope that he will therefore not press his amendment to a vote.

The Government support amendments 1 and 2, and I am grateful to my hon. Friend for tabling them. I hope that the House will accept them, and that the other amendments will not be pressed to a Division.

Photo of Rob Flello Rob Flello Labour, Stoke-on-Trent South

I appreciate the fact that my right hon. Friend the Minister has accepted amendments 1 and 2. I would also like to put on record my appreciation of the fantastic work that the NSPCC does around the country, and of all the other charitable and third sector organisations, as well as those in the statutory sector, that do so much work to support people suffering domestic violence.

I should like to respond to the points about the courts raised by Mr. Malins. The pilots will have to take on board these points and thoroughly explore them in order to ensure that no one could be required to leave the matrimonial home and then have to go through a lengthy court wrangle. We need swift and effective justice, and I hope that the pilots will take that into account.

Mr. Hogg made some good points about the interrelationship between children and under-18s in families. Ultimately, this is a test of this House and of all of us as Members of Parliament, and it is a poor look-out if we cannot protect the most innocent, vulnerable people in our communities. I hope that, in accepting the amendments, the House is demonstrating that it takes seriously its responsibilities to the most vulnerable in our society.

Amendment 1 agreed to.