New Clause 15 - Children as victims of domestic abuse

Part of Domestic Abuse Bill – in the House of Commons at 5:45 pm on 6th July 2020.

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Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee 5:45 pm, 6th July 2020

This is a very important Bill and I warmly welcome it. It deals with a number of what have hitherto been quite intractable legal and social issues. It is to the Government’s great credit, and to the credit of Members from all parties, that we have managed to find a practical way forward to resolve a number of those otherwise intractable issues.

Like my right hon. Friend Caroline Nokes, I particularly welcome the measures to bring procedures in the family courts into line with the protections that have existed for a long time in the criminal courts. That deficiency is a problem that has been recognised for a long time by practitioners and many of the judiciary in the family courts, so we are right that to plug that gap.

I hope the Minister will indicate that we will have regulations to set out the specified offences in relation to new clause 17 as soon as possible, so that there is clarity on that.

On new clause 18, proposed new section 85H is a particularly important provision. It specifies in subsection (7) that the qualified legal representative appointed by the court to carry out the cross-examination

“is not responsible to the party.”

That is necessary and deals with the difficult situation wherein the abusive party seeking to make the cross-examination raises issues that in the interests of justice need to be tested by the cross-examination of the alleged victim or victim, but that rightly should not be done by the abuser because they will continue the abuse. The court therefore appoints the advocate, and it is important that we stress that that advocate is, in effect, acting as amicus curiae—they are acting to assist the court—and has no responsibility to the abusive party.

I hope, too, that we will make it clear that the regulations that provide for the remuneration of those advocates are interpreted generously, because those who assist the court in such a way will be undertaking a particularly onerous and difficult task. They may well often be hampered by the hostility of the abusive party while acting in the interests of the justice whose case they have to test by cross-examination the case of the victim. That is a difficult position that we are, out of social necessity, putting that advocate in, and they deserve to be properly recompensed for the time that I suspect is likely to be required to do that job properly. Subject to those caveats, the provisions are very welcome.

The abolition of the consent defence in new clause 4 is particularly welcome. There is no doubt that the matter was settled in large measure by the case of Brown and the decision of the House of Lords—the Judicial Committee of the House of Lords, as it then was—but the law had been very difficult going back to the case of Donovan in 1934, which stood during the early days of my practice at the Bar. Even on the Brown decision there was dissent within the House of Lords. A number of judgments in the Brown case suggested that because of the awkward interaction of social policy and the attempt to fit the regime with that in the Offences Against the Person Act 1861, which hardly works for the type of pornographic videos and so on that we see nowadays and that propagated some of this behaviour, if it were to be changed further it needed the intervention of Parliament, not least because it also engaged issues such as the right to privacy under the European convention on human rights. It is right that we act in the way that we do to give legislative clarity, rather than placing the courts in the difficulty of interpreting such policy areas.

I will turn, if I may, to the point about acquired brain injury that Chris Bryant made. I am not sure that legislation is the way forward, but I know that the Justice Committee, in a number of our considerations, noted the fact that it is only in recent years that the extent of pre-acquired brain injury and the impact that it can have within the justice system—criminal, civil and family—has begun to be recognised. Further work and research in this field will be a very welcome thing in any event.

I listened with great care to the shadow Minister’s case for new clause 24 and the proceedings under the Children Act. I am very sympathetic, but my only qualm is in relation to section 11 of the Children and Families Act 2014, which set up the presumption of parental involvement and was regarded as progressive in its time. We do know, and she is absolutely right, that there have been the most egregious and terrible cases of abuse of that presumption, but if we are to change it, are we right to move from a presumption to an outright prohibition in a certain classification of case—where the issue of abuse arises, I accept that—or are we better to go to something like a rebuttable presumption against access in such supervision cases? That is the area in which we need to have a proper debate. That is why I welcome the panel’s recommendation of further consideration of how we get to where I think we all want to be, with the best, most legally watertight and most effective measure.

In relation to new clause 28, with every great respect to Dame Diana Johnson, I rather agree with the formulation of my right hon. Friend Caroline Nokes. The only other issue that I would raise from my experience as a criminal practitioner is that, on more than one occasion, I found instances where part of the abuse had been to force the victim to have an abortion. The irony is that reliance on a telephone call to procure the means of doing that does not give the safeguard of knowing who is standing next to the victim when she makes the telephone call. I have certainly seen instances of that in practice, as other criminal practitioners will have done. Although the intentions are good and well meant, I have a concern about moving down the route set out in new clause 28.

All in all, however, this is a good Bill. There are good, constructive amendments that I hope we will forward today. I, too, express the hope that the other place will pass the Bill swiftly, because it is a major piece of reform that has been embarked on here and, for once, the way that the House has worked together on this should bring credit to our system and our consensual approach, for which we should all be very grateful.