RESTRICTION ON PROSECUTIONS FOR OFFENCE OF KIDNAPPING (Hansard, 6 July 1984)

§ Mr. Timothy Wood (Stevenage)
I beg to move, That this House doth agree with the Lords in the said amendment.
I should like to pay tribute to the work and attention paid by the other place in its consideration of the Bill and the amendments which, in my view, definitely improve it.
I should like to exprss my thanks to Baroness Faithfull, who guided the Bill through its consideration in the other place. Her knowledge and experience were a major aid to its successful passage there. I should also like to acknowledge the attention given to the Bill by what I shall describe as the brightest stars in the legal firmament. Their assistance and advice have been remarkably helpful.
The amendment was moved in the other place by the noble and learned Lord Scarman. While the Bill has been under consideration an appeal has been heard relating to an offence of kidnapping by the father of a child. In a surprising judgment, the Court of Appeal ruled that no offence had been committed. I commented on that judgment on Third Reading. An appeal against the judgment was made to the House of Lords. I am delighted to say that their Lordships took a different view and decided that there is a common law offence and that a parent can kidnap his child.
The common law offence confirmed by the judgment has some elements in common with the statutory offence proposed in clause 1. It might be helpful if I expand on it, perhaps paraphrasing some of the points made by Lord Scarman in the other place.
Clause 1 makes it an offence if a person connected with a child under the age of 16—that includes a parent or guardian of the child—takes or sends the child out of the United Kingdom without the appropriate consent. That offence will attract a liability on conviction to imprisonment for a term not exceeding seven years. Since it is plainly a very sensitve area of the criminal law, and one that is to some extent covered by the family law and the ability of the family court, using the process of contempt of court, to enforce its own orders, one finds in clause 4(2) a restraint placed upon prosecution. That purpose is plain—to keep the criminal law out of these matters unless the criminality of the acts committed is such that others must resort to the criminal law.
Subsection (2) provides: No prosecution for an offence under subsection (1) above shall be instituted except by or with the consent of the Director of Public Prosecutions. The purpose of the Lords amendment — which is phrased in language very similar to clause 4(2)—is to 629 ensure that the common law offence of a parent kidnapping his own child shall not be the subject of prosecution except by or with the consent of the Director of Public Prosecutions. The object of the amendment is precisely the same as the object of clause 4(2) in respect of the statutory offence. It is to ensure that, save where it is absolutely necessary, the criminal law will not be used to enforce family obligations in respect of children.
The statutory offence in clause 1 of child abduction by a parent or other person connected with the child is limited to an abduction out of the United Kingdom. The common law offence of a parent kidnapping his own minor child can be committed even though the child is not taken out of the jurisdiction. That is substantially the difference between the common law offence and the proposed statutory offence. I believe that the two offences can coexist, provided that in both cases the same restraint is placed upon invoking the criminal law.
I should like to touch briefly on some comments made in a Times leader of 25 June and some similar points made by Lord Mishcon in the other place. While there is overlap between the common law offence and the statutory offences proposed in the Bill, I do not feel alarm or major concern on that matter. Whether one is dealing with Government or private Members' Bills, it is inevitable that outside events may influence the course of a Bill. Indeed, the reason for introducing legislation can often be because of the prevalence of such events, which require some further control by the law.
One can always quibble with the phraseology of legislation, but the test of new legislation should be that it, with existing law, provides a proper framework for the control and conduct of our lives. I believe that the common law offence, together with the statutory offences proposed in the Bill, will provide such a framework for the protection of children. The Lords amendment introduces a consistency of approach in the common law and the new statute, and I commend it to the House.

§ Mr. Robert Rhodes James (Cambridge)
I support my hon. Friend the Member for Stevenage (Mr. Wood) and the proposal. The amendment confirms the truth of Sir Alan Herbert's famous line: There's a lot to be said for the Lords". However, in view of recent events, my hon. Friends in the Whips Office might take a slightly different view.
The proposal emphasises the value of the time that we take in legislation, because the particular decision by the Court of Appeal, and the reaction of the House of Lords —occurring as it did during the passage of the Bill—has enabled us, through the intervention of Lord Scarman, and under the very good leadership of Lady Faithfull in another place, to improve this admirable Bill even further, and at least to provide what is so important—real consistency between the common and the criminal law.
Not as a lawyer but as one who has been involved in the process for some time, I welcome the Lords amendment not only because it strengthens the Bill but because it gives me an opportunity to congratulate my hon. Friend the Member for Stevenage, and also to thank those in another place—not least the Lord Chancellor—and Home Officers Ministers in this House who have been so helpful, thoughtful and constructive throughout the long story of the Bill.
Expressing as I do a kind of nunc dimittis feeling at the end of a long saga, and congratulating and thanking 630 everyone involved, I commend the Lords amendment particularly because it emphasises the importance of the wisdom of legal advice in another place in strengthening an already admirable Bill. It enables us to be sure that the purposes of Parliament, in protecting children and their parents from the outrage of child abduction and kidnapping, shall be fully confirmed in the final legislation.

§ Mr. Denis Howell (Birmingham, Small Heath)
I thank the promoter, the hon. Member for Stevenage (Mr. Wood), and the sponsors of the Bill for the amendments which have been tabled in another place and now accepted. I think that they meet opinion in all parts of the House and not least the opinion of the Opposition in Committee. We are glad that the amendments for which we pressed have been tabled.
I offer my congratulations to the hon. Gentleman on yet another successful private Member's Bill. We all know that a considerable amount of time, effort and ingenuity are required in order to get such a Bill through this place. Increasingly, I believe private Members' Bills to be of great importance to us.
I also thank the Ministers and the officers of the House for their co-operation in helping to get the legislation on the statute book.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. David Mellor)
The Bill is a major piece of legislation because it effects a considerable change for the better in a sensitive part of the criminal law, dealing with the rights of children to be able to live in peace with the parent who has the legal custody, without being forcibly removed by others, including the estranged parent, who may think that he is acting—as the phrase has it—as part of a "tug of love" but is acting in an extremely selfish and unprincipled way in relation to the child.
Up to now the law has been inhibited in deal trig effectively with the problem. The matter was considered by the Criminal Law Revision Committee. The committee's report has been taken up by my hon. Friend the Member for Stevenage (Mr. Wood). He has had the opportunity of considering further advice in the light of other developments in the law. He has introduced a Bill which is of the first importance, and it has been a great pleasure to us to assist him in bringing the Bill before the House and putting it on to the statute book.
The amendment before the House deals with the latest position on the common law on kidnapping, as held by the House of Lords in its very recent decision in the case of Daily.
The Bill can be placed on the statute book and interrelate with the common law and the previous law in a way that will enable a coherent body of law to be formulated. It is good to see my hon. Friend the Member for Cambridge (Mr. Rhodes James) here, because he played a pioneering role in bringing the unsatisfactory state of the law to the attention of the House. As in the case of the hon. Member for Gower (Mr. Wardell) and the Bill that we considered earlier, those who blaze the trail should derive the greatest satisfaction from subsequent events even though they may not have the final privilege of taking the Bill through. By his presence today, my hon. Friend the Member for Cambridge shows his continuing interest. I want to give him credit for the sustained interest that he has shown in the subject.
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With regard to my hon. Friend the Member for Stevenage, I do not apologise for repeating what I said on Third Reading. For a private Member to effect a major change in the law at any stage in his career is a considerable achievement. To do so in his first parliamentary Session is an outstanding achievement. My hon. Friend's constituents should be proud of him for what he has done, and he, too, should take pride in the fact that he has not just tinkered with an obscure corner of the law but has effected a major reform in a significant area of the criminal law. We all congratulate him.